Submitted jointly by California Health Advocates, National Health Law Program, National Senior Citizens Law Center, Center for Medicare Advocacy, Center for Health Care Rights, Neighborhood Legal Services – Health Consumer Center of Los Angeles, World Institute on Disability, Western Center on Law and Poverty, Project Inform, and California Advocates for Nursing Home Reform
The above-referenced organizations, working on behalf of Medicare beneficiaries, thank CMS for the opportunity to comment on the draft changes to this guidance. Providing an opportunity to beneficiary advocacy groups gives greater assurance that CMS policies will better meet the needs of beneficiaries. However, we are disappointed that CMS has once again issued such important information as sub-regulatory guidance, rather than as regulations. We would urge CMS to incorporate this and other aspects of the Medicare Prescription Drug Program into regulations to better protect beneficiaries and provide for better accountability for CMS and CMS contractors in the program.
I. General Comments
When CMS issued the first draft of this PDP Guidance in 2005, several consumer advocacy agencies submitted comments, including Joint Comments on CMS’ Draft PDP Guidance submitted by the Medicare Rights Center and California Health Advocates (8/1/05) (hereinafter referred to as Joint Comments). Unfortunately, many issues that pose problems for beneficiaries navigating Medicare Part D that were highlighted by these and other comments still remain in the current draft. Instead of restating those problems in full, we incorporate here, by reference, these Joint Comments, attached separately.
The PDP Guidance (along with corresponding regulations) still lacks adequate due process protections to address Part D enrollment and involuntary disenrollment issues. Unlike problems that arise with eligibility and enrollment into Medicare Parts A and B, Part D enrollment problems lack a formal process of problem resolution. To ensure adequate access to the Part D benefit, CMS should institute a formalized appeals process for enrollment and disenrollment issues with hearing rights and external review.
Special Enrollment Periods (SEPs)
A goal of the Medicare Modernization Act is to extend Part D coverage to as many eligible individuals as possible. Accordingly, the statute gives CMS broad discretion in establishing Special Enrollment Periods (SEPs). CMS should, then, structure SEPs to maximize the opportunities for individuals to get or retain Part D coverage. While we appreciate the additional SEPs CMS has articulated in this draft guidance, we believe that current beneficiary protections are still inadequate. For example, although CMS allows for a Part D SEP if an individual’s enrollment (or non-enrollment) is due to a federal employee’s error, misrepresentation or inaction, there is no corresponding SEP for similar behavior by employees of a Part D plan. Instead, only limited relief is available if a Part D plan does not adequately process an application or engages in gross marketing abuses – not if bad information is given.
Further, we believe that too much discretion is given to the Part D plans to determine whether an SEP applies in a particular instance. What happens if the plan decides someone missed the time frame for the SEP because the plan doesn’t want to enroll a costly person?
In addition, as discussed in the Joint Comments, SEP enrollments should be accompanied by a waiver of any late enrollment premium penalty, as is available through Part B SEPs.
Limited Retroactive Coverage
Except for limited situations applicable to dual eligibles who are auto-enrolled into a Part D plan (see, e.g. Section 50.3), CMS does not allow Part D coverage to be retroactive. As a result, Medicare beneficiaries experiencing Part D enrollment problems are not treated equitably with those experiencing Part B enrollment problems. Suppose an individual is prejudiced by an error, act or omission by a federal employee and as a result misses a Part B enrollment period; through the Social Security Administration, such a person is able to obtain equitable relief by means of an SEP to retroactively enroll in Part B, which would allow him/her to retroactively bill Medicare for any medical services the individual incurred that could have been covered under Part B during the relevant time period. Alternatively, suppose an individual is prejudiced by error, act or omission of a federal employee and as a result misses a Part D enrollment period; if this person is successful in obtaining an SEP for this reason, s/he will not be able to retroactively enroll in a Part D plan to cover drug expenses incurred from the time the individual was first eligible (but misinformed) until the time the SEP enrollment is made, thus leaving the aggrieved beneficiary with out-of-pocket prescription drug expenses.
As the roll-out of Medicare Part D has highlighted, Part D plans have been broadly deficient in their ability to accommodate limited English proficient (LEP) Medicare beneficiaries. In addition to strengthening plan requirements via CMS’ Marketing Guidelines, CMS should review all of the Part D model notices to beneficiaries for literacy levels appropriate to the beneficiary population. After CMS has redrafted the sample notices to reflect appropriate literacy levels, CMS should translate their model Part D plan notices into multiple languages – at least the 14 languages in which Social Security offers instructions for the low-income subsidy – and require plans to make them available to their enrollees.
II. Comments on Specific Sections
Section 10.3 – Completion of Enrollment Request
PDPs should be required to provide enrollment assistance in a language that the beneficiary understands. CMS should require PDPs to provide enrollment materials in languages other than English and provide oral assistance in filling out forms in languages other than English. Enrollment forms should include a question asking for the applicant’s preferred language. This information should be included in the PDP’s data systems in order that subsequent communications with the applicant/beneficiary may be in the appropriate language.
Section 20 – Enrollment and Disenrollment Periods and Effective Dates
We urge CMS to clarify whether first disenrolling from one plan before enrolling in a second plan constitutes an “election” during a relevant enrollment period. Many beneficiaries — and those that assist them – have been confused about the rights to switch plans. If indeed a disenrollment prior to signing up for a second plan uses up an election right, then this must be made clear throughout this Guidance (including the model disenrollment forms/notices in Exhibits 8-10a, which do not warn the beneficiary that enrollment into another plan has to take place simultaneously/in the same month). We believe that maximum flexibility should be given to beneficiaries who disenroll from one plan and later enroll in another one.
In addition, in order to demonstrate that an individual has the right to one election per enrollment period, this Guidance should provide examples of overlapping enrollment periods and corresponding election options – e.g. if an AEP and SEP overlap, articulate that an individual has an election for each period.
Section 20.1 – Initial Enrollment Period (IEP)
CMS states: “Individuals first eligible for Medicare based on disability who do not have a lapse in Medicare entitlement prior to their turning 65 do not have an additional Initial Enrollment Period for Part D.” This denial of a new IEP for under-65 Medicare beneficiaries who are aging into Medicare conflicts with the rights these same beneficiaries have under Medicare Part B. Similar to Medicare Part B, individuals in this scenario should be entitled to a new IEP, allowing them to enroll into or switch Part D plans, in addition to a waiver of any Part D late enrollment premium penalty they might have accrued prior to turning 65 (see comparable Part B premium penalty waiver rules under Social Security’s POMS sec. HI 01001.010 A.3.).
Example 3 – IEP Exception for Part D – Out of U.S. – How will Mr. Duke be informed that he has an IEP? If he chooses an effective date at the end of the period, will the late enrollment penalty apply (since 63 days will have passed prior to his effective enrollment into a Part D plan)? Shouldn’t the SEP in this example last through September 2007 (the full 7 month period?)
Section 20.3 – Special Enrollment Periods (SEPs)
In general, we are concerned about the lack of notice beneficiaries get when they may be entitled to a Special Enrollment Period (SEP). Notice particularly tailored to the events triggering the SEP is crucial, since the SEP time periods vary significantly (e.g. some must be exercised within one month of a triggering event, others allow up to 90 days).
For SEPs allowing time periods of greater than 63 days to choose and/or enroll in a new plan, this Guidance should also clarify that late enrollment premium penalties do not accrue.
We commend CMS for requiring Part D sponsors to accept verbal confirmation from prospective enrollee re: conditions making him/her eligible for SEP, and also the clarification that if contact with such a beneficiary is made orally, the sponsor must document the contact in its records. However, if it is the sponsor’s fault that this information is not collected before the expiration of the SEP (for example, the PDP fails to follow up with the beneficiary), the beneficiary should be entitled to recourse (e.g. an extended SEP).
Examples of questions to ask enrollees to establish SEP rights:
- EGHP – language here should say “lost or dropped” – “lost” implies involuntary loss of coverage (assuming that the EGHP SEP in 22.214.171.124 is interpreted to allow an SEP when an individual voluntarily drops EGHP coverage – see comment below);
- Full or partial duals – if a state has a different name for its Medicaid program (e.g. Medi-Cal in California, TennCare in Tennessee), sponsors offering coverage in that state should use the state-specific name (often beneficiaries in these states are unfamiliar with the term “Medicaid”); also include reference to the Medicare Savings Programs (QMB, SLMB, QI).
Section 20.3.1 – SEPs for Changes in Residence
Under CMS rules, if an individual moves out of a plan’s region and notifies the plan, the SEP extends no later than two months after the move. Thus if an individual notifies the plan in the third month, the individual has no SEP and has lost coverage until the next AEP. A late enrollment penalty also could be imposed. However, if the individual says nothing and the plan learns of the move from the post office or through data exchange and cannot locate the individual after 6 months, then the individual has a two month SEP from the sixth to the eighth month. This means that an individual who is a little late in reporting a move can be worse off than an individual who does nothing at all.
We suggest it would be preferable to change the two month period to begin upon the individual’s notification to the plan of the move. Often moves of elderly individuals are occasioned by changes in health or mental status and handling paperwork may be overlooked by the individual and/or caregivers while more urgent issues are addressed. Additional flexibility to allow these individuals to maintain coverage or at least limit the coverage gap would seem preferable.
In addition, we urge CMS to broaden the scope of this SEP. Under these rules, individuals on original Medicare without a PDP or MA-only plans may not join a PDP or an MA-PD based on a residence change. It is possible that such individuals did not have Part D coverage because the choices available in their prior residence did not meet their needs but the choices in their new area of residence would be appropriate to them. While this Part D SEP does allow an individual enrolled in an MA-only plan moving to a new area the option to elect an MA-PD plan, we believe that this SEP should be broader – it would be more equitable to also allow individuals in original Medicare only the option to enroll into Part D plans.
Section 20.3.2 – SEP for Dual Eligibles
We appreciate CMS exercising their discretion to grant an ongoing SEP right to partial dual-eligibles – Medicare Savings Program enrollees – and further articulating that right in this Guidance.
Section 20.3.3 – SEPs for Contract Violations
We urge CMS to broaden this SEP right triggered by plan contract violations to include more instances of plan misconduct and/or failures. For example, an SEP should be allowed when the PDP:
- Fails to correct and promptly reimburse enrollees for premium and cost-sharing errors;
- Fails to accurately reflect a beneficiary’s enrollment in the low-income subsidy in a timely manner;
- Fails to provide timely notices or process exceptions or appeals within required timeframes;
- Otherwise fails to follow federal regulations or CMS guidance documents.
In addition, the last paragraph in this section discusses the effective date of enrollment in a new plan following retroactive disenrollment from the plan that violated its contract. If CMS grants a retroactive disenrollment following a finding of a plan contract violation, we believe that – absent retroactive enrollment in the new plan – the violating plan should still be responsible for the individual’s Part D expenses until CMS renders its findings and the individual exercises his/her SEP right in the same month (meaning that enrollment in a new plan will be effective the first of the next month). Otherwise, if an individual is retroactively disenrolled from the violating plan, will s/he be saddled with all Part D expenses from the date of retroactive disenrollment until the effective enrollment in their new plan? (See note re: “Limited Retroactive Coverage” in General Comments above.)
20.3.4 – SEPs for Non-Renewals or Terminations
We believe that all of the SEP time frames in this section should be uniform, and should extend for 90 days following the triggering event. When a Part D plan does not renew its contract for the following plan year, enrollees are entitled to a 90 day notice period. This time period also partially coincides with and/or is consecutive to the AEP and MA-OEP, giving a beneficiary more options to change plans. The SEP associated with a PDP sponsor’s termination of its contract (or modification by mutual consent), however, ends 1 month after the effective date of termination, and the SEP following CMS’ termination of a PDP’s contract ends 2 month after the effective date of termination. Since the latter 2 scenarios would not necessarily occur near or concurrent with another enrollment period (meaning an individual’s option might be more limited), enrollees should be given maximum flexibility to exercise their rights to switch plans. SEPs for contract termination – whether by a PDP or CMS – should extend for at least 90 days after plan termination, without any incursion of premium penalties.
20.3.7 – SEP for Error by a Federal Employee
As articulated in the 2005 Joint Comments document (sent along with these comments), we believe that an SEP right should apply when there is error, action or inaction on the part of a Part D employee. Medicare beneficiaries are protected when they are prejudiced by error on the part of Social Security when enrolling in Parts A and B of Medicare. Since Part D is only available through private plans, it is those plans that process (and often answer questions about) Part D enrollment. Contrary to assertions made by CMS, these guidelines do not provide comparable protections when plans perform poorly. For example, if a Part D plan provides erroneous advice about eligibility and/or enrollment in Part D, and a Medicare beneficiary acts on that advice, there is no recourse. While a retroactive enrollment (sec. 50.3) can be awarded as a result of PDP sponsor error or systems problems, the PDP in question must proactively request such relief for the beneficiary from CMS; this is ripe for abuse if a PDP wishes to keep a potentially costly applicant out of the plan. Conversely, if bad information is provided by SSA, an individual can request equitable relief in order to get an SEP to enroll in Part B.
Section 126.96.36.199 – SEP EGHP
We appreciate the removal of the confusing language here defining “EGHP” that appeared in earlier versions. However, CMS should clarify that this SEP is triggered by voluntary loss of employer based coverage, regardless of whether the coverage is primary or secondary to Medicare (also, this section should be cross-referenced with section 20.3.5 which discusses involuntary loss of creditable coverage). We note that while this SEP allows an individual to choose the effective date of enrollment up to 3 months after the month in which the request is made, Medicare rules allow an individual who declines to sign up for Part B due to employer coverage based on current, active employment to later have an 8 month SEP right to enroll in Part B without premium penalty, regardless of whether the employer coverage is given up voluntarily or involuntarily.
Section 188.8.131.52 – SEPs for Institutionalized Individuals
This section should clarify that an individual in an institution has a continuous SEP right.
The new language added to this section re: the definition of “institution” needs to be clarified – with respect to zero copays under the LIS, does it refer to the type of facilities and/or the time a dual eligible spends in a facility before zero copays are triggered?
Section 184.108.40.206 – SEP for Individuals Who Newly Qualify for LIS
This section should clarify whether CMS intends to exercise its discretion to continue to waive premium penalties past 2006 for individuals who enroll in the LIS after their IEP has expired. We, of course, urge CMS to do so.
Section 220.127.116.11 – MA Coordinating SEPs
- Last sentence at top of page 21, replace “SEP-65” with “MA-SEP-65” for clarity.
- SEP re: Medigaps and MA trial period – the SEP “must be used not later than 1 month following the effective date of disenrollment from the MA-PD plan.” The same individual, however, has 63 days to get a Medigap policy through Medigap guarantee issue rights, but only 30 days to replace the drug benefit (MA-PD to PDP). These overlapping periods to enroll in a Medigap and a Part D plan should be uniform, and should last at least as long as the 63 days granted under Medigap guarantee issue rights.
Section 18.104.22.168 – SEP for Individuals (following) Permanent Move/U.S./Incarceration
We appreciate the clarification of a new SEP right for individuals leaving incarceration and those returning from living abroad who have already had an IEP. CMS should clarify that these individuals would not be subject to premium penalties for the period of time they could not enroll in Part D.
Section 30.1 – Format of Enrollment Requests
Similar to comments made above under “Language Access” and in Section 10.3, enrollment requests should be available in multiple languages. Each PDP should provide written enrollment materials, website information and materials, and appropriate enrollment language assistance to beneficiaries in languages other than English.
Section 30.1.2 – Enrollment via the Internet
CMS should require plans to provide online applications and accompanying materials in compliance with recognized guidelines for internet materials for people with disabilities and in languages other than English which are commonly found in the PDP’s service area.
We appreciate the addition of the requirement that plans include a tracking mechanism to provide an individual enrolling in the plan online evidence that the internet enrollment request was received.
Section 30.1.4.B. – Effective Date of Auto-Enrollment for Duals
We are very concerned about the current delays of auto-enrollment into Part D plans of individuals who are becoming newly dually eligible. It is clear in both theory and in practice that new dual eligibles often are not auto-assigned in a timely manner and not notified about the auto-assignment the month of their dual eligibility. This can create gaps in coverage or access barriers for many dual eligibles. We also understand that some states may be terminating Medicaid prescription drug coverage before Part D coverage is effective or before beneficiaries get any information about Medicare or their auto-assignment. Some of these terminations may even be consistent with CMS’ recent articulated policy about advance notice to this population. This causes us grave concern. It is critical that this vulnerable population have seamless access to their medically necessary prescriptions and CMS systems must be better adapted to achieve this goal.
The “back-up” Wellpoint/Point of Sale (POS) system is currently inadequate as a means to ensure that dual eligibles who are unassigned to a plan (or who are assigned, but not acknowledged by a plan) are able to access adequate supplies of drugs. As a short term solution, we urge the expansion of the POS program to become a true and reliable payer of last resort when dual eligibles cannot obtain needed prescriptions or are charged inappropriate cost-sharing due to systemic problems.
In addition, CMS rules state that when a dual eligible enrolls in a plan prior to the effective date of auto-enrollment, leading to a coverage gap, “PDPs may make the effective date of such a voluntary enrollment be retroactive to the first day of the previous un-covered month(s).” Only when a dual eligible is aware of the coverage gap and specifically requests the PDP to cover the un-covered months, however, is the plan required to forward the request to CMS. We urge CMS to require plans to provide retroactive coverage when there is a coverage gap for dual eligibles.
Section 30.1.5.B. – Facilitated Enrollment/Effective Date
While this section allows a facilitated-enrolled individual the option of moving his/her enrollment date forward, the relevant model letter at Exhibit 25 does not inform an individual about this option.
Section 30.2.2 – When the Enrollment Request is Incomplete
In this section, CMS changed the time limit for a Part D plan to obtain missing information needed to complete an enrollment request from 45 days to 15 days before the plan can deny enrollment. This change is to the detriment of beneficiaries, who should be accorded maximum flexibility to gather and forward required information/ documentation. We request that CMS consider lengthening the time period.
Section 40 – Disenrollment Procedures
We continue to have serious concerns about these current guidelines allowing plans to involuntarily disenroll individuals. CMS has given Part D plans great discretion in the decision to and manner in which they can terminate coverage against someone’s will. Serious due process concerns are raised by each of these methods of involuntary disenrollment since in none of these situations does a beneficiary have a right to be heard through a pre-termination hearing process (other than an internal plan grievance process not subject to CMS or other external review). We refer CMS to the accompanying Joint Comments which go into more detail about our concerns both generally and specifically.
Section 40.1 – Voluntary Disenrollment
This section on voluntary disenrollment does not list enrolling in another Part D plan (thereby disenrolling a beneficiary from his/her current plan) as a method of voluntary disenrollment.
Section 40.2.1 – Individuals Who Change Residence
Re: Researching and Acting on a Change of Address (p. 60) – paragraph 2: the letter to the beneficiary should explain the time limits of the SEP (e.g. 2 months after the move). In addition, with respect to auto and facilitated beneficiaries who have moved but are enrolled in a plan by the same sponsor in their new region: the associated model notice in Exhibit 27 should tell duals that they have an ongoing SEP (unlimited opportunities to change) but the letter to facilitated enrolled individuals should be different and tell those individuals that they have a 2 month SEP. In addition, instead of suggesting that the individual “call the plan,” this letter should have language similar to that in Exhibit 28 urging the recipient to call 1-800-MEDICARE or visit the Medicare website to learn of other plans in their area.
Re: Special Procedures for Auto and Facilitated Enrollees Whose Address Is Outside the PDP Region – if a sponsor confirms the move is permanent and it does not have a PDP in the new region that offers a basic benefit package with a premium at or below the low-income premium subsidy amount for that region; in addition to informing the beneficiary that s/he must enroll in a PDP that serves the area where s/he now resides, we note that the PDP should also be required to inform CMS about the change in address and that the auto- or facilitated enrollment failed, so that CMS can re-auto-enroll or facilitate-enroll the individual if s/he does not select his/her own plan in the relevant region.
Re: Notice Requirements (p.62); as discussed above, notices to beneficiaries should reflect relevant SEP time limits (e.g. ongoing for duals, 2 months from move for facilitated enrolled).
40.3.1 – Failure to Pay Premiums
In addition to serious concerns about the lack of adequate beneficiary protections (including allowing a grace period of as little as one month) discussed in the Joint Comments, we note that the Example on page 68 should say “medical assistance, like Medicaid (Medi-Cal in California)” so beneficiaries know what the plan is referencing.
Section 50.3 – Retroactive Enrollments
As discussed above under “Limited Retroactive Coverage,” we believe that retroactive enrollment rights should be broader and should apply whenever an SEP right entitles a beneficiary to retroactive eligibility (e.g., an error, omission by CMS, SSA, etc. caused a beneficiary to miss an enrollment period).
Section 50.4 – Retroactive Disenrollments
Similar to the discussion above in Section 20.3.3, we have concerns about beneficiary liability for drug costs incurred during the months applicable to a retroactive disenrollment. What happens to drug costs paid by the Part D plan for the months for which a retro disenrollment is granted? Is the plan still responsible, or will the enrollee be forced to pay the costs? Although CMS relies on Medicare Advantage as a model for Part D enrollment and disenrollment rules, retroactive disenrollments under Part D do not provide a beneficiary with the same relief. For example, if an MA enrollee makes and is granted a valid request for retroactive disenrollment from an MA plan and returns to original Medicare, services that the MA plan paid for in those months for which the retro disenrollment is granted can be re-billed to original Medicare. There is no similar fallback for Part D plan enrollees.
General comment: see discussion above re: “Language Access.”
Model enrollment form (page 91) — the check off for applicants allowing Social Security retirement check deductions is misleading to individuals enrolled in the low-income subsidy. Thus, this (and other) notice(s) should be tailored for the LIS and non-LIS populations.
Re: affirmation on page 92: the statement which says I understand I can only be in one plan at a time is misleading, given that individuals can disenroll from one plan simply by signing up with a new plan.
Language on page 95 (which also appears in other model forms) stating (in effect) that CMS must approve your enrollment, but don’t wait to use the plan…. if your enrollment is rejected, we will bill you. This language can deter individuals (particularly LIS enrollees) from obtaining medically necessary medications.
Also on p.95, last sentence on page — for special exceptions, include “receive Medicaid (Medi-Cal) or live in an institution like a nursing home”.
Page 97, 4th paragraph: add “receive Medicaid (Medi-Cal) or live in an institution like a nursing home.”
Pursuant to discussion above at Section 20, this letter does not warn that disenrollment from a plan (potentially) uses up an individual’s enrollment period election (note that the same issue applies to Exhibits 9, 10 and 10a).
Page 115, 2nd paragraph: change “go to” to “contact.” Also, this letter should be clearer about “proof” (e.g., does this mean a letter from SSA?)
Page 124, last paragraph: add “and you can change plans at any time.” Also at least point beneficiary to 1-800-MEDICARE and to medicare.gov. Add “any” to “If you don’t want Medicare prescription” and again in last sentence.
Page 126: there is no mention that a facilitated enrollee can get facilitated enrollment early by calling the plan. Also, add same as with Exhibit 24 re: sources of plan information and adding “any.”
Page 127, 1st paragraph: add “(Opt-out) after “decline”, since that is the language CMS is now using. Also, 2nd to last paragraph:. (“Note”) is confusing if you don’t add something about “You may still qualify for these kinds of services” or something similar.
See discussion at Section 40.2.1, above.