VOR Comments to CMS Proposed Reg

VOR Comments to CMS Proposed Regulations relating to

Medicare Part D, Prescription Medication

Coverage for Dual Eligibles

September 22, 2004

Centers for Medicare & Medicaid Services

Department of Health and Human Services

Attn: CMS-4068-P

P.O. Box 8014

Baltimore, MD 21224-8014

Sent by regular mail and

electronically (http://www.cms.hhs.gov/regulations/ecomments)

On August 3, 2004, the Centers for Medicare & Medicaid Services released proposed regulations relating to section 101 of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA). Included within this new law is a shift of payment authority from the states to the federal government for the purpose of providing medication coverage to people eligible for both Medicare and Medicaid (“dual eligibles”). Starting in 2006, this new Medicare prescription medication benefit will replace Medicaid prescription coverage for low income beneficiaries. Although a state may continue to provide “wrap around” prescription medication benefits through its Medicaid plan to compliment the new Medicare coverage, any such supplemental coverage will be at the state’s option.

Long term care facilities receive special mention in the new law. Although certain dual eligibles will be subject to Medicare premiums and cost sharing, full dual eligibles, including dual eligibles in “long term care facilities,” are exempt from co-payments. According to the proposed regulations, the definition of “long term care facility” is in question:

“We request comments regarding our definition of the term long-term care facility in §422.100, which we have interpreted to mean a skilled nursing facility, as defined in section 1819(a) of the Act, or a nursing facility, as defined in section 1919(a) of the Act. We are particularly interested in whether intermediate care facilities for the mentally retarded or related conditions (ICF/MRs), described in §440.150, should explicitly be included in this definition given Medicare’s special coverage related to mentally retarded individuals. It is our understanding that there may be individuals residing in these facilities who are dually eligible for Medicaid and Medicare. Given that payment for covered Part D drugs formerly covered by Medicaid will shift to Part D of Medicare, individuals at these facilities will need to be assured access to covered Part D drugs.” [69 Fed. Reg. 46648-49 (Tuesday, August 3, 2004)].

VOR strongly agrees. As noted later in the regulations –

“It is particularly important to ensure that the drug needs of institutionalized Part D enrolles – most of whom are dually eligible for Medicare and Medicaid – are met. The institutionalized population is generally more sensitive to and less tolerant of many medications.” [69 Fed. Reg. 46661 (Tuesday, August 3, 2004)].

CMS, in this statement, makes the best claim for including in the definition of “long term care facilities” ICFs/MR. Residents of ICFs/MR are the most fragile of the population with mental retardation (see attached, “Characteristics of Large State MR/DD Facilities”). In addition to severe and profound mental retardation and multiple functional limitations, most ICF/MR residents also experience chronic medical conditions requiring prescription medication intervention (e.g., seizures, psychosis, etc.). Although the exact number of ICF/MR residents that are also dually eligible for Medicare and Medicaid is difficult to quantify statistically, existing information indicates that they are a significant number. This hypothesis is especially compelling when one considers that nearly 66% of all individuals in public ICFs/MR are more than 40 years old and may receive Medicare survivor benefits from a deceased parent(s), in addition to their Medicaid eligibility (see attached, “Characteristics of Large State MR/DD Facilities”).

With regard to accessing medications, most ICFs/MR contract with long term care pharmacies and it is critical that individuals continue to access prescription medications through these established vendors. For any population, continuity of medication benefits is critical.

Given that ICFs/MR are the present safety net of the system for persons with mental retardation who also experience complex medical conditions – the “intensive care unit” of our service system – VOR also supports including individuals receiving home and community-based waiver supports in the definition of “institutionalized.” Waiver placement eligibility criteria is identical to eligibility for ICF/MR placement. Due to ongoing, wholesale efforts to serve almost all of the ICF/MR-eligible population in less restrictive waiver settings, it seems misguided and even dangerous to transfer or divert these individuals from ICF/MR supports and then also restrict their prescription medication options simply because of where they are now living. As established, the severity of cognitive disabilities and related medical conditions in community waiver settings will mirror the conditions of ICF/MR residents. Furthermore, as individuals age, or the severity of a medical condition worsens, some waiver participants will be (re)admitted to ICFs/MR. Continuity of benefits would be enhanced if the definition of “institutionalized” includes our waiver population.

For all the above reasons, eligible individuals on waiting lists for ICFs/MR and HCBS services should also be included.

Thank you for the opportunity to comment and for your consideration of VOR’s submission. For more information please contact: