I 

111TH CONGRESS 

1ST SESSION H. R. 3799 

To amend title XVIII of the Social Security Act to improve prescription 

drug coverage under Medicare part D and to amend the Public Health 

Service Act, the Employee Retirement Income Security Act of 1974, 

and the Internal Revenue Code of 1986, to improve prescription drug 

coverage under private health insurance, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 13, 2009 

Mr. JOHNSON of Georgia (for himself, Ms. KILROY, Mr. CARNAHAN, Mr. 

RYAN of Ohio, Ms. LEE of California, Mr. ELLISON, Mr. DOGGETT, Ms. 

FUDGE, and Mr. KENNEDY) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to 

the Committees on Ways and Means and Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend title XVIII of the Social Security Act to improve 

prescription drug coverage under Medicare part D and 

to amend the Public Health Service Act, the Employee 

Retirement Income Security Act of 1974, and the Internal Revenue Code of 1986, to improve prescription drug 

coverage under private health insurance, and for other 

purposes. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Affordable Access to 

3 Prescription Medications Act of 2009’’. 

4 SEC. 2. MEDICARE PART D PRESCRIPTION DRUG PLANS. 

5 (a) IN GENERAL.—Section 1860D–2(b)(4) of the So6 cial Security Act (42 U.S.C. 1395w–102(b)(4)) is amend7 ed by adding at the end the following new subparagraph: 

8 ‘‘(E) ADDITIONAL PROTECTIONS.— 

9 ‘‘(i) IN GENERAL.—Notwithstanding 

10 any other provision of this part, effective 

11 for plan years beginning on or after Janu12 ary 1, 2011, a PDP sponsor of a prescrip13 tion drug plan and an MA organization of14 fering an MA–PD plan shall, with respect 

15 to any co-payment or coinsurance require16 ments applicable to covered part D drugs 

17 under the plan, ensure that— 

18 ‘‘(I) such required co-payment or 

19 coinsurance does not exceed the base 

20 cost of the covered part D drug (as 

21 determined by the Secretary); 

22 ‘‘(II) such required co-payment 

23 or coinsurance does not exceed $200 

24 per month for any single covered part 

25 D drug (30-day supply); and 


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1 ‘‘(III) such required co-payment 

2 or coinsurance does not exceed, in the 

3 aggregate for all covered part D 

4 drugs, $500 per month. 

5 ‘‘(ii) ADJUSTMENTS.—The amounts 

6 described in clauses (II) and (III) of clause 

7 (i) shall be annually adjusted to reflect the 

8 average of the percentage increase or de9 crease in the Consumer Price Index for all 

10 urban consumers (U.S. city average) and 

11 the percentage increase or decrease in the 

12 medical care component of such Consumer 

13 Price Index during the calendar year pre14 ceding the year for which the adjustment 

15 is being made.’’. 

16 (b) EXPANSION OF EXCEPTIONS PROCESS.—Effec17 tive for plan years beginning on or after January 1, 2011, 

18 the Secretary shall expand the formulary tier exception re19 quest process under sections 423.560 through 423.636 of 

20 title 42, Code of Federal Regulations (as in effect on the 

21 date of enactment of this Act), to allow individuals en22 rolled in a prescription drug plan under part D of title 

23 XVIII of the Social Security Act or an MA–PD plan under 

24 part C of such title to request an exception for a specialty 

25 prescription drug to a plan’s designation of a covered part 


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1 D drug (as defined in section 1860D–2(e) of such Act (42 

2 U.S.C. 1395w–102(e)) as a non-preferred prescription 

3 drug. 

4 (c) MEDPAC STUDIES AND REPORTS.— 

5 (1) STUDY AND REPORT ON THE MEDICARE

6 PART D ANTI-DISCRIMINATION CLAUSE.— 

7 (A) STUDY.—The Medicare Payment Advi8 sory Commission shall conduct a study on var9 ious aspects of the prescription drug program 

10 under part D of title XVIII of the Social Secu11 rity Act and, to the greatest extent practicable, 

12 the interaction of such program with Medicare 

13 beneficiary access to covered drugs under part 

14 B of such title. Such study shall include the fol15 lowing: 

16 (i) An analysis of— 

17 (I) the use of specialty tiers for 

18 covered part D drugs under prescrip19 tion drug plans and MA–PD plans; 

20 and 

21 (II) the effect of such specialty 

22 tiers on access to care for Medicare 

23 beneficiaries. 

24 (ii) Consideration of the mechanisms 

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1 text of the provisions of section 1860D– 

2 11(e)(2)(D) of the Social Security Act (42 

3 U.S.C. 1395w–111(e)(2)(D)) (in this para4 graph referred to as the ‘‘Medicare part D 

5 anti-discrimination clause’’). 

6 (B) MECHANISMS DESCRIBED.—The fol7 lowing mechanisms are described in this sub8 paragraph: 

9 (i) The use of specialty tiers for cov10 ered part D drugs under prescription drug 

11 plans and MA–PD plans. 

12 (ii) The application of segmented co13 insurance or copayment structures to cov14 ered part D drugs based on certain cat15 egories of such drugs or diagnoses. 

16 (iii) The utilization of other differen17 tial benefit structures based on certain 

18 conditions and Medicare beneficiaries 

19 under prescription drug plans and MA–PD 

20 plans, including an analysis of the inter21 action between such utilization and the ef22 fects of such utilization with the Medicare 

23 part D anti-discrimination clause. 

24 (C) REPORT.—Not later than 1 year after 

25 the date of enactment of this Act, the Medicare 


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1 Payment Advisory Commission shall submit to 

2 Congress a report containing the results of the 

3 study conducted under subparagraph (A), to4 gether with recommendations for such legisla5 tion and administrative action as the Commis6 sion determines appropriate. 

7 (D) REVISED GUIDANCE.—Based on the 

8 results of the study conducted under subpara9 graph (A), the Secretary shall issue revised 

10 guidance regarding the use of mechanisms de11 scribed in subparagraph (B) to all PDP spon12 sors offering prescription drug plans under part 

13 D of title XVIII of the Social Security Act and 

14 Medicare Advantage organizations offering 

15 MA–PD plans under part C of such title. 

16 (2) STUDY AND REPORT ON COST-SHARING FOR

17 PRESCRIPTION DRUGS UNDER PARTS B AND D.— 

18 (A) STUDY.—The Medicare Payment Advi19 sory Commission shall conduct a study on cost20 sharing for prescription drugs under parts B 

21 and D of title XVIII of the Social Security Act. 

22 Such study shall include an analysis of the im23 pact of eliminating cost-sharing for covered part 

24 D drugs for Medicare beneficiaries who— 


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1 (i) incur annual out-of-pocket cost2 sharing after the initial coverage limit 

3 under section 1860D–2(b)(3) of such Act 

4 (42 U.S.C. 1395w–102) that exceeds 5 

5 percent of the income of the beneficiary (as 

6 determined under section 1860D– 

7 14(a)(3)(C) of such Act (42 U.S.C. 

8 1395w–114(a)(3)(C)); and 

9 (ii) do not otherwise qualify for an in10 come-related subsidy under section 

11 1860D–14(a) of such Act (42 U.S.C. 

12 1395w–114(a)) or other extra help or cost13 sharing relief. 

14 (B) REPORT.—Not later than 6 months 

15 after the date of enactment of this Act, the 

16 Medicare Payment Advisory Commission shall 

17 submit to Congress a report containing the re18 sults of the study conducted under subpara19 graph (A), together with recommendations for 

20 such legislation and administrative action as the 

21 Commission determines appropriate. 

22 (3) DEFINITIONS.—In this section: 

23 (A) COVERED PART D DRUG.—The term 

24 ‘‘covered part D drug’’ has the meaning given 


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1 such term in section 1860D–2(e) of the Social 

2 Security Act (42 U.S.C. 1395w–102(e)). 

3 (B) MA–PD PLAN.—The term ‘‘MA–PD’’ 

4 plan has the meaning given such term in para5 graph (9) of section 1860D–41(a) of such Act 

6 (42 U.S.C. 1395w–151(a)). 

7 (C) MEDICARE ADVANTAGE ORGANIZA8 TION.—The term ‘‘Medicare Advantage organi9 zation’’ has the meaning given such term in 

10 section 1859(a)(1) of such Act (42 U.S.C. 

11 1395w–28(a)(1)). 

12 (D) PDP SPONSOR.—The term ‘‘PDP 

13 sponsor’’ has the meaning given such term in 

14 paragraph (13) of such section 1860D–41(a). 

15 (E) PRESCRIPTION DRUG PLAN.—The 

16 term ‘‘prescription drug plan’’ has the meaning 

17 given such term in paragraph (14) of such sec18 tion. 

19 SEC. 3. PRIVATE HEALTH INSURANCE. 

20 (a) GROUP HEALTH PLANS.— 

21 (1) PUBLIC HEALTH SERVICE ACT AMEND22 MENTS.— 

23 (A) IN GENERAL.—Subpart 2 of part A of 

24 title XXVII of the Public Health Service Act is 


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1 amended by adding at the end the following 

2 new section: 

3 ‘‘SEC. 2708. PROVISIONS RELATING TO PRESCRIPTION 

4 DRUGS. 

5 ‘‘(a) IN GENERAL.—A group health plan, and a 

6 health insurance issuer offering group health insurance 

7 coverage, that provides coverage for prescription drugs 

8 shall, with respect to any co-payment or coinsurance re9 quirements applicable to such drug coverage, ensure 

10 that— 

11 ‘‘(1) such required co-payment or coinsurance 

12 does not exceed the base cost of the prescription 

13 drug (as determined by the Secretary); 

14 ‘‘(2) such required co-payment or coinsurance 

15 does not exceed $200 per month for any single pre16 scription drug (30-day supply); and 

17 ‘‘(3) such required co-payment or coinsurance 

18 does not exceed, in the aggregate for all prescription 

19 drugs, $500 per month. 

20 ‘‘(b) ADJUSTMENTS.—The amounts described in 

21 paragraphs (2) and (3) of subsection (a) shall be annually 

22 adjusted to reflect the average of the percentage increase 

23 or decrease in the Consumer Price Index for all urban con24 sumers (U.S. city average) and the percentage increase 

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1 sumer Price Index during the calendar year preceding the 

2 year for which the adjustment is being made. 

3 ‘‘(c) NOTICE.—A group health plan under this part 

4 shall comply with the notice requirement under section 

5 714(b) of the Employee Retirement Income Security Act 

6 of 1974 with respect to the requirements of this section 

7 as if such section applied to such plan.’’. 

8 (B) CONFORMING AMENDMENT.—Section 

9 2723(c) of such Act (42 U.S.C. 300gg–23(c)) is 

10 amended by striking ‘‘section 2704’’ and insert11 ing ‘‘sections 2704 and 2708’’. 

12 (2) ERISA AMENDMENTS.— 

13 (A) IN GENERAL.—Subpart B of part 7 of 

14 subtitle B of title I of the Employee Retirement 

15 Income Security Act of 1974 is amended by 

16 adding at the end the following new section: 

17 ‘‘SEC. 715. PROVISIONS RELATING TO PRESCRIPTION 

18 DRUGS. 

19 ‘‘(a) IN GENERAL.—A group health plan, and a 

20 health insurance issuer offering group health insurance 

21 coverage, that provides coverage for prescription drugs 

22 shall, with respect to any co-payment or coinsurance re23 quirements applicable to such drug coverage, ensure 

24 that— 


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1 ‘‘(1) such required co-payment or coinsurance 

2 does not exceed the base cost of the prescription 

3 drug (as determined by the Secretary of Health and 

4 Human Services); 

5 ‘‘(2) such required co-payment or coinsurance 

6 does not exceed $200 per month for any single pre7 scription drug (30-day supply); and 

8 ‘‘(3) such required co-payment or coinsurance 

9 does not exceed, in the aggregate for all prescription 

10 drugs, $500 per month. 

11 ‘‘(b) ADJUSTMENTS.—The amounts described in 

12 paragraphs (2) and (3) of subsection (a) shall be annually 

13 adjusted to reflect the average of the percentage increase 

14 or decrease in the Consumer Price Index for all urban con15 sumers (U.S. city average) and the percentage increase 

16 or decrease in the medical care component of such Con17 sumer Price Index during the calendar year preceding the 

18 year for which the adjustment is being made. 

19 ‘‘(c) NOTICE.—A group health plan under this part 

20 shall comply with the notice requirement under section 

21 714(b) with respect to the requirements of this section as 

22 if such section applied to such plan.’’. 

23 (B) TABLE OF CONTENTS.—The table of 

24 contents in section 1 of such Act is amended by 


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1 inserting after the item relating to section 714 

2 the following new item: 

‘‘Sec. 715. Provisions relating to prescription drugs.’’. 

3 (3) INTERNAL REVENUE CODE AMEND4 MENTS.— 

5 (A) IN GENERAL.—Subchapter B of chap6 ter 100 of the Internal Revenue Code of 1986 

7 is amended by adding at the end the following 

8 new section: 

9 ‘‘SEC. 9813. PROVISIONS RELATING TO PRESCRIPTION 

10 DRUGS. 

11 ‘‘(a) IN GENERAL.—A group health plan, and a 

12 health insurance issuer offering group health insurance 

13 coverage, that provides coverage for prescription drugs 

14 shall, with respect to any co-payment or coinsurance re15 quirements applicable to such drug coverage, ensure 

16 that— 

17 ‘‘(1) such required co-payment or coinsurance 

18 does not exceed the base cost of the prescription 

19 drug (as determined by the Secretary of Health and 

20 Human Services); 

21 ‘‘(2) such required co-payment or coinsurance 

22 does not exceed $200 per month for any single pre23 scription drug (30-day supply); and 


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1 ‘‘(3) such required co-payment or coinsurance 

2 does not exceed, in the aggregate for all prescription 

3 drugs, $500 per month. 

4 ‘‘(b) ADJUSTMENTS.—The amounts described in 

5 paragraphs (2) and (3) of subsection (a) shall be annually 

6 adjusted to reflect the average of the percentage increase 

7 or decrease in the Consumer Price Index for all urban con8 sumers (U.S. city average) and the percentage increase 

9 or decrease in the medical care component of such Con10 sumer Price Index during the calendar year preceding the 

11 year for which the adjustment is being made. 

12 ‘‘(c) NOTICE.—A group health plan under this part 

13 shall comply with the notice requirement under section 

14 714(b) of the Employee Retirement Income Security Act 

15 of 1974 with respect to the requirements of this section 

16 as if such section applied to such plan.’’. 

17 (B) CLERICAL AMENDMENT.—The table of 

18 sections for such subchapter is amended by 

19 adding at the end the following new item: 

‘‘Sec. 9813. Provisions relating to prescription drugs.’’. 

20 (b) INDIVIDUAL HEALTH INSURANCE.— 

21 (1) IN GENERAL.—Part B of title XXVII of the 

22 Public Health Service Act is amended by inserting 

23 after section 2752 the following new section: 


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1 ‘‘SEC. 2754. PROVISIONS RELATING TO PRESCRIPTION 

2 DRUGS. 

3 ‘‘The provisions of section 2708 shall apply to health 

4 insurance coverage offered by a health insurance issuer 

5 in the individual market in the same manner as they apply 

6 to health insurance coverage offered by a health insurance 

7 issuer in connection with a group health plan in the small 

8 or large group market.’’. 

9 (2) CONFORMING AMENDMENT.—Section 

10 2762(b)(2) of such Act (42 U.S.C. 300gg–62(b)(2)) 

11 is amended by striking ‘‘section 2751’’ and inserting 

12 ‘‘sections 2751 and 2754’’. 

13 (c) APPLICATION TO FEHBP.—The amendments 

14 made by this section shall apply to the administration of 

15 chapter 89 of title 5, United States Code. 

Æ 


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