Eight organizations have filed suit against the federal government
for failing to ensure that more than 6 million individuals who are dually
eligible for Medicare and Medicaid will receive their medications when the new
Part D prescription drug plan begins on January 1.
At that time, prescription drug coverage under state Medicaid plans for
patients who are also enrolled in Medicare will cease, and the new Medicare
prescription drug plan will begin. But advocacy groups, including APA, have
been bracing for enormous complications with transitioning these
beneficiaries— some 2 million of whom are believed to have mental
illness—into the new program.
The lawsuit, filed against Health and Human Services (HHS) Secretary Mike
Leavitt, alleges that the federal government is failing to ensure that
transfer, with potentially catastrophic results.
Leavitt "is not taking adequate steps to meet his obligations under
the statute," the lawsuit alleges. "Unless he does so, countless
dual eligibles will fall through the cracks of this massive program
transition; they will not be effectively transferred to new Medicare
prescription drug coverage and may be left without needed prescription drug
coverage on and after January 1, 2006. Because many of these persons need
prescription drug coverage to function or survive, the consequences of no
longer receiving prescription drug coverage will be calamitous."
The organizations that have filed the suit are Action Alliance of Senior
Citizens of Greater Philadelphia, Congress of California Seniors,
Massachusetts Senior Action Council, National Alliance on Mental Illness:
Maine, New York Statewide Senior Action Council, Coalition of Voluntary Mental
Health Agencies Inc., United Senior Action of Indiana, and Medicare Rights
The organizations are being represented by volunteer attorneys with the law
firm Paul, Weiss, Rifkind, Wharton, and Garrison L.L.P., and the Medicare
"The poorest, sickest, and oldest Americans face grave risk of losing
their life-saving medications once the clock strikes 12 on New Year's,"
said Robert M. Hayes, president of the Medicare Rights Center, a national
consumer service group. "This lawsuit seeks to force creation of an
essential safety net to protect the health and lives of the frailest
It also says that the characteristics of the people at risk—nearly 40
percent are cognitively impaired, and only 39 percent have a high school
diploma—will prevent up to a million poor seniors from immediately
mastering the complexity of the new Medicare drug benefit so they can maintain
their access to needed medicine.
A spokesperson for the Centers for Medicare and Medicaid Services (CMS)
would not comment on the lawsuit, but since its filing last month, the agency
vowed to institute a "fail-safe" policy by which patients who show
up at a pharmacy with identification proving their participation in Medicare
and Medicaid will receive their medication, even if they are not enrolled in a
prescription drug plan.
At press time, the CMS spokesperson said the details about how the
fail-safe plan would work were unknown. But she emphasized that patients with
proper identification would leave the pharmacy with a prescription, and the
pharmacist would work with a CMS contractor to ensure the claim is filed for
"There is a point-of-sale mechanism that we hope will be in place to
ensure that beneficiaries experience no coverage gaps," CMS spokeswoman
Barabara Cebuhar told Psychiatric News. "If they come to the
pharmacy with their proof of eligibility, they can have the claim submitted
for payment even if they do not have current enrollment in a Medicare drug
At press time, she said the agency had identified 6.1 million dual
eligibles, some 5.5 million of whom have been randomly assigned to
prescription drug plans in the fee-for-service Medicare plan. The remaining
600,000 will be receiving prescription drug coverage in managed care plans
under the Medicare Advantage program, she said.
Irvin Muszynski, J.D., director of APA's Office of Healthcare Systems and
Financing, welcomed the institution of a fail-safe mechanism as patients are
transitioned into the Part D programs.
"We think the move toward a fail-safe mechanism is a positive
development, and we look forward to learning more of the details," he
Muszynski also said that formularies for most prescription drug plans
appear to include antidepressants, antipsychotics, and anticonvulsants, but
the level of utilization management involved in these formularies remains to
"Unfortunately, we have to determine this on a case-by-case
basis," he said.
The complaint, which was filed in federal district court in
Manhattan, is posted at<www.medicarerights.org/complaint.pdf>.
The Medicare Rights Center's report, "Protecting the Poorest Americans
During the Medicare Drug Transition" is posted at<www.medicarerights.org/drugtransitionreport.pdf>