David Lipschutz, California Health Advocates; Paul Precht, Medicare Rights Center
| Section Page | Description of Issue or question | Suggested Revision/Comment |
|---|---|---|
| PDP Guidance – General Comment
n/a |
In both 2005 and 2006, California Health Advocates and the Medicare Rights Center submitted Joint Comments (along with other organizations) on drafts/revisions to the PDP Guidance. To the extent that CMS has not incorporated suggestions made in these previous comments, we incorporate our previous comments by reference in this document. | Previous, unimplemented suggestions include: instituting a formalized appeals process for plan enrollment and disenrollment issues with hearing rights and external review; creating an SEP for an individual’s enrollment or non-enrollment due to the error, misrepresentation or inaction of MA and Part D plans employees (just as an SEP is available when a federal employee’s conduct is at issue); linking a waiver of any applicable late enrollment premium penalty when an SEP is granted , as is available through Part B SEPs; and strengthening language access for Limited English Proficient Medicare beneficiaries. More information on these and other more detailed suggestions can be found online at: For Joint Comments from 2005, see: here For Joint Comments from 2006, see: here |
| PDP sec. 20.3.8.8
22 |
SEP for Non-Dual Eligible Individuals with LIS and Individuals who Lose LIS | We strongly applaud CMS for using its discretion to provide an ongoing SEP right for all LIS enrollees (similar to full and partial dual eligibles) and strongly encourage this right to be added to the final Guidance. We believe this is an important protection for this vulnerable population by allowing them the year-round flexibility to find plans that might better suit their needs. |
| PDP sec. 20.4
28 |
New language in chart description of IEP for indivdiuals under 65: “Individuals eligible for Medicare prior to age 65 (such as for disability) will have another IEP for Part D based upon attaining age 65.” Deletion of following statement: “Individuals first eligible for Medicare based upon disability who do not have a lapse in Medicare entitlement prior to their turning 65 do not have an additional Part D IEP.” | Assuming we are interpreting this change correctly, we applaud CMS for revising its policy to allow individuals under 65 to have a new Part D IEP upon turning 65, regardless of whether they had a lapse in Medicare entitlement. This is consistent with rights that individuals currently have re: Medicare Part B enrollment. We assume that, similar to Part B, any Part D late enrollment premium penalties incurred by someone under 65 with Medicare will no longer be owed once such an individual turns 65 and has a new IEP. |
| PDP sec. 30.1.4
39 – 41 |
C. 1. Auto-Enrollment of Full Benefit Duals — individuals who are retroactively enrolled in a plan may face situations where they have already paid out of pocket for drugs and need reimbursement. These individuals need clear instructions on how to get reimbursement and plans must be given clear instructions re: how to ensure that such reimbursement takes place in a timely manner. This reimbursement process should also specify that duals are entitled to reimbursements for premiums, if applicable. |
CMS should develop clear guidelines that plans must follow to ensure that individuals get reimbursed for out of pocket expenses in a timely manner. In addition, CMS should develop a model letter for plans to send to retroactive enrollees telling them that they can be reimbursed for certain out of pocket charges they may have incurred and telling them specifically how to proceed to get reimbursement, including a phone number for one-on-one guidance. |
| PDP Sec 40.3.1
86 |
Grace Period within which PDP enrollees can pay outstanding premiums — plans can still limit it to as short as 1 month | Consistent with comments we have submitted in the past, we strongly urge CMS to extend the minimum length of the grace period from one month (which is currently at the discretion of plans) to a mandatory period of at least 90 days, and allow for “good cause” extensions when plan enrollees face certain hardships (such as unexpected illness, etc.). |
| PDP Exh. 1 and 9
117, 140 |
Many beneficiaries have encountered problems with timely enrollment in and/or disenrollment from plans because of delays in receiving appropriate forms from the plans. This problem arises because each plan currently has its own enrollment/disenrollment forms. | CMS should develop generic enrollment/disenrollment forms and require that, in addition to their own enrollment forms based on the CMS model, plans accept the standard generic forms. The availability of the standard form would help alleviate some of the problems encountered by beneficiaries. |
| MA Guidance– General Comment
n/a |
Incorporation of information in 2008 Call Letter | We encourage CMS to implement all of the proposed requirements for PFFS plans that are currently under “consideration” according to the 2008 Call Letter, including: required disclaimer language in all marketing and enrollment as well as sales presentations; requiring plans to provide documented training of marketing agents and brokers; using a contractor to conduct “secret shopper” tests on sales and outreach activities; and requiring plans to perform outbound verification calls to all new applicants to verify that they understand the plan features and do in fact want to enroll. (pp 51-52 of Call Letter) |
| MA, sec. 10
11 |
Requirement that plans must use Beneficiary Eligibility Query to verify applicant’s Medicare eligibility prior to requiring proof from individual | We appreciate that CMS is making plans to verify an individual’s eligibility through the BEQ prior to asking applicants for such information |
| MA, sec. 30.1
27 |
The AEP allows one MA election (enrollment/disenrollment); if an individual elects a non-coordinated care MA plan (a PFFS or MSA) doesn’t that individual also have a corresponding, simultaneous AEP election/right to enroll in a stand-alone PDP? | It should be made clear to both plans and Medicare beneficiaries that if an individual elects a non-coordinated care MA plan (a PFFS or MSA), that individual also has a corresponding AEP election to enroll in a PDP — this information should be reflected in both the MA and PDP Guidance and consumer materials |
| MA, sec. 30.2.1
29 |
When the ICEP and IEP overlap, doesn’t an individual have a right to enroll in a non-coordinated care MA plan (PFFS and MSA) and also enroll in a PDP? | It should be made clear to both plans and Medicare beneficiaries that if an individual’s ICEP and IEP overlap, that individual has an ICEP right to enroll in a non-coordinated care MA plan (a PFFS or MSA) as well as a corresponding IEP right to enroll in a PDP — this information should be reflected in both the MA and PDP Guidance and consumer materials |
| MA, sec. 30.3
30 |
OEP Limitation: … MA organizations must deny OEP requests for voluntary disenrollment from an MA-PD plan. | If an MA-PD plan receives a request for voluntary disenrollment during the OEP, the plan should be required to instruct the individual how to either enroll in a new MA-PD (by submitting an application to the new, desired plan) or drop MA coverage altogether by enrolling in a PDP (by submitting an application to such plan) so that the individual’s desired plan change can be effectuated. |
| MA, sec. 30.3
30 |
Table: If current coverage is MA-PD, one of the options listed during the OEP is to enroll in an MA-PFFS + PDP | Since the OEP normally only allows one election, CMS should clarify that the OEP allows an individual who wishes to move from an MA-PD to an MA-only PFFS (one election) and a PDP (one election) actually has two elections/choices (or, to explain it differently, can/must make two separate actions). Also, if this is indeed permissible, the above comment re: what an MA organization should be required to tell an individual who requests involuntary disenrollment from an MA-PD during the OEP should also include this option — going from an MA-PD to an MA-only PFFS and a PDP |
| MA, sec. 30.3.3
32 |
Many advocates continue to disagree with CMS’ interpretation of the Limited Open Enrollment Period (L-OEP). 42 USC §1395w-21(e)(2)(E)(iv) clearly states that the L-OEP cannot have any affect on Part D coverage, including using the L-OEP to disenroll from a stand alone prescription drug plan (PDP). The MA (and other CMS) guidance directly violates this portion of the Act by allowing individuals in Original Medicare with a PDP to use the L-OEP to drop their drug coverage and join a MA-only coordinated care plan (HMO or PPO). Advocates have raised this issue with CMS and while we received a response indicating that CMS was not changing its interpretation, we have received no formal response directly addressing the prohibition found in 42 USC §1395w-21(e)(2)(E)(iv). | Edit the guidance to reflect the plain language of the Tax Relief Act which prohibits individuals in Original Medicare with a PDP from using the L-OEP to enroll in a MA-only HMO or PPO plan; this would prevent the undesirable result of individuals losing their Part D coverage while making an L-OEP election. |
| MA, sec. 30.3.3
32-33 |
3. Confirmation of individuals’ intent to enroll (if applicant will lose other prescription drug coverage as a result of enrolling in MA-only HMO or PPO) — “contact may be made by telephone, written notice or both” If CMS refuses to alter its interpretation of the L-OEP (see comment above), these proposed safety measures are not enough to protect individuals from losing their existing prescription drug coverage if they enroll in an MA-only coordinated care plan. | CMS should not give plans the option of notifying applicants of the potential loss of their Part D coverage either over the phone and/or through the mail. Instead, plans should be required to do BOTH, and the calls should follow scripts (prepared by CMS), using language similar to that found in Exhibit 4c. As this section reads now, plans can meet their obligation to warn applicants through a simple phone call without any pre-existing script reviewed/provided by CMS. In addition, this revised Guidance does not reference the SEP that CMS has said it will establish to allow individuals to return to their PDP if, despite the required confirmation process, they subsequently indicate that they were unaware that they would lose their prescription drug coverage as a result of their L-OEP election. This Guidance should be revised accordingly. |
| MA sec. 30.3.3
32-33 |
The Guidance does not clarify how the L-OEP works for dual eligibles. Like other individuals, will they lose PDP coverage as a result of enrolling in an MA-only coordinated care plan? Will the MA enrollment prevent a dual eligible from being re-auto-enrolled into any Part D coverage? Will a dual eligible instead be assigned to an MA-PD offered by the sponsor of the MA-only plan into which s/he enrolls (per section 40.1.6)? Since dual eligibles have an ongoing SEP right, would any election a dual makes even count as an L-OEP election? | CMS should clarify how the L-OEP works with dual eligibles, if at all. |
| MA sec. 30.4.4
44 |
12. SEP for Non-Dual Eligible Individuals with LIS and Individuals who Lose LIS | As noted above, we strongly applaud CMS for using its discretion to provide an ongoing SEP right for all LIS enrollees (similar to full and partial dual eligibles) and strongly encourage this right to be added to the final Guidance. We believe this is an important protection for this vulnerable population by allowing them the year-round flexibility to find plans that might better suit their needs. |
| MA sec. 40.1 – .1.4
52 – 56 |
Format of enrollment elections — CMS allows plans to choose whether they will accept telephone, internet and Medicare online enrollment | Plans should be required to accept all of these forms of enrollment, not only for convenience of applicants, but to minimize instances in which prospective applicants are forced to meet with agents (such as the witnessed plan practice of steering callers towards in-person, in-home visits by agents, rather than taking applications over the phone). |
| MA sec. 50.1
93 |
This section references section 30.3, stating MA organizations must deny OEP requests for voluntary disenrollment from MA-PD plans | As stated in comments to section 30.3 above, if an MA-PD plan receives a request for voluntary disenrollment during the OEP, the plan should be required to instruct the individual how to either enroll in a new MA-PD (by submitting an application to the new, desired plan) or drop MA coverage altogether by enrolling in a PDP (by submitting an application to such plan) so that the individual’s desired plan change can be effectuated. |
| MA sec. 50.1.2
94- 95 |
CMS allows plans to confirm unsigned disenrollment requests via telephone rather than send them back as incomplete | We believe that this is a positive improvement that makes it easier for Medicare beneficiaries to effectuate their intent to disenroll from a plan. |
| MA sec. 50.3.1
108 |
Grace Period within which MA enrollees can pay outstanding premiums — plans can still limit it to as short as 1 month | Consistent with comments we have submitted in the past, we strongly urge CMS to extend the minimum length of the grace period from one month (which is currently at the discretion of plans) to a mandatory period of at least 90 days, and allow for “good cause” extensions when plan enrollees face certain hardships (such as unexpected illness, etc.). |
| MA Exh.. 3a, 4, 4a, 4b, 4d, 9
162 (+) |
LIS beneficiaries should be informed that they may have additional opportunities to change plans. | Add the following sentence to the paragraphs that discuss limits to enrollment periods: “If you receive extra help, you may have additional opportunities to change plans.” |
| MA, Exhibit 4c
173 |
Under this draft Guidance, this notice must only be sent if an MA-only plan chooses to send a written notice to an applicant during the L-OEP who will lose Part D coverage as a result of his/her election. | CMS should require that plans both send this notice as well as make a phone call that follows scripted language similar to that contained in this written notice (instead of making it the plan’s option to send a notice and/or make a phone call). In addition, the following sentence should be in bold: “This means you will not have Medicare prescription drug coverage.” See, generally, comments to section 30.3.3 above |
| MA, Exhibit 4d
174 – 175 |
PFFS Acknowledgment of Receipt of Completed Enrollment Letter — advises enrollees to check with their providers to see if they will take the plan and encourages enrollees to contact the plan for assistance with finding other providers in the area | Since this is a letter confirming receipt of a completed enrollment application, the advice to check with your provider to see if s/he will accept your plan is too late — particularly if this is the first time that enrollees will be given such crucial direction. PFFS plans appear under no obligation to assist enrollees with finding other providers, so unless CMS mandates that plans do this — and requires that non-network PFFS plans do indeed have an adequate network — advice to the enrollee about seeking assistance from the plan rings hollow. In addition, because of the extent of marketing misconduct associated with the sale of PFFS plans, including the failure of agents to adequately explain how these plans work and that they are contingent upon providers agreeing to accept the terms and conditions of the plan, this letter to enrollees should include a note indicating that if they believe that they were enrolled in this plan in error and/or did not understand the way the plan would work prior to receiving this letter, they can contact CMS or their local SHIP for further assistance, including canceling their enrollment or seeking a disenrollment. |
| MA, Exhibit 6c
182 – 183 |
Model Notice to Confirm PFFS Enrollment | See comments above re: Exhibit 4d |
