• • About the Part D Benefit
  • Education and Counseling
  • Medicare Advantage
  • Extra Help
  • General Medicare

Part D Benefits Counseling for Cognitively Impaired Medicare Beneficiaries

In This Article:

• Introduction
• The Rules

Introduction

Medicare beneficiaries must make many decisions about drug coverage. These include decisions about applying for Extra Help, decisions about whether or not to join a drug plan, whether to obtain drug coverage through a stand-alone Prescription Drug Plan while getting the rest of Medicare services through Original Medicare, or to get drug coverage and the remainder of Medicare covered care through joining a Medicare Advantage plan.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. These decisions create challenges for all Medicare beneficiaries. For the many Medicare beneficiaries who are not cognitively capable of understanding and making Part D plan enrollment decisions, substituted decision-makers are generally authorized by the regulations to make enrollment decisions on their behalf. Benefits counselors should know these rules in order to offer appropriate advice about the decision making process.

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The Rules

1. Applying for Extra Help (Part D Low-Income Subsidies)
   The Part D regulation¹ 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:
   1. Someone who was asked by the beneficiary to help,
   2. Someone who is authorized by state or other law, and
   3. Someone acting responsibly on behalf of an "incapacitated" beneficiary.
   In the preamble to the regulations² 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.
   
   
2. Enrolling in a Part D plan
   The regulation³ provides that the Part D 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 regulations⁴ 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 this person “stands in the shoes of” the individual. CMS promises further operational guidance. The CMS PDP Guidance on Eligibility, Enrollment and Disenrollment (updated June 20, 2007) explains that usually the beneficiary is the person who signs the plan enrollment request. The Guidance goes on to state that others might have the authority to sign on behalf of the beneficiary. Plans are responsible for determining whether state law gives others this authority. State law generally gives court-appointed guardians this authority. Others who may have such authority include:
   
   
   1. Someone holding a durable Power-of-Attorney that includes health care decisions,
      
   2. Someone authorized under state surrogate consent laws that give designated classes of relatives permission to make healthcare decisions
      
   When someone other than the beneficiary who completes a Part D 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. Accordingly, in order for somebody to help a Medicare beneficiary with Part D 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 Part D plan and must further be prepared to present documentary proof of the authority granted under the state law to CMS or to the Part D Prescription Drug Plan. The Guidance clarifies that those acting under the authority of a state-authorized health care power-of-attorney document may effect Part D plan enrollment. In general, Social Security Administration Representative Payee status however, in-and-of itself does not confer sufficient authority for the payee to execute Part D plan enrollment.⁷
   
   
3. Help With a Part D Plan Drug Coverage Denials
   Medicare Part D plan enrollees may on occasion find that they have difficulty obtaining drugs prescribed for them through the plan. Beneficiaries might want help understanding and pursuing the appeals process to try to get a prescribed medication covered by the Part D plan. Beneficiaries can get help from an authorized representative.⁸ As described above, 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 to make the initial request for an exception to the plan formulary.⁹
   
   
4. Who Can Help Now: A Summary
   Under the current CMS regulations and policy guidance, virtually anybody can assist with completing and submitting Extra Help applications. There is, however, far more limited authority for helpers who wish to enroll cognitively impaired Medicare beneficiaries into a Part D plan. Attorneys-in-Fact, with the power granted by a Durable Power of Attorney may enroll a Medicare beneficiary into a Part D plan. Likewise, the guardian of a Medicare beneficiary who has been adjudicated “incompetent” to make her own decisions may make Part D 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 Part D plan enrollment decisions. These same individuals may pursue remedies if a Part D plan denies coverage of a prescribed medication, or otherwise encounters a problem with a Part D plan. Prescribing physicians may also assist with advocacy for access to the medications they have prescribed if Part D plans deny coverage. Physicians must support formulary exception requests with statements about medical efficacy. They may initiate certain expedited exceptions requests. They can also confer with plan medical directors as long as they have express permission to do so from their patients, or authorized representatives of cognitively impaired beneficiaries.

• ¹ 42 CFR Section 423.772
• ² 70 FR 4373 (January 28, 2005)
• ³ 42 CFR Section 423.32(b)(i)
• ⁴ 70 Federal Register 4203-4204 (January 28, 2005)
• ⁵ PDP Guidance on Eligibility, Enrollment and Disenrollment, Centers for Medicare and Medicaid Services, (June 20, 2007) at Section 30.2.1: “[w]hen somebody other than the Medicare beneficiary completes an enrollment request, he or she must:
  1. Attest that he or she has the authority under State law to make the enrollment request on behalf of the individual;
  2. 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…
• ⁷ PDP Guidance on Eligibility, Enrollment and Disenrollment, Centers for Medicare and Medicaid Services, (June 20, 2007) at Section 30.2.1
• ⁸ 42 CFR Section 423.560 at 70 FR 4562 (January 28, 2005 and 20 CFR Part 422 Subpart M.
• ⁹ 42 CFR Section 566, at 70 Federal Register 4563 (January 28, 2005).

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