Insurance Commissioner Jim Poolman has said companies providing prescription drug plans under Medicare Part D can practice "bait and switch" by changing what drugs are covered after the plans are signed.

Rep. Earl Pomeroy, D-N.D., called the practice "outrageous." Sen. Byron Dorgan, D-N.D. has co-sponsored a bill to prevent the practice, and others have expressed shock over it.

It may sound unfair to change plans after customers sign contracts, but it's unclear if the practice has actually happened in North Dakota or anywhere in the country.

"Ibelieve that it has happened,"Dorgan said. "The reason we introduced the bill is because we believe there is a problem."

Mike Fierberg, a spokesman for the Center for Medicare and Medicaid Services in Denver, said he hasn't heard of any company switching plans anywhere.

"It has not happened,"Fierberg said.

On Friday, Poolman said he does know that it is happening, but he couldn't cite any specific cases or drugs that have been changed.

CMS allows companies to change which drugs are covered after someone signs up for a plan.

Fierberg said changes require approval from CMS and a 60-day written notice to consumers.

Fierberg said CMS did exclude Niaspan and Niacor from drug plans because they are prescription vitamins, which are excluded from Part D. However, that was a decision made by CMS, not because of a request from a company. That exclusion won't go into effect until June 1.

According to the CMSWeb site, two key requirements in the Medicare Modernization Act are to assure that drug plans provide access to medically necessary treatments for all and do not discriminate against any particular types of beneficiaries.

Fierberg said plans have to cover all classifications of drugs and must offer at least two drugs for each classification. Just because the rules allow changes, it doesn't mean they will happen often, he said.

"Idon't expect them to be utilized all that much,"Fierberg said.

The provision to allow changes has officials worried.

Pat Hill, executive vice president of the N.D. Pharmacist Association, said she has heard anectdotal information that companies are changing plans, but she could not cite any specific examples.

Hill questions the motives of changing a plan after a customer has signed a contract. She said If changes are made because a better drug is developed, that would be OK. But she said there is concern that companies will make changes to make more money.

"To sign up only to find out later that your policy doesn't cover what you need is totally inappropriate,"Hill said.

Pomeroy said he has had his staff check to see if there were cases of companies changing plans on people, but he couldn't confirm that the practice has occurred. However, he said he is concerned the practice could be used by companies later.

"It really is, in my opinion, something we want to watch closely to see if it is abused,"Pomeroy said.

Pomeroy said drug companies that had influence in the legislation wanted the loophole.

"Ithink the drug companies wanted maximum flexibility," Pomeroy said.

There are 41 prescription drug plans approved by CMSfor North Dakotans to choose from under Part D.

Medicare Part D has received much criticism from officials who say choosing a plan is too complicated and people need more time to sign up for a plan.

On Thursday, Dorgan asked Secretary of Health and Human Services Michael O. Leavitt to dispatch a special survey team to North Dakota and other northern Great Plains states to determine why the region's sign-up rates are so low.

"North Dakotans have the highest percentage of seniors in the nation without prescription drug coverage, but our state is last in the nation in terms of percentage of seniors signing up for the new Medicare program,"Dorgan said. "We need to find out why."

With nearly half of the sign-up period passed, only 9,000 of the nearly 105,000 North Dakota seniors eligible to sign up for the Medicare drug program have done so, Dorgan noted. The sign-up period began Nov. 15 and ends May 15.

(Reach reporter Tom Rafferty at 223-8482 or tom.rafferty@;bismarcktribune.com.)