Relates to improving and expanding the pharmaceutical insurance coverage program for certain medicare enrollees; creates the expanded pharmaceutical insurance coverage panel, to be responsible for expanding pharmaceutical insurance coverage.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5422
SPONSOR: Kim TITLE OF BILL:
An act to amend the elder law, in relation to improving and expanding
the pharmaceutical insurance coverage program for certain medicare
enrollees
PURPOSE:
The Elderly Pharmaceutical Insurance Coverage program has changed
dramatically since it was created. This bill will restore oversight and
transparency to the function of the program and expand it to phase in
coverage for persons younger than age 65 who are enrolled in Medicare
Part D. The bill also changes the name of the program to be known as the
Expanded Pharmaceutical Insurance Coverage program.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Changes the name from the Elderly Pharmaceutical Insurance
Coverage program to the Expanded Pharmaceutical Insurance Coverage
program.
Section 2. Prohibits income derived from any increase in the calculation
of a cost of living benefit in social security income or pension bene-
fits from being used to determine enrollee eligibility for the program
or for benefits defined based on income, and provides that EPIC shall
include medical marijuana as a covered drug.
Section 3. Restores the EPIC panel and the advisory committee, 60% of
the later being composed of consumers, and requires an annual report.
Section 4. Re-defines the age of eligibility to phase-in persons under
the age of 65 who are enrolled in Medicare Part D.
Section S. Restores the enrollment process so that the burden of screen-
ing for potential eligibility for the federal Low Income Subsidy (also
known as Extra Help) rests with the EPIC program and not the enrollee,
ensures that EPIC applicants are enrolled in the program and eligible
for its benefits while additional information is collected to qualify
them for LIS if applicable, and restores the EPIC program responsibility
for offsetting any Part D late enrollment penalty costs within limits.
Section 6. Requires the EPIC program to post the manufacturers and drugs
that are covered under an agreed to rebate program.
JUSTIFICATION:
THE EPIC program has made numerous changes administratively that have
negatively impacted enrollees without a public process to review
proposed changes. These changes include:
*a change in the application starting in 2020, that requires enrollees
to determine if they must disclose asset, not otherwise a program
requirement, if they fall into the income category that would allow them
to apply for the federal Low Income Subsidy (LIS.) In prior years, an
EPIC applicant was enrolled in without an asset test and if the EPIC
staff found that the self-reported income could qualify for LIS (150%
FPL,) the enrollee would be contacted for additional information on
assets so that an application to LIS was completed on behalf of the
enrollee. Additionally, while the current statute includes a role for
EPIC staff to assist enrollees who are eligible for the Medicare Savings
Program (MSP, 135% FPL,) which without an asset test, will also qualify
an enrollee for LIS, the EPIC program does not assist with MSP enroll-
ment or make a referral to an agency that will.
*a change implemented in October 2019 that eliminated the previous bene-
fit to include payment of any Medicare Part D late enrollment penalty
for certain enrollees.
*a change in January 2020 that eliminates past records of EPIC partic-
ipation for any enrollee that failed to pay their quarterly dues on
time. Their EPIC number and all income information on their records is
now eradicated, and upon late payment of the dues an enrollee must reap-
ply for the program as if they were never a member.
In addition to making corrections to restore and improve program oper-
ations, the changes noted above are addressed in this bill. Further, in
order to improve transparency and accountability, the EPIC panel and
advisory committee are re-convened, along with a requirement for an
annual report to the Legislature.
During SFY 2019-20, the Executive enacted a reduction in funding for the
EPIC program, derived from savings due to provisions in the Affordable
Care Act that covered more of the costs of Medicare Part D drugs in the
coverage gap, also known as the "donut hole." In SFY 2020-21, the Execu-
tive has proposed a further reduction attributed to continuing savings
due to the federal expansion of donut hole coverage. Rather than concur
with the savings proposed, the Legislature finds that it is time to
expand the EPIC program to offer benefits to residents with Medicare
Part D who are under age 65. The bill does that incrementally, starting
by lowering the age to 60 in 2021, and continuing to bring the age limit
down in five year brackets in successive years.
The legislation also addresses the need to have the EPIC program provide
assistance with out of pocket costs for medical marijuana, which is not
covered by Medicare. The legislation also incorporates provisions of
another bill that exempts from income to be considered by the EPIC
program that which is derived from a cost of living adjustment to social
security or pension payments.
The EPIC program requires drug manufacturers to participate in the
state's rebate program in order for their drug to be covered. While this
public policy has been well established, EPIC enrollees are unaware
about whether they will have coverage until they get a refusal at their
pharmacy. This information would be particularly important to have
during open enrollment when an enrollee is choosing Medicare Part D
coverage. The tools to compare plans indicate how much out or pocket
costs will be, and the EPIC guideline provides coverage for drugs
covered by a Part D plan, unless the drug manufacturer does not partic-
ipate in the rebate program. Medicare counsellors assist enrollees in
understanding what their future out of pocket costs will be when choos-
ing a Part D plan, but cannot give a full picture without knowing wheth-
er a manufacturer is excluded from EPIC. This bill will require the list
of manufacturers and drugs participating in the rebate program.
FISCAL IMPLICATIONS:
To be determined, but has been made difficult without publicly available
annual reports on the program. In part, costs associated with program
expansion to a lower age limit will be offset by rejecting the proposed
program savings of $16.5m proposed for SFY2020-21.
EFFECTIVE DATE:
This act shall take effect immediately, with the provisions in sections
2 and 4 taking effect on January 1, 2021.
STATE OF NEW YORK
________________________________________________________________________
5422
2021-2022 Regular Sessions
IN ASSEMBLY
February 16, 2021
___________
Introduced by M. of A. KIM -- read once and referred to the Committee on
Aging
AN ACT to amend the elder law, in relation to improving and expanding
the pharmaceutical insurance coverage program for certain medicare
enrollees
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 240 of the elder law, is amended to read as
2 follows:
3 § 240. Short title. This title shall be known and may be cited as the
4 "program for [elderly] expanded pharmaceutical insurance coverage".
5 § 2. Subdivisions 3 and 8 of section 241 of the elder law, subdivision
6 8 as added by section 2 of part A of chapter 59 of the laws of 2011 and
7 as renumbered by section 3 of part T of chapter 56 of the laws of 2012,
8 are amended to read as follows:
9 3. "Income" shall mean "household gross income" as defined in the real
10 property tax circuit breaker credit program, pursuant to subparagraph
11 (C) of paragraph one of subsection (e) of section six hundred six of the
12 tax law, but only shall include the income of program applicants and
13 spouses and shall exclude the income of other members of the household,
14 but shall not include any increase in income derived from social securi-
15 ty income or pension benefits that increase over the previous year due
16 solely to a cost of living adjustment provided by the program adminis-
17 trators.
18 8. "Medicare part D excluded drug classes" shall mean any drugs or
19 classes of drugs, or their medical uses, which are described in section
20 1927(d)(2) or 1927(d)(3) of the federal social security act, with the
21 exception of smoking cessation agents and medical marijuana dispensed in
22 the state of New York.
23 § 3. The elder law is amended by adding a new section 242-a to read as
24 follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08041-01-1
A. 5422 2
1 § 242-a. Expanded pharmaceutical insurance coverage panel. 1. There
2 is hereby established within the executive department, a panel to be
3 known as the "expanded pharmaceutical insurance coverage panel". For the
4 purposes of this section, the term "the panel" shall mean the expanded
5 pharmaceutical insurance coverage panel.
6 2. The panel shall consist of the commissioners of the departments of
7 education and health, the superintendent of the department of financial
8 services, and the directors of the office for the aging and the division
9 of the budget. Each panel member may designate an officer of his or her
10 respective department, office, or division to represent and exercise all
11 the powers of such panel member at any meeting of the panel from which
12 such panel member may be absent.
13 3. The director of the office for the aging and the commissioner of
14 health shall serve as co-chairs of the panel.
15 4. The panel shall meet at such times as may be requested by the
16 co-chairs, provided that the panel shall meet at least two times a year.
17 5. The panel shall:
18 (a) subject to the approval of the director of the budget, promulgate
19 program regulations pursuant to section two hundred forty-six of this
20 title;
21 (b) determine the annual schedule of cost-sharing responsibilities of
22 eligible program participants pursuant to sections two hundred forty-
23 seven and two hundred forty-eight of this title;
24 (c) enter into contracts pursuant to section two hundred forty-three
25 of this title;
26 (d) recommend and implement alternative program improvements for the
27 efficient and effective operation of the program in accordance with the
28 provisions of this title with the advice of the advisory committee as
29 defined in subdivision seven of this section;
30 (e) develop and implement, in cooperation with area offices for the
31 aging, an outreach program to inform eligible applicants of benefits
32 they may be entitled to pursuant to this title, and to make available
33 information concerning the program for expanded pharmaceutical insurance
34 coverage and benefits to which they may be entitled through a
35 prescription drug coverage program funded by the federal government; and
36 (f) prepare an annual report and submit such report to the governor,
37 the temporary president of the senate, and the speaker of the assembly
38 no later than the first day of January of each year. The panel shall
39 include in such report, at a minimum, annual statistical information
40 regarding the number of persons enrolled in the program by marital
41 status and income level and age, an estimate of the per cent of eligible
42 New York residents that are enrolled, the total number of enrollees that
43 receive an income-related subsidy under section 1860D-14 of the federal
44 social security act, and the number that so qualify through their
45 enrollment in the Medicare Savings Program, the numbers of participating
46 provider pharmacies, recipients and payments by county, a summary of the
47 administrative cost containment initiatives completed during the year,
48 projections of program costs for the following two years, and an evalu-
49 ation of the performance of the program contractor or contractors and of
50 the cost effectiveness of all outreach efforts.
51 6. The panel members shall receive no compensation for their services
52 as panel members.
53 7. There shall be an advisory committee to the panel comprised of
54 twelve persons. Four members shall be appointed by the governor, three
55 members shall be appointed by the temporary president of the senate, one
56 member shall be appointed by the minority leader of the senate, three
A. 5422 3
1 members shall be appointed by the speaker of the assembly and one member
2 shall be appointed by the minority leader of the assembly. The commit-
3 tee members shall be representatives of consumers, pharmacists, pharma-
4 ceutical drug manufacturers and pharmaceutical wholesalers. No less than
5 sixty percent of the committee membership shall represent consumers.
6 Committee members shall receive no compensation for their services but
7 shall be allowed their actual and necessary expenses incurred in the
8 performance of their duties.
9 § 4. Subdivisions 1 and 2 of section 242 of the elder law, subdivision
10 1 as amended by section 4 of part T of chapter 56 of the laws of 2012,
11 and subdivision 2 as amended by section 12 of part A of chapter 60 of
12 the laws of 2014, are amended to read as follows:
13 1. Persons eligible for comprehensive coverage under section two
14 hundred forty-seven of this title shall include:
15 (a) any unmarried resident who is enrolled in medicare and at least
16 sixty-five years of age in the year two thousand twenty, during the year
17 two thousand twenty-one is at least sixty years of age, during the year
18 two thousand twenty-two is at least fifty-five years of age, during the
19 year two thousand twenty-three is at least fifty years of age, during
20 the year two thousand twenty-four is at least forty-five years of age,
21 during the year two thousand twenty-five is at least forty years of age,
22 during the year two thousand twenty-six is at least thirty-five years of
23 age, during the year two thousand twenty-seven is at least thirty years
24 of age, during the year two thousand twenty-eight is at least twenty-
25 five years of age, or during the year two thousand twenty-nine is at
26 least eighteen years of age; and whose income for the calendar year
27 immediately preceding the effective date of the annual coverage period
28 beginning on or after January first, two thousand five, is less than or
29 equal to twenty thousand dollars. After the initial determination of
30 eligibility, each eligible individual must be redetermined eligible at
31 least every twenty-four months; and
32 (b) any married resident who is enrolled in medicare and is at least
33 sixty-five years of age in the year two thousand twenty, during the year
34 two thousand twenty-one is at least sixty years of age, during the year
35 two thousand twenty-two is at least fifty-five years of age, during the
36 year two thousand twenty-three is at least fifty years of age, during
37 the year two thousand twenty-four is at least forty-five years of age,
38 during the year two thousand twenty-five is at least forty years of age,
39 during the year two thousand twenty-six is at least thirty-five years of
40 age, during the year two thousand twenty-seven is at least thirty years
41 of age, during the year two thousand twenty-eight is at least twenty-
42 five years of age, or during the year two thousand twenty-nine is at
43 least eighteen years of age; and whose income for the calendar year
44 immediately preceding the effective date of the annual coverage period
45 when combined with the income in the same calendar year of such married
46 person's spouse beginning on or after January first, two thousand one,
47 is less than or equal to twenty-six thousand dollars. After the initial
48 determination of eligibility, each eligible individual must be redeter-
49 mined eligible at least every twenty-four months.
50 2. Persons eligible for catastrophic coverage under section two
51 hundred forty-eight of this title shall include:
52 (a) any unmarried resident who is enrolled in medicare and at least
53 sixty-five years of age in the year two thousand twenty, during the year
54 two thousand twenty-one is at least sixty years of age, during the year
55 two thousand twenty-two is at least fifty-five years of age, during the
56 year two thousand twenty-three is at least fifty years of age, during
A. 5422 4
1 the year two thousand twenty-four is at least forty-five years of age,
2 during the year two thousand twenty-five is at least forty years of age,
3 during the year two thousand twenty-six is at least thirty-five years of
4 age, during the year two thousand twenty-seven is at least thirty years
5 of age, during the year two thousand twenty-eight is at least twenty-
6 five years of age, or during the year two thousand twenty-nine is at
7 least eighteen years of age; and whose income for the calendar year
8 immediately preceding the effective date of the annual coverage period
9 beginning on or after January first, two thousand one, is more than
10 twenty thousand and less than or equal to seventy-five thousand dollars.
11 After the initial determination of eligibility, each eligible individual
12 must be redetermined eligible at least every twenty-four months; and
13 (b) any married resident who is enrolled in medicare and at least
14 sixty-five years of age in the year two thousand twenty, during the year
15 two thousand twenty-one is at least sixty years of age, during the year
16 two thousand twenty-two is at least fifty-five years of age, during the
17 year two thousand twenty-three is at least fifty years of age, during
18 the year two thousand twenty-four is at least forty-five years of age,
19 during the year two thousand twenty-five is at least forty years of age,
20 during the year two thousand twenty-six is at least thirty-five years of
21 age, during the year two thousand twenty-seven is at least thirty years
22 of age, during the year two thousand twenty-eight is at least twenty-
23 five years of age, or during the year two thousand twenty-nine is at
24 least eighteen years of age; and whose income for the calendar year
25 immediately preceding the effective date of the annual coverage period
26 when combined with the income in the same calendar year of such married
27 person's spouse beginning on or after January first, two thousand one,
28 is more than twenty-six thousand dollars and less than or equal to one
29 hundred thousand dollars. After the initial determination of eligibil-
30 ity, each eligible individual must be redetermined eligible at least
31 every twenty-four months.
32 § 5. Paragraphs (e) and (f) of subdivision 3 of section 242 of the
33 elder law, paragraph (e) as amended by section 3-d of part A of chapter
34 59 of the laws of 2011, and paragraph (f) as amended by section 1 of
35 part T of chapter 56 of the laws of 2012, are amended to read as
36 follows:
37 (e) As a condition of eligibility for benefits under this title, if a
38 program participant's income indicates that the participant could be
39 eligible for an income-related subsidy under section 1860D-14 of the
40 federal social security act by either applying for such subsidy or by
41 enrolling in a medicare savings program as a qualified medicare benefi-
42 ciary (QMB), a specified low-income medicare beneficiary (SLMB), or a
43 qualifying individual (QI), a program participant is required to
44 provide, and to authorize the [elderly] expanded pharmaceutical insur-
45 ance coverage program to obtain, any information or documentation
46 required to establish the participant's eligibility for such subsidy,
47 and to authorize the [elderly] expanded pharmaceutical insurance cover-
48 age program to apply on behalf of the participant for the subsidy or the
49 medicare savings program. [The elderly] Upon receipt of an enrollment
50 application, or at any time after enrollment when the program has infor-
51 mation that indicates an enrollee is eligible for a subsidy under
52 section 1860D-14 of the federal social security act or in a medicare
53 savings program, the expanded pharmaceutical insurance coverage program
54 shall make a reasonable effort to notify the program participant of his
55 or her need to provide any of the above required information. After a
56 reasonable effort has been made to contact the participant, a partic-
A. 5422 5
1 ipant shall be notified in writing that he or she has sixty days to
2 provide such required information. If such information is not provided
3 within the sixty day period, the participant's coverage may be termi-
4 nated. A program participant who is eligible to enroll in the medicare
5 savings program shall be assisted to do so, and their expanded pharma-
6 ceutical insurance coverage program enrollment shall be in place
7 throughout the medicare savings program application process.
8 (f) As a condition of eligibility for benefits under this title, a
9 program participant is required to be enrolled in Medicare part D and to
10 maintain such enrollment. For unmarried participants with individual
11 annual income less than or equal to twenty-three thousand dollars and
12 married participants with joint annual income less than or equal to
13 twenty-nine thousand dollars, the [elderly] expanded pharmaceutical
14 insurance coverage program shall pay for the portion of the part D
15 monthly premium, and any late enrollment penalty that may have been
16 assessed, that is the responsibility of the participant. Such total
17 payment shall be limited to the low-income benchmark premium amount
18 established by the federal centers for medicare and medicaid services
19 and any other amount which such agency establishes under its de minimus
20 premium policy.
21 § 6. Subdivision 3 of section 250 of the elder law is amended by
22 adding a new paragraph (f) to read as follows:
23 (f) The expanded pharmaceutical insurance coverage program shall post
24 to its website the names of manufacturers that have a rebate program and
25 list the drugs that are covered by such rebate program in a manner that
26 provides enrollees with access to such information prior to the annual
27 medicare open enrollment period.
28 § 7. This act shall take effect immediately.
