Medicare part D: legal analysis.

On January 1, 2006, some 6.4 million of the poorest, oldest, and frailest Americans lost their Medicaid drug coverage. They were promised and were given a legal entitlement to new Medicare drug coverage to start on January 1. These men and women were eligible for Medicare largely because they were 65 and older or severely disabled; they were also poor enough to be eligible for Medicaid-they had extremely low incomes and virtually no assets. They were supposed to be transitioned seamlessly to new Medicare drug coverage. But these Americans live on the edge of survival with little or no margin for error, and for many of them, an error was about to take away their medicines. It was obvious that there would be large gaps in drug coverage for people with both Medicaid and Medicare unless some safety nets were put in place to protect them during the inevitable fumbles that would accompany the transition to new drug coverage. To achieve a seamless transition, unreliable computer systems from the welfare agencies of 50 states had to communicate data flawlessly with databases run by the federal Social Security Administration and the Department of Health and Human Services. Then those systems had to communicate precise data to hundreds of start-up drug plans run by the insurance companies that were charged with administering the Medicare drug benefit. And, in turn, on January 1, 2006, those plans had to relay accurate coverage information to the tens of thousands of pharmacies across the country that were participating in the program. And, of course, the 6.4 million men and women-including those who were homebound, crippled, or suffering from major dementia-each had to understand how to navigate the new drug program from day one. It was predictable that human disaster awaited many of these 6.4 million Americans. Through 2005, I and others warned repeatedly of the train wreck that was approaching. A fail-safe backup plan to get medication to people whose coverage collapsed during the transition was essential, and we looked to the Bush administration officials responsible for rolling out the new program to recognize that reality. Alas, the administration went into a state of denial, insisting that all would be well. That denial persisted well into 2006, even after tens of thousands of people went without needed medication and 37 states plus the District of Columbia launched emergency rescue programs to save the lives of citizens left without needed medicines. I remember April 18, 2005, as if it were yesterday. Medicare Rights Center staff sat with the administration's chief Medicare official, pleading for a backup plan. I said that even if 99% of the 6.4 million people were transitioned properly-a highly flattering assumption-there would still be 64,000 people-enough to fill Yankee Stadium to capacity-who were denied needed medicine. The likely plight these 64,000 (and, in truth, it would be many more) did not command attention. For the next year, virtually every administration official echoed the same line: Everything is under control, they said, when it was not. The national media played a constructive role in highlighting the impending disaster as January 1, 2006, edged closer. Still, the administration denied that the transition to Medicare posed any risk to the most vulnerable Americans. By late fall of 2005, despairing of responsible administration action, a broad-based group of consumer organizations had come together to sue the administration, asking a federal court to force the Bush administration to provide backup mechanisms to get needed medicine to people who were accidentally dropped from coverage during the bureaucratic transition from Medicaid to Medicare drug coverage. Disaster did strike. Hundreds of thousands of people were unable to get the medication they needed. The courts were of little help. A federal judge threw out the patients' lawsuit on jurisdictional grounds; simply put, she ruled that all administrative remedies had not been exhausted, essentially saying, show me the bodies if you want me to act. …