Who Can Help With Medicare Drug Coverage?

A Guide to How Friends, Relatives and Others Can Assist Medicare Beneficiaries With Their Medicare Prescription Drug Coverage Decisions

Introduction

The CMS regulations implementing the Medicare prescription drug program create an enormous pragmatic and ethical dilemma regarding Medicare Drug Plan enrollment decisions for the many Medicare beneficiaries who are not cognitively capable of understanding and making Medicare Drug Plan enrollment decisions, yet do not have substitute decision-makers authorized by the regulations to make enrollment decisions on their behalf. Additionally, for cognitively impaired Medicare beneficiaries who are automatically randomly enrolled into Medicare Drug Plans (i.e., people with Medicare and Medicaid, people for whom states pay Medicare premiums and cost-sharing, as well as others who receive the low-income subsidies but fail to enroll in a Medicare Drug Plan) decisions may need to be made about switching to a Medicare Drug Plan that better meets their needs. Moreover, access to medically necessary prescribed medications may require sophisticated decisions to be made about requesting a cover determination, such as a formulary exception, or pursuing an appeal.

What Do the Regulations Provide?

Who Can Help a Beneficiary Apply for the Medicare Prescription Drug Low-Income Subsidies ("Extra Help")?

The regulation, at 42 CFR Section 423.772, defines three categories of helpers, called personal representatives who may act on behalf of beneficiaries for purposes of applying for the low-income subsidies. These are (a) those asked to help, (b) those authorized by state or other law, and (c) someone acting responsibly on behalf of an "incapacitated" beneficiary. In the preamble to the regulations, at 70 FR 4373 (January 28, 2005), CMS expressly declined to limit "acting responsibly" in any way, stating it assumes the good intentions of everyone who wants to help get people into the Part D low-income subsidies.

Who Can Help a Beneficiary Enroll in a Medicare Drug Plan?

The regulation, at 42 CFR Section 423.32(b)(i) states that the Medicare Drug Plan eligible person must complete the enrollment process and that anyone who has helped, including an authorized representative, must so indicate and disclose his/her relationship to the beneficiary. The preamble to the regulations, at 70 Federal Register 4203-4204 (January 28, 2005), explains that "authorized to act on behalf of a beneficiary for enrollment purposes" means someone with legal authority to execute the enrollment in accordance with state law, going on to add that such a person "stands in the shoes of" the individual. CMS promises further operational guidance. The CMS PDP Guidance on Eligibility, Enrollment and Disenrollment explains that anyone other than the beneficiary who completes a Medicare Drug Plan enrollment request must state that s/he has the legal authority under state law to execute the enrollment and that the documentary proof of such legal authority will be made available to CMS or the plan upon request. [1] Accordingly, in order for somebody to help a Medicare beneficiary with Medicare Drug Plan enrollment, the helper must ascertain whether applicable state law grants her the legal authority to enroll a beneficiary into a private health insurance plan such as a Medicare Drug Plan and must further be prepared to present documentary proof of the authority granted under the state law to CMS or to the Medicare Drug Plan. Moreover, the Guidance clarifies that those acting under the authority of a state-authorized health care power-of-attorney document may effect Medicare Drug Plan enrollment; Social Security Administration Representative Payee status however, in and of itself does not confer sufficient authority for the payee to execute Medicare Drug Plan enrollment. [2]

Who Can Help a Beneficiary With a Medicare Drug Plan Coverage Denial?

Medicare Drug Plan enrollees may on occasion find that they have difficulty in obtaining drugs prescribed for them through the plan. Circumstances under which this might happen as well as the procedures available to beneficiaries to remedy these problems are described in another HAP document, entitled Help I Couldn't Get My Prescription Filled! What's Going On and What Can I Do About It.

Beneficiaries might want help understanding and pursuing the appeals process to try to get a prescribed medication covered by the Medicare Drug Plan. Beneficiaries can get help from an authorized representative. [3] An authorized representative is someone who has been designated by the beneficiary to act on behalf of the beneficiary in pursuing the process to get a prescribed drug covered or someone acting under applicable state law who has the authority to pursue the process to get a prescribed drug covered by the plan, such as someone who is an agent under a Power of Attorney (called an Attorney-in-Fact) or a guardian or conservator under a court appointment. Additionally, the prescribing physician may act on behalf of the Medicare beneficiary in this regard. [4]

Who Can Help Now: A Summary

Under the current CMS regulatory construction, those who may enroll a Medicare beneficiary into a Medicare Drug Plan are quite limited. Attorneys-in-Fact, with the power granted by a Durable Power of Attorney may enroll a Medicare beneficiary into a Medicare Drug Plan. Likewise, the guardian of a Medicare beneficiary who has been adjudicated "incompetent" to make her own decisions may make Medicare Drug Plan enrollment decisions and take enrollment actions on behalf of a cognitively incapacitated beneficiary. In some states, relatives or others might be authorized by state health care proxy laws to make Medicare Drug Plan enrollment decisions. These same individuals may pursue remedies if a Medicare Drug Plan denies coverage of a prescribed medication. Prescribing physicians may also assist with advocacy for access to the medications they have prescribed if Medicare Drug Plans deny coverage.

A Critical Gap for Many Beneficiaries

CMS has stated that Medicare beneficiaries who have not been determined by a court to lack the cognitive capacity for decision-making are presumed to be capable of making Medicare Drug Plan enrollment decisions and acting upon these decisions. The reality is that many beneficiaries who have neither appointed a decision-making agent nor been adjudicated by a court to be incompetent nevertheless lack the cognitive capacity to make the decisions and take the actions needed to select or change Medicare Drug Plan enrollment.

The presumption that such individuals can and will make their own decisions regarding Medicare Drug Plan enrollment raises serious concerns for many beneficiaries, including dually entitled individuals who may be auto-assigned to Medicare Drug Plans that do not meet their needs, and socially isolated, vulnerable individuals who may not understand the need to make decisions regarding Medicare Drug Plan enrollment and may not be capable of requesting help from anybody for this purpose. So, while virtually anyone ("acting responsibly on behalf of...") can apply for "extra help" benefits for a Medicare beneficiary, only a court appointed guardian or conservator or an agent appointed under a durable financial power of attorney may apply for a Medicare Drug Plan PDP or MA-PD on behalf of a cognitively impaired Medicare beneficiary. Many states have statutes which allow proxy or surrogate decision-makers to make health care decisions for an incapacitated beneficiary. However, in some states the health care proxy laws have been interpreted to preclude the proxy from enrolling someone in an insurance plan in that insurance plan enrollment does not constitute the making of a health care decision. These same concerns are equally applicable to requests for Medicare Drug Plan coverage determinations, including formulary exceptions, and appeals.

How Can Helpers Obtain Medical Information They Might Need?

HIPAA privacy rule may govern how helpers can gain access to the medical information, such as which drugs have been prescribed for a beneficiary, that a helper may need to assist beneficiaries with Medicare Drug Plan decisions and advocacy. The privacy rule should not prevent knowledgeable helpers from quickly obtaining the information they may need. For detailed information about how to get access to medical records, see HAP's issue brief, "Rights to Access Medical Records Under the HIPAA Privacy Regulation." For specific information on how consumer health Ombudsman programs, such as your state's SHIP, may work with the HIPAA privacy rule to get medical information on behalf of clients, see HAP's issue brief, "Health Insurance Portability and Accountability Act (HIPAA) Privacy Regulation" Questions and Answers for Consumer Health Assistance Programs" and "Advocacy in a Post-HIPAA World," BIFOCAL, Vol 25, No 2, Winter 2004, American Bar Association, Commission on Law and Aging, at http://www.abanet.org/aging/252.pdf.

Information Resources:

42 Code of Federal Regulations, Part 423 (at 70 Federal Register 4193, January 28, 2005)

20 Code of Federal Regulations, Part 418 (at 70 Federal Register 10558, March 4, 2005)

42 Code of Federal Regulations Part 422, Subpart M

[1] PDP Guidance on Eligibility, Enrollment and Disenrollment, Centers for Medicare and Medicaid Services, at 51-52: "[w]hen somebody other than the Medicare beneficiary completes an enrollment request, he or she must:

Attest that he or she has the authority under State law to make the enrollment request on behalf of the individual;
Attest that a copy of the proof of other authorization required by State law that empowers the individual to effect an enrollment request on behalf of the applicant is available upon request by the PDP sponsor or CMS. Acceptable documentation may include items such as court-appointed legal guardianship or durable power of attorney…

[2] PDP Guidance on Eligibility, Enrollment and Disenrollment, at 52.

[3] 42 CFR Section 423.560 at 70 FR 4562 (January 28, 2005) and 20 CFR Part 422 Subpart M.

[4] 42 CFR Section 566, at 70 Federal Register 4563 (January 28, 2005).