PDP regions; submission of bids; plan approval

42 U.S.C. § 1395w–111
in effect
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(a) Establishment of PDP regions; service areas(1) Coverage of entire PDP regionThe service area for a prescription drug plan shall consist of an entire PDP region established under paragraph (2). (2) Establishment of PDP regions(A) In generalThe Secretary shall establish, and may revise, PDP regions in a manner that is consistent with the requirements for the establishment and revision of MA regions under subparagraphs (B) and (C) of section 1395w–27a(a)(2) of this title. (B) Relation to MA regionsTo the extent practicable, PDP regions shall be the same as MA regions under section 1395w–27a(a)(2) of this title. The Secretary may establish PDP regions which are not the same as MA regions if the Secretary determines that the establishment of different regions under this part would improve access to benefits under this part. (C) Authority for territoriesThe Secretary shall establish, and may revise, PDP regions for areas in States that are not within the 50 States or the District of Columbia. (3) National planNothing in this subsection shall be construed as preventing a prescription drug plan from being offered in more than one PDP region (including all PDP regions). (b) Submission of bids, premiums, and related information(1) In generalA PDP sponsor shall submit to the Secretary information described in paragraph (2) with respect to each prescription drug plan it offers. Such information shall be submitted at the same time and in a similar manner to the manner in which information described in paragraph (6) of section 1395w–24(a) of this title is submitted by an MA organization under paragraph (1) of such section. (2) Information describedThe information described in this paragraph is information on the following:(A) Coverage providedThe prescription drug coverage provided under the plan, including the deductible and other cost-sharing. (B) Actuarial valueThe actuarial value of the qualified prescription drug coverage in the region for a part D eligible individual with a national average risk profile for the factors described in section 1395w–115(c)(1)(A) of this title (as specified by the Secretary). (C) BidInformation on the bid, including an actuarial certification of—(i) the basis for the actuarial value described in subparagraph (B) assumed in such bid; (ii) the portion of such bid attributable to basic prescription drug coverage and, if applicable, the portion of such bid attributable to supplemental benefits; (iii) assumptions regarding the reinsurance subsidy payments provided under section 1395w–115(b) of this title subtracted from the actuarial value to produce such bid; and (iv) administrative expenses assumed in the bid. (D) Service areaThe service area for the plan. (E) Level of risk assumed(i) In generalWhether the PDP sponsor requires a modification of risk level under clause (ii) and, if so, the extent of such modification. Any such modification shall apply with respect to all prescription drug plans offered by a PDP sponsor in a PDP region. This subparagraph shall not apply to an MA–PD plan. (ii) Risk levels describedA modification of risk level under this clause may consist of one or more of the following:(I) Increase in Federal percentage assumed in initial risk corridorAn equal percentage point increase in the percents applied under subparagraphs (B)(i), (B)(ii)(I), (C)(i), and (C)(ii)(I) of section 1395w–115(e)(2) of this title. In no case shall the application of previous sentence prevent the application of a higher percentage under section 1395w–115(e)(2)(B)(iii) 11 See References in Text note below. of this title. (II) Increase in Federal percentage assumed in second risk corridorAn equal percentage point increase in the percents applied under subparagraphs (B)(ii)(II) and (C)(ii)(II) of section 1395w–115(e)(2) of this title. (III) Decrease in size of risk corridorsA decrease in the threshold risk percentages specified in section 1395w–115(e)(3)(C) of this title. (F) Additional informationSuch other information as the Secretary may require to carry out this part. (3) Paperwork reduction for offering of prescription drug plans nationally or in multi-region areasThe Secretary shall establish requirements for information submission under this subsection in a manner that promotes the offering of such plans in more than one PDP region (including all regions) through the filing of consolidated information. (c) Actuarial valuation(1) ProcessesFor purposes of this part, the Secretary shall establish processes and methods for determining the actuarial valuation of prescription drug coverage, including—(A) an actuarial valuation of standard prescription drug coverage under section 1395w–102(b) of this title; (B) actuarial valuations relating to alternative prescription drug coverage under section 1395w–102(c)(1) of this title; (C) an actuarial valuation of the reinsurance subsidy payments under section 1395w–115(b) of this title; (D) the use of generally accepted actuarial principles and methodologies; and (E) applying the same methodology for determinations of actuarial valuations under subparagraphs (A) and (B). (2) Accounting for drug utilizationSuch processes and methods for determining actuarial valuation shall take into account the effect that providing alternative prescription drug coverage (rather than standard prescription drug coverage) has on drug utilization. (3) Responsibilities(A) Plan responsibilitiesPDP sponsors and MA organizations are responsible for the preparation and submission of actuarial valuations required under this part for prescription drug plans and MA–PD plans they offer. (B) Use of outside actuariesUnder the processes and methods established under paragraph (1), PDP sponsors offering prescription drug plans and MA organizations offering MA–PD plans may use actuarial opinions certified by independent, qualified actuaries to establish actuarial values. (d) Review of information and negotiation(1) Review of informationThe Secretary shall review the information filed under subsection (b) for the purpose of conducting negotiations under paragraph (2). (2) Negotiation regarding terms and conditionsSubject to subsection (i), in exercising the authority under paragraph (1), the Secretary—(A) has the authority to negotiate the terms and conditions of the proposed bid submitted and other terms and conditions of a proposed plan; and (B) has authority similar to the authority of the Director of the Office of Personnel Management with respect to health benefits plans under chapter 89 of title 5. (3) Rejection of bidsParagraph (5)(C) of section 1395w–24(a) of this title shall apply with respect to bids submitted by a PDP sponsor under subsection (b) in the same manner as such paragraph applies to bids submitted by an MA organization under such section 1395w–24(a) of this title. (e) Approval of proposed plans(1) In generalAfter review and negotiation under subsection (d), the Secretary shall approve or disapprove the prescription drug plan. (2) Requirements for approvalThe Secretary may approve a prescription drug plan only if the following requirements are met:(A) Compliance with requirementsThe plan and the PDP sponsor offering the plan comply with the requirements under this part, including the provision of qualified prescription drug coverage. (B) Actuarial determinationsThe Secretary determines that the plan and PDP sponsor meet the requirements under this part relating to actuarial determinations, including such requirements under section 1395w–102(c) of this title. (C) Application of FEHBP standard(i) In generalThe Secretary determines that the portion of the bid submitted under subsection (b) that is attributable to basic prescription drug coverage is supported by the actuarial bases provided under such subsection and reasonably and equitably reflects the revenue requirements (as used for purposes of section 300e–1(8)(C) of this title) for benefits provided under that plan, less the sum (determined on a monthly per capita basis) of the actuarial value of the reinsurance payments under section 1395w–115(b) of this title. (ii) Supplemental coverageThe Secretary determines that the portion of the bid submitted under subsection (b) that is attributable to supplemental prescription drug coverage pursuant to section 1395w–102(a)(2) of this title is supported by the actuarial bases provided under such subsection and reasonably and equitably reflects the revenue requirements (as used for purposes of section 300e–1(8)(C) of this title) for such coverage under the plan. (D) Plan design(i) In generalThe Secretary does not find that the design of the plan and its benefits (including any formulary and tiered formulary structure) are likely to substantially discourage enrollment by certain part D eligible individuals under the plan. (ii) Use of categories and classes in formulariesThe Secretary may not find that the design of categories and classes within a formulary violates clause (i) if such categories and classes are consistent with guidelines (if any) for such categories and classes established by the United States Pharmacopeia. (f) Application of limited risk plans(1) Conditions for approval of limited risk plansThe Secretary may only approve a limited risk plan (as defined in paragraph (4)(A)) for a PDP region if the access requirements under section 1395w–103(a) of this title would not be met for the region but for the approval of such a plan (or a fallback prescription drug plan under subsection (g)). (2) RulesThe following rules shall apply with respect to the approval of a limited risk plan in a PDP region:(A) Limited exercise of authorityOnly the minimum number of such plans may be approved in order to meet the access requirements under section 1395w–103(a) of this title. (B) Maximizing assumption of riskThe Secretary shall provide priority in approval for those plans bearing the highest level of risk (as computed by the Secretary), but the Secretary may take into account the level of the bids submitted by such plans. (C) No full underwriting for limited risk plansIn no case may the Secretary approve a limited risk plan under which the modification of risk level provides for no (or a de minimis) level of financial risk. (3) Acceptance of all full risk contractsThere shall be no limit on the number of full risk plans that are approved under subsection (e). (4) Risk-plans definedFor purposes of this subsection:(A) Limited risk planThe term “limited risk plan” means a prescription drug plan that provides basic prescription drug coverage and for which the PDP sponsor includes a modification of risk level described in subparagraph (E) of subsection (b)(2) in its bid submitted for the plan under such subsection. Such term does not include a fallback prescription drug plan. (B) Full risk planThe term “full risk plan” means a prescription drug plan that is not a limited risk plan or a fallback prescription drug plan. (g) Guaranteeing access to coverage(1) Solicitation of bids(A) In generalSeparate from the bidding process under subsection (b), the Secretary shall provide for a process for the solicitation of bids from eligible fallback entities (as defined in paragraph (2)) for the offering in all fallback service areas (as defined in paragraph (3)) in one or more PDP regions of a fallback prescription drug plan (as defined in paragraph (4)) during the contract period specified in paragraph (5). (B) Acceptance of bids(i) In generalExcept as provided in this subparagraph, the provisions of subsection (e) shall apply with respect to the approval or disapproval of fallback prescription drug plans. The Secretary shall enter into contracts under this subsection with eligible fallback entities for the offering of fallback prescription drug plans so approved in fallback service areas. (ii) Limitation of 1 plan for all fallback service areas in a PDP regionWith respect to all fallback service areas in any PDP region for a contract period, the Secretary shall approve the offering of only 1 fallback prescription drug plan. (iii) Competitive proceduresCompetitive procedures (as defined in section 132 of title 41) shall be used to enter into a contract under this subsection. The provisions of subsection (d) of section 1395kk–1 of this title shall apply to a contract under this section in the same manner as they apply to a contract under such section. (iv) TimingThe Secretary shall approve a fallback prescription drug plan for a PDP region in a manner so that, if there are any fallback service areas in the region for a year, the fallback prescription drug plan is offered at the same time as prescription drug plans would otherwise be offered. (V) 22 So in original. Probably should be “(v)”. No national fallback planThe Secretary shall not enter into a contract with a single fallback entity for the offering of fallback plans throughout the United States. (2) Eligible fallback entityFor purposes of this section, the term “eligible fallback entity” means, with respect to all fallback service areas in a PDP region for a contract period, an entity that—(A) meets the requirements to be a PDP sponsor (or would meet such requirements but for the fact that the entity is not a risk-bearing entity); and (B) does not submit a bid under subsection (b) for any prescription drug plan for any PDP region for the first year of such contract period. For purposes of subparagraph (B), an entity shall be treated as submitting a bid with respect to a prescription drug plan if the entity is acting as a subcontractor of a PDP sponsor that is offering such a plan. The previous sentence shall not apply to entities that are subcontractors of an MA organization except insofar as such organization is acting as a PDP sponsor with respect to a prescription drug plan. (3) Fallback service areaFor purposes of this subsection, the term “fallback service area” means, for a PDP region with respect to a year, any area within such region for which the Secretary determines before the beginning of the year that the access requirements of the first sentence of section 1395w–103(a) of this title will not be met for part D eligible individuals residing in the area for the year. (4) Fallback prescription drug planFor purposes of this part, the term “fallback prescription drug plan” means a prescription drug plan that—(A) only offers the standard prescription drug coverage and access to negotiated prices described in section 1395w–102(a)(1)(A) of this title and does not include any supplemental prescription drug coverage; and (B) meets such other requirements as the Secretary may specify. (5) Payments under the contract(A) In generalA contract entered into under this subsection shall provide for—(i) payment for the actual costs (taking into account negotiated price concessions described in section 1395w–102(d)(1)(B) of this title) of covered part D drugs provided to part D eligible individuals enrolled in a fallback prescription drug plan offered by the entity; and (ii) payment of management fees that are tied to performance measures established by the Secretary for the management, administration, and delivery of the benefits under the contract. (B) Performance measuresThe performance measures established by the Secretary pursuant to subparagraph (A)(ii) shall include at least measures for each of the following:(i) CostsThe entity contains costs to the Medicare Prescription Drug Account and to part D eligible individuals enrolled in a fallback prescription drug plan offered by the entity through mechanisms such as generic substitution and price discounts. (ii) Quality programsThe entity provides such enrollees with quality programs that avoid adverse drug reactions and overutilization and reduce medical errors. (iii) Customer serviceThe entity provides timely and accurate delivery of services and pharmacy and beneficiary support services. (iv) Benefit administration and claims adjudicationThe entity provides efficient and effective benefit administration and claims adjudication. (6) Monthly beneficiary premiumExcept as provided in section 1395w–113(b) of this title (relating to late enrollment penalty) and subject to section 1395w–114 of this title (relating to low-income assistance), the monthly beneficiary premium to be charged under a fallback prescription drug plan offered in all fallback service areas in a PDP region shall be uniform and shall be equal to 25.5 percent (or, for 2030 and each subsequent year, the percent specified under section 1395w–113(a)(9) of this title) of an amount equal to the Secretary’s estimate of the average monthly per capita actuarial cost, including administrative expenses, under the fallback prescription drug plan of providing coverage in the region, as calculated by the Chief Actuary of the Centers for Medicare & Medicaid Services. In calculating such administrative expenses, the Chief Actuary shall use a factor that is based on similar expenses of prescription drug plans that are not fallback prescription drug plans. (7) General contract terms and conditions(A) In generalExcept as may be appropriate to carry out this section, the terms and conditions of contracts with eligible fallback entities offering fallback prescription drug plans under this subsection shall be the same as the terms and conditions of contracts under this part for prescription drug plans. (B) Period of contract(i) In generalSubject to clause (ii), a contract approved for a fallback prescription drug plan for fallback service areas for a PDP region under this section shall be for a period of 3 years (except as may be renewed after a subsequent bidding process). (ii) LimitationA fallback prescription drug plan may be offered under a contract in an area for a year only if that area is a fallback service area for that year. (C) Entity not permitted to market or brand fallback prescription drug plansAn eligible fallback entity with a contract under this subsection may not engage in any marketing or branding of a fallback prescription drug plan. (h) Annual report on use of limited risk plans and fallback plansThe Secretary shall submit to Congress an annual report that describes instances in which limited risk plans and fallback prescription drug plans were offered under subsections (f) and (g). The Secretary shall include in such report such recommendations as may be appropriate to limit the need for the provision of such plans and to maximize the assumption of financial risk under section subsection 33 So in original. (f). (i) NoninterferenceIn order to promote competition under this part and in carrying out this part, the Secretary—(1) may not interfere with the negotiations between drug manufacturers and pharmacies and PDP sponsors; (2) may not require a particular formulary, except as provided under section 1395w–104(b)(3)(l) 44 So in original. Probably should be “(b)(3)(I)”. of this title; and (3) may not institute a price structure for the reimbursement of covered part D drugs, except as provided under part E of subchapter XI. (j) Coordination of benefitsA PDP sponsor offering a prescription drug plan shall permit State Pharmaceutical Assistance Programs and Rx plans under sections 1395w–133 and 1395w–134 of this title to coordinate benefits with the plan and, in connection with such coordination with such a Program, not to impose fees that are unrelated to the cost of coordination.

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