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Eight Consumer Groups File Lawsuit on Behalf of Dual Eligibles
Kaiser Daily Health Policy Report
November 15, 2005
Medicare
Eight Consumer Groups File Lawsuit on Behalf of Dual Eligibles, Asking Federal Government To Ensure Coverage During Transfer to Medicare
Eight advocacy groups filed a lawsuit against the federal government on Monday alleging that CMS has failed to enact adequate safe guards to ensure that beneficiaries dually eligible for Medicare and Medicaid will not lose prescription drug coverage when their coverage switches from Medicaid to Medicare on Jan, 1, 2006, the New York Times reports (Pear, New York Times, 11/15).
The lawsuit, which was filed in U.S. District Court for the Southern District of New York, names HHS Secretary Mike Leavitt as the defendant. The plaintiffs are the Medicare Rights Center, New York Statewide Senior Action Council, the Coalition of Voluntary Mental Health Agencies, United Senior Action of Indiana, the Maine affiliate of the National Alliance for the Mentally Ill, the Action Alliance of Senior Citizens of Greater Philadelphia, the Massachusetts Senior Action Council and the Congress of California Seniors (Freking, AP/Seattle Post-Intelligencer, 11/14). CMS is automatically enrolling dual eligibles in a Medicare drug plan to prevent beneficiaries from being denied medications because they have not selected a plan. CMS has identified 6,130,120 dual eligibles and has assigned 5,498,604 of them to randomly chosen Medicare prescription drug plans. Such beneficiaries recently were mailed letters informing them of their new coverage (Kaiser Daily Health Policy Report, 11/9).
Allegations
The suit alleges that Leavitt has not met his statutory obligation to ensure continued and uninterrupted prescription drug coverage for dual eligibles (New York Times, 11/15). The suit seeks a system under which dual eligibles would be guaranteed their existing Medicaid drug coverage until they are enrolled in a Medicare drug plan that meets their needs, the AP/Post-Intelligencer reports (AP/Seattle Post-Intelligencer, 11/14). The suit states, "It is virtually certain that on Jan. 1, 2006, some ... dual eligibles will not be receiving prescription drug coverage under" Medicare. According to the suit, "There is no way to know with certainty how many ... will fall through the cracks this way. However, even if the enrollment process captures 97% of all dual eligibles, more than 180,000 will not be enrolled." The suit adds, "Because many of these persons need prescription medications to function or survive, the consequences of no longer receiving prescription drug coverage will be calamitous" (Alonso-Zaldivar, Los Angeles Times, 11/15).
Comments From Plaintiff
Robert Hayes, president of the Medicare Rights Center, said, "Some [dual eligibles] have not received proper notices or do not understand them. Others were not assigned to a drug plan because of computer system and data errors" (New York Times, 11/15). He added, "If the government transitions 99% of these men and women flawlessly, there will still be 64,000 people without their medicine come January. That cannot be allowed" (AP/Seattle Post-Intelligencer, 11/14). Hayes added, "What makes this transition so perilous is the nature of the people affected: They are very old, they are very sick and they are extremely poor" (Los Angeles Times, 11/15).
CMS Comments
Christina Pearson, a spokesperson for Leavitt, said she has not yet seen the lawsuit. CMS Administrator Mark McClellan said, "We will make sure that every dual eligible beneficiary enrolls in a Medicare drug benefit on schedule" (New York Times, 11/15). CMS spokesperson Gary Karr said the agency has taken several steps -- including the automatic enrollments -- to ensure that dual eligibles will not lose access to prescription drugs (AP/Seattle Post-Intelligencer, 11/14). Karr declined to comment on the lawsuit but said that CMS is "working on a new safety net process as a backstop" (Los Angeles Times, 11/15). He added, "We're also working on further steps to ensure that, when a beneficiary goes to a pharmacy in 2006, they'll be able to get their prescription drugs, even if the only proof they have is that they are in Medicaid and Medicare" (AP/Seattle Post-Intelligencer, 11/14).
Reaction from State Officials
Stan Rosenstein -- deputy director of Medi-Cal, California's Medicaid program -- said, "In our state, we have one million people who are going to convert drug plans in one day. We hope it goes as well as the federal government expects, but we are very scared." He added, "If one out of 10 people has a problem, that's 100,000 people in California. We don't have the capacity to handle 100,000 problems." Ann Kohler -- director of the New Jersey Division of Medical Assistance and Health Services, which administers the state's Medicaid program -- said, "I have an open formulary. You can get any drug that's been approved by [FDA]. You can get it at no cost." She continued, "This varies by sate, but in New Jersey there's no copayment. What beneficiaries will get under Medicare is much less" (New York Times, 11/15).
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