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Switch to Medicare Drug Coverage Poses Dire Risk for Nursing Home Residents, Experts Warn

  • April 12th, 2005

[In this article, longer than our usual news articles, ElderLawAnswers presents the results of its investigation into the impact of the new Medicare prescription drug benefit on nursing home residents.]

Thousands of nursing home residents are in grave danger of losing coverage for life-sustaining drugs when the new Medicare drug law takes effect on January 1, experts familiar with medication practices in long-term care settings are warning. Any sudden loss of coverage and resulting withdrawal of medications will likely result in illnesses or premature deaths, the experts say.

"We're very fearful," said Vicki Gottlich, senior policy attorney at the Center for Medicare Advocacy.

"The (Medicare prescription drug) legislation was not very well thought out with regard to long-term care," adds Thomas R. Clark, policy director for the American Society of Consultant Pharmacists, whose members specialize in the medication needs of nursing home residents and the elderly. "We don't know exactly how all of this is going to be implemented."

Abrupt Transition Looms

Most nursing home residents are on Medicaid and currently receive coverage of their prescription drugs through that program. But as a result of the new Medicare law, nursing home residents who are eligible for both Medicaid and Medicare '“ so-called "dual eligibles" -- are scheduled to lose their Medicaid drug coverage in just eight and a half months, on January 1, 2006. From that day forward, Medicare will cover their drugs through private drug plans under "Medicare Part D".

The idea behind the change is that Medicare beneficiaries will be able to carefully compare competing prescription drug plans (PDPs) and enroll in the one that best meets their needs. But most nursing home residents are in no condition to weigh subtle differences between drug plans: more than a third suffer from Alzheimer's disease or another form of dementia and three-quarters have mental impairments.

Long-term care experts say that as things stand now, nursing home residents are at risk of experiencing lapses in coverage or a complete loss of coverage for certain drugs. This could take place for any number of reasons:

Enrollment obstacles: The federal Centers for Medicare and Medicaid Services (CMS), which is in charge of implementing the new law, will randomly assign nursing home residents and others covered under both Medicare and Medicaid to a PDP, and these recipients will then have the option of changing plans. But different PDPs will use different pharmacies. Nursing home residents may be arbitrarily enrolled in a PDP that does not use the long-term care pharmacy that the nursing home uses. Switching PDPs is possible but will take time and, in the case of incompetent residents, it raises the question of who will select a PDP on the resident's behalf. Elderly or disabled nursing home residents who are not on Medicaid but who still need to choose a Medicare PDP also may have no one to make the choice for them.

"Who will do this?" asks Janet Wells, director of public policy for the National Citizens' Coalition for Nursing Home Reform (NCCNHR). "The nursing homes are concerned that their staff will not have the time to deal with that, and many residents don't have family members or legal representatives who can."

In addition, there are concerns that many nursing home residents will not be identified by January 1 and will simply lose their Medicaid drug coverage without ever having been enrolled in a Medicare PDP.

"The states are supposed to identify all their dual eligibles," Gottlich told ElderLawAnswers, "and from what we're hearing from the states we're suspecting that there will be people who won't be identified."

Drugs that nursing home residents now take may no longer be covered: The new Medicare law does not cover certain drugs that are currently widely used in nursing homes, including barbiturates and benzodiazepines, which are prescribed for many nursing home residents for seizure disorders, acute anxiety, panic attacks, and muscle spasms. Since a state's Medicaid program can cover prescription drugs that are explicitly excluded under Medicare, nursing home residents in these states will continue to have coverage for these drugs. The trouble is that not all state Medicaid programs cover all the excluded drugs.

For example, the American Society of Consultant Pharmacists' Thomas Clark says that a number of states are planning to discontinue Medicaid coverage of benzodiazepines in 2006.

"We're very concerned that some states will drop their coverage and that could create serious problems for nursing home residents and other frail elderly individuals," Clark says. "These are not the kinds of drugs you can just stop abruptly without serious adverse consequences. You're looking at withdrawal symptoms, seizures, probably trips to emergency rooms and hospitalizations to deal with the consequences of abrupt cessation of these medications."

Even if a particular prescription drug is covered by Medicare, it may not be included in the list of drugs that a particular PDP will pay for, called a "formulary." Formularies will vary from PDP to PDP, with some covering, say, a particular IV medication and others not. And PDPs can change their formularies. To obtain a non-formulary drug, the nursing home resident must get a statement from her doctor that no formulary drug will work and then file what amounts to an appeal. Gottlich calls this appeals process "pretty burdensome," and in many cases the burden will fall on nursing home staff, physicians or family members.

Nursing home staff will likely bear the brunt. Rather than working with a single payer '“ Medicaid -- they'll have to deal with many different PDPs, each of which will have its own requirements about what kind of evidence will be required for an appeal, Gottlich notes.

"This is going to be very hard to track from a billing perspective and for the social workers and nurses when they order the meds," says Diane Libby-Gilbert, director of social services at Maine General Rehabilitation and Nursing Care in Augusta, in an article in the April issue of Briefings on Long-Term Care Regulations. "We know for sure that there are going to be many more limitations on what medications residents can get," Libby-Gilbert adds.

Clark fears that another effect of the added administrative load is that it will deter physicians from working in nursing homes. "We don't want physicians to be discouraged from serving nursing home residents by having to spend several times a day jumping through hoops, calling 800 numbers, sending faxes and so forth to try to get permission to use drugs that are really needed for their residents," he says. "If physicians get discouraged by all of the administrative work and start walking away from nursing home residents, that could create a real serious access to care problem, especially in rural areas where there are not that many physicians to begin with."

Finally, many nursing home residents take as many as eight or ten drugs at once. There is no guarantee that any one PDP will cover all of them, or that an appeal will be granted when needed. Trying out substitute drugs is a possible health risk to patients, especially those sensitive to different medications and who have achieved the right balance of medications only after much trial and error. "You can't change three or four different medications simultaneously without risking destabilization and creating serious clinical problems," says Clark.

Lost in transition: Given all this, it seems inevitable that some nursing home residents will at least experience gaps in drug coverage, if not worse. CMS has urged Medicare drug plans to allow nursing home residents a 90-day supply of drugs to see them through any coverage lapse during the appeals process or in the switch from a non-formulary to a formulary medication. But this is not mandatory. Plans can adopt this safeguard at their discretion.

This non-directive stance has been typical of CMS's overall approach to implementing the new drug benefit in long-term care settings. The agency is clearly trying to walk a fine line between meeting the needs of nursing homes and their residents without discouraging private PDPs from participating as Medicare drug providers.

Although the American Society's Clark notes that "CMS has been very responsive to the concerns that we have expressed," he also says that "they seem to be leaving a lot up to the PDPs."

Agency and Congressional Response

In an interview with the Boston Globe, Leslie Norwalk, deputy administrator of CMS, said "we don't want to turn everything upside down. We may have a bump or two along the road, but we are trying to anticipate the problems."

Sen. Charles E. Grassley (R-Iowa), the lead Senate negotiator on the Medicare drug bill and chairman of the Senate Finance Committee, continues to monitor CMS's implementation of the legislation, according to spokeswoman Jill Gerber.

"The [legislation] called for CMS to conduct a study on current standards of practice for pharmacy services provided to patients in nursing facilities," Gerber said. "The study was intended to help CMS formulate recommendations to ensure the provision of a prescription drugs benefit that reflected nursing home residents' special needs."

Unfortunately, the study Gerber refers to was only recently begun and has not yet been completed. In the meantime, all of CMS's final regulations and operational documents to guide PDPs in providing coverage to nursing home residents have already been issued.

"It's too early to say whether we'll pursue follow-up legislation '“ the program isn't up and running yet," says Gerber.

Some are not waiting. Sen. Jay Rockefeller (D-W.Va.) has introduced legislation that would put nursing home residents and other dual eligibles on the same footing as regular Medicare beneficiaries, who will be given six months to transition to the new Medicare drug benefit (if they choose it).

Clark says the American Society supports this bill. "The dual eligibles are the sickest and most vulnerable of all the Medicare beneficiaries," Clark notes. "Everybody agrees on that. It would seem to make sense to get the infrastructure for the program put in place first and then allow a longer period of transition for the dual eligibles to begin gradually signing up instead of having all of them signing up on day one."

"It's a brand new program," Clark adds. "Many of the PDPs that are going to be responsible for implementing the drug benefit have very little expertise in long-term care. So they're feeling their way along."

As the crucial deadline draws nearer, there is much concern for the fate of the nation's 1.6 million nursing home residents, 1 million of whom receive help from Medicaid.

"I'm having a hard time picturing how all of this going to come into place on January 1," says NCCNHR's Wells. "It's hard to see what's going to happen when you have this massive overnight shift from people who are currently getting drugs through Medicaid and can get pretty much what they want and need. . . . It's almost inevitable that there are going to be big problems. You have a potentially life-threatening situation."

Resources:

CMS guidance on Medicare Part D plans and long-term care facilities: http://www.cms.hhs.gov/pdps/LTC_guidance.pdf

CMS guidance on the transition process (including in LTC facilities): http://www.cms.hhs.gov/pdps/transition_process.pdf

Two-hour audio conference on implementation of the Medicare drug law in long-term care settings: http://www.scoup.net

Timeline on implementation of the Medicare drug benefit: http://www.medicareadvocacy.org/PrescDrugs_PartDTimeline.htm.

"Advocacy needed to assure prescription drug coverage for nursing home residents," Center for Medicare Advocacy: http://www.medicareadvocacy.org/SNF_PrescDrugCov.htm

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Last Modified: 04/12/2005

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