[Congressional Record Volume 155, Number 122 (Thursday, August 6, 2009)]
[Senate]
[Pages S9027-S9029]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ROCKEFELLER (for himself and Mr. Franken):
  S. 1630. A bill to amend title XVIII of the Social Security Act of 
improve prescription drug coverage under Medicare part D and to amend 
the Public Health Service Act, the Employee Retirement Income Security 
Act of 1974, and the Internal Revenue Code of 1986 to improve 
prescription drug coverage under private health insurance, and for 
other purposes; to the Committee on Finance.
  Mr. ROCKEFELLER. Mr. President, I rise today with the newest esteemed 
Member of this Chamber, Senator Al Franken, to introduce the Affordable 
Access to Prescription Medications Act of 2009. I think this is the 
first bill we have introduced together, and I look forward to working 
with him again in the future. The legislation we are introducing today 
is a critically important bill--one that protects all Americans from 
high out-of-pocket spending on prescription drugs.
  With each passing year, Americans are paying more for their health 
care. Rising out-of-pocket costs are problematic for all patient 
populations, but are particularly burdensome for chronically ill and 
low-income individuals. The health insurance premiums and out-of-pocket 
costs for those below the federal poverty level are huge, with 28 
percent paying more than ten percent of their income. Overall, out-of-
pocket spending for individuals insured in the private insurance market 
is large and rapidly growing, with an increase of 45 percent between 
2001 and 2006.
  Prescription drugs represent the highest out-of-pocket cost for 
patients, comprising almost 31 percent of total out-of-pocket spending. 
The higher the out-of-pocket cost, the fewer individuals fill their 
needed medications. In fact, about 20 percent of individuals with out-
of-pocket spending greater than $250 a month do not fill their 
prescriptions and, thereby further exacerbate their conditions. Out-of-
pocket expenses are only getting worse, especially as prescription drug 
costs increase. A 2009 survey found that 53 percent of Americans have 
cut back on health care spending in the last twelve months, as the 
economy has worsened.
  In Medicare specifically, beneficiaries enrolled in a prescription 
drug plan in 2007 spent $38 a month, on average, for prescription drug 
co-payments. However, for those on high-cost medications, the cost 
burden can be enormous. Ninety percent of Medicare prescription drug 
plans and ten percent of private insurance plans include what is 
referred to as a specialty tier for medications costing over $600 a 
month. For these medications, enrollees can be asked to pay up to 33 
percent of the drug's cost in copayments.
  The high cost of treatment, particularly for life-saving and life-
sustaining treatment, poses an unreasonable and devastating barrier for 
sick patients that can force them to delay or entirely forgo necessary 
treatment. For one West Virginian, the chemotherapy drug he needs to 
treat his cancer is more than $13,500 for a 90-day supply. Under his 
Medicare prescription drug plan, he would have to pay $4000 of that 
cost. He didn't have $4000, so he chose not to be treated.
  Another West Virginian with multiple sclerosis contacted my office 
recently, and told me that the drug to treat her disease, which allows 
her to continue to work, costs $1900 a month. Her private insurer 
changed its policy from a $20 flat copayment for each prescription to 
25 percent co-insurance for each prescription, creating a financial 
burden for her of $475 per month. It should come as no surprise that 
she is struggling to pay this amount every month.
  These West Virginians are just a couple of examples of the millions 
of Americans who pay their health insurance premiums every month for 
coverage that is supposed to protect them from such enormous financial 
losses--but, sadly, it does not. Providing access to affordable 
prescription drugs for the treatment of chronic diseases is critical to 
improving our nation's health care system, which is why we are 
introducing this legislation today. The Affordable Access to 
Prescription Medications Act will go a long way to address the growing 
problem of catastrophic prescription drug expenses.
  First, this bill will establish a $200 cap on the amount a person 
could be charged for any one prescription, and a $500 cap on the total 
amount an individual could be charged for all prescriptions in any 
given month. These caps apply to all private and public insurance 
plans, including Medicare prescription drug plans.
  Second, this bill establishes an exceptions process for specialty 
drugs. Currently, the most expensive prescription drugs in the Medicare 
prescription drug program that are included on specialty tiers are not 
subject to beneficiary exemption requests, but for all other Medicare-
covered prescription drugs, a beneficiary can request an exemption to 
allow them access to needed drugs. High-cost, specialty drugs can be 
difficult to access and this bill will allow any beneficiary to request 
any needed prescription drug, including those in specialty tiers, 
through the exemption process.
  Third, this bill requires the Medicare Payment Advisory Commission, 
MedPAC, to conduct two studies regarding discrimination and cost-
sharing. The first study will review Medicare Part B, Part C, and Part 
D prescription drug polices to make sure they do not violate the non-
discrimination rules passed as part of the 2003 Medicare law. Under 
2003 law, plans are prohibited from discriminating against individuals 
based on medical condition. The second study will examine the impact of 
prescription drug cost-sharing on beneficiaries and their health, 
particularly for those who have already paid their way through the so-
called doughnut hole.
  If enacted, this legislation will protect Americans from high out-of-
pocket spending on prescription drugs. Based on studies that explain 
the problem, this bill could potentially lower copayments for 2.5 to 10 
percent of Americans with the highest prescription costs. It will 
protect all Americans from the risk of incurring extraordinarily high 
prescription drug costs.
  The national cap on out-of-pocket spending for prescription drugs 
will reduce costs for the most vulnerable populations by over 50 
percent. Given the rising costs of drugs, the prevalence of new drugs 
on the market, and the current economic recession, addressing the 
affordability of prescriptions drugs is vitally important.
  We must act now to make prescription drugs more affordable for all 
Americans, but especially those with chronic diseases. I urge my 
colleagues to join me in support of this important bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1630

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Affordable Access to 
     Prescription Medications Act of 2009''.

     SEC. 2. MEDICARE PART D PRESCRIPTION DRUG PLANS.

       (a) In General.--Section 1860D-2(b)(4) of the Social 
     Security Act (42 U.S.C. 1395w-102(b)(4)) is amended by adding 
     at the end the following new subparagraph:
       ``(E) Additional protections.--
       ``(i) In general.--Notwithstanding any other provision of 
     this part, effective for plan years beginning on or after 
     January 1, 2011, a PDP sponsor of a prescription drug plan 
     and an MA organization offering an MA-PD plan shall, with 
     respect to any co-payment or coinsurance requirements 
     applicable to covered part D drugs under the plan, ensure 
     that--

       ``(I) such required co-payment or coinsurance does not 
     exceed the base cost of the covered part D drug (as 
     determined by the Secretary);
       ``(II) such required co-payment or coinsurance does not 
     exceed $200 per month for any single covered part D drug (30-
     day supply); and
       ``(III) such required co-payment or coinsurance does not 
     exceed, in the aggregate for all covered part D drugs, $500 
     per month.

       ``(ii) Adjustments.--The amounts described in clauses (II) 
     and (III) of clause (i) shall be annually adjusted to reflect 
     the average of the percentage increase or decrease in the 
     Consumer Price Index for all urban consumers (U.S. city 
     average) and the percentage increase or decrease in the 
     medical care component of such Consumer Price Index during 
     the calendar year preceding the year for which the adjustment 
     is being made.''.
       (b) Expansion of Exceptions Process.--Effective for plan 
     years beginning on or after January 1, 2011, the Secretary 
     shall expand the formulary tier exception request process 
     under sections 423.560 through 423.636 of title 42, Code of 
     Federal Regulations (as in effect

[[Page S9028]]

     on the date of enactment of this Act), to allow individuals 
     enrolled in a prescription drug plan under part D of title 
     XVIII of the Social Security Act or an MA-PD plan under part 
     C of such title to request an exception for a specialty 
     prescription drug to a plan's designation of a covered part D 
     drug (as defined in section 1860D-2(e) of such Act (42 U.S.C. 
     1395w-102(e)) as a non-preferred prescription drug.
       (c) MedPAC Studies and Reports.--
       (1) Study and report on the medicare part d anti-
     discrimination clause.--
       (A) Study.--The Medicare Payment Advisory Commission shall 
     conduct a study on various aspects of the prescription drug 
     program under part D of title XVIII of the Social Security 
     Act and, to the greatest extent practicable, the interaction 
     of such program with Medicare beneficiary access to covered 
     drugs under part B of such title. Such study shall include 
     the following:
       (i) An analysis of--

       (I) the use of specialty tiers for covered part D drugs 
     under prescription drug plans and MA-PD plans; and
       (II) the effect of such specialty tiers on access to care 
     for Medicare beneficiaries.

       (ii) Consideration of the mechanisms described in 
     subparagraph (B) in the context of the provisions of section 
     1860D-11(e)(2)(D) of the Social Security Act (42 U.S.C. 
     1395w-111(e)(2)(D)) (in this paragraph referred to as the 
     ``Medicare part D anti-discrimination clause'').
       (B) Mechanisms described.--The following mechanisms are 
     described in this subparagraph:
       (i) The use of specialty tiers for covered part D drugs 
     under prescription drug plans and MA-PD plans.
       (ii) The application of segmented coinsurance or copayment 
     structures to covered part D drugs based on certain 
     categories of such drugs or diagnoses.
       (iii) The utilization of other differential benefit 
     structures based on certain conditions and Medicare 
     beneficiaries under prescription drug plans and MA-PD plans, 
     including an analysis of the interaction between such 
     utilization and the effects of such utilization with the 
     Medicare part D anti-discrimination clause.
       (C) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Medicare Payment Advisory 
     Commission shall submit to Congress a report containing the 
     results of the study conducted under subparagraph (A), 
     together with recommendations for such legislation and 
     administrative action as the Commission determines 
     appropriate.
       (D) Revised guidance.--Based on the results of the study 
     conducted under subparagraph (A), the Secretary shall issue 
     revised guidance regarding the use of mechanisms described in 
     subparagraph (B) to all PDP sponsors offering prescription 
     drug plans under part D of title XVIII of the Social Security 
     Act and Medicare Advantage organizations offering MA-PD plans 
     under part C of such title.
       (2) Study and report on cost-sharing for prescription drugs 
     under parts b and d.--
       (A) Study.--The Medicare Payment Advisory Commission shall 
     conduct a study on cost-sharing for prescription drugs under 
     parts B and D of title XVIII of the Social Security Act. Such 
     study shall include an analysis of the impact of eliminating 
     cost-sharing for covered part D drugs for Medicare 
     beneficiaries who--
       (i) incur annual out-of-pocket cost-sharing after the 
     initial coverage limit under section 1860D-2(b)(3) of such 
     Act (42 U.S.C. 1395w-102) that exceeds 5 percent of the 
     income of the beneficiary (as determined under section 1860D-
     14(a)(3)(C) of such Act (42 U.S.C. 1395w-114(a)(3)(C)); and
       (ii) do not otherwise qualify for an income-related subsidy 
     under section 1860D-14(a) of such Act (42 U.S.C. 1395w-
     114(a)) or other extra help or cost-sharing relief.
       (B) Report.--Not later than 6 months after the date of 
     enactment of this Act, the Medicare Payment Advisory 
     Commission shall submit to Congress a report containing the 
     results of the study conducted under subparagraph (A), 
     together with recommendations for such legislation and 
     administrative action as the Commission determines 
     appropriate.
       (3) Definitions.--In this section:
       (A) Covered part d drug.--The term ``covered part D drug'' 
     has the meaning given such term in section 1860D-2(e) of the 
     Social Security Act (42 U.S.C. 1395w-102(e)).
       (B) MA-PD plan.--The term ``MA-PD'' plan has the meaning 
     given such term in paragraph (9) of section 1860D-41(a) of 
     such Act (42 U.S.C. 1395w-151(a)).
       (C) Medicare advantage organization.--The term ``Medicare 
     Advantage organization'' has the meaning given such term in 
     section 1859(a)(1) of such Act (42 U.S.C. 1395w-28(a)(1)).
       (D) PDP sponsor.--The term ``PDP sponsor'' has the meaning 
     given such term in paragraph (13) of such section 1860D-
     41(a).
       (E) Prescription drug plan.--The term ``prescription drug 
     plan'' has the meaning given such term in paragraph (14) of 
     such section.

     SEC. 3. PRIVATE HEALTH INSURANCE.

       (a) Group Health Plans.--
       (1) Public health service act amendments.--
       (A) In general.--Subpart 2 of part A of title XXVII of the 
     Public Health Service Act is amended by adding at the end the 
     following new section:

     ``SEC. 2708. PROVISIONS RELATING TO PRESCRIPTION DRUGS.

       ``(a) In General.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for prescription drugs shall, with 
     respect to any co-payment or coinsurance requirements 
     applicable to such drug coverage, ensure that--
       ``(1) such required co-payment or coinsurance does not 
     exceed the base cost of the prescription drug (as determined 
     by the Secretary);
       ``(2) such required co-payment or coinsurance does not 
     exceed $200 per month for any single prescription drug (30-
     day supply); and
       ``(3) such required co-payment or coinsurance does not 
     exceed, in the aggregate for all prescription drugs, $500 per 
     month.
       ``(b) Adjustments.--The amounts described in paragraphs (2) 
     and (3) of subsection (a) shall be annually adjusted to 
     reflect the average of the percentage increase or decrease in 
     the Consumer Price Index for all urban consumers (U.S. city 
     average) and the percentage increase or decrease in the 
     medical care component of such Consumer Price Index during 
     the calendar year preceding the year for which the adjustment 
     is being made.
       ``(c) Notice.--A group health plan under this part shall 
     comply with the notice requirement under section 714(b) of 
     the Employee Retirement Income Security Act of 1974 with 
     respect to the requirements of this section as if such 
     section applied to such plan.''.
       (B) Conforming amendment.--Section 2723(c) of such Act (42 
     U.S.C. 300gg-23(c)) is amended by striking ``section 2704'' 
     and inserting ``sections 2704 and 2708''.
       (2) ERISA amendments.--
       (A) In general.--Subpart B of part 7 of subtitle B of title 
     I of the Employee Retirement Income Security Act of 1974 is 
     amended by adding at the end the following new section:

     ``SEC. 715. PROVISIONS RELATING TO PRESCRIPTION DRUGS.

       ``(a) In General.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for prescription drugs shall, with 
     respect to any co-payment or coinsurance requirements 
     applicable to such drug coverage, ensure that--
       ``(1) such required co-payment or coinsurance does not 
     exceed the base cost of the prescription drug (as determined 
     by the Secretary of Health and Human Services);
       ``(2) such required co-payment or coinsurance does not 
     exceed $200 per month for any single prescription drug (30-
     day supply); and
       ``(3) such required co-payment or coinsurance does not 
     exceed, in the aggregate for all prescription drugs, $500 per 
     month.
       ``(b) Adjustments.--The amounts described in paragraphs (2) 
     and (3) of subsection (a) shall be annually adjusted to 
     reflect the average of the percentage increase or decrease in 
     the Consumer Price Index for all urban consumers (U.S. city 
     average) and the percentage increase or decrease in the 
     medical care component of such Consumer Price Index during 
     the calendar year preceding the year for which the adjustment 
     is being made.
       ``(c) Notice.--A group health plan under this part shall 
     comply with the notice requirement under section 714(b) with 
     respect to the requirements of this section as if such 
     section applied to such plan.''.
       (B) Table of contents.--The table of contents in section 1 
     of such Act is amended by inserting after the item relating 
     to section 714 the following new item:

``Sec. 715. Provisions relating to prescription drugs.''.
       (3) Internal revenue code amendments.--
       (A) In general.--Subchapter B of chapter 100 of the 
     Internal Revenue Code of 1986 is amended by adding at the end 
     the following new section:

     ``SEC. 9813. PROVISIONS RELATING TO PRESCRIPTION DRUGS.

       ``(a) In General.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for prescription drugs shall, with 
     respect to any co-payment or coinsurance requirements 
     applicable to such drug coverage, ensure that--
       ``(1) such required co-payment or coinsurance does not 
     exceed the base cost of the prescription drug (as determined 
     by the Secretary of Health and Human Services);
       ``(2) such required co-payment or coinsurance does not 
     exceed $200 per month for any single prescription drug (30-
     day supply); and
       ``(3) such required co-payment or coinsurance does not 
     exceed, in the aggregate for all prescription drugs, $500 per 
     month.
       ``(b) Adjustments.--The amounts described in paragraphs (2) 
     and (3) of subsection (a) shall be annually adjusted to 
     reflect the average of the percentage increase or decrease in 
     the Consumer Price Index for all urban consumers (U.S. city 
     average) and the percentage increase or decrease in the 
     medical care component of such Consumer Price Index during 
     the calendar year preceding the year for which the adjustment 
     is being made.
       ``(c) Notice.--A group health plan under this part shall 
     comply with the notice requirement under section 714(b) of 
     the Employee Retirement Income Security Act of 1974 with 
     respect to the requirements of this section as if such 
     section applied to such plan.''.
       (B) Clerical amendment.--The table of sections for such 
     subchapter is amended by adding at the end the following new 
     item:


[[Page S9029]]


``Sec. 9813. Provisions relating to prescription drugs.''.
       (b) Individual Health Insurance.--
       (1) In general.--Part B of title XXVII of the Public Health 
     Service Act is amended by inserting after section 2752 the 
     following new section:

     ``SEC. 2754. PROVISIONS RELATING TO PRESCRIPTION DRUGS.

       ``The provisions of section 2708 shall apply to health 
     insurance coverage offered by a health insurance issuer in 
     the individual market in the same manner as they apply to 
     health insurance coverage offered by a health insurance 
     issuer in connection with a group health plan in the small or 
     large group market.''.
       (2) Conforming amendment.--Section 2762(b)(2) of such Act 
     (42 U.S.C. 300gg-62(b)(2)) is amended by striking ``section 
     2751'' and inserting ``sections 2751 and 2754''.
       (c) Application to FEHBP.--The amendments made by this 
     section shall apply to the administration of chapter 89 of 
     title 5, United States Code.
                                 ______