Alabama Attorney General Opinion 1979-0023

# THE ATTORNEY GENERAL STATE OF ALABAMA · MONTGOMERY, ALABAMA 3613 [LOGO] CHARLES A. GRADDICK ATTORNEY GENERAL 79-00023 File #22 January 24, 1979 Mr. Jack E. Worthington, Commissioner Medical Services Administration 2500 Fairlane Drive Montgomery, Alabama 36130 DRUG PRESCRIPTIONS MEDICAL SERVICES ADMINISTRATION NURSING HOMES Co-pay for prescription drugs for Medicaid recipients in nurs- ing homes should be paid prior to other charges. Dear Mr. Worthington: In your letter of August 25, 1978, you asked for an opinion of this office regarding payment of the $.50 co-pay per prescrip- tion for Medicaid nursing home recipients. Your letter in perti- nent part is as follows: "Therefore, the specific issue requiring an opinion is as follows: Should not nursing homes be required to first apply the patients' $25.00 per month to pay for the $.50 co-pay per prescription and other non- covered medical expenses before being applied to charges for laundry, private room, telephone, tele- vision and radio sets, barber and beauty parlor visits, etc.?" In my opinion, the answer to the above question is "yes". First, your request presents more-than-adequate justifi- cation for the requirement of a $.50 co-pay per prescription for Medicaid nursing homes recipients; and second, such co-pay is authorized by Medicaid regulations. Mr. Jack E. Worthington January 24, 1979 Page Two DHEW/HCFA Medicaid Regulations were rewritten and reorganized as of Friday, September 29, 1978, to be effective October 1, 1978. All references will be to the new section numbers. These sections are found in 42 CFR, Chapter IV, Subchapter C. 435.725(c)(1)(i) requires that a personal needs allowance of $25.00 per month must be protected for institutionalized individuals. 435.725(c)(iii), however, states "...although the personal needs allowance is protected for his use, the individual must use it to pay for any cost-sharing charges the agency imposes under Section 447.50 through 447.59 of this subchapter, if he has no other income." 447.53(a)(1) states that the plan must provide that the Medicaid agency does not impose any co-pay requirement for those services listed in Sections 440.40, 440.50 and 440.70. The services of 440.40 are the skilled nursing facility services: 440.50 are physicians' services; and 440.70 are home health services. 447.53(a)(2), contra, states that the plan may impose co-pay for any other service under the plan. Therefore, prescribed drugs, under Section 440.120 are services for which Medicaid regulations authorize co-pay charges. In summary, it is my opinion that co-pay is not authorized for the mandatory services of the Medicaid program, such as the care in a skilled nursing facility of physicians' services. Contra, co-pay is authorized for optional services, such as prescribed drugs. Finally, since co-pay is authorized for prescription drugs which are in the category of a life-saving service, the Mr. Jack E. Worthington January 24, 1979 Page Three personal needs allowance of institutionalized individuals should be used to meet the $.50 co-pay per prescription require- ment prior to being used for laundry, private room, telephone, television and radio sets, barber and beauty parlor visits, etc. Sincerely, CHARLES A. GRADDICK Attorney General By: Joseph M. Carlton, Jr. JOSEPH M. CARLTON, JR. Assistant Attorney General JMC:tp