This post originally appeared in Inside Sources on April 8, 2019.
When Congress passed Medicare Part D in 2003, it took steps to protect patients in the midst of a health crisis. When time is of the essence and the stakes are life-and-death, that is not when Washington bureaucrats or health insurers should be trying to eke out cost savings. But now unelected officials at the Centers for Medicare and Medicaid Services (CMS) are moving to strip those safeguards from law.
There’s not a lot that both parties agree on in Washington, and the lack of comity is something we’ve both tried to change in our time there. So the breadth and depth of the reaction against this proposal from both Republicans and Democrats is a remarkable testament against its merit and wisdom.
For example, Sen. Marco Rubio of Florida, a conservative Republican, is one of the Senate’s most outspoken opponents. Rep. Barbara Lee, progressive California congresswoman, is leading opposition in the House (with Alexandria Ocasio-Cortez joining the effort).
“We urge CMS to reconsider this proposal that would risk the health of our most vulnerable beneficiaries,” wrote Rubio and a bipartisan group of senators, which included Rubio, Krysten Synema, D-Arizona, Marsha Blackburn, R-Tennessee, Patrick Leahy of Vermont and numerous others.
The existing protections were designed by Congress to safeguard patients who “face serious risks and complications without access to medicines,” wrote Lee, along with dozens of House colleagues from both parties.
As a policy matter, the issue really comes down to this. Following Congress’ guidance in the law, CMS long-ago set aside certain categories of illness with greater protections against bureaucratic and corporate nickel-and-diming — cancer and HIV, for example.
In the words of the law, these are situations with “major or life-threatening clinical consequences” for patients, which can often create “significant clinical need” for medical treatment beyond what the government’s ordinary guidelines, designed for more prosaic circumstances, anticipate.
Soon after Medicare Part D was enacted in 2003, CMS implemented this provision by specifying six protected classes of drugs including chemotherapy, antidepressant, antiretrovirals and several other classes of medicines.
For many years, this provision helped protect the most vulnerable of our citizens. But during the Obama years, health insurance companies began lobbying to weaken these rules in an effort to increase their profits.
The companies are particularly interested in something they call “step therapy.” Step therapy is when your doctor prescribes you one medicine, but your insurance company forces you to try a cheaper drug first, to see if it works. If you still want the medicine your doctor prescribed, you have to prove to the insurance company the cheaper drug didn’t work first.
“I tried and failed three times on the same chemotherapy for my stage four lymphoma before I was finally able to get the life-saving cure that resulted in my first cancer-free scan in 20 years,” Tom Ema, a patient advocate, told Virginia’s WTKR News. Virginia is one of several states that have moved on their own to strengthen protections against so-called “fail-first” for cancer, HIV and other highly vulnerable patient groups.
For the government’s part, CMS previously argued to weaken the protections, saying they were no longer necessary because the Affordable Care Act included sufficient protections. Further, CMS seemed to believe watering down the safeguards would allow them to prevent the use of medicines that patients, in its estimation, didn’t really need. CMS would be gaining the “ability to prevent the misuse or abuse of drugs that are not medically necessary,” the agency explained.
Now, obviously Washington, running massive annual deficits, could stand to trim some spending fat. But cancer patients are an odd place to start. And the apparent eagerness CMS to come between patients facing life’s most difficult trials and their doctors is perplexing and troubling.
It’s not easy for Congress to reach a consensus. But when the question is whether to enable “fail first” for our most susceptible and defenseless citizens, it’s not so hard.
As one inspiring 11-year-old explained to a Maine newspaper, “I’m not a guinea pig, I’m Hannah, and I am important and so is my medicine.” The girl, a sixth grader named Hannah Mitschele had encountered “step therapy” firsthand when insurance companies interfered with her doctors’ recommendations in treating epilepsy.
CMS should abandon its proposal straight away. Medicare’s protected drug classes are protected for good reason and should stay the way Congress intended for many years to come.