II 

109TH CONGRESS 

2D SESSION S. 2183 

To provide for necessary beneficiary protections in order to ensure access 

to coverage under the Medicare part D prescription drug program. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 20, 2006 

Mr. ROCKEFELLER (for himself, Mr. REID, Mrs. MURRAY, Mr. BINGAMAN, 

Mrs. LINCOLN, Mr. KENNEDY, Mrs. CLINTON, Mr. LAUTENBERG, Ms. 

STABENOW, Mr. DURBIN, Mr. KERRY, Mr. SCHUMER, Mr. PRYOR, Mr. 

LEAHY, Mr. DAYTON, Mr. JEFFORDS, Mr. HARKIN, Ms. MIKULSKI, Mr. 

JOHNSON, Ms. CANTWELL, Mr. AKAKA, Mr. LIEBERMAN, Mr. KOHL, Ms. 

LANDRIEU, Mr. SARBANES, and Mrs. BOXER) introduced the following 

bill; which was read twice and referred to the Committee on Finance 

A BILL 

To provide for necessary beneficiary protections in order 

to ensure access to coverage under the Medicare part 

D prescription drug program. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Requiring Emergency Pharmaceutical Access for Indi6 vidual Relief (REPAIR) Act of 2006’’. 
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1 (b) TABLE OF CONTENTS.—The table of contents of 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Transition requirements. 

Sec. 3. Federal fallback for full-benefit dual eligible individuals for 2006. 

Sec. 4. Identifying full-benefit dual eligible individuals in data records. 

Sec. 5. Prohibition on conditioning Medicaid eligibility for individuals enrolled 

in certain creditable prescription drug coverage on enrollment 

in the Medicare part D drug program. 

Sec. 6. Ensuring that full-benefit dual eligible individuals are not overcharged. 

Sec. 7. Reimbursement of States for 2006 transition costs. 

Sec. 8. Facilitation of identification and enrollment through pharmacies of fullbenefit dual eligible individuals in the Medicare part D drug 

program. 

Sec. 9. State health insurance program assistance regarding the new Medicare 

prescription drug benefit. 

Sec. 10. Additional Medicare part D informational resources. 

Sec. 11. GAO study and report on the imposition of co-payments under part 

D for full-benefit dual eligible individuals residing in a longterm care facility. 

Sec. 12. State coverage of non-formulary prescription drugs for full-benefit dual 

eligible individuals during 2006. 

Sec. 13. Protection for full-benefit dual eligible individuals from plan termination prior to receiving functioning access in a new part D 

plan. 

3 SEC. 2. TRANSITION REQUIREMENTS. 

4 (a) REQUIREMENT.— 

5 (1) IN GENERAL.—Section 1860D–4(b) of the 

6 Social Security Act (42 U.S.C. 1395w–104(b)) is 

7 amended by adding at the end the following new 

8 paragraph: 

9 ‘‘(4) FORMULARY TRANSITION.—The sponsor of 

10 a prescription drug plan is required to provide at 

11 least a 30-day supply of any drug that a new en12 rollee in the plan was taking prior to enrolling in 

13 such plan. For individuals residing in a long-term 

14 care setting, the sponsor of a prescription drug plan 
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1 is required to provide at least a 90-day supply of 

2 any drug such individual was taking prior to enroll3 ing in such plan. A formulary transition supply pro4 vided under this section shall be made by the spon5 sor of a prescription drug plan without imposing any 

6 prior authorization requirements or other access re7 strictions for individuals stabilized on a course of 

8 treatment and at the dosage previously prescribed by 

9 a physician or recommended by a physician going 

10 forward. 

11 ‘‘(5) CUSTOMER SERVICE.—The sponsor of a 

12 prescription drug plan is required to provide— 

13 ‘‘(A) accessible and trained customer serv14 ice representatives available for full business 

15 hours from coast to coast to provide knowledge16 able assistance to individuals seeking help with 

17 Medicare Part D including, but not limited to, 

18 beneficiaries, caseworkers, SHIP counselors, 

19 pharmacists, doctors, and caregivers; 

20 ‘‘(B) at least one dedicated phone line for 

21 pharmacists with sufficient staff to reduce wait 

22 times for pharmacists seeking Medicare Part D 

23 assistance to no more than 20 minutes; and 
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1 ‘‘(C) sufficient staff to reduce wait times 

2 for all Medicare Part D-related calls to plan 

3 phone lines to no more than 20 minutes.’’. 

4 (2) APPLICATION.—The requirements under 

5 paragraphs (4) and (5) of section 1860D–4(b) of the 

6 Social Security Act (42 U.S.C. 1395w–104(b)), as 

7 added by subsection (a), shall apply to the plan serv8 ing as the national point of sale contractor under 

9 part D of title XVIII of such Act. 

10 (b) EFFECTIVE DATE AND ENFORCEMENT.— 

11 (1) EFFECTIVE DATE.—The amendment made 

12 by subsection (a) shall take effect on the date of en13 actment of this Act. 

14 (2) ENFORCEMENT.—The Secretary may im15 pose a civil monetary penalty in an amount not to 

16 exceed $15,000 for conduct that a sponsor of a pre17 scription drug plan or an organization offering an 

18 MA–PD plan knows or should know is a violation of 

19 the provisions of paragraph (4) or (5) of section 

20 1860D–4(b) of the Social Security Act (42 U.S.C. 

21 1395w–104(b)), as added by subsection (a). The 

22 provisions of section 1128A of the Social Security 

23 Act (42 U.S.C. a–7a), other than subsections (a) 

24 and (b) and the second sentence of subsection (f), 

25 shall apply to a civil monetary penalty under the 
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1 previous sentence in the same manner as such provi2 sions apply to a penalty or proceeding under sub3 section (a) of such section 1128A(a). 

4 SEC. 3. FEDERAL FALLBACK FOR FULL-BENEFIT DUAL ELI5 GIBLE INDIVIDUALS FOR 2006. 

6 (a) IN GENERAL.— 

7 (1) IN GENERAL.—If a full-benefit dual eligible 

8 individual (as defined in section 1935(c)(6) of the 

9 Social Security Act (42 U.S.C. 1396u–5(c)(6))), or 

10 an individual who is presumed to be such an indi11 vidual pursuant to subsection (b), presents a pre12 scription for a covered part D drug (as defined in 

13 section 1860D–2(e) of such Act (42 U.S.C. 1395w– 

14 102(e))) at a pharmacy in 2006 and the pharmacy 

15 is unable to locate or verify the individual’s enroll16 ment through a reasonable effort, including the use 

17 of the pharmacy billing system or by calling an offi18 cial Medicare hotline, or to bill for the prescription 

19 through the plan serving as the national point of 

20 sale contractor, the pharmacy may provide a 30-day 

21 supply of the drug to the individual. 

22 (2) REFILL.—The pharmacy may provide an 

23 additional 30-day supply of a drug if the pharmacy 

24 continues to be unable to locate the individual’s en25 rollment through such reasonable efforts or to bill 
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1 for the prescription through the plan serving as the 

2 national point of sale contractor when a prescription 

3 is presented on or after the date that a prescription 

4 refill is appropriate, but in no case after December 

5 31, 2006. 

6 (3) COST-SHARING.—The cost-sharing for a 

7 prescription filled pursuant to this subsection shall 

8 be cost-sharing provided for under section 1860D– 

9 14(a) of the Social Security Act (42 U.S.C. 1395w– 

10 114(a)). 

11 (b) PRESUMPTIVE ELIGIBILITY.—An individual shall 

12 be presumed to be a full-benefit dual eligible individual 

13 (as so defined) if the individual presents at the pharmacy 

14 with— 

15 (1) a government issued picture identification 

16 card; 

17 (2) reliable evidence of Medicaid enrollment, 

18 such as a Medicaid card, recent history of Medicaid 

19 billing in the pharmacy patient profile, or a copy of 

20 a current Medicaid award letter; and 

21 (3) reliable evidence of Medicare enrollment, 

22 such as a Medicare identification card, a Medicare 

23 enrollment approval letter, a Medicare Summary No24 tice, or confirmation from an official Medicare hot25 line. 
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1 (c) PAYMENTS TO PHARMACISTS.— 

2 (1) IN GENERAL.—The Secretary of Health and 

3 Human Services shall reimburse pharmacists, to the 

4 extent that such pharmacists are not otherwise reim5 bursed by States or plans, for the costs incurred in 

6 complying with the requirements under subsection 

7 (a), including acquisition costs, dispensing costs, and 

8 other overhead costs. Such payments shall be made 

9 in a timely manner from the Medicare Prescription 

10 Drug Account under section 1860D–16 of the Social 

11 Security Act (42 U.S.C. 1395w–116) and shall be 

12 deemed to be payments from such Account under 

13 subsection (b) of such section. 

14 (2) RETROACTIVE APPLICATION TO BEGINNING

15 OF 2006.—The costs incurred by a pharmacy which 

16 may be reimbursed under paragraph (1) shall in17 clude costs incurred during the period beginning on 

18 January 1, 2006, and before the date of enactment 

19 of this Act. 

20 (d) RECOVERY OF COSTS FROM PLANS BY SEC21 RETARY NOT PHARMACIES.—The Secretary of Health and 

22 Human Services shall establish a process for recovering 

23 the costs described in subsection (c)(1) from prescription 

24 drug plans (as defined in section 1860D–1(a)(3)(C) of the 

25 Social Security Act (42 U.S.C. 1394w–101(a)(3)(C))) and 
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1 MA–PD plans (as defined in section 1860D–41(a)(14) of 

2 such Act (42 U.S.C. 1395w–151(a)(14))) if the Secretary 

3 determines that such plans should have incurred such 

4 costs. Amounts recovered pursuant to the preceding sen5 tence shall be deposited in the Medicare Prescription Drug 

6 Account described in subsection (c)(1). 

7 SEC. 4. IDENTIFYING FULL-BENEFIT DUAL ELIGIBLE INDI8 VIDUALS IN DATA RECORDS. 

9 (a) IN GENERAL.—The Secretary of Health and 

10 Human Services and a prescription drug plan or an MA– 

11 PD plan shall clearly identify all full-benefit dual eligible 

12 individuals (as defined in section 1935(c)(6) of the Social 

13 Security Act (42 U.S.C. 1396u–5(c)(6))) and reflect the 

14 low-income subsidy status of such individual for each cal15 ender year (beginning with 2006) in every data record file 

16 used to enroll or adjudicate claims for such individuals. 

17 (b) ENROLLMENT.—For each calendar year (begin18 ning with 2006) and for each Medicaid beneficiary who 

19 is a full-benefit dual eligible individual (as so defined), the 

20 Secretary of Health and Human Services shall— 

21 (1) identify in the Medicare enrollment data22 base that such individual has dual eligible status 

23 that has been verified with a State or the District 

24 of Columbia; and 
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1 (2) ensure that such dual eligible status is re2 flected in each data file necessary to ensure that 

3 such status is transmitted to a prescription drug 

4 plan or an MA–PD plan when the Secretary certifies 

5 the enrollment of such an individual in a plan. 

6 (c) DEFINITION OF MA–PD PLAN AND PRESCRIP7 TION DRUG PLAN.—For purposes of this section, the 

8 terms ‘‘MA–PD plan’’ and ‘‘prescription drug plan’’ have 

9 the meaning given such terms in sections 1860D– 

10 1(a)(3)(C) and 1860D–41(a)(14) of the Social Security 

11 Act (42 U.S.C. 1395w–101(a)(3)(C); 1395w–151(a)(14)), 

12 respectively. 

13 SEC. 5. PROHIBITION ON CONDITIONING MEDICAID ELIGI14 BILITY FOR INDIVIDUALS ENROLLED IN CER15 TAIN CREDITABLE PRESCRIPTION DRUG 

16 COVERAGE ON ENROLLMENT IN THE MEDI17 CARE PART D DRUG PROGRAM. 

18 (a) IN GENERAL.—Section 1935 of the Social Secu19 rity Act (42 U.S.C. 1396v) is amended by adding at the 

20 end the following: 

21 ‘‘(f) PROHIBITION ON CONDITIONING ELIGIBILITY

22 FOR MEDICAL ASSISTANCE FOR INDIVIDUALS ENROLLED

23 IN CERTAIN CREDITABLE PRESCRIPTION DRUG COV24 ERAGE ON ENROLLMENT IN MEDICARE PRESCRIPTION

25 DRUG BENEFIT.— 
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1 ‘‘(1) IN GENERAL.—A State shall not condition 

2 eligibility for medical assistance under the State 

3 plan for a part D eligible individual (as defined in 

4 section 1860D–1(a)(3)(A)) who is enrolled in cred5 itable prescription drug coverage described in any of 

6 subparagraphs (C) through (H) of section 1860D– 

7 13(b)(4) on the individual’s enrollment in a prescrip8 tion drug plan under part D of title XVIII or an 

9 MA–PD plan under part C of such title. 

10 ‘‘(2) COORDINATION OF BENEFITS WITH PART

11 D FOR OTHER INDIVIDUALS.—Nothing in this sub12 section shall be construed as prohibiting a State 

13 from coordinating medical assistance under the 

14 State plan with benefits under part D of title XVIII 

15 for individuals not described in paragraph (1).’’. 

16 (b) NULLIFICATION OF STATE PLAN AMENDMENTS, 

17 REDETERMINATION OF ELIGIBILITY.—In the case of a 

18 State that, as of the date of enactment of this Act, has 

19 an approved amendment to its State plan under title XIX 

20 of the Social Security Act with a provision that conflicts 

21 with section 1935(f) of such Act (as added by subsection 

22 (a)), such provision is, as of such date of enactment, null 

23 and void. The State shall redetermine any applications for 

24 medical assistance that have been denied solely on the 

25 basis of the application of such a State plan amendment 
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1 not later than 90 days after the date of enactment of this 

2 Act. 

3 SEC. 6. ENSURING THAT FULL-BENEFIT DUAL ELIGIBLE IN4 DIVIDUALS ARE NOT OVERCHARGED. 

5 (a) IN GENERAL.—Section 1860D–14 of the Social 

6 Security Act (42 U.S.C. 1395w–114) is amended— 

7 (1) by redesignating subsection (d) as sub8 section (e); and 

9 (2) by inserting after subsection (c) the fol10 lowing new subsection: 

11 ‘‘(d) ENSURING FULL-BENEFIT DUAL ELIGIBLE IN12 DIVIDUALS ARE NOT OVERCHARGED.— 

13 ‘‘(1) IN GENERAL.—The Secretary shall, as 

14 soon a possible after the date of enactment of this 

15 subsection, establish processes for the following: 

16 ‘‘(A) TRACKING INAPPROPRIATE PAY17 MENTS.—The Secretary shall track full-benefit 

18 dual eligible individuals enrolled in a prescrip19 tion drug plan or an MA–PD plan to determine 

20 whether such individuals were inappropriately 

21 subject under the plan to a deductible or cost22 sharing that is greater than is required under 

23 section 1860D–14. 

24 ‘‘(B) REDUCTION IN PAYMENTS TO PLANS

25 AND REFUNDS TO INDIVIDUALS.—If the Sec-
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1 retary determines under subparagraph (A) that 

2 an individual was overcharged, the Secretary 

3 shall— 

4 ‘‘(i) reduce payments to the sponsor 

5 of the prescription drug plan under section 

6 1860D–15 or to the organization offering 

7 the MA–PD plan under section 1853 that 

8 inappropriately charged the individual by 

9 an amount equal to the inappropriate 

10 charges; and 

11 ‘‘(ii) refund such amount to the indi12 vidual within 60 days of the determination 

13 that the individual was inappropriately 

14 charged. 

15 If the Secretary does not provide for the refund 

16 under clause (i) within the 60 days provided for 

17 under such clause, interest at the rate estab18 lished under section 6621(a)(1) of the Internal 

19 Revenue Code of 1986 shall be payable from 

20 the end of such 60-day period until the date of 

21 the refund. 

22 ‘‘(2) REQUIREMENT.—The processes estab23 lished under paragraph (1) shall provide for the abil24 ity of an individual to notify the Secretary if the in25 dividual believes that they were inappropriately sub-
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1 ject under the plan to a deductible or cost-sharing 

2 that is greater than is required under section 

3 1860D–14.’’. 

4 (b) REPORT TO CONGRESS.—Not later than January 

5 1, 2007, the Secretary of Health and Human Services 

6 shall submit a report to Congress on the implementation 

7 of the processes established under subsection (d) of section 

8 1860D–14 of the Social Security Act (42 U.S.C. 1395w– 

9 114), as added by subsection (a). 

10 SEC. 7. REIMBURSEMENT OF STATES FOR 2006 TRANSITION 

11 COSTS. 

12 (a) REIMBURSEMENT.— 

13 (1) IN GENERAL.—Notwithstanding section 

14 1935(d) of the Social Security Act (42 U.S.C. 

15 1396u–5(d) or any other provision of law, the Sec16 retary of Health and Human Services shall reim17 burse States for 100 percent of the costs incurred by 

18 the State during 2006 for covered part D drugs (as 

19 defined in section 1860D–2(e) of such Act (42 

20 U.S.C. 1395w–102(e))) for part D eligible individ21 uals (as defined in section 1860D–1(a)(3)(A) of the 

22 Social Security Act (42 U.S.C. 1394w– 

23 101(a)(3)(A))) which the State reasonably expected 

24 would have been covered under such part but were 

25 not because the individual was unable to access on 
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1 a timely basis prescription drug benefits to which 

2 they were entitled under such part. Such payments 

3 shall be made from the Medicare Prescription Drug 

4 Account under section 1860D–16 of the Social Secu5 rity Act (42 U.S.C. 1395w–116) and shall be 

6 deemed to be payments from such Account under 

7 subsection (b) of such section. 

8 (2) RETROACTIVE APPLICATION TO BEGINNING

9 OF 2006.—The costs incurred by a State which may 

10 be reimbursed under paragraph (1) shall include 

11 costs incurred during the period beginning on Janu12 ary 1, 2006, and before the date of enactment of 

13 this Act. 

14 (b) RECOVERY OF COSTS FROM PLANS BY SEC15 RETARY NOT STATES.—The Secretary of Health and 

16 Human Services shall establish a process for recovering 

17 the costs described in subsection (a)(1) from prescription 

18 drug plans (as defined in section 1860D–1(a)(3)(C) of the 

19 Social Security Act (42 U.S.C. 1394w–101(a)(3)(C))) and 

20 MA–PD plans (as defined in section 1860D–41(a)(14) of 

21 such Act (42 U.S.C. 1395w–151(a)(14))) if the Secretary 

22 determines that such plans should have incurred such 

23 costs. Amounts recovered pursuant to the preceding sen24 tence shall be deposited in the Medicare Prescription Drug 

25 Account described in subsection (a)(1). 
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1 (c) STATE.—For purposes of this section, the term 

2 ‘‘State’’ includes the District of Columbia. 

3 SEC. 8. FACILITATION OF IDENTIFICATION AND ENROLL4 MENT THROUGH PHARMACIES OF FULL-BEN5 EFIT DUAL ELIGIBLE INDIVIDUALS IN THE 

6 MEDICARE PART D DRUG PROGRAM. 

7 (a) IN GENERAL.—The Secretary of Health and 

8 Human Services shall provide for outreach and education 

9 to every pharmacy that has participated in the Medicaid 

10 program under title XIV of the Social Security Act, par11 ticularly independent pharmacies, on the following: 

12 (1) The needs of full-benefit dual eligible indi13 viduals and the challenges of meeting those needs. 

14 (2) The processes for the transition from Med15 icaid prescription drug coverage to coverage under 

16 such part D for such individuals. 

17 (3) The processes established by the Secretary 

18 to facilitate, at point of sale, identification of drug 

19 plan assignment of such population or enrollment of 

20 previously unidentified or new full-benefit dual eligi21 ble individuals into Medicare part D prescription 

22 drug coverage, including how pharmacies can use 

23 such processes to help ensure that such population 

24 makes a successful transition to Medicare part D 

25 without a lapse in prescription drug coverage. 
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1 (b) HOLDING PHARMACIES HARMLESS FOR CERTAIN

2 COSTS.— 

3 (1) IN GENERAL.—The Secretary of Health and 

4 Human Services shall provide for such payments to 

5 pharmacies as may be necessary to reimburse phar6 macies fully for— 

7 (A) transaction fees associated with the 

8 point-of-sale facilitated identification and enroll9 ment processes referred to in subsection (a)(3); 

10 and 

11 (B) costs associated with technology or 

12 software upgrades necessary to make any iden13 tification and enrollment inquiries as part of 

14 the processes under subsection (a)(3). 

15 (2) TIME.—Payments under paragraph (1) 

16 shall be made with respect to fees and costs incurred 

17 during the period beginning on December 1, 2005, 

18 and ending on June 1, 2006. 

19 (3) PAYMENTS FROM ACCOUNT.—Payments 

20 under paragraph (1) shall be made from the Medi21 care Prescription Drug Account under section 

22 1860D–16 of the Social Security Act (42 U.S.C. 

23 1395w–116) and shall be deemed to be payments 

24 from such Account under subsection (b) of such sec25 tion. 
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1 SEC. 9. STATE HEALTH INSURANCE PROGRAM ASSISTANCE 

2 REGARDING THE NEW MEDICARE PRESCRIP3 TION DRUG BENEFIT. 

4 During the period beginning on the date that is 7 

5 days after the date of enactment of this Act and ending 

6 on May 15, 2006 (or a later date if determined appro7 priate by the Secretary of Health and Human Services), 

8 the Secretary shall ensure that an employee of the Centers 

9 for Medicare & Medicaid Services is stationed at each 

10 State health insurance counseling program (receiving 

11 funding under section 4360 of the Omnibus Budget Rec12 onciliation Act of 1990) in order to— 

13 (1) assist Medicare beneficiaries and counselors 

14 under such program in better understanding the 

15 Medicare prescription drug benefit under part D of 

16 title XVIII of the Social Security Act; and 

17 (2) act as a liaison to the Secretary and the Ad18 ministrator of the Centers for Medicare & Medicaid 

19 Services regarding issues related to oversight and 

20 enforcement of provisions under the Medicare pre21 scription drug benefit. 

22 SEC. 10. ADDITIONAL MEDICARE PART D INFORMATIONAL 

23 RESOURCES. 

24 (a) 1–800–MEDICARE.—The Secretary of Health 

25 and Human Services shall increase the number of trained 

26 employees staffing the toll-free telephone number 1–800– 
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1 MEDICARE in order to ensure that the average wait time 

2 for a caller does not exceed 20 minutes. 

3 (b) PHARMACY HOTLINE.—The Secretary of Health 

4 and Human Services shall— 

5 (1) establish a toll-free telephone number that 

6 is dedicated to providing information regarding the 

7 Medicare prescription drug benefit under title XVIII 

8 of the Social Security Act to pharmacists; and 

9 (2) staff such telephone number in order to en10 sure that the average wait time for a caller does not 

11 exceed 20 minutes. 

12 (c) STATE HEALTH INSURANCE PROGRAM HOT13 LINE.—The Secretary of Health and Human Services 

14 shall— 

15 (1) establish a toll-free telephone number that 

16 is dedicated to providing information regarding the 

17 Medicare prescription drug benefit under title XVIII 

18 of the Social Security Act to counselors working in 

19 State health insurance counseling programs (receiv20 ing funding under section 4360 of the Omnibus 

21 Budget Reconciliation Act of 1990); and 

22 (2) staff such telephone number in order to en23 sure that the average wait time for a caller does not 

24 exceed 20 minutes. 
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1 SEC. 11. GAO STUDY AND REPORT ON THE IMPOSITION OF 

2 CO-PAYMENTS UNDER PART D FOR FULL3 BENEFIT DUAL ELIGIBLE INDIVIDUALS RE4 SIDING IN A LONG-TERM CARE FACILITY. 

5 (a) STUDY.—The Comptroller General of the United 

6 States shall conduct a study on how mental health pa7 tients who are full-benefit dual eligible individuals (as de8 fined in section 1935(c)(6) of the Social Security Act (42 

9 U.S.C. 1396u–5(c)(6))) and who reside in long-term care 

10 facilities, including licensed assisted living facilities, will 

11 be affected by the imposition of co-payments for covered 

12 part D drugs under part D of title XVIII of such Act. 

13 Such study shall include a review of issues that relate to 

14 the potential harm of displacement due to an inability to 

15 access needed medications because of such co-payments. 

16 (b) REPORT.—Not later than 6 months after the date 

17 of enactment of this Act, the Comptroller General of the 

18 United States shall submit a report to Congress on the 

19 study conducted under subsection (a) together with rec20 ommendations for such legislation as the Comptroller Gen21 eral determines is appropriate. 

22 SEC. 12. STATE COVERAGE OF NON-FORMULARY PRESCRIP23 TION DRUGS FOR FULL-BENEFIT DUAL ELIGI24 BLE INDIVIDUALS DURING 2006. 

25 (a) STATE COVERAGE OF NON-FORMULARY PRE26 SCRIPTION DRUGS FOR FULL-BENEFIT DUAL ELIGIBLE
20 

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1 INDIVIDUALS DURING 2006.—For prescriptions filled 

2 during 2006, notwithstanding section 1935(d) of the So3 cial Security Act (42 U.S.C. 1396v(d)), a State (as de4 fined for purposes of title XIX of such Act) may provide 

5 (and receive Federal financial participation for) medical 

6 assistance under such title with respect to prescription 

7 drugs provided to a full-benefit dual eligible individual (as 

8 defined in section 1935(c)(6) of such Act (42 U.S.C. 

9 1396v(c)(6)) that are not on the formulary of the prescrip10 tion drug plan under part D or the MA–PD plan under 

11 part C of title XVIII of such Act in which such individual 

12 is enrolled. 

13 (b) APPLICATION.— 

14 (1) MEDICARE AS PRIMARY PAYER.—Nothing in 

15 subsection (a) shall be construed as changing or af16 fecting the primary payer status of a prescription 

17 drug plan under part D or an MA–PD plan under 

18 part C of title XVIII of the Social Security Act with 

19 respect to prescription drugs furnished to any full20 benefit dual eligible individual (as defined in section 

21 1935(c)(6) of such Act (42 U.S.C. 1396v(c)(6)) dur22 ing 2006. 

23 (2) THIRD PARTY LIABILITY.—Nothing in sub24 section (a) shall be construed as limiting the author25 ity or responsibility of a State under section 
21 

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1 1902(a)(25) of the Social Security Act (42 U.S.C. 

2 1396a(a)(25)) to seek reimbursement from a pre3 scription drug plan, an MA–PD plan, or any other 

4 third party, of the costs incurred by the State in 

5 providing prescription drug coverage during 2006. 

6 SEC. 13. PROTECTION FOR FULL-BENEFIT DUAL ELIGIBLE 

7 INDIVIDUALS FROM PLAN TERMINATION 

8 PRIOR TO RECEIVING FUNCTIONING ACCESS 

9 IN A NEW PART D PLAN. 

10 (a) IN GENERAL.—Notwithstanding any other provi11 sion of law, the Secretary of Health and Human Services 

12 shall not terminate coverage of a full-benefit dual eligible 

13 individual (as defined in section 1935(c)(6) of the Social 

14 Security Act (42 U.S.C. 1396v(c)(6)) unless such indi15 vidual has functioning access to a prescription drug plan 

16 under part D or an MA–PD plan under part C of title 

17 XVIII of such Act. Such access shall include entry of the 

18 individual into the computer system of such plan and an 

19 acknowledgment by the plan that the individual is eligible 

20 for a full premium subsidy under section 1860D–14 of 

21 such Act (42 U.S.C. 1395w–114). 

22 (b) EFFECTIVE DATE.—This section shall take effect 

23 on the date of enactment of this Act. 

Æ