Law Center Wins Medicare Drug Protections

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Just for Elders

The following article introduces a new series in Aging Today developed with the National Senior Citizens Law Center (NSCLC). Each article will profile a legal case or legislative development affecting elders nationally. We wish to thank NSCLC's staff and, especially, the organization's executive director, Paul Nathanson, a former board president of the American Society on Aging, for creating this series.

THE CASE: Situ v. Leavitt, a national class action lawsuit regarding the Medicare Part D prescription drug program, was filed by NSCLC and the Center for Medicare Advocacy on behalf of dual eligibles, the 6.2 million low-income Medicare beneficiaries who are also eligible for Medicaid The case challenged the failure of the federal Centers for Medicare and Medicaid Services (CMS) to protect Medicare's lowest income beneficiaries as they transition from Medicaid to Medicare prescription drug coverage.

THE PEOPLE: Dual eligibles are an extremely vulnerable group. Compared with other Medicare beneficiaries, they have lower income and more illness and, according to some estimates, they rely on an average of 10 more prescriptions. Almost 40% of them have mental or cognitive impairments, 25% live in nursing homes or other long-term care faculties, most have incomes well below the poverty level, and all are either elderly or have at least one disability.

Several individuals and two organizations with senior members brought the case as representatives of the affected class of 6.2 million low-income dual eligibles.

Plaintiff Josephine Guin, age 76, is a Florida resident and dual-eligible individual who has had monthly drug plan premiums deducted from her Social Security check even though, according to the Part D law, she should not pay a premium. She had to forgo getting needed medicine because she was asked to pay the unsubsidized co-payment, which she could not afford.

THE ISSUES: Dual eligibles were supposed to get a seamless transition from Medicaid drug coverage to Medicare drug coverage when Part D first went into effect on Jan. 1, 2006. The Medicare Modernization Act (the statute that created Part D) required the government to automatically enroll dual eligibles into Part D prescription drug plans and to deem them eligible for the low-income subsidy, a program that subsidizes the premiums, deductibles and co-payments of dual eligibles and other low-income beneficiaries.

Unfortunately, the information management system that notifies plans and pharmacies of the enrollment and lowincome status of dual eligibles has been dogged by extensive delays. As a result, many dual eligibles have struggled to obtain the medications they need at a price they can afford. …