CMS Releases New Best Available Evidence Policy

On August 4, 2008, CMS released to plans a new version of the Best Available Evidence policy. The new BAE policy was developed as part of the settlement of the Situ case. The new policy clarifies the existing requirement that plans accept BAE and informs plans of a new requirement that they assist beneficiaries who claim to be subsidy eligible, but do not have BAE. The new policy is effective immediately.

Click here to view the new BAE policy.

Plans regularly seem to be confused about their obligations under the BAE policy.  The new memorandum states very clearly that a plan must accept BAE presented by a beneficiary or individual acting on behalf of the beneficiary and rely on BAE to provide the beneficiary with medications at a reduced cost-sharing level.  The plan must make the medications available at the reduced cost-sharing level as soon as it has received the BAE.  The plan then has 72 hours to update its systems to reflect the correct cost-sharing status for the beneficiary.  Where CMS systems do not reflect the correct subsidy level for the beneficiary, plans must submit a request to CMS to have the status corrected in CMS systems.

The new policy also creates a new process for assisting beneficiaries who claim to be subsidy eligible, but are unable to provide BAE.  Under this process, when a beneficiary claims to be subsidy eligible, but plan records do not reflect subsidy eligibility, the plan is required to collect information from the beneficiary, including the day the beneficiary will run out of medication, and submit that information to a contact in the CMS Regional Office (RO).  The plan must submit the information within one business day of being notified that the beneficiary claims to be LIS eligible, but does not have BAE.

Once the CMS RO receives the information from the plan, the case will be entered into the Complaint Tracking Module.  The RO will then contact the State Medicaid office to attempt to confirm the Medicaid and/or institutional status of the beneficiary and will share the results of this inquiry with the plan.  The RO will contact the state and report back to the plan before the day the beneficiary indicated she would run out of medications or within 10 days, whichever comes first.  When the beneficiary has less than 3 days of medication remaining, the RO will contact the State within one day of receiving the information from the plan and will reply to the plan within one business day of receiving a response from the State.

As soon as the plan receives a response from the RO confirming the subsidy eligibility of the beneficiary, the plan must provide the beneficiary with medication at the reduced cost-sharing level.  The plan must also attempt to notify the beneficiary of the results of the RO inquiry within one business day.  If the plan is unable to reach the beneficiary on the initial attempt, it must continue its attempts until it has tried to reach the beneficiary four times.  The fourth attempt must be in writing.  Notice to the beneficiary must indicate that if the beneficiary does not agree with the results of the RO inquiry, the plan will provide contact information for the appropriate RO.

The new policy requires plans to develop appropriate call center scripts to identify BAE cases and allow members to either submit BAE or request assistance verifying subsidy status.  Plan sponsor websites must also contain a link to CMS’ BAE policy website: www.cms.hhs.gov/PrescriptionDrugCovContra/17_Best_Available_Evidence_Policy.asp 

CMS has set up a new category in its Complaint Tracking Module to identify problems with implementing the BAE policy.  When filing a complaint against a plan for failing to follow the new policy, advocates should be sure to request that the complaint be filed in the “Best Available Evidence” category.