Page:United States Statutes at Large Volume 117.djvu/2100

 PUBLIC LAW 108–173—DEC. 8, 2003

117 STAT. 2081

associated with the injection of insulin (as defined in regulations of the Secretary), and such term includes a vaccine licensed under section 351 of the Public Health Service Act and any use of a covered part D drug for a medically accepted indication (as defined in section 1927(k)(6)). ‘‘(2) EXCLUSIONS.— ‘‘(A) IN GENERAL.—Such term does not include drugs or classes of drugs, or their medical uses, which may be excluded from coverage or otherwise restricted under section 1927(d)(2), other than subparagraph (E) of such section (relating to smoking cessation agents), or under section 1927(d)(3). ‘‘(B) MEDICARE COVERED DRUGS.—A drug prescribed for a part D eligible individual that would otherwise be a covered part D drug under this part shall not be so considered if payment for such drug as so prescribed and dispensed or administered with respect to that individual is available (or would be available but for the application of a deductible) under part A or B for that individual. ‘‘(3) APPLICATION OF GENERAL EXCLUSION PROVISIONS.—A prescription drug plan or an MA–PD plan may exclude from qualified prescription drug coverage any covered part D drug— ‘‘(A) for which payment would not be made if section 1862(a) applied to this part; or ‘‘(B) which is not prescribed in accordance with the plan or this part. Such exclusions are determinations subject to reconsideration and appeal pursuant to subsections (g) and (h), respectively, of section 1860D–4. ‘‘ACCESS

TO A CHOICE OF QUALIFIED PRESCRIPTION DRUG COVERAGE

‘‘SEC. 1860D–3. (a) ASSURING ACCESS TO A CHOICE OF COVERAGE.— ‘‘(1) CHOICE OF AT LEAST TWO PLANS IN EACH AREA.—The Secretary shall ensure that each part D eligible individual has available, consistent with paragraph (2), a choice of enrollment in at least 2 qualifying plans (as defined in paragraph (3)) in the area in which the individual resides, at least one of which is a prescription drug plan. In any such case in which such plans are not available, the part D eligible individual shall be given the opportunity to enroll in a fallback prescription drug plan. ‘‘(2) REQUIREMENT FOR DIFFERENT PLAN SPONSORS.—The requirement in paragraph (1) is not satisfied with respect to an area if only one entity offers all the qualifying plans in the area. ‘‘(3) QUALIFYING PLAN DEFINED.—For purposes of this section, the term ‘qualifying plan’ means— ‘‘(A) a prescription drug plan; or ‘‘(B) an MA–PD plan described in section 1851(a)(2)(A)(i) that provides— ‘‘(i) basic prescription drug coverage; or ‘‘(ii) qualified prescription drug coverage that provides supplemental prescription drug coverage so long as there is no MA monthly supplemental beneficiary premium applied under the plan, due to the application

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