After March 1, 2011, drug plans can make “negative” changes to their formularies during most of the remainder of the year. By negative changes we mean they can remove a drug from their formulary, that is, no longer cover it; or remove a particular dosage of a drug from their formulary; or they can change a drug from one price tier to another tier where a beneficiary has to pay more; or they can impose utilization controls (such as step therapy) which had not previously been in place. In other words, “negative” changes are those which either restrict a beneficiary from getting a drug, or which cause a drug to be more costly to a beneficiary. (Part D drug plans are always able to add drugs to their formulary, or put a drug in a lower cost tier, or remove utilization controls.)
And there is a general rule that a plan cannot actually make these negative changes until 60 days after giving notice of the change. The exceptions are that an immediate change can be made if the FDA issues a warning about a drug or if a manufacturer stops making a drug.
Some Medicare guidance talks about what a beneficiary’s rights are when these changes are made (“maintenance” vs. “non-maintenance” changes), but a beneficiary has no real way of knowing what kind of change has been made other than that their plan has to notify them of it if they are affected by it, and tell them what their rights are.
What is important is that some changes (the so-called “non-maintenance” changes) are not supposed to directly affect a beneficiary for the remainder of the calendar year in which they are made. So, for example, if you are taking a drug and your plan now decides (for its own reasons, and not, for example, because of an FDA warning) that it will require step therapy for it, you will not be affected as for the remainder of the year as this new requirement won’t apply to you. Nor will it apply to a beneficiary who first presents a prescription for the drug in the 60 days between when the plan announces the change and the change actually goes into effect. It will apply to a beneficiary in the plan that subsequently starts taking that drug after the change goes into effect.
(Importantly, if you stick with this plan for the next calendar year, you will then be subject to the change, but you, of course, will have to the opportunity, from October 15 to December 7, 2011 Note the new dates, the Annual Coordinated Election Period, which is sometimes called Fall Open Enrollment, is different this year. to switch plans in 2012. But what is a little tricky here is that your plan doesn’t have to notify you of the specific change if you are not affected by it, and so you may stick with your plan into the new year, when it will affect you. Again, this just reinforces the need for you to check your plan’s Annual Notice of Change you get in the fall to make sure that all your drugs will continue to be covered, or, even better, to go on Medicare’s Plan Compare feature and shop, each and every year, for the very best plan for you.)
The other changes (the so-called “maintenance” changes) will apply to you, but your plan has to give you a 60-day notice of what the change is before it goes into effect, and it has to allow you to have at least a 60-day supply of your drug. But from then on, you are subject to the change. So, for example, if a generic drug begins to be marketed, and your plan removes its brand name equivalent from its formulary, you have to get the notice 60 days before it actually does so, and your plan has to make sure you can get a 60-day supply of the brand name drug. The idea here is that the 60 days gives you time to check with your prescribing physician or health care provider about the change. And, if it is not suitable, the important paragraph below applies.
In these cases, because you are affected, your plan must tell you your rights. So in these cases you may ask for exception, which is really just another way of saying you can appeal. And this applies to any action which is negative to you: removal of a drug (or particular dosage of it) from their formulary; a change a drug from one price tier to another, higher tier; or the imposition of utilization controls. And the first appeals step is a “request for a drug coverage determination” in which you ask your plan for a formal decision on your request, in this case, for an exception.
Most beneficiary advocates prefer that you make your “request for a drug coverage determination” in writing; this is especially so because your prescribing physician or health care provider will have to endorse your exception request. You can easily download a form to so this on by searching for “Request for Medicare Prescription Drug Coverage Determination” on the net. Print this out and fill out all of it that you possibly can, and then take it to your prescriber to have them finalize it. They usually will fax it to the plan for you. Alternatively, you can ask your State Health Insurance Counseling Program (SHIP) to help you with this process. Their toll free phone number is on the back of your Medicare and You booklet.
If your plan’s decision is not acceptable to you, follow the rest of the appeals process as set out in Chapter 14 of “Managing Your Medicare.”
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