By Jerri Lynn Ward, J.D. and Daniel A. Graham
Posted March 7, 2005
On December 8, 2003, the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA) was passed into law. In August 2004, the Centers for Medicare and Medicaid Services (CMS) published a set of proposed rules to implement the MMA. On January 28, CMS released a final set of rules with a few changes from the August, 2004 set.
How do these new rules affect long term care facilities and nursing homes?
Good question. The Rules are not clear, perhaps leaving individuals and facilities to wonder just exactly how the 1500 pages of rules applies to them.
In an article published in September, 2004, Vicki Gottlich laid out many of the issues concerning long term care facilities and how the (then proposed) rules handle or fail to handle those issues. In the final rules released by CMS, most of the concerns expressed by Gottlich remain unaddressed.
Below are some of the unanswered questions pointed out by Gottlich left unanswered by CMS. Do these questions need to be addressed before long term care facilities and nursing homes can effectively implement the new prescription drug plans with their residents? What do you think?
Are nursing home residents covered under the new PDPs?
Probably the most glaring omission from the rules is the lack of authorization for the creation of prescription drug plans (PDPs) to serve people being cared for in long term care facilities. The rules do authorize specialized Medicare Advantage plans with prescription drug coverage to enroll special needs patients, including those who are institutionalized. Individuals, who do not fit the definition of “special needs patient” and who are residing facilities are not explicitly discussed by the rules.
Who is responsible for ensuring residents can get enrolled in the drug plans?
In order to enroll in one of the plans authorized by statute, an eligible individual is required to complete the drug plan’s enrollment form. In many cases, the individual is incapable of filling out the form and enrolling himself or herself in the program. The regulations do not make it clear who has the authority to act when the eligible individual cannot. Most likely, other State and Federal law will need to be consulted on this point.
In the case of low-income subsidies, the regulations allow a “personal representative” to apply for the subsidy on the individual’s behalf. Such representatives can be:
- individuals authorized to act on behalf of the applicant;
- someone acting responsibly on behalf of an incapacitated or incompetent applicant; or
- someone requested by the applicant to act as his or her representative in the application process.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2005 by Garlo Ward, P.C., all rights reserved.
Lakeway, Texas 78734 USA