Department of Health and Human Services
Centers for Medicare and Medicaid Services
7500 Security Boulevard
Baltimore, MD 21244-1850
Submitted Via Email: LEP@cms.hhs.gov
RE: Ch. 4 of the Medicare Prescription Drug Benefit Manual
To whom it may concern:
The undersigned organizations appreciate the opportunity to comment on the draft Ch. 4 of the Medicare Prescription Drug Benefit Manual.
We are pleased that CMS reorganized and reissued Ch. 4. The chapter is easier to navigate and much of the language used is insightful and more consumer friendly. However, there are still a number of concerns we would like communicate.
Please see our detailed comments below. Again, we appreciate the opportunity to comment on the draft Ch. 4 of the Medicare Prescription Drug Benefit Manual. We look forward to working with you on this and other matters in the future. Should you have any questions or require additional information please contact Ilene Stein of the Medicare Rights Center at 202-637-0961 ext. 5 firstname.lastname@example.org.
California Health Advocates
Center for Medicare Advocacy
Health Assistance Partnership
Medicare Rights Center
National Senior Citizens Law Center
Comments: Chapter 4 of the Medicare Prescription Drug Benefit Manual
10 – Process for Marking a Creditable Coverage Determination, p. 5-10
Description of the Issue: This section discusses the process for making creditable coverage determinations and when it is or is not necessary for plans to make these determinations.
Comment: We commend CMS’s decision to prevent plans from making creditable coverage determinations in certain situations. We agree that plans should not need to make creditable coverage determinations if a beneficiary switches from another Part D plan. In addition, preventing creditable coverage determinations for deceased enrollees is helpful because gaining access to document post-mortem is very difficult. See 10.3.2, p. 9. Furthermore, we commend CMS for including language that explicitly instructs plans that they should not make creditable coverage determinations if a low income individual loses LIS if they remain in the Part D plan. See 10.3.3, p. 9
30.4 – Reporting Adjustments to Creditable Coverage Period Determinations Previously Reported to CMS, p. 23
Description of Issue: As a practical matter, the “Mr. Johnson” example at the top of the page is difficult to follow.
Comment: If a person with LIS disenrolls in a plan while they are still LIS eligible, unless they are found ineligible at the beginning of the AEP, they will be automatically enrolled into a new plan. In addition, there are very few circumstances, like divorce or change in martial status, in which an individual can lose LIS mid-year. While the example is feasible, if you assume certain facts, it might be beneficial to clarify the example so it correctly reflects Medicare rules. For example, “Assume Mr. Johnson divorced and was no longer eligible for LIS. After losing LIS, Mr. Johnson disenrolled from plan RST.”
30.4 – Reporting Adjustments to Creditable Coverage Period Determinations Previously Reported to CMS, p. 35-36; 60.3 – Refunding the LEP, p. 26
Description of Issue: These sections describe plan refunds of previously collected LEPs to beneficiaries, if the beneficiary is found not to owe an LEP or owe a smaller LEP than the plan calculated.
Comment: The guidance does not provide timeframes in which a plan must reimburse an enrollee due to a successful reconsideration of an LEP assessment. While plans are required to administer reimbursements automatically, plans do not always do so. There should be greater CMS oversight of the reimbursement and adjustment process. In addition CMS should develop a process for enrollees to request reimbursement if it does not happen automatically.
40.1 – Calculating the LEP, p.28
Description of Issue: The last paragraph of the section discusses how a plan should provide general information to potential enrollees about LEPs. There is a conflict of interest in plans providing this type of information.
Comment: Plans should tell prospective enrollees to contact 1-800-Medicare with questions about LEPs to assure that no plans provide misleading information that could encourage a perspective enrollee to enroll. In the very least, to prevent abuses, CMS should develop a script that is to be used by plans when answering questions about LEPs and create a flyer that can be sent by plans to beneficiaries that defines and LEP and explains the related terms like creditable coverage.
60 – Billing, Collecting, and Refunding the LEP, p. 34-35
Description of the Issue: There is no recourse for a beneficiary who did not enroll in Part D because they reasonably relied on information provided to them by a government agent, employer, or plan.
Comment: There should be some form of equitable relief available to beneficiaries similar to the remedy available under Part B. For example, if a beneficiary has a gap in creditable coverage because he or she relies on information provided to them by a government agent, employer, or plan, they should be able to appeal an LEP if applied.
60.1 – Billing and Collecting the LEP from Members in Direct Bill Status. P. 34
Description of the Issue: This section describes payment options for assessments of retrocactively owed LEPs.
Comment: Plans should be required to allow enrollees to pay retroactively owed LEPs on an installment basis. This would be consistent with other back premium and penalty payment options available under Medicare Part B. In addition, we have concerns about allowing for separate billing cycles of LEPs and Part D premiums, unless a beneficiary explicitly chooses otherwise, the default should always be that LEPs are collected monthly at the same time as the Part D premium.
Exhibit 1D – Declaration of Prior Prescription Drug Coverage, p. 49
Description of the Issue: The form defines “creditable” to mean “your prior coverage met Medicare’s minimum standards.” This definition is unclear.
Comment: While the previous page discusses Medicare minimum standards, the actual form does not. The definition of creditable coverage at the bottom of the page should include a reference to the previous page of the notice, direct the beneficiary on how to find this information, or include the definition of Medicare’s minimum standards.
General Comments – Appendices
Description of Issue: The draft guidance includes no requirement for translating the consumer correspondence and forms in the appendices into other languages and does not even require tag lines offering oral translations.
Comment: Because declarations and notices related to creditable coverage are vital documents affecting a lifelong imposition of penalties, they are the kind of documents for which Title VI protections should apply. We urge CMS to either translate the model documents into multiple languages or require plans to do so. If these steps cannot be undertaken immediately, then CMS should at least add tag lines, in English and in other key languages, telling enrollees that if they need help in other languages, they can call their plan and interpreters will assist them.
Description of Issue: Creditable coverage and LEP calculations are technical issues. It is important that notices are clear, terms of art are defined in consumer friendly ways, include as much information as possible, and are consistent through out the notification process as to avoid confusion.
Comment: While we applaud CMS effort to make notices consumer friendly and understandable, please be sure that all notices regarding LEPs are consistent and use similar language. Some notices include enrollee specific information including the number of months and dates during which the enrollee did not have creditable coverage. Other notices explain that enrollees are subject to an LEP if they did not have creditable coverage for 63 consecutive days or more. An explanation of the 63 day rule should be included in every notice, and when enrollee specific information is available, this information should be included as well.