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The landmark Medicare reform bill passed by Congress and signed into law by President Bush in late 2003 will help millions of Medicare beneficiaries buy prescription medications. But the measure could actually make it more difficult for people with HIV/AIDS to obtain drugs under the program, according to analysts interviewed by Positive Populations. Medicare covers about 50,000 people with HIV/AIDS and at least two thirds are dual eligibles, meaning they quality for both Medicare and Medicaid because of their disability and income status. In most instances, Medicare provides primary coverage for the dual eligibles and Medicaid serves as the secondary payer, providing wrap around supplemental coverage. As a result, Medicaid pays for Medicare cost sharing, provides long-term care services, provides prescription drugs, and pays for medical equipment and supplies that may not be covered by Medicare. The new Medicare reform bill will provide a drug benefit to Medicaid’s 40 million beneficiaries for the first time in the program’s 30 year history starting in 2006, but at the same time the measure will eliminate Medicaid drug coverage for dual eligibles in 2006, replacing it with a Medicare drug benefit that relies on private plans to provide drug coverage and which may, in fact, have gaps in coverage.

“These are private plans but their goal is to save Medicare money and the way they would do that is to deny people drugs,” asserted Jeff Crowley, MPH, Project Director for the Health Policy Institute at Georgetown University. “They are going to try to make a profit and will have huge incentives to avoid serving expensive people with AIDS.”

Some private insurance companies may make their plans unattractive to people with HIV/AIDS and other disabilities by offering a limited formulary or refusing to cover specific drugs in order to enroll only healthier individuals, a practice known as “cherry picking,” according to Crowley, a long time AIDS advocate. “It is not just AIDS, the same situation applies to people with mental illness,” Crowley said. “If you don’t want a lot of people with mental illness, lets make sure we don’t cover the right drugs.”

Most Medicare beneficiaries with HIV/AIDS are on multiple drug combinations but under the Medicare drug plan, a contracting insurance company may not cover one or more of the medications a person with HIV disease needs to stay alive, said Crowley, citing an example. HIV care and treatment is constantly changing but there are no provisions in the Medicare reform legislation about putting new drugs on a plan’s formulary, he said.

“Let’s say you are fighting for your life and you have failed on every drug that is out there,” Crowley said. “A new drug comes along but new drugs are always the most expensive when they come out and there is no incentive or nothing to require this drug to be put on the formulary.”

Tommy Thompson, Secretary of the Department of Health and Human Services (HHS), says, however, that “there are significant safeguards in the development of plan formularies that will ensure a wide range of drugs will be available to Medicare beneficiaries.”

“Plans have the option to use formularies but they are not required to do so,” said Secretary Thompson in response to questions posed by Sen. Dianne Feinstein (DCalif.). “If a plan uses a formulary, it must include drugs in each therapeutic category and class. A formulary must include at least two drugs in each therapeutic category or class unless the category or class has one drug.”

But the law does not specify what constitutes a therapeutic class, Crowley said. It is not clear, for example, if protease inhibitors are considered a therapeutic class. The legislation also says that a physician’s note explaining the need for a particular drug will result in coverage of that medication at a preferred price. But this language only pertains to non-preferred medications— drugs covered by a plan but at a higher price than preferred medications. The law does not address whether plans would have to cover medications not on their formularies, so called non-formulary drugs.

Crowley, meanwhile, speculated that dual eligibles could turn to Ryan White CARE Act programs for help but those programs are already overburdened, and in many states, the AIDS Drug Assistance Programs, funded under Title II of the CARE Act, are struggling to stay afloat.

Vulnerable Populations

It is important to understand that dual eligibles in many cases are extremely poor and sick, qualifying for Medicare by meeting a disability standard and also qualifying for Medicaid by having little or no income or assets. They are typically sicker than the average patient with HIV disease, in need of more medications and much poorer. A dual  eligible with HIV disease could be taking as many as 10 or 15 drugs, all of them brand name medications.

Under the Medicare plan, there is a $3 co-payment for brand name medications and a $1 co-pay for generics, costs that are simply unattainable for many dual eligibles with HIV/AIDS. “Thirty dollars could mean the difference between getting all the drugs needed to stay alive or eating,” Crowley said.

The appeals process under the legislation is also troubling for people with HIV/AIDS, Crowley said. There is a requirement in the new law, for example, that says a Medicare beneficiary can only appeal a decision if the amount in question amounts to $100 or more and that a judicial review can only occur if the disputed amount is $1,000 or greater. The legislation says that in emergencies appeal decisions have to be rendered within 72 hours, but Medicare does not have to supply medications during that 72-hour time frame, a dangerous provision for someone with HIV/AIDS because of treatment interruptions that could lead to drug resistant strains of HIV.

“I am worried that a lot of people are going to fall through the cracks,” Crowley said. “They may not get their drugs covered, and at a minimum there is going to be lots of interruptions while they are appealing certain decisions. That could be harmful to them and harmful from a public health perspective.