Elliot Golding · June 2009
77 GEO. WASH. L. REV. 1044 (2009)
Medicare Part D, enacted as part of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (“MMA”), was designed to revolutionize the public health system by using the private insurance market to make prescription drug coverage for the elderly available and affordable. But in an ominous beginning to the program, problems in transmitting information between the Social Security Administration (“SSA”) and the Centers for Medicare and Medicaid Services (“CMS”)—the division of the Department of Health and Human Services (“HHS”) responsible for administering the Medicare program—resulted in one of the biggest public health fiascos in history.
One major problem stemmed from an option given to Part D beneficiaries which was designed to simplify operation of the program: HHS would transmit enrollees’ requests and their prescription drug plan information to the SSA, and the SSA would deduct premiums from their Social Security benefits and pay the premiums directly to private insurers. But Congress underestimated the importance of technology and the logistical challenges of large-scale bureaucratic coordination. Because HHS and the SSA operate on two distinct, unconnected computer systems, there were massive transmission problems. Those with already meager resources were left destitute as premiums were erroneously deducted from many beneficiaries’ Social Security benefits, and others were forced to make their own out-of-pocket payments to avoid losing their prescription drug coverage when premiums were not withheld.
Even more unfortunate is that despite including an inordinate number of regulations to implement Part D, numerous provisions for plan sponsors to appeal adverse agency decisions, selectively incorporated jurisdiction-stripping provisions, and even an amendment to provide an expedited judicial review procedure for benefits disputes arising under Medicare Parts A (covering inpatient hospital services) and B (covering outpatient physician services and medical supplies), lawmakers failed to include any remedial provisions for enrollees to appeal agency action pertaining to Part D. Instead, the only appeals rights affirmatively granted to beneficiaries allow them to file grievances against and appeal decisions made by plan sponsors, not HHS or the SSA. In other words, participants in Parts A and B as well as plan sponsors can obtain judicial review of agency action, and Part D enrollees can obtain judicial review of action by plan sponsors; however, Part D enrollees are largely prevented from obtaining judicial review of agency action.
Thus, Medicare Part D presents a paradox of sorts: on the one hand, the program is designed to provide medical care for the neediest individuals; on the other hand, the failure of Congress to include remedial provisions leaves many on the brink of poverty with no avenue to seek redress when avoidable errors by HHS and the SSA push them over the edge. This Essay will examine the inability of Medicare Part D enrollees to seek relief when agencies err or fail to comply with statutory provisions, and will suggest that, despite the benefits of Part D, the MMA’s creation of rights without remedies must be changed. Part I will provide a brief overview of Medicare. Part II will illustrate the inability of enrollees to seek redress when harmed by agency action or noncompliance with statutory provisions. Part III will conclude that Congress should fix these problems by relaxing the requirements imposed on beneficiaries seeking to remedy agency error, particularly when the agencies fail to resolve such errors in a timely fashion.
