Veto Override on Medicare Bill Marks Important Victory for Beneficiaries & Advocates

Within hours of Bush’s veto on the “Medicare Improvements for Patients and Providers Act of 2008 (MIPPA),” Congress overrode it with a 383 to 41 vote in the House and a 70 to 26 vote in the Senate on July 15, 2008. This was the 4th Bush veto that Congress overrode. It marks an important victory for the nation’s 44 million Medicare beneficiaries, thousands of physicians and many advocates, including California Health Advocates (CHA) who has worked hard in fighting for many of the bill’s provisions and extended beneficiary protections through such activities as participating in a National Association of Insurance Commissioners (NAIC) workgroup, updating members of Congress about Medicare beneficiaries’ experiences and submitting numerous comments to the Center for Medicare and Medicaid Services (CMS) on proposed Medicare Advantage and Part D related regulations. While much of the press has focused on the bill’s short-term delay of the 10.6% physician payment cuts, this bill is wide in scope and includes many important provisions in Medicare benefits, marketing guidelines for Medicare Advantage and Part D plans, protections and program extensions for low-income beneficiaries, changes for providers, data collection requirements for addressing health care disparities and language access provisions.

For health care disparities, the Secretary of Health and Human Services (HHS) for the first time is required to establish “ongoing, accurate, and timely collection and evaluation of data on disparities in health care services on the basis of race, ethnicity and gender.” Mandated by the bill, the Secretary must report to Congress on methods for collecting this data within 18 months, and implement these approaches within 2 years.

This provision is a major accomplishment in reducing our country’s health care disparities, both for Medicare beneficiaries and the general population. As the largest purchaser and regulator of health care, Medicare has great leverage in shaping the programs, policies and trends in health care for all ages. See previous article on Medicare’s role in reducing health disparities). By collecting this data, and then developing effective policies and programs to eliminate these disparities affecting 9 million beneficiaries of color, Medicare can influence a reduction in disparities among all age groups.

For language access, the bill requires the Inspector General of HHS to issue a report evaluating plan and provider compliance with language access requirements as outlined in the National Standards on Culturally and Linguistically Appropriate Services (CLAS). The report must be issued within the next 2 years and HHS must implement changes responsive to the recommendations in the report within 1 year. for more information on the necessity of language access services for Medicare beneficiaries and other federal laws supporting this need.)

Below is a bulleted summary of additional key provisions the Medicare bill provides regarding Medicare benefits, marketing guidelines for MA and Part D plans, and low-income beneficiary protections and program extensions.

Medicare benefits:

  • Creates the parity in mental health coinsurance (currently 50%) so that it will be the same as the 20% coinsurance for other Part B services. This will happen gradually over a period of 6 years, reaching the 20% coinsurance rate in 2014. This change comes as Congress is also considering mental health parity legislation that would require employers and private insurers to provide the same coverage of mental illnesses as physical conditions.
  • Extends the “Welcome to Medicare” physical from 6 months to 1 year, adding a provision that the Part B deductible does not apply. Beginning next year, the law also grants CMS the ability to add new screening or preventive services to Medicare. Currently, it requires a special act of Congress to include these kinds of services. Two services CMS may consider for coverage are intense weight-loss counseling and specific genetic tests for breast cancer (see Wall Street Journal (WSJ), 7/17/08).
  • Extends the exceptions process for therapy caps until December 31, 2009. See a CMS press release for more information on how exceptions process works. Note that there is a permanent exception to caps for therapy services rendered in an outpatient hospital facility or in emergency rooms.
  • Delays for 18 months the implementation of the durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) competitive bidding acquisition process, which went into effect in 10 areas on July 1 (including in California’s Riverside and San Bernadino counties). Beneficiaries in these areas can return to using any Medicare-approved supplier and the payment rates that were in effect prior to July 1 are reinstated retroactively.
  • Extends drug coverage under Part D to include barbiturates (often used as sleep aids) and benzodiazepines (commonly used for anxiety), effective January 1, 2013. Note: coverage of these 2 drug classes will only be for beneficiaries with specific conditions, including cancer, epilepsy and chronic mental health conditions.

Marketing guidelines and plan changes for Medicare Advantage and Part D plans:

  • Prohibits Medicare Advantage (MA) and prescription drug (PDP) plans and agents from:
    • selling their products via door-to-door sales;
    • cold calling;
    • cross selling non-health-related products;
    • offering meals of any sort; and
    • conducting sales activities of any kind at educational events or in health care settings.

Plan agents or brokers must also ‘set the scope’ when scheduling an appointment with a prospective enrollee. If the prospective enrollee requests information about additional products, the sales agent must schedule another appointment to discuss.

The bill also calls for limits on commissions and gifts, and mandates agents to be licensed and appointed as required under state law and to have annual training on Medicare and the specific MA and Part D plans they sell. Some provisions will be effective by November 15, 2008, in time for the 2008 Annual Election Period (AEP).

  • Requires private-fee-for-service (PFFS) plans to establish provider networks similar to those established by HMOs and PPOs in counties where there are at least 2 HMOs or PPOs, beginning in 2011. In addition, as of 2010, PFFS plans must have the same quality improvement programs as local PPOs. PFFS plans are currently exempt from reporting quality measures.
  • Extends the authority for Special Needs Plans for an additional year through December 31, 2010, but prohibits new SNP plans from being offered during 2010 (between January 1, 2010 and December 31, 2010). The bill also includes new requirements regarding who is eligible for SNPs, specific care management and quality reporting standards.

Protections and extensions of programs for low-income beneficiaries:

  • Limits out-of-pocket costs for beneficiaries eligible for both Medicare and Medicaid who are enrolled in Medicare Advantage Special Needs Plans to be no more than the cost-sharing under Medicaid. Begins January 1, 2010.
  • Extends the QI program through December 31, 2009, and increases funding for the program. The program had expired on June 30, 2008, and its reauthorization is retroactive to July 1. Beneficiaries will be reinstated in the program and don’t need to reapply.
  • Increases the assets test for the Medicare Savings Program (MSP) to the low-income subsidy (LIS) asset level for full subsidy individuals, as of January 1, 2010.
  • Eliminates the Part D late enrollment penalty for LIS-eligible beneficiaries as of January 2009.
  • Mandates translating the model Medicare Savings Programs (MSP) application form into at least 10 languages (other than English) that are most frequently used by Medicare beneficiaries. The MSPs help cover some of Medicare’s costs (such as premiums, deductibles and coinsurance) for qualified beneficiaries with low-incomes and assets. These MSP application forms will be made available to states and social security offices by January 1, 2010.

For more information on this bill and its extensive provisions, see a summary of changes or the full text of the bill online.

Karen Joy Fletcher

Our blogger Karen Joy Fletcher is CHA’s Communications Director. With a Masters in Public Health from UC Berkeley, she is the online “public face” of the organization, provides technical expertise, writing and research on Medicare and other health care issues. She is responsible for digital content creation, management of CHA’s editorial calendar, and managing all aspects of CHA’s social media presence. She loves being a “communicator” and enjoys networking and collaborating with the passionate people and agencies in the health advocacy field. See her current articles.