There are two necessary conditions before a Supreme Court decision will affect your Part D operations. First, the Court must overturn some portion of the Patient Protection and Affordable Care Act (ACA). Second, the Court must rule that it cannot overturn only a portion of the law. As a mitigating factor, Congress can act to reverse the effects of an overturn of the ACA’s Medicare Annual Election Period (AEP) and coverage gap provisions, but, of the two provisions, only AEP would likely be added to any potential “technical corrections” bill.
The Supreme Court’s review of the Patient Protection and Affordable Care Act of 2010 (also called the ACA, PPACA, or Healthcare Reform Act) will focus on the ACA’s two most contentious elements: the individual mandate and the expansion of Medicaid.
However, the Medicare Part D program could also be affected if two conditions are fulfilled:
- The Supreme Court overturns the individual mandate or the Medicaid portions of the ACA, and
- The court believes these provisions are not severable from the rest of the act. (That is, the entire law must be overturned, not just the parts ruled against.)
Since many provisions of the ACA are inextricably linked, AHIP has filed a brief supporting the position that the court’s decision to overturn any portion of the act cannot be severable. The concern is that if the individual mandate is overturned, the portions of the ACA mandating guaranteed issue must also be overturned to avoid placing unbearable costs on health carriers.
What does all this mean for Part D?
Two operational changes in the ACA affect Part D:
- A change to the Annual Election Period (AEP) that begins and ends earlier than the original AEP in the Medicare Modernization Act (MMA), and
- The closing of the coverage gap in the benefit structure of Part D plans, both with the branded drug discount and the overall gap closure that includes generic drugs.
If the AEP provision is overturned after judicial review, the most straightforward result is a return to the calendar used from 2007-2011. Under that calendar, enrollment begins on November 15th and closes on December 31st of the year, with marketing activities beginning on October 15th of the year.
The ACA’s earlier Medicare AEP generally helps reduce operating costs for all parties, including plan carriers and the Centers for Medicare & Medicaid Services (CMS). The earlier AEP also ensures that beneficiaries who enroll at the end of the AEP will be covered by January 1st, something that was nearly impossible under the old AEP calendar. If the AEP provision is overturned after the Supreme Court’s review, it may be possible for Congress to pass a “technical corrections” bill restoring the new (Oct 15 to Dec 7) AEP calendar.
Unfortunately, addressing any overturn to the coverage gap closure by adding it to a “technical corrections” bill would be difficult in prosperous times and may be impossible today, given the current overall Federal budget picture.
Even though the coverage gap closure is desired by many beneficiaries and has helped some carriers build share, it would receive less support from the manufacturers who used this as their bargaining chip in the ACA’s drafting phase. Without the delivery of additional insured lives under the ACA, manufacturers may be less keen on cutting their revenue.
Further hurting the chances that Congress would address this issue through a technical corrections bill is that the coverage gap closure results in higher costs borne by taxpayers. In contrast, the earlier AEP is neutral or even money-saving in its effects.
The legislative follow-up to any overturn of the provision closing the coverage gap is still murky for all of these reasons. However, it is crystal-clear that the out-of-pocket costs of drugs in the Part D coverage gap would revert immediately to the old pricing should the ACA be completely overturned.
This would be an incredible operational headache for plans and PBMs unprepared for such an eventuality. Although CMS is likely to issue guidance in advance of any Supreme Court decision, the operational planning relative to the expected timing of the Court’s decision (June 2012) is problematic given the proximity to bids and other CMS data submissions.
Should your carrier be affected by the rulings and subsequent regulatory changes, DRX technology is capable of implementing contingent pricing and flexibility on very short notice.
