BAD MOON RISING: THE DARK SIDE OF MEDICARE PART D

By John J. Campbell, Esq., CELA 

Introduction

          For most Americans age 65 or older, Medicare is the principal source of coverage for medical costs.  Many disabled Americans who qualify for Social Security benefits due to their disabilities also depend heavily on Medicare to cover their medical expenses. 

          Many of these individuals find that their most significant ongoing expenses involve custodial care, attendant care and prescription medications.  Such individuals, especially those requiring long term care in a nursing home and those requiring a nursing home level of care at home, will often have little choice but to impoverish themselves so that they can qualify for Medicaid to cover these costs. 

          For “dually eligible” persons who qualify for both Medicare and Medicaid, Medicaid becomes the primary source for medical coverage.  Most services which are not covered by Medicaid, such as skilled home health care or hospice care, are paid for by Medicare.   Until now, dually eligible persons seldom had reason to be concerned whether Medicare or Medicaid was paying the bill.  So long as a given item or service was covered under one of the two programs, access to needed care has been relatively seamless. 

          With the advent of the new Medicare Part D prescription drug benefit, which will go into effect on January 1, 2006, this will no longer be true.  Dually eligible individuals may find that their access to prescription medications will be limited.  In some cases, access to certain medications that are an integral and vital component of an individual’s care regimen may be denied altogether.

          This article will address some of the more serious problems that are predicted to arise when Medicare Part D begins, as well as some options for how to plan for and minimize the potentially disastrous impact of Medicare Part D on some of the most vulnerable citizens in our society: the elderly and disabled.  However, to understand how Medicare Part D will affect the lives of dually eligible beneficiaries, it is fist necessary to gain a basic understanding of both Medicare and Medicaid.

What is Medicare?

          The Medicare program was created in 1965 under Title XVIII of the Social Security Act as America’s first national health insurance plan for the elderly and disabled.  Medicare is fully a federally funded program and is governed solely by federal law.  Administration of the Medicare program is under the jurisdiction of the Centers for Medicare and Medicaid Services (CMS), a sub-agency of the United States Department of Health and Human Services.

          Medicare is an “entitlement” program.  That is, eligibility does not depend upon financial need.  Traditional Medicare is modeled after traditional fee-for-service health insurance plans.  Medicare covered services are limited and defined; and beneficiaries are responsible for paying deductible and coinsurance amounts.

          Traditional Medicare is divided into two separate insurance plans.  Medicare Part A, called “Hospital Insurance Benefits for the Aged and Disabled,” covers in-patient hospital stays, hospice, and some skilled home health care for home-bound beneficiaries.  Medicare Part A also provides limited benefits for patients receiving skilled nursing care in a skilled nursing facility (SNF).

          Medicare Part B is called “Supplementary Medical Insurance for the Aged and Disabled.”  Part B covers other medical costs, such as physician visits and services, outpatient care, clinical laboratory services, durable medical equipment, physical and occupational therapy, and some skilled home health care.   

          Individuals age 65 or older who also qualify for Social Security or Railroad Retirement benefits will qualify for Medicare Part A without having to pay a premium.  Individuals age 65 or older who do not qualify for Social Security or Railroad Retirement benefits may still obtain Medicare Part A coverage by paying a premium, the amount of which will depend on the number of their qualifying quarters of work. 

          Medicare Part A is also available to disabled persons who have qualified for Social Security Disability Insurance (SSDI) benefits for at least 24 consecutive months.  Finally, persons of any age who are diagnosed with end stage renal disease may qualify for Medicare Part A in the third month after they begin receiving dialysis treatments.

          Anyone who is eligible for Medicare Part A (including those who could purchase Part A coverage for a premium, but choose not to do so) may enroll in Medicare Part B by paying a premium.  The basic premium amount in 2005 is $78.20 per month.  This amount is adjusted each year for inflation.  Beginning in 2007, the Part B premium will depend on the beneficiary’s income.

          For those who do not enroll in Medicare Part B during their initial enrollment periods, the monthly premium amount will be permanently increased.  The initial enrollment period begins 3 months before eligibility for Medicare Part A and extends for 6 months after Part A eligibility. 

          There are many limitations on what Medicare covers.  Most significantly, Medicare Parts A and B do not cover skilled nursing in a SNF after the 100^th day; unskilled nursing; attendant or custodial care; and, with very few exceptions, outpatient prescription medications. 

          The first significant change to the Medicare program came in 1997 with the advent of Medicare Part C, called “Medicare+Choice.”  Medicare Part C introduced the concept of managed care to the delivery of Medicare covered services.  The most prevalent types of Medicare+Choice plans were health maintenance organizations (HMO’s) and preferred provider organizations (PPO’s).  

          Under Part C, an HMO is required to provide coverage for all services covered under Medicare Part A and Part B which are available in the area serviced by the particular HMO.  Most Medicare HMO’s are “risk based,” meaning that the HMO is paid a set amount for each enrollee and must limit the costs of providing care to each enrollee to make a profit.  Enrollees are “locked in,” and may only use plan approved providers and facilities, except in certain emergency or urgent care situations.  If an enrollee uses a non-approved provider or facility, neither the HMO nor Medicare will pay. 

          A PPO will pay for services from a non-preferred provider or facility, but at a reduced rate.  The enrollee will be responsible for the remaining amount, subject to Medicare approved rates. 

          Both HMO’s and PPO’s participating under Medicare Part C are required to offer services in addition to those covered under Part A and Part B.  These additional services might consist of a waiver or reduction of typical Part A and Part B coinsurance or deductibles; or they might consist of additional coverage for items not normally covered by Medicare.  HMO’s and PPO’s are also permitted to offer additional services beyond what is required, and to charge an additional premium for those added services. 

          One of the most common additional services offered by Medicare HMO’s and PPO’s is coverage for prescription medications.  Due to the high costs of prescription medications, Medicare beneficiaries often choose to enroll in a Medicare HMO or PPO offering a prescription drug plan, rather than purchasing a Medigap policy with prescription drug coverage.

What is Medicaid?

          Medicaid is a financial needs based medical assistance program cooperatively funded by the federal and state governments.  The criteria for Medicaid eligibility are governed under both federal and state law, so these criteria differ somewhat from state to state.  Further, different criteria apply to Medicaid benefits received in the community than to Medicaid benefits for long term care or Home and Community Based Services (HCBS) programs.

          Medicaid provides much more comprehensive coverage of medical costs than does Medicare.  For instance, Medicaid beneficiaries are not required to pay deductible or co-insurance amounts.  Medicaid will also cover a broader range of medical services.  Most significantly, Medicaid, unlike Medicare, will cover unskilled attendant care and custodial care expenses, both in the home and in a long term care facility.  Medicaid does not cover skilled home health care or hospice costs.

          In 32 states, including Colorado, and in the District of Columbia, individuals who qualify for SSI automatically qualify for Medicaid.  In 7 other states, individuals who qualify for SSI will also qualify for Medicaid, but must file a separate application.  In these "SSI states," the eligibility criteria for Medicaid in the community are generally the same as for eligibility under the SSI program.  Further, eligibility criteria for long term care or HCBS benefits are fairly consistent among many SSI states, but with some variations.

          To be eligible for Medicaid, an individual generally must pass three tests:  the medical test, the income test, and the resource test.  Further, each state has regulations regarding the treatment of trusts and transfers of assets by a beneficiary to achieve or maintain Medicaid eligibility.

The Medical Test

          To be eligible for Medicaid in general, a beneficiary must be over age 65, blind or “disabled”, as that term is defined in §1382c(a)(3) of the Social Security Act.  To be eligible for Medicaid long-term care or HCBS benefits, the beneficiary usually must also require a nursing home level of care.  This is determined according to the beneficiary's ability to perform the following "activities of daily living" (ADL's):

          Mobility;

          Bathing;

          Dressing;

          Eating;

          Toileting;

          Transferring; and

          Need for supervision.

          Generally, if the person requires significant assistance with any two ADL's, or if the person has very significant need for supervision, he or she will be considered in need of a nursing home level of care.  Whether the person requires assistance with the requisite ADL's is determined by a functional needs assessment.

The Income Test

          For an individual to qualify for Medicaid in the community, the individual’s monthly income, after income disregards,  may not exceed the maximum SSI benefit ($579 for an individual or $869 for a married couple in 2005).  Since eligibility for Medicaid in the community in Colorado is usually determined according to SSI standards, the income of a non-eligible spouse or child who lives with the individual will be deemed to be available to the individual for purposes of the income test.   

          For Medicaid long term care or HCBS benefits in Colorado, the income cap applicable to an individual beneficiary is 300% of the maximum SSI benefit ($1,737 per month in 2005).  The income of the individual’s spouse or child is not counted in determining the individual’s eligibility for Medicaid long term care or HCBS.

          If the individual’s monthly income exceeds the income cap, he or she may still qualify for Medicaid long term care or HCBS benefits if the individual’s income is less than the applicable average monthly cost of nursing home care in the particular region of Colorado in which he or she resides.  If so, the individual can still qualify for Medicaid by using a "Miller Trust." 

          All of such an individual’s current monthly income will need to go into the Miller Trust each month.  From the trust, the trustee can pay the individual’s monthly income allowance (usually $50-$60); any monthly amount payable to the community spouse under applicable spousal impoverishment protection regulations; minimal trust administration costs; and pre-approved Post Eligibility Treatment of Income (PETI) deductions (if any).   For individuals qualifying for HCBS, a portion of monthly income may be withheld from the amount that goes into the Miller Trust to be used for support needed to allow the individual to continue living at home.  The balance of the individual’s current monthly income will be paid from the Miller Trust to the nursing home or to the HCBS provider as the individual’s monthly patient contribution amount.  The balance of the individual’s covered nursing home or HCBS costs for the month will be paid by Medicaid. 

          Normally, when a person qualifies for Medicaid in the nursing home or for HCBS, that person also will be entitled to full Medicaid coverage for hospitalizations, doctor visits and other expenses not necessarily associated with long term care.  However, if a person's income exceeds the income cap for long term care benefits or HCBS and the individual must use a Miller Trust to qualify, Medicaid will only cover that individual's long term care or HCBS related expenses.  If, for example, that person needs to go into the hospital, those additional expenses would not be covered by Medicaid.

          Individuals who will require a Miller Trust to qualify for Medicaid long term care or HCBS benefits should maintain their coverage under Medicare Part A and Part B to cover other medical expenses.  Further, if they have a Medicare supplemental, or "Medigap" policy, or access to coverage under a group health plan (GHP), they should continue to pay the premiums to keep those policies in effect, even after they go on Medicaid.  Otherwise, a hospital visit or even routine doctor's visits outside the nursing home could present an unexpected and significant expense that Medicaid will not cover.

The Resource Test 

          The general rule regarding resource eligibility is that a Medicaid recipient cannot have “countable” resources of more than $2,000.  The following are not countable resources:

          1.       Primary Residence.  A Medicaid recipient’s home is considered an exempt resource if: (a) the home was the Medicaid recipient’s principal residence; (b) the recipient (or spouse) actually lived in the home immediately prior to being institutionalized; and (c) the recipient intends to return home; or a spouse or dependent relative continues to live there.  This exemption also applies to mobile homes used as the principal residence 

          2.       Vehicles.  The Medicaid recipient is entitled to one car having a market value of $4,500 or less.  This dollar limitation is eliminated if the car is used for obtaining medical treatment, is specially equipped for a handicapped person, or is used for employment.  In Colorado, the dollar limitation will also be eliminated where spousal impoverishment protections apply. 

3.       Personal Property.  Personal property is exempt to a total value of $2,000.  Wedding and engagement rings of any value are exempt, as are any items required by a physical condition.  In Colorado, the dollar limitation will also be eliminated where spousal impoverishment protections apply.

          4.       Life Insurance.  If the total face value of all life insurance policies the Medicaid recipient owns does not exceed $1,500, then the policies are exempt regardless of their cash surrender value.  If the face value of all policies exceeds $1,500, then the total amount of the cash surrender value is countable toward the $2,000 resource limit.  Term life insurance policies with no cash surrender value are excluded from this calculation.

          5.       Burial Insurance.  Irrevocable burial insurance is exempt regardless of its dollar value.   Revocable burial insurance is exempt to a maximum of $1,500, but this exemption is reduced on a dollar for dollar basis to the extent that the person has life insurance with a cash surrender value that was exempt under the rule described above.  Also, the value of burial spaces and grave markers for the applicant and immediate family are exempt. 

          6.       Retirement Accounts.  Self-funded retirement accounts of the person receiving Medicaid are countable, but may be reduced for taxes and other penalties that will be charged upon withdrawing the funds.  In some states there may be an exemption for the community spouse’s self funded retirement accounts.  In Colorado, the spouse's self funded retirement accounts are not exempt, except under very limited circumstances.

          For Medicaid in the community, or for long term care or HCBS benefits, all of a married couple’s resources are considered in determining Medicaid eligibility for either spouse, regardless of how those resources may be titled.  For Medicaid in the community, the resources of a non-eligible child who lives with the beneficiary will also be deemed to be available under SSI regulations 

Spousal Impoverishment Protections

          Federal law provides for special rules applicable to married couples, where only one spouse will be receiving Medicaid long term care or HCBS benefits.  These rules are designed to prevent the impoverishment of the non-beneficiary spouse.  Under the spousal impoverishment rules, the spouse receiving Medicaid long term care or HCBS is called the "institutionalized spouse."  The non-beneficiary spouse is called the "community spouse."  Spousal impoverishment protections do not apply to SSI or Medicaid in the community.

          The spousal impoverishment rules provide both resource protection and income protection for the community spouse.  The resource protection provisions permit the community spouse to retain resources in addition to the $2,000 in non-exempt resources that can be owned by the beneficiary.  The income protection provisions allow the community spouse to maintain minimum monthly income levels, which may include contributions of monthly income from the institutionalized spouse.

Resource Protection: The Community Spouse Resource Allowance (CSRA) 

          In the case of a married couple, the community spouse can retain a certain amount of countable resources without affecting the institutionalized spouse’s Medicaid eligibility.  The amount retained is called the Community Spouse Resource Allowance (CSRA).  The CSRA is in addition to both the $2,000 the institutionalized spouse is entitled to retain and the exempt resources discussed above. 

          In Colorado, the maximum CSRA ($95,100 in 2005) is always permitted, regardless of the total amount of the couple’s assets.  The institutionalized spouse will be eligible for Medicaid when the couple’s total countable resources are equal to or less than the CSRA plus the $2,000 the institutionalized spouse is entitled to retain.

Income Protection: The Minimum Monthly Maintenance Needs Allowance (MMMNA) and the Monthly Income Allowance (MIA):

          The MMMNA is the amount of monthly income the community spouse needs to pay for his or her basic needs within the community.  Medicaid sets limits on this amount, which are adjusted on July 1 each year.  The current MMMNA amount limits are:

                   Basic Allowance                                            $1,561.25

                             (This amount will increase

                             to $1,604 on July 1, 2005)

                    Plus Excess Shelter Allowance                                                          

                             House Payment/Rent plus Maintenance Fee

                             plus Insurance plus Taxes plus Utilities

                             (actual or $209, whichever is larger),

                             minus $468.38 equals Excess Shelter Allowance

                     Equals the MMMNA                                                                        

                   (But the MMMNA cannot exceed $2,377.50) 

          The MIA is the amount of the institutionalized spouse’s income that is contributed to the community spouse if his or her income does not equal the MMMNA (MMMNA – the community spouse’s income = MIA).

          Sometimes, the institutionalized spouse's income is insufficient to provide an MIA payment that will increase the community spouse's income to the MMMNA amount.  In these cases, the community spouse may request a Medicaid fair hearing to obtain an increase in the CSRA amount to provide the community spouse with additional resources with which to generate additional income necessary to meet his or her MMMNA.

          Medicaid must also provide a family allowance for each dependent child, sibling or parent of the beneficiary who lives in the community spouse’s household.  In Colorado, the family allowance for each dependent is equal to one-third of the MMMNA, minus the dependent’s income.

Transfers Without Fair Consideration

          Medicaid and SSI both impose ineligibility periods for an individual who disposes of assets for less than fair consideration to achieve or maintain eligibility for SSI (and Medicaid in the community) and for Medicaid long term care or HCBS benefits at any time during the “look-back” period.  The look-back period is the 36 month period prior to the application for SSI or Medicaid for outright transfers.  Certain transfers into or out of a trust to qualify for Medicaid long term care or HCBS benefits can result in a look-back period of 60 months.  The term “assets” under both SSI and Medicaid regulations includes all income and resources of the individual.

          Upon the filing of an SSI or Medicaid application, SSI or Medicaid will determine if an applicant transferred assets without fair consideration within the 36 month look-back period prior to filing his or her application.  If a transfer without fair consideration was made during the look-back period, a period of ineligibility will be imposed.

          The period of ineligibility is calculated differently, depending on whether the individual is applying for SSI and Medicaid in the community, or Medicaid long term care or HCBS benefits.  For SSI and Medicaid in the community, SSI regulations require that the period of ineligibility be calculated by dividing the uncompensated amount of the transfer by the maximum SSI benefit ($579 in 2005).  For Medicaid long term care or HCBS, the uncompensated amount of the transfer is divided by the average monthly cost of nursing home care for a privately paying individual in Colorado ($4,965 in 2005). 

          Under federal law, there is no limit on how long a period of ineligibility may be imposed for purposes of Medicaid long term care or HCBS eligibility.  The period of ineligibility for SSI and Medicaid in the community can be no longer than 36 months. 

          The following specific types of transfers will not incur a penalty period:

          (1)     Transfers between spouses;

(2)     Transfer of the home to either (a) the Medicaid recipient’s child who is under 21, blind, or permanently and totally disabled, (b) the recipient’s sibling who has an equity interest in the home and who was residing in the home for at least one year immediately before the date the individual entered the nursing home, or (c) the recipient’s son or daughter who was residing in the home for at least two years immediately before the date the individual entered the nursing home and who provided care that permitted the individual to reside at home rather than in an institution;

(3)     Transfers of any assets (a) either directly or to a trust established solely for the benefit of the Medicaid recipient’s child whois blind or permanently and totally disabled, or (b) to a trust established solely for the benefit of an individual under 65 years of age who is disabled .  (For Medicaid long term care or HCBS, transfers of assets directly or to a trust for the sole benefit of the recipient’s minor child under age 21 are also exempt); 

(4)     Transfers of assets into an exempt disability trust or pooled trust account for the Medicaid recipient.  Transfers into a disability trust or pooled trust must be completed before the Medicaid recipient reaches age 65, or a period of ineligibility will be imposed.  (For Medicaid long term care or HCBS, transfers of assets directly to a Miller Trust are also exempt); and

(5)     Transfers where the individual can justifiably show that either (a) the Medicaid recipient intended to dispose of the assets, either at fair market value or for other valuable consideration; (b) the assets were transferred exclusively for a purpose other than to qualify for Medicaid; or (c) all assets transferred for less than fair market value have been returned.  A period of ineligibility may also be waived if the beneficiary can establish undue hardship, but such waivers are extremely rare.

Treatment of Trusts

          The Omnibus Budget Reconciliation Act of 1993 (OBRA `93) established new Medicaid rules for treatment of both revocable and irrevocable trusts created after August 10, 1993.  These rules are codified under federal law at 42 U.S.C. §1396p(d).  Similar legislation was enacted under the Foster Care Independence Act of 1999 (FCIA), applicable to the SSI program.  The FCIA trust provisions are codified at 42 U.S.C. §1382b(e). 

          The general rule under both OBRA ‘93 and the FCIA is that, in determining an individual's eligibility for Medicaid or SSI benefits, trusts "established by such individual" (sometimes called "self-settled trusts") will be included in income or available resources.  A trust is "established by such individual" if the individual's assets form all or part of the corpus of a non-testamentary trust settled by the individual, his or her spouse, or a third person with legal authority to act for the individual or the spouse, or who is acting at the direction or request of the individual or the spouse.  In short, a trust created with the applicant's funds generally cannot be used to keep the applicant under the income or available resource ceilings for Medicaid or SSI eligibility.

          If a self-settled trust is revocable, its corpus is included in the individual's available resources.  Payments from the trust to or for the benefit of the individual are included in his or her income.  If the trust is irrevocable, any portion of the trust corpus from which a payment could be made to the individual under any circumstances is included as an available resource.  Any payment to the individual from the trust is included in his or her income.  Any portion of the trust corpus that could not be made available to the individual and any payments from the trust to persons other than the individual are considered to be transfers without fair consideration, resulting in a period of ineligibility.

          Both OBRA ‘93 and the FCIA provide limited exceptions to the harsh treatment of self-settled trusts.  These exceptions are codified under 42 U.S.C. §1396p(d)(4) (the "(d)(4) exceptions"); and, other than the Miller Trust exception, are made applicable to SSI under 42 U.S.C. §1382b(e)(5).  Under the (d)(4) exceptions, the treatment otherwise accorded to self-settled trusts does not apply to: 

(A) A trust containing the assets of an individual under age 65 who is disabled (as defined in §1382c(a)(3) of the Social Security Act) and which is established for the benefit of such individual by a parent, grandparent, legal guardian, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual by the state. 

(This exception codified into law what is commonly known as a “Special Needs Trust,” “Supplemental Needs Trust” or “Disability Trust.”);

(B) A trust established in a State for the benefit of an individual if the trust is composed only of pension, Social Security, and other income to the individual (and accumulated income in the trust), and the individual’s income exceeds the income cap ($1,737 per month in 2005), but does not exceed the average cost of nursing home care in the region in which the individual will be receiving nursing home care, if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual by the state.

(This exception codified into law what is commonly known as a “Miller Trust,” and is not applicable to eligibility for SSI or Medicaid in the community); and

(C) A trust containing the assets of an individual who is disabled (as defined in §1382c(a)(3) of the Social Security Act) that meets the following conditions: (i) The trust is established and managed by a non-profit association; (ii) A separate account is maintained for each beneficiary of the trust, but, for purposes of investment and management of funds, the trust pools these accounts; (iii) Accounts in the trust are established solely for the benefit of individuals by the individual, by the individual’s parent, grandparent, or legal guardian, or by a court; and (iv) To the extent that amounts remaining in the beneficiary's account upon the death of the beneficiary are not retained by the trust, the trust pays to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary by the state.

                   (This exception is commonly known as a “Pooled Trust.”)

          Even a trust that complies with all of the requirements of 42 U.S.C. §1396p(d)(4)(A) or (C) and  42 U.S.C. §1382b(e)(5) might not be recognized as a valid exempt trust for purposes of SSI and Medicaid in the community if it does not also comply with Social Security Administration policies, some of which are not enumerated in the FCIA.  These policies are embodied in the Program Operations Manual System (POMS) at POMS SI 01120.203.  In particular, the trust must comply with all of the following key requirements, as summarized in POMS SI 01120.203.D.1:

1)       The trust will be established with the assets of the beneficiary, who is under age 65;

2)       The beneficiary is disabled as that term is defined in the Social Security Act; 

3)       The beneficiary is the sole beneficiary of the trust.  (Further, the trust does not allow any Prohibited Expenses or Payments under POMS SI 01120.203.B.3); 

4)       The trust was established by the beneficiary’s parent, grandparent, legal guardian or a court, if the beneficiary is a minor.  If the beneficiary is not a minor, the trust was established by someone who has legal authority to act with regard to the beneficiary’s assets, as required by POMS SI 01120.203.B.1.e, meaning that the trust must have been established by the beneficiary’s legal guardian or a Court, or by the individual in the case of a pooled trust account;

5)       The Trust provides specific language providing that, upon the death of the beneficiary, the trust must first reimburse the State for medical assistance paid for the beneficiary;

6)       The Trust will be fully funded before beneficiary reaches age 65;

7)       The Trust is irrevocable.  (The Trust must contain a specific provision making the Trust irrevocable.  In some states, not including Colorado, the trust must also name a specific individual as the remote contingent beneficiary of the trust, after repayment to the state).         

          Failure of the trust to comply both with OBRA ‘93 and with any additional requirements in the POMS could result in trust assets being considered an available resource or in transfers to fund the trust being considered transfers without fair consideration, resulting in a penalty period for the person applying for SSI and Medicaid in the community.

Trusts Not Subject To The Strict Laws On Self-Settled Trusts

          There are two types of trusts which are excepted from the provisions of OBRA '93 and the FCIA applicable to self-settled trusts.  The first exception is for trusts created by a will.  These “Testamentary Special Needs Trusts” are commonly created in the will of a spouse, family member or friend of the Medicaid beneficiary. 

          The second exception is for trusts that are not self-settled trusts at all, but rather are created and funded solely with property not belonging to the beneficiary or the beneficiary’s spouse.   Such trusts are permitted and will not be considered an available resource to the beneficiary for purposes of determining the beneficiary’s eligibility for SSI or Medicaid.  However, the trust must be created and funded fully by a third party.  If the trust ever accepts funds that are property of the beneficiary or the beneficiary’s spouse, those funds will either be considered an available resource or will constitute a transfer without fair consideration and will trigger an ineligibility period.

          Both Testamentary Special Needs Trusts and Third Party Supplemental Needs Trusts must meet the following conditions to be considered exempt as a resource:

1)       The beneficiary must have no authority to compel distributions from the trust or to exercise any powers of ownership over assets in the trust;

2)       The assets in the trust must be used only for the beneficiary’s supplemental needs and not for support – otherwise, payments from the trust for support will be treated as income to the beneficiary;

3)       The trust may only have one lifetime beneficiary; and

4)       The trust must be irrevocable.

Medicare Part D

          In December of 2003, Congress passed the Medicare Prescription Drug, Modernization and Improvement Act (MMA).  The MMA is a broad and massive piece of legislation that adds an “optional” prescription drug benefit to Medicare, and also affects Medicare Part C (renamed “Medicare Advantage” under the act), Medicare supplemental (“Medigap”) insurance and other Medicare related matters.

          The new Medicare prescription drug benefit created under Medicare Part D may be the most significant change to Medicare since its inception.  At the same time, the basic prescription drug benefit under Medicare Part D is both limited and confusing.  Arguably, it does not live up to the promises and characterizations made by politicians during 2003 to gain public support for the new legislation.

          The prescription drug benefit under Medicare Part D will not be directly administered by CMS.  Rather, it will be provided through private companies who contract with CMS to provide prescription drug plans (PDP’s).  Prescription drug benefits under Medicare Part D will also be offered by Medicare HMO’s and PPO’s under Medicare Advantage prescription drug plans (MA-PD’s). 

          Like Medicare Part B, prescription drug benefits under Medicare Part D will only be available by paying a premium.  The average premium for the basic prescription drug benefit is expected to be approximately $37 per month.  However, this amount will vary from provider to provider.  Providers are also permitted to offer plans with additional prescription drug coverage, so long as they also offer the basic plan.  Premiums for these more comprehensive plans will be higher.

          Each provider is permitted to follow its own drug formulary.  Further, providers are permitted to use a tier cost-sharing system in their formularies, based on generic or preferred status, and upon cost.  If a beneficiary requires a medication that is not on the formulary or that is in a lower cost-sharing tier than a replacement drug approved by the provider, the beneficiary can request a formulary or tier exception.  An exception requires a physician’s statement that the non-formulary or lower cost-sharing tier medication is medically necessary; and that medication either will not be as effective as any other formulary medications (or medications on the same or a higher tier), or will actually cause harm to the patient.

          The refusal of a request for a formulary or tier exception is considered a coverage determination, as is the refusal to approve or pay for a medication on the basis of medical necessity.  Medicare Part D contains a 5 level appeal process, similar to the appeal process for Medicare Advantage Plans under Medicare Part C.  The steps to appeal an initial adverse coverage determination are, in the following order: a redetermination by the PDP or MA-PD; a reconsideration by the Independent Review Entity (IRE); an administrative law judge (ALJ) hearing; a review by the Medicare Appeals Council (MAC); and judicial review in the Federal District Court. 

          Any agency appeal above the IRE reconsideration level requires that the amount in controversy be at least $100.  The amount in controversy must also be sufficient to invoke Federal District Court jurisdiction before judicial review is possible.  A beneficiary can combine multiple claims to meet the amount in controversy requirements; and multiple beneficiaries can combine their claims into a single appeal, if the claims all involve the same medication.

           Initial Determinations must be completed and an answer provided within 72 hours; and redeterminations and reconsiderations generally must be completed and an answer provided within 7days. If a delay would seriously jeopardize the life or health of the beneficiary or the beneficiary’s ability to regain maximum function, an expedited appeal process applies. Under an expedited appeal, initial determinations must be completed and an answer provided within 24 hours; and redeterminations and reconsiderations must be completed and an answer provided within 72 hours. The failure of the PDP or MA-PD in either a “normal” or expedited situation to provide its decision at the initial determination or reconsideration levels within the applicable time periods constitutes an adverse determination; and the PDP or MA-PD must forward the matter directly to the IEP for review within 24 hours.

          The appeals process can be complicated and time consuming, especially if the matter in controversy is not resolved within the first 1-3 levels.  Any level of determination or appeal can be instituted by the beneficiary or the beneficiary’s representative.  A representative can be a representative payee, an agent or attorney-in-fact under a general or medical durable power of attorney, a court appointed guardian or conservator, the beneficiary’s physician, or any other person appointed as a representative by the beneficiary on a form provided by CMS.

          To remove a drug from its formulary or to raise a drug to a higher cost-sharing tier, the PDP or MA-PD must normally give at least 60 days advance notice, unless the action is due to the drug itself being deemed unsafe.  Alternatively, if the drug is removed without notice for reasons other than safety, the PDP or MA-PD must provide a 60 day supply of the medication to the beneficiary, subject to any normal deductible and cost-sharing amounts that may apply. 

            The basic Medicare Part D prescription plan will provide only limited prescription drug coverage.  The beneficiary must pay 100% of the Part D deductible amount of $250 before coverage begins.  For annual prescription costs from $251 through $2,250, Medicare will pay 75%.   For prescription costs after the beneficiary reaches the annual out of pocket amount ($3,600 per year in 2006, and subject to increase annually thereafter), Medicare will pay up to 95%.   

            All beneficiary payments will all count toward the annual out of pocket amount.  The annual out of pocket amount will not be reached until the beneficiary's total annual prescription drug costs equal $5,100 (in 2006).  There is no Medicare Part D coverage for annual prescription costs from $2,251 up to $5,100.  This huge gap in coverage is often referred to as the “donut hole.” 

            Medicare Part D basic coverage and relative out of pocket payments for the Beneficiary and Medicare are illustrated in the following table:

Total Annual Rx Cost Range	Cost-sharing Percentage	What the Beneficiary Pays	Plan Payment Percentage	What Medicare Pays
$0 - $250	100%	$250	0%	$0
$251 - $2,250	25%	$500	75%	$1,500
$2,251 - $5,100	100%	$2,850	0%	$0
Over $5,100	5%		95%

          For the first time since Medicare’s birth in 1965, the MMA introduced a financial needs based test to the Medicare program for certain individuals.  This test applies to the Low-Income Benefit under Part D.  To be considered a “subsidy eligible individual,” the individual must meet an income test and a resource test. 

          To qualify as a “full subsidy eligible individual,” the individual’s monthly income may not exceed 135% of the Federal Poverty Line applicable to that individual’s family size.  In 2005, that figure is $1,077 per month for individuals and $1,444 for married couples.  Further, the individual may not have resources greater than 3 times the resource limit for SSI ($6,000 in 2005), including resources of the individual’s spouse.  Beginning in 2007, resource limits will increase, based on inflation.

          The following individuals are automatically considered to be full subsidy eligible individuals: individuals receiving SSI benefits; individuals eligible for Medicaid under the QMB, SLMB and QI guidelines; and “full-benefit dual eligible individuals.”

          A “full-benefit dual eligible individual” is an individual who is eligible for Medicare and for full Medicaid benefits under any state eligibility category or who is eligible for Medicaid benefits through a Medicaid demonstration waiver under to §1115 of the Social Security Act.  (Colorado’s HCBS waiver programs are not §1115 demonstration waivers.)  In Colorado, some recipients of Medicaid long term care or HCBS benefits may not fit this definition, depending on whether “full Medicaid benefits” is to be interpreted literally, or whether it refers only to full benefits for prescription drug coverage.  The regulations are not entirely clear on this point.

           Individuals who qualify for Medicaid long term care or HCBS benefits in Colorado are usually eligible for full Medicaid benefits, including prescription drug coverage.  However, for those with income in excess of the income cap who must qualify with a Miller Trust, benefits are limited to long term care or HCBS related benefits only, and do not include full Medicaid benefits for hospital stays, services in outpatient facilities, doctor’s office visits or other “Medicaid in the community” type services.  It is possible that these individuals would not be considered “full-benefit dual eligible individuals” under the literal wording of the regulations, even though Medicaid does fully cover their prescription drugs.     

          Full subsidy eligible individuals receive a premium subsidy which will often cover the entire cost of the PDP or MA-PD premium for basic prescription drug coverage.  These individuals also do not have to pay the $250 annual deductible; and they receive continuing coverage once they are in the “donut hole.”  These individuals must pay a $2 co-pay for generic and preferred multiple source drugs; and a $5 co-pay for all other drugs.  Once the annual out of pocket limit of $3,600 is reached, there are no further co-pays.  For full subsidy eligible individuals whose monthly incomes are under 100% of the Federal Poverty Line ($798 for individuals and 1,070 for married couples in 2005), the co-pays are limited to $1 and $3, respectively.  For full-benefit dual eligible individuals residing in nursing homes, there are no co-pays.

          “Other subsidy eligible individuals” must also meet income and resource tests.  These individuals must have monthly income less than 150% of the Federal Poverty Line ($1,196 for individuals and $1,604 for married couples in 2005); and must have resources of less than $10,000 for individuals, or $20,000 for married couples (these are the 2006 figures contained in the regulations).  In subsequent years, resource amounts will be increased, based on inflation.

          These other subsidy eligible individuals will receive a premium subsidy, calculated on a sliding scale, which is expected to average $18 for individuals with incomes between 135% and 150% of the Federal Poverty Line.  The annual deductible amount is reduced from $250 to $50; and coverage extends into the “donut hole.”  These individuals will pay coinsurance of 15% and co-pays of $2 for generic and preferred drugs, and $5 for other covered drugs.  There are no co-pays or coinsurance once the annual out of pocket limit of $3,600 is reached.

          For most Medicare beneficiaries, enrollment in Medicare Part D is voluntary.  For existing Medicare beneficiaries, the initial enrollment period (IEP) for Medicare Part D runs from November 15, 2005 through May 15, 2006.  For those individuals who are not already eligible for Medicare Part D, their IEP’s will begin 3 months before they become eligible for enrollment in Part D and will continue for 6 months after initial Part D eligibility (similar to the open enrollment period for Medicare Part B).  

          In subsequent years, there will be an annual coordination election period from November 15 through December 31 each year.  There will also be special enrollment periods for special circumstances.  Beneficiaries are guaranteed the ability enroll in a PDP or MA-PD, to switch from one plan to another, or to disenroll from Medicare Part D altogether at any time during their  IEP’s and during annual and special enrollment periods.  A beneficiary cannot be denied enrollment during any enrollment period on the basis of age or health.

          Medicare beneficiaries who fail to enroll in Part D during their IEP’s are subject to a penalty in the form of an increase in premiums, unless they had creditable prescription drug coverage without a gap in coverage of more that 63 days.  Medicare beneficiaries will also be subject to the late enrollment penalty if they lose creditable prescription drug coverage after their IEP’s and do not enroll in Medicare Part D within 63 days.   

          Creditable prescription drug coverage includes prescription drug coverage that is “actuarially equivalent to Medicare Part D” under any of the following:

          1)       a PDP or MA-PD plan; GHP; or private health insurance;

          2)       Medicaid;

          3)       a PACE program;

          4)       a military plan, including TRICARE;

          5)       health plans for federal and state employees;

          6)       State Pharmaceutical Assistance Programs (SPAP’s);

          7)       coverage for veteran’s, survivors and dependents;

          8)       a Medicare supplemental policy with prescription drug coverage; and

          9)       certain other types of coverage enumerated under the regulation. 

Liability insurance, worker’s compensation, no-fault insurance and disability insurance are notably among the types of policies or plans that are not creditable coverage under the MMA.  Further, even though Medigap H, I & J policies are Medicare supplemental insurance with prescription drug coverage, the prescription drug benefits under Medigap H, I & J policies are less valuable than Medicare Part D basic coverage.  Therefore, these policies will not be considered “creditable coverage” under the MMA.

          For purposes of Medicare Part D, a “preexisting condition” is one which is first diagnosed or for which the beneficiary has received treatment within 6 months before enrollment in a PDP or MA-PD.  PDP’s and MA-PD’s may not impose preexisting condition exclusions upon beneficiaries who have maintained at least 6 months of creditable coverage without a gap in coverage of more than 63 days.  If a beneficiary has not maintained creditable coverage for the full 6 month period prior to enrollment, preexisting condition exclusions may not be imposed for a period of time longer than the period during which the beneficiary was without creditable coverage for more than 63 days.

           Full-benefit dual eligible individuals may voluntarily enroll in Medicare Part D during the IEP or under a subsequent annual coordination election period, as can any other beneficiary.  In addition, full-benefit dual eligible individuals may enroll at any other time due to the special enrollment period applicable to these individuals under the regulations.  However, those full-benefit dual eligible individuals who do not voluntarily enroll in Medicare Part D will be enrolled involuntarily by CMS.

          For persons who are considered full-benefit dual eligible individuals, CMS will begin the involuntary enrollment process in the fall of 2005, with the enrollment to be effective on January 1, 2006.  After January 1, 2006, these individuals will be automatically enrolled as soon as their eligibility for Medicare Part D is determined.  While the regulations permit full-benefit dual eligible individuals to refuse enrollment or to disenroll at any time, doing so may have severe consequences.           

Bad Moon Rising

          The most obvious problems for Medicare beneficiary’s enrolling in Medicare Part D are the severe limitations on actual benefits and the premiums and cost-sharing applicable to persons who do not qualify for Low-Income Benefits.  Beneficiaries with chronic illnesses will often find that their total prescription costs will average  more than $187.50 per month ($2,250 per year) for necessary medications, but will not be great enough to fall within Medicare Part D catastrophic prescription drug coverage.  In these cases, beneficiaries will find themselves in the “donut hole” at some point before the end of the year.  Without separate prescription drug coverage under a GHP or a Medigap policy, these beneficiaries will be required to pay for most of their medication expenses on their own.

          Those who have access to GHP coverage would be well advised to continue that coverage for as long as possible and forego enrollment in Medicare Part D for so long as they have creditable prescription drug coverage under the GHP.  For those without GHP coverage, the best option may be to forego enrollment in Medicare Part D and rely on Medigap insurance for prescription drug coverage.  However, those wishing to rely on a Medigap policy with a prescription drug benefit must act quickly.

          Beginning January 1, 2006, the MMA prohibits the sale of new Medigap policies containing prescription drug coverage (Medigap H, I or J policies).  Only Medicare beneficiaries who already have a Medigap H, I or J policy as of January 1, 2006, but who do not enroll in Medicare Part D, will have the option of renewing their Medigap H, I or J policies with prescription drug coverage.  Beneficiaries who do elect to enroll in Medicare Part D may also keep their old Medigap H, I or J policies, but the prescription drug benefits under those policies will be eliminated. 

            Medicare beneficiaries who already have coverage under a Medigap H, I or J policy with prescription drug benefits should keep their policies in force after January 1, 2006.  Similarly, Medicare beneficiaries who are able to purchase or upgrade to a Medigap H, I or J policy by the end of 2005 may with to do so.  However, availability of these policies to beneficiaries who have been enrolled in Medicare Part B for more than 6 months may be limited; and the Medigap H, I or J policy will not be considered “creditable coverage.”  If a beneficiary later decides to enroll in Medicare Part D after his or her IEP, there will be a late enrollment penalty in the form of increased premiums.  Preexisting condition exclusions may also be applied.

          The less obvious, but far more critical problems with Medicare Part D are those which primarily affect the most vulnerable and fragile Medicare beneficiaries: the elderly and disabled who have previously depended on Medicaid to cover their prescription drug expenses.  Those in nursing homes and on HCBS will be particularly vulnerable.         

          The more serious problems arise as the result of:   

          1)       inconsistencies between eligibility criteria for SSI, Medicaid long term care and HCBS benefits, and Low-Income Benefits under Medicare Part D; 

          2)       the bureaucratic complexities that will be involved in the “automatic” enrollment by CMS of full-benefit dual eligible individuals into Medicare Part D PDP’s; 

          3)       the differences in drug formularies and cost-sharing tier structures that will exist among the various PDP’s and MA-PD’s; and  

          3)       the severe physical and cognitive limitations suffered by many dually eligible individuals which give rise to the need for a nursing home level of care.  

          Problems are likely to arise under a number of possible scenarios.  What follows are some of the more likely circumstances which could result in serious harm to dually eligible and full-benefit dual eligible beneficiaries; and some possible strategies to minimize the negative impact of Medicare Part D for these beneficiaries. 

          The state Medicaid agency may provide CMS with incorrect or misspelled names for certain beneficiaries; or may provide incorrect Medicaid household numbers, Medicare HIC numbers or Social Security numbers for certain beneficiaries.  CMS might not enter all of the correct names and identifying information for all beneficiaries into its computer system.  PDP’s or MA-PD’s may not receive complete or correct information on all new Part D beneficiaries in a timely fashion. 

          For these individuals who fall through the cracks, Medicaid will stop payment for prescription drugs upon the belief that the individual has been automatically enrolled in a Part D PDP.  However, CMS will not have enrolled these individuals in PDP's.  As a result, these individuals will find themselves  without prescription drug coverage at all.  According to attorneys at the Center for Medicare Advocacy, this is a real possibility for a great many Medicaid beneficiaries.

          Individuals who are involuntarily enrolled in a PDP may find that the drug formulary for the PDP does not include medications they require.  Alternatively, these individuals may find that the drug formulary lists several "similar" drugs on a higher cost-sharing tier of the formulary and that the PDP insists on switching the individual to one of these "similar" drugs.   

          The regulations provide that Medicare is always the primary payer in situations involving beneficiaries who enroll or could enroll in Medicare Part D.  Medicaid is not permitted to pay for any prescription medications covered under Part D for dually eligible persons.  As a consequence, individuals who are eligible to enroll in Medicare Part D will lose Medicaid benefits for their prescription medications as soon as their Part D eligibility is determined, whether they are actually enrolled in Part D or not.  

          Without Medicaid to pay for prescription medications, dually eligible individuals will soon find that the cost of their prescription medications under Medicare Part D will be prohibitive.  If these individuals are receiving Medicaid long term care or HCBS benefits, but require a Miller Trust to qualify, they may not be considered “full-benefit dual eligible individuals” under the federal regulations.  Therefore, they may not be deemed automatically eligible for full Low-Income Benefit premium and cost-sharing subsidies.  At the same time, these individuals will have too much income to qualify independently for Low-Income Benefits. 

          Further, since a great deal of these individuals’ incomes will already be required to cover their monthly patient contribution amounts to the nursing home or to HCBS, they  will not have sufficient extra income to pay for Part D deductibles and cost-sharing amounts.  This will be especially true when the annual prescription drug costs for these individuals exceeds $2,250 and they find themselves in the “donut hole,” having to privately pay for all of their prescription drug costs.

          Medicaid spousal impoverishment protections that previously protected the community spouses of these dually eligible individuals receiving Medicaid long term care or HCBS benefits will not apply to the Low-Income Benefit criteria under Part D.  Thus, community spouses could be required to use their own incomes (including the MIA and family allowance received from their institutionalized spouses) or to liquidate CSRA assets, just to cover the institutionalized spouses’ prescription drug costs that were formerly covered by Medicaid.

          In the event a Medicaid long term care or HCBS beneficiary who does not receive full Medicaid benefits is unable to qualify for Low-Income Benefits under Medicare Part D, the beneficiary may be able to get some relief from Medicaid in a roundabout fashion.  In these cases, it will be extremely important to request that Medicaid pre-authorize additional Post Eligibility Treatment of Income (PETI) deductions for the beneficiary’s Part D premiums and additional prescription medication expenses.  This would allow the beneficiary to pay for these added expenses from monthly income before making his or her monthly patient contribution payment to the nursing home or HCBS.

          Dually eligible individuals who do qualify for Medicare Part D Low-Income Benefits can still encounter problems with access to necessary medications due to the way those medications may be treated in the PDP’s or MA-PD’s formulary.  The regulations permit full-benefit dual eligible persons, including persons who are receiving Medicaid in the community through SSI, to switch to a different PDP or MA-PDP at any time.  Switching to a different PDP or MA-PD will often be a simple and effective solution if the beneficiary’s necessary medications are more favorably treated in the formulary of the new provider. 

          The regulations also permit dually eligible individuals to disenroll from Medicare Part D altogether.  However, disenrollment to avoid Medicare Part D premiums and cost-sharing amounts or to avoid unfavorable coverage determinations could have disastrous consequences for dually eligible individuals.  Once a Medicaid beneficiary is eligible for Medicare Part D, the regulations prohibit Medicaid payment for any Part D covered drugs.  Thus, if a Medicaid beneficiary who also qualifies for Medicare Part D benefits disenrolls from a Part D plan, the beneficiary’s prescription drug costs will no longer be covered by Medicare or Medicaid!

          In contrast, prompt action to decline Part D enrollment, or to disenroll following an involuntary enrollment during the initial enrollment period, could be a very effective planning strategy for dually eligible individuals fortunate enough to have existing prescription drug coverage under a GHP or Medigap policy.  Even if Medicaid cannot pay for prescription medications, the GHP or Medigap policy can.  Dually eligible individuals who might not meet the definition of “full-benefit dual individuals” under the regulations should be particularly vigilant in protecting any existing Medigap prescription drug coverage. 

          These beneficiaries or their representatives must take prompt action with their Medigap policy issuers to preserve the right to continue and renew these policies.  If a beneficiary acts too slowly and fails to renew  or continue the policy in a timely fashion after January 1, 2006 (or at any later policy anniversary date), the policy could lapse.  Even when the beneficiary properly renews or continues an existing Medigap H, I or J policy with the insurance company, all prescription drug coverage under the policy will be eliminated if the individual mistakenly fails to decline enrollment in Medicare Part D; or to promptly disenroll following an involuntary Part D enrollment.  After January 1, 2006, once a beneficiary loses Medigap prescription drug coverage, that coverage will be lost forever. 

          Whenever there is a change in the PDP’s or MA-PD’s drug formulary, the beneficiary needs a medication not on the formulary, or the PDP or MA-PD demands substitution of a different medication on a higher cost-sharing tier, the beneficiary will need to affirmatively request a formulary or tier exception.  This will require a physician’s statement to verify the medical necessity of the medication being denied; and to verify that substitute medications on the PDP’s or MA-PD’s formulary are not appropriate. 

          Beneficiaries and their representatives will also need to be aware of what to do upon receiving a written notice of an adverse coverage determination.  Whenever a beneficiary receives an adverse determination, it is extremely important that a reconsideration request be filed as soon as possible.  This means that the beneficiary or the beneficiary’s representative will need to file the request with the PDP or MA-PD; and contact the treating physician promptly to obtain any statements necessary to establish grounds for the appeal.  If an expedited appeal is needed, the physician’s statement will also need to show that the expedited appeal process is necessary to avoid jeopardizing the life or health of the beneficiary or the beneficiary’s ability to regain maximum function.  Finally, beneficiaries and their representatives must be prepared to pursue all available avenues of appeal until a favorable result can be obtained.

Conclusion

          For most dually eligible individuals, Medicare Part D will not really do much to ensure necessary access to prescription medications.  When a PDP or MA-PD limits or denies coverage for prescription medications, dually eligible beneficiaries who are already impoverished and living on very limited incomes will be left with the sole option of paying for these medications out of pocket, at least on a temporary basis. 

          Studies conducted several years ago by the United States Government Accounting Office (GAO) revealed that elderly and disabled Medicare beneficiaries without prescription drug coverage often tended to skip dosages of important medications or to take a lower dosage than prescribed, due to the lack of funds to pay high prescription drug costs.  Medicare Part D does nothing to change this human behavioral trait, especially prevalent in a generation that saw the Great Depression, rationing and epidemic bank failures.  Ironically, the results of those same GAO studies were cited by politicians in 2003 as a large motivating factor in the push to establish a Medicare prescription drug benefit.   

           Many elderly and seriously disabled individuals receiving Medicaid in the community or Medicaid long term care or HCBS benefits have multiple medical problems.  They may take as many as 6-10 different prescription medications, or more, every day.  Often, these individuals will have taken months or even years to reach the right combinations of drugs and dosages.  If these individuals are deprived of a vital prescription medication, or if they are forced to switch to a different medication, even if it is for only a few days or weeks, they could be at risk of having to endure horrible suffering; or even death. 

          Full-benefit dual eligible individuals in nursing homes will be at the greatest risk.  An estimated 75% or more will have some sort of mental or cognitive deficit or impairment; and approximately one-half will suffer from some form of dementia.  Many of these individuals will not have a representative, such as an agent, attorney-in-fact, guardian or conservator.   

          How will they protect themselves? Who will seek exceptions to the formulary or a tier cost-sharing designation to ensure that the correct medications continue to be prescribed? Who will exercise disenrollment rights for those who would be better off leaving Part D, and having an existing Medigap H, I or J policy or GHP cover their prescription drugs? Who will file for reconsiderations of adverse coverage determinations; and who will guide them through the complex appeals process if a reconsideration is unfavorable?

          It will be up to those who care and who know enough to take action.  Family members and friends, volunteers, fiduciaries, nursing home personnel, social workers, physicians, care managers, geriatric practitioners and Elder Law attorneys must all take the time to become educated about the complex laws, issues and problems that enshroud Medicare Part D.  Only then will there be hope for our most vulnerable elderly and disabled citizens to avoid the brunt of what is sure to come under this newest experiment in national health insurance.  

 

    Mr. Campbell, the founder and principal attorney of the Law Offices of John J. Campbell, P.C., has practiced law for nineteen years and has concentrated in the practice of Elder Law since 1996; and is certified as an Elder Law Attorney by the National Elder Law Foundation.*  Mr. Campbell is licensed to practice law in Colorado and is also licensed and on inactive status in Missouri.  He is a member of the Colorado Bar Association, the Arapahoe County Bar Association, the Missouri Bar Association, the National Structured Settlements Trade Association, the National Alliance of Medicare Set-Aside Professionals and the National Academy of Elder Law Attorneys.   Mr. Campbell has published numerous articles and has presented numerous seminars on issues relating to Elder Law across the country.

 

*The State of Colorado does not certify attorneys as experts in any field.