§ 14133.23. — 14133.23. (Amended by Stats. 2006, Ch. 24, Sec. 1.)

(a)
To the extent that federal financial participation is not available, the provision of drug benefits under this chapter to full-benefit dual eligible beneficiaries who are eligible for drug benefits under Part D of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-101 et seq.) or under a Medicare Advantage-Prescription Drug plan (MA-PD plan) under Part C of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-21 et seq.), is eliminated, except as otherwise provided under this section.
(b)
(1)
Notwithstanding any other provision of law, only drug benefits for which federal financial participation is available shall be provided under this chapter to a full-benefit dual eligible beneficiary, except as otherwise provided under subdivision (c).
(2)
As a benefit under this chapter, the department, subject to the approval of the Department of Finance and only to the extent that federal financial participation is available, may elect to provide a drug or drugs in a class of drugs not covered under Part D of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-101 et seq.) or under a MA-PD plan under Part C of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-21 et seq.) to full-benefit dual eligible beneficiaries.
(3)
As a benefit under this chapter, and only to the
extent that federal financial participation is available, the department shall provide a drug or drugs to full-benefit dual eligible beneficiaries who are otherwise eligible to receive the drug or drugs due to their entitlement under Title 42 United States Code, Chapter 7, Title XVIII, Part A or their enrollment under Title 42 United States Code, Chapter 7, Title XVIII, Part B.
(4)
Except as provided under paragraph (3) and subdivision (c), nothing in this section shall be interpreted to require the department to provide any drug or drugs not covered under Part D of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-101 et seq.) or under a MA-PD plan under Part C of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-21 et seq.) if federal financial participation is not available.
(c)
(1)
The department shall review the drug formularies of
prescription drug plans under Part D of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-101 et seq.) or MA-PD plans under Part C of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-21 et seq.) available to full-benefit dual eligible beneficiaries.
(2)
The department shall develop a process that would allow the department to provide to a full-benefit dual eligible beneficiary, on an emergency basis only, coverage for a drug or drugs not included on the full-benefit dual eligible beneficiary’s prescription drug plan’s formulary or by prior authorization under Part D of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-101 et seq.) or MA-PD plans under Part C of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-21 et seq.) for which federal financial participation is not available.
(3)
Only to the extent that the Legislature made a
specific appropriation to fund the provision of emergency drug benefits for which federal financial participation is not available to full-benefit dual eligible beneficiaries, the department shall provide, through the process described in paragraph (2), these emergency drug benefits to a full-benefit dual eligible beneficiary only when all of the following conditions are met:
(A)
The drug is not available to the full-benefit dual eligible beneficiary under his or her plan’s drug formulary or by prior authorization.
(B)
The pharmacist provides or dispenses the drug as an emergency service.
(C)
The quantity of the drug provided or dispensed in no greater than a 60-day supply.
(D)
The pharmacist has not previously provided or dispensed nor has knowledge
that another pharmacist has provided or dispensed the same drug for that full-benefit dual eligible beneficiary on or after January 1, 2006.
(E)
The date of service is from January 1, 2006, through December 31, 2006, inclusive.
(4)
The department may impose a pre- or post-service prepayment or postpayment review or audit, to review the medical necessity of emergency services provided to full-benefit dual eligible beneficiaries.
(d)
The department shall seek approval of any amendments to the state plan necessary to implement this section as required by Title XIX of the Social Security Act (42 U.S.C. Sec. 1396 et seq.).
(e)
Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department
may implement, interpret or make specific this section by means of all county letters, provider bulletins, or similar instructions. Thereafter, the department may adopt regulations in accordance with the requirements of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(f)
(1)
Notwithstanding any other provision of this section, and only to the extent that funds are appropriated for this purpose, the department shall provide on a time-limited basis, as described in paragraphs (7) and (8), drug benefits to a full-benefit dual eligible beneficiary who is not able to obtain drug benefits from his or her Medicare Drug Plan only when one or more of the following conditions are met:
(A)
The pharmacy has submitted a claim for the provision of drug benefits to the full-benefit dual eligible beneficiary’s Medicare
Drug Plan and the claim has been denied payment for reasons other than processing errors or omissions made by the pharmacy, lack of medical necessity, or health or safety reasons.
(B)
The pharmacy is unable to submit a claim for the provision of drug benefits solely due to the unavailability of complete or accurate Medicare Drug Plan enrollment information from the full-benefit dual eligible beneficiary’s Medicare Drug Plan, the federal Centers for Medicare and Medicaid Services, or entities under contract with the Centers for Medicare and Medicaid Services to provide enrollment information.
(C)
The Medicare Drug Plan provides information that the full-benefit dual eligible beneficiary’s deductible or copayment amount is higher than the copayment amounts that are established by Medicare for full-benefit dual eligible beneficiaries.
(2)
The director may impose a pre- or post-service prepayment or postpayment review or audit to determine whether a pharmacy has accurately and in good faith established the existence of any condition certified by the pharmacy pursuant to subparagraph (A), (B), or (C) of paragraph (1) in support of a submitted claim to the department.
(3)
If the claim submitted by the pharmacy to the Medicare Drug Plan meets the circumstances described in subparagraph (C) of paragraph (1), the department shall pay the Medi-Cal rate less the Medicare Drug Plan reimbursement amount and the Medicare copayment amount.
(4)
To obtain reimbursement from the department, a pharmacy must be an enrolled provider in the Medi-Cal program and certify on its claims under penalty of perjury that one of the conditions specified in paragraph (1) exists.
(5)
The department shall seek reimbursement from the federal government of all funds spent to comply with the provisions of this subdivision.
(6)
To the extent that the department reimburses a pharmacy for claims authorized under this subdivision, the director shall have the right to recover or recoup the full cost expended by the state for that reimbursement from the full-benefit dual eligible beneficiary’s Medicare Drug Plan.
(7)
Reimbursement for claims authorized under this subdivision shall be limited to those drug benefits provided to a full-benefit dual eligible beneficiary from January 12, 2006, to February 15, 2006, inclusive.
(8)
After February 15, 2006, the Governor may, upon notice to the Joint Legislative Budget Committee, extend coverage for
drug benefits to a full-benefit dual eligible beneficiary for coverage periods of up to 30 days each. In no event shall the reimbursement authorized by this paragraph extend beyond May 16, 2006.
(9)
Any drug benefits made available to full-benefit dual eligible beneficiaries under the authority of this subdivision shall be limited to the funds appropriated by the Legislature to the department for this purpose. These drug benefits shall not be deemed to be an entitlement.
(g)
(1)
Notwithstanding any other provision of this section, and only to the extent that funds are appropriated for this purpose, beginning May 17, 2006, and ending January 31, 2007, the department shall provide emergency drug benefits to a full-benefit dual eligible beneficiary who is unable to obtain drug benefits from his or her Medicare Drug Plan only when one or more of the following
conditions are met:
(A)
The pharmacy has submitted a claim for the provision of drug benefits to the full-benefit dual eligible beneficiary’s Medicare Drug Plan and the claim has been denied payment due to error by the Medicare Program and the pharmacy has made a good faith effort to resolve the error with the Medicare Drug Plan and the Medicare Program.
(B)
The pharmacy is unable to submit a claim for the provision of drug benefits solely due to incomplete or inaccurate Medicare Drug Plan enrollment information from the full-benefit dual eligible beneficiary’s Medicare Drug Plan, the federal Centers for Medicare and Medicaid Services, or entities under contract with the Centers for Medicare and Medicaid Services to provide enrollment information, and the pharmacy has attempted to resolve these problems with the Medicare facilitated enrollment contractor and the Medicare Drug
Plan, where appropriate.
(C)
The Medicare Drug Plan provides information that the full-benefit dual eligible beneficiary’s deductible or copayment amount is higher than the copayment amounts that are established by Medicare for full-benefit dual eligible beneficiaries.
(D)
Request for prior authorization or exception to the full-benefit dual eligible beneficiary’s Medicare Drug Plan is required and was sought by the pharmacist, but the pharmacy does not receive a response within 24 hours for an emergency drug or within 72 hours for a nonemergency drug. When submitting a request for prior authorization to the department, a pharmacy shall show proof of the submission of the request that was made to either the Medicare Drug Plan or the beneficiary’s prescribing physician.
(2)
In providing these benefits, the department
shall implement prepayment utilization controls, including prior authorization, and may implement postpayment reviews or audits to determine whether a pharmacy has accurately and in good faith established the existence of any condition certified by the pharmacy pursuant to subparagraph (A), (B), (C), or (D) of paragraph (1) in support of a submitted claim to the department.
(3)
If the claim submitted by the pharmacy to the Medicare Drug Plan meets the circumstances described in subparagraph (C) of paragraph (1), the department shall pay only the difference between the copayment amount established by Medicare for full-benefit dual eligible beneficiaries and the actual copayment amount charged.
(4)
To obtain reimbursement from the department, a pharmacy must be an enrolled provider in the Medi-Cal program and certify on its claims under penalty of perjury that one of the conditions
specified in paragraph (1) exists.
(5)
To the extent that the department reimburses a pharmacy for claims authorized under this subdivision, the director shall have the right to recover or recoup the full cost expended by the state for that reimbursement from the full-benefit dual eligible beneficiary’s Medicare Drug Plan.
(6)
Any drug benefits made available to full-benefit dual eligible beneficiaries under the authority of this subdivision shall not be deemed to be an entitlement. Beginning September 1, 2006, the department shall not cover drug benefits when prior authorization or exception to the full-benefit dual eligible beneficiary’s Medicare Drug Plan is required, unless that authorization was sought by the physician and the Medicare Drug Plan does not provide a response within 24 hours for an emergency drug or within 72 hours for a nonemergency drug.
(h)
(1)
For the purposes of this section, a “full-benefit dual eligible beneficiary” means an individual who meets both of the following criteria:
(A)
The beneficiary is eligible or would be eligible for coverage for the month for covered Part D drugs under a prescription drug plan under Part D of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-101 et seq.) or under a MA-PD plan under Part C of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-21 et seq.).
(B)
Notwithstanding any other provision of this section, the beneficiary is determined eligible for full-scope services, including drug benefits, for which federal financial participation is available.
(2)
For the purposes of this section, “Medicare Drug
Plan” means a prescription drug plan under Part D of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-101 et seq.) or under a MA-PD plan under Part C of Title XVIII of the Social Security Act (42 U.S.C. Sec. 1395w-21 et seq.).
(i)
Subdivisions (a) and (b) and paragraph (3) of subdivision (c) shall become operative on January 1, 2006.

Legislative History

Amended by Stats. 2006, Ch. 24, Sec. 1. Effective May 15, 2006.