Proposed Rule2022-08903
Medicare Program; Implementing Certain Provisions of the Consolidated Appropriations Act, 2021 and Other Revisions to Medicare Enrollment and Eligibility Rules
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 27, 2022
Issuing agencies
Health and Human Services DepartmentCenters for Medicare & Medicaid Services
Abstract
This proposed rule would implement certain provisions of the Consolidated Appropriations Act, 2021 (CAA). Additionally, CMS is proposing to delete references to specific Medicare forms from the text of existing regulations at Sec. Sec. 406.7 and 407.11 in order to provide greater administrative flexibility. Finally, this proposed rule would update the various federal regulations that affect a state's payment of Medicare Part A and B premiums for beneficiaries enrolled in the Medicare Savings Programs and other Medicaid eligibility groups.
Full Text
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<title>Federal Register, Volume 87 Issue 81 (Wednesday, April 27, 2022)</title>
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[Federal Register Volume 87, Number 81 (Wednesday, April 27, 2022)]
[Proposed Rules]
[Pages 25090-25138]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08903]
[[Page 25089]]
Vol. 87
Wednesday,
No. 81
April 27, 2022
Part II
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Parts 400, 406, 407, et al.
Medicare Program; Implementing Certain Provisions of the Consolidated
Appropriations Act, 2021 and Other Revisions to Medicare Enrollment and
Eligibility Rules; Proposed Rule
Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 /
Proposed Rules
[[Page 25090]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 400, 406, 407, 408, 410, 423, 431, and 435
[CMS-4199-P]
RIN 0938-AU85
Medicare Program; Implementing Certain Provisions of the
Consolidated Appropriations Act, 2021 and Other Revisions to Medicare
Enrollment and Eligibility Rules
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Proposed rule.
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SUMMARY: This proposed rule would implement certain provisions of the
Consolidated Appropriations Act, 2021 (CAA). Additionally, CMS is
proposing to delete references to specific Medicare forms from the text
of existing regulations at Sec. Sec. 406.7 and 407.11 in order to
provide greater administrative flexibility. Finally, this proposed rule
would update the various federal regulations that affect a state's
payment of Medicare Part A and B premiums for beneficiaries enrolled in
the Medicare Savings Programs and other Medicaid eligibility groups.
DATES: To be assured consideration, comments must be received at one of
the addresses provided, no later than 5 p.m. on June 27, 2022.
ADDRESSES: In commenting, refer to file code CMS-4199-P. Because of
staff and resource limitations, we cannot accept comments by facsimile
(FAX) transmission.
Comments, including mass comment submissions, must be submitted in
one of the following three ways (please choose only one of the ways
listed):
1. Electronically. You may submit electronic comments on this
regulation to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address ONLY: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-4199-P, P.O. Box 8013,
Baltimore, MD 21244-4199.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-4199-P, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
[Note: This zip code is for express mail or courier delivery only. This
zip code specifies the agency's physical location.]
You may submit comments on this document's paperwork requirements
by following the instructions at the end of the ``Collection of
Information Requirements'' section in this document.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Major Bullock, (410) 786-8974, or
Steve Manning (410) 786-1961--General questions.
Steve Manning, (410) 786-1961, or Carla Patterson (410) 786-8911--
For inquiries related to section 120 of the CAA.
Gail Sexton, (410) 786-4583, or Major Bullock, (410) 786-8974--For
inquiries related to section 402 of the CAA.
Melissa Heitt, 410-786-4494--For inquiries related to section
402(f) (Medicare Savings Programs) of the CAA.
Carla Patterson, (410) 786-8911--For inquiries related to the
Medicare enrollment form.
Kim Glaun, (410) 786-3849--For inquiries related to state payment
of Medicare premiums.
SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments
received before the close of the comment period are available for
viewing by the public, including any personally identifiable or
confidential business information that is included in a comment. We
post all comments received before the close of the comment period on
the following website as soon as possible after they have been
received: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the search instructions on
that website to view public comments.
I. Summary
A. Beneficiary Enrollment Simplification in Medicare Parts A and B--
Overview
1. Background
Medicare is a Federal program to provide health insurance for
people age 65 and older, and those under 65 with certain disabilities
or ESRD. Medicare consists of four distinct parts, commonly referred to
as Medicare Parts A, B, C and D. Medicare Part A, sometimes referred to
as hospital insurance (HI), covers inpatient hospital services, skilled
nursing care, hospice care, and some home health services. Individuals
must meet certain conditions to be entitled to Part A. Medicare Part B,
or supplementary medical insurance (SMI), is an optional benefit that
helps cover medically necessary services and supplies like physicians'
services, durable medical equipment, outpatient care, and other medical
services that Part A does not cover, including many preventive
services. Together, Medicare Parts A and B comprise ``original'' or
``traditional'' Medicare. Most beneficiaries are automatically enrolled
in Part A and Part B by the Social Security Administration (SSA) or the
Railroad Retirement Board when they turn 65. In addition, if an
individual has been receiving Social Security or Railroad Retirement
Disability benefits for 24 months, they will automatically be enrolled
by SSA or the Railroad Retirement Board in Medicare Parts A and B.
The first opportunity individuals have to enroll in Part B is
during their initial enrollment period (IEP). The IEP is a 7-month
period that usually begins 3 months before the month in which an
eligible individual turns 65 and ends 3 months after the first month of
eligibility. The next opportunity for eligible individuals who do not
enroll in Part B during their IEP to enroll in Part B, if they choose
to do so, is in the general enrollment period (GEP) which runs from
January 1st through March 31st each year. Currently, an individual's
entitlement (coverage period effective date) under Part B depends on
the enrollment period and the month in which the individual enrolls,
according to the requirements in sections 1837 and 1838 of the Social
Security Act (the Act).
For those who enroll in Medicare Part B during any of the first 3
months of their IEP, coverage is effective the first month they become
eligible for Medicare (such as age 65 or the 25th month of entitlement
to monthly Social Security or railroad retirement benefits based on
disability). However, for those who enroll in any of the last 4 months
of their IEP, their coverage becomes effective after their month of
enrollment, with the effective date of coverage varying depending on
the month in which they enroll.
For individuals subject to the current requirements at 42 CFR
407.10, and who enroll during the GEP, coverage is effective the July 1
following the month in which the individual enrolls.
Example. An individual's 65th birthday is April 10 and they first
meet the eligibility requirements for
[[Page 25091]]
enrollment April 1. The individual's initial enrollment period would
extend from January through July in the year they turn 65. The month in
which the individual enrolls in Part B determines the month in which
their period of entitlement would begin, as follows:
------------------------------------------------------------------------
IEP enrollments during a month before
January 1, 2023 Entitlement begins on--
------------------------------------------------------------------------
January................................... April 1 (month eligibility
requirements first met).
February.................................. April 1.
March..................................... April 1.
April..................................... May 1 (month following month
of enrollment).
May....................................... July 1 (second month after
month of enrollment).
June...................................... September 1 (third month
after month of enrollment).
July...................................... October 1 (third month after
month of enrollment).
------------------------------------------------------------------------
For individuals subject to the current requirements at 42 CFR
407.10, and who enroll during the GEP, coverage is effective the July 1
following the month in which he or she enrolls.
2. Proposal Summary
Section 120 of the Consolidated Appropriations Act, 2021 (CAA),
Public Law (Pub. L.) 116-260, Division CC, title I, section 120
(December 27, 2020), modified the requirements in section 1838 of the
Act, pertaining to individuals enrolling in Part B after not being
automatically enrolled, or who are re-enrolling in Part B after
disenrollment. Specifically, the CAA revised sections 1838(a)(2)(C),
1838(a)(3)(A), and 1838(a)(2)(D) of the Act to provide that for
individuals who become eligible for Medicare on or after January 1,
2023, and enroll in Part B during the last 3 months of their IEP,
entitlement would begin the first day of the month following the month
in which they enroll.
These changes enacted under section 120 of the CAA will result in
coverage under Part B that becomes effective sooner after an individual
enrolls during the IEP, deemed IEP, or GEP. We expect these changes
will simplify the enrollment process and reduce gaps in health care
coverage, and make it easier for affected beneficiaries to understand
the effective date of their Medicare coverage. We are proposing
conforming changes to our regulations at 42 CFR part 407 to implement
these Part B changes. In addition, while the statutory provisions of
section 120 of the CAA primarily affect individuals enrolling in Part
B, those changes will also affect the requirements applicable to the
limited number of individuals enrolling in Part A who are not entitled
to premium-free Part A. We are proposing conforming modifications to
our regulations at 42 CFR part 406 to reflect those Part A changes.
Additionally, section 120 of the CAA established new section
1837(m) of the Act, which provides authority for the Secretary of the
Department of Health and Human Services (HHS) (the Secretary) to
establish SEPs for individuals who are eligible to enroll in Medicare
and meet such exceptional conditions as the Secretary may provide,
effective January 1, 2023. Corresponding changes in sections 1838(g)
and 1839(b) of the Act provide the Secretary the discretion to
determine the effective date of entitlement for individuals who enroll
under an SEP for exceptional conditions, and exempt individuals
enrolling under such an SEP from being subject to a late enrollment
penalty (LEP), respectively. We are proposing to establish several SEPs
for exceptional conditions in this proposed rule, and would incorporate
those SEPs in our regulations under 42 CFR parts 406 and 407.
B. Extended Coverage of Immunosuppressive Drugs for Certain Kidney
Transplant Patients--Overview
1. Background
End-stage renal disease (ESRD) is a medical condition in which a
person's kidneys cease functioning permanently, leading to the need for
a regular course of long-term dialysis or a kidney transplant to
maintain life. A kidney transplant is ultimately considered the best
treatment for ESRD. Section 226A of the Act includes a provision that
enables certain individuals diagnosed with ESRD to be entitled to
Medicare, regardless of age. If an individual with ESRD applies for
Medicare and is entitled to Medicare Part A and eligible for Part B
benefits, Medicare provides coverage for all covered medical services,
not only those related to the kidney failure condition. When an
individual receives a successful kidney transplant, Medicare coverage
extends for 36 months after the month in which the individual receives
the transplant. Currently, after the 36th month, Medicare coverage ends
unless the individual is eligible for Medicare on another basis, such
as age or disability.
Medicare Part B covers medical and other health services including,
as specified in section 1861(s)(2)(J) of the Act, prescription drugs
used in immunosuppressive therapy furnished to an individual who
receives an organ transplant for which Medicare payment is made. Kidney
transplant recipients must take immunosuppressive drugs to help prevent
their immune systems from rejecting the transplanted kidney. If a
transplanted kidney is rejected, the individual would revert to ESRD
status and again need dialysis treatment or another transplant.
Under current law, Medicare Part B beneficiaries have coverage for
such immunosuppressive drug therapy for as long as they remain eligible
for and enrolled in Medicare Part B. However, section 226A(b)(2) of the
Act currently requires that entitlement to Medicare Part A and
eligibility to enroll under Part B for ESRD beneficiaries ends with the
36th month after the month in which the individual receives a
successful kidney transplant (see also 42 CFR 406.13(f)(2)).
2. Proposal Summary
Section 402 of the CAA amended sections 226A(b)(2) (and made
conforming changes to sections 1836, 1837, 1838, 1839, 1844, 1860D-1,
1902, and 1905 of the Act) to make certain individuals eligible for
enrollment under Medicare Part B solely for purposes of coverage of
immunosuppressive drugs described in section 1861(s)(2)(J) of the Act.
Effective January 1, 2023, this provision would allow certain
individuals whose Medicare entitlement based on ESRD would otherwise
end after a successful kidney transplant to continue enrollment under
Medicare Part B only for the coverage of immunosuppressive drugs
described in section 1861(s)(2)(J) of the Act. These individuals would
not receive Medicare coverage for any other items or services (under
either Part A or Part B), and would only be eligible for
immunosuppressive drug coverage under Part B if they are not enrolled
in certain other types of coverage, as described in ``Eligibility for
the Part B-ID Benefit'' (section II.B.2.b. this proposed rule). Section
402 of the CAA also amended the Medicare Savings Programs (MSPs) under
sections 1905(p)(1)(A) and 1902(a)(10)(E) of the Act to pay the Part B
premiums and in some cases the costs of the Part B deductible and
coinsurance for immunosuppressive drug coverage for certain low-income
individuals.
C. Simplifying Regulations Related to Medicare Enrollment Forms--
Overview
1. Background
Individuals who receive monthly Social Security or railroad
retirement benefits at age 65 or have been entitled to monthly Social
Security or railroad retirement benefits based on disability benefits
for more than 24 months, are automatically entitled to Part A and do
[[Page 25092]]
not have to file a separate application in order to enroll in premium-
free Part A. These individuals are automatically enrolled (auto-
enrolled) by the Social Security Administration or the Railroad
Retirement Board into Part A when they reach age 65 or their 25th month
of entitlement to Social Security or railroad retirement benefits based
on disability. Individuals who become eligible for premium-free
Medicare but who are not auto-enrolled, either because they have
delayed receiving Social Security or railroad retirement benefits, or
are not eligible for such benefits but are otherwise eligible to
receive premium-free Medicare part A based on paying the Medicare
payroll tax, must file a separate application to enroll in Medicare.
Individuals who decide to collect Social Security benefits after they
reach age 65, and thus did not get auto-enrolled in Medicare by virtue
of receiving Social Security benefits, may use their application for
Social Security benefits, as defined in 42 CFR 400.200, to apply for
Medicare if they are eligible for Part A at that time. Individuals may
also separately request enrollment in Part B by answering the Part B
enrollment questions on an application for monthly Social Security
retirement or spousal benefits. As an alternative, individuals may
enroll in Part B by signing a simple statement of request, if they are
eligible to enroll at that time.
Currently, there are a total of seven enrollment forms for
traditional Medicare--two enrollment forms for Part A and five
enrollment forms for Part B, in Sec. Sec. 406.7 and 407.11,
respectively. Medicare enrollment forms are available to individuals
via mail from CMS or SSA, downloadable via the CMS and SSA websites, or
in person at SSA field offices. CMS and SSA periodically review the
enrollment forms to determine if updates are necessary to comply with
statutory, regulatory, or operational changes. Our regulations
currently identify each form by name and provide a brief description of
its uses.
2. Proposal Summary
We are proposing to remove references to individual enrollment
forms from our regulations, including their titles and brief
descriptions, to provide greater administrative flexibility in
updating, adding, or removing forms in the future. We are also
proposing to make technical edits to the text to state that an
individual who files an application for monthly Social Security cash
benefits as defined in Sec. 400.200 also applies for Medicare
entitlement if he or she is eligible for hospital insurance at that
time.
D. Modernizing State Payment of Medicare Premiums--Overview
1. Background
Since the implementation of the original Medicare program in 1966,
section 1843 of the Act has provided states the option to enter into an
``agreement'' with the Federal government under which a state commits
to enrolling certain Medicare-eligible Medicaid beneficiaries into
Medicare Part B with the state paying the Part B premiums on their
behalf. Section 1903(a)(1) and (b) of the Act authorize federal
financial participation (FFP) for such state payment of Part B premiums
for certain dually eligible individuals. We have historically referred
to this process as ``state buy-in.'' All 50 states and the District of
Columbia have buy-in agreements for Part B \1\ with the Secretary.
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\1\ Thirty-seven states (including the District of Columbia)
also have buy-in agreements for Part A.
---------------------------------------------------------------------------
States pay Medicare Part B premiums for approximately 10 million
individuals and Part A premiums for approximately 700,000 individuals
each year who are not entitled to Part A without a premium. For an
individual who is eligible for but not yet enrolled in Medicare, state
buy-in serves to both enroll the individual in Medicare and enable the
Federal Government to bill the state for the new beneficiary's Medicare
premiums. For an individual who is already enrolled in Medicare, state
buy-ins enable the Federal Government to bill the state for the
individual's Medicare premiums and stop collecting the premiums through
deductions from the beneficiary's monthly Social Security (Old Age
Insurance or Disability benefits or Supplemental Security Income),
Railroad Retirement Board (RRB), or Office of Personnel Management
(OPM) benefits, or through CMS direct billing.
The impact of state buy-in is significant for many beneficiaries.
Low-income individuals who receive assistance with Medicare premiums
save critical funds to use for other necessities, including food and
housing. Upon state buy-in, individuals who were paying the Medicare
premiums through deductions from their Social Security benefits see a
notable increase in their monthly social security checks (the standard
Part B premium is $170.10 per month in 2022), and individuals eligible
but not enrolled in Medicare are able to enroll in the program and
access Medicare services.
2. Proposal Summary
We are proposing changes to the state buy-in that would better
align the regulations with federal statute, policy and operations that
have evolved over time, including revising the regulations to provide
that approved State plan provisions governing the buy-in process
constitute a State's buy-in agreement and limiting retroactive Medicare
Part B premium liability for states for full-benefit dually eligible
beneficiaries. By clarifying and streamlining existing requirements,
these proposals would improve the customer service experience of dually
eligible beneficiaries pursuant to the Executive Order on Transforming
Federal Customer Experience and Service Delivery to Rebuild Trust in
Government and promote access to affordable health coverage and
essential medical treatment and improve health equity for underserved
populations consistent with the Executive Order On Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government.
Together, these proposals not only implement provisions of the CAA,
but also support President Biden's Executive Order on Continuing to
Strengthen Americans' Access to Affordable, Quality Health Coverage,
Executive Order on Transforming Federal Customer Experience and Service
Delivery to Rebuild Trust in Government, Executive Order On Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government and Executive Order On Strengthening Medicaid and
the Affordable Care Act by eliminating potentially confusing coverage
waiting periods, allowing CMS and the Social Security Administration to
remedy missed enrollment periods by allowing for SEPs for exceptional
conditions and extending coverage of Medicare Savings Programs (MSPs)
to include payment of premiums and cost-sharing for a new
immunosuppressive drug coverage under Part B.
II. Provisions of the Proposed Rule
A. Proposals for Beneficiary Enrollment Simplification (Sec. Sec.
406.21, 406.22, 406.27, 406.33, 406.34, 407.22, 407.25, and 408.24)
1. Effective Dates of Entitlement
While the majority of individuals are automatically enrolled in
Medicare Parts A and B upon reaching age 65 or when they have been
entitled to monthly Social Security or railroad retirement benefits
based on disability for more than 24 months, certain
[[Page 25093]]
individuals are required to take active steps to enroll. Specifically,
individuals who are eligible for, but not receiving, monthly Social
Security benefits under section 202 of the Act or qualified RRB
benefits when they turn 65, are not auto-enrolled because they have
elected not to start receiving their Social Security or RRB benefits
and have not filed an application for Social Security or RRB benefits
and must take separate action to apply for Medicare. Certain
individuals who are entitled to premium free Part A through government
employment, but are not eligible for Social Security or RRB benefits
also have to take action to apply for Medicare. Individuals may apply
for Part A at any time, but can only apply for Part B during a specific
enrollment period (IEP, GEP, or SEP). Further, under section 1818 of
the Act, certain individuals who are not otherwise entitled to Part A
but meet certain requirements, are eligible to enroll in Part A. These
individuals are required to pay monthly premiums under section 1818(d)
of the Act, and this benefit is frequently referred to as ``premium
Part A.'' These individuals are required to take active steps to enroll
in premium Part A and Part B.
As briefly described previously, the period during which these
individuals are entitled to receive benefits under Medicare, also known
as the coverage period, can vary depending on when the individual
enrolls. The first opportunity individuals have to enroll in Part B is
during their IEP. Section 1837(d) of the Act defines the IEP for most
individuals who become eligible for Medicare on or after March 1, 1966.
For these individuals, the IEP begins on the first day of the third
month before the month the individual turns 65 and ends seven months
later. Section 1837(d) of the Act also defines what is commonly
referred to as the ``deemed IEP.'' When an individual fails to enroll
during their IEP because of a belief, based on erroneous documentary
evidence, that he or she had not yet attained age 65, section 1837(d)
of the Act requires the Secretary to establish an IEP for such
individual. Such individuals are considered ``deemed'' to have enrolled
for purposes of section 1838(a)(3) of the Act, and these individuals
are subject to entitlement periods consistent with those applied for
individuals not subject to a deemed initial enrollment period under 42
CFR 407.14.
Eligible individuals who do not enroll in Part B during their IEP
or deemed IEP, or who disenroll from Part B and wish to re-enroll, must
generally do so during the GEP. The GEP is established under section
1837(e) of the Act, and is the period beginning on January 1 and ending
on March 31 of each year. Section 1838(a) of the Act establishes the
beginning of entitlement for Part B for individuals who enroll in their
IEP or GEP. According to the current requirements established under
sections 1838(a)(2)(A) and 1838(a)(3)(A) of the Act for individuals who
become eligible to enroll in Medicare under section 1836(a) of the Act
before January 1, 2023, and enroll during the first 3 months of their
IEP or deemed IEP, their entitlement would begin on the first day of
the month they turn 65. For such individuals who enroll during the
month in which they become eligible, sections 1838(a)(2)(B)(i) and
1838(a)(3)(B)(i) of the Act currently specify that their entitlement
begins with the first day of the month following the month in which
they enroll. For such individuals who enroll in the month after the
month in which they satisfy the requirements of section 1836(a) of the
Act, their entitlement would begin with the first day of the second
month after the month in which they enroll under sections
1838(a)(2)(B)(ii) and 1838(a)(3)(B)(i) of the Act. For such individuals
who enroll in Medicare during the last 2 months of their IEP or deemed
IEP, their entitlement under Medicare would be effective beginning with
the first day of the third month after the month in which he or she
enrolls according to sections 1838(a)(2)(B)(iii) and 1838(a)(3)(B)(i)
of the Act. Finally, for such individuals who enroll in Medicare under
the GEP in a month beginning before January 1, 2023, sections
1838(a)(2)(D)(1) and 1838(a)(3)(B)(i) provide that their entitlement
would begin with the first of July following their enrollment.
Section 120(a)(1) of the CAA revised the entitlement periods for
individuals who enroll in Medicare Part B in the last 3 months of their
IEP, deemed IEP, or during the GEP, beginning January 1, 2023.
Specifically, the CAA modified section 1838 of the Act such that
revised section 1838(a)(2)(C) and (a)(3)(B)(ii) of the Act provide that
for a Medicare eligible individual who satisfies the requirements of
section 1836(a) of the Act in a month beginning on or after January 1,
2023, and who enrolls in the month in which they satisfy those
requirements, or in any subsequent month of their IEP, the individual's
entitlement would begin with the first day of the month following the
month of enrollment. The CAA also revised sections 1838(a)(2)(D)(ii)
and 1838(a)(3)(B)(ii) of the Act to provide that for individuals who
enroll during the GEP in a month beginning on or after January 1, 2023,
their entitlement would begin with the first day of the month following
the month in which they enroll.
We expect that these changes to the entitlement for individuals who
enroll during their IEP or GEP are likely to increase access to
continuous coverage under Medicare Part B, both by expediting these
individuals' entitlement dates and decreasing enrollees' confusion
about when their coverage becomes effective. Therefore, we anticipate
this change having a positive impact on Medicare beneficiaries,
including those in communities who may be disproportionately impacted
by lack of continuous health coverage.
------------------------------------------------------------------------
Prior to 1/1/23-- On or after 1/1/23--
Enrolls in IEP: Entitlement begins Entitlement begins
on: on:
------------------------------------------------------------------------
January..................... April 1 (month April 1 (month
eligibility eligibility
requirements first requirements first
met). met).
February.................... April 1............. April 1.
March....................... April 1............. April 1.
April....................... May 1 (month May 1.
following month of
enrollment).
May......................... July 1 (second month June 1.
after month of
enrollment).
June........................ September 1 (third July 1.
month after month
of enrollment).
July........................ October 1 (third August 1.
month after month
of enrollment).
------------------------------------------------------------------------
As shown in the chart, the changes made to section 1838(a) of the
Act according to section 120 of the CAA directly affect the
requirements for individuals enrolling in Part B. However, these
changes will also impact certain individuals enrolling in Part A.
Section 1818(c) of the Act specifically requires in part that the
provisions of section 1838 of the Act apply to individuals enrolling in
premium Part A for purposes of determining the period
[[Page 25094]]
of enrollment and other aspects of coverage. In light of this statute,
the revised entitlement periods established in section 1838(a) of the
Act will also apply to premium Part A enrollees.
Therefore, to implement the changes to 1838(a) of the Act, we are
proposing to revise language in both 42 CFR part 406 (for premium Part
A) and 42 CFR part 407 (for Part B). Specifically, we propose the
following to reflect changes related to the start of entitlement for
premium Part A IEP enrollments:
<bullet> Section 406.22(a) would be revised to apply the existing
requirements governing the entitlement period for individuals who are
age 65 or older before January 1, 2023 who enroll in premium Part A
during their IEP.
<bullet> Existing Sec. 406.22(b) would be redesignated as
paragraph (c). New paragraph (b) would lay out the entitlement dates
for individuals who attained age 65 on or after January 1, 2023, and
who enroll during their IEP, including a deemed IEP. Subparagraph
(b)(1) would provide that for such individuals who enroll during the
first 3 months of their IEP, entitlement begins with the first month of
eligibility. Subparagraph (b)(2) would specify that if such an
individual enrolls during the last 4 months of their IEP, entitlement
would begin with the month following the month in which they enrolled.
<bullet> Newly redesignated Sec. 406.22(c) would be revised to
apply the existing entitlement date requirements for individuals under
age 65 who became eligible for Medicare prior to January 1, 2023. For
individuals who enroll during the first 3 months of their IEP,
entitlement would begin with the first month of eligibility. If an
individual enrolls during the month in which they first become
eligible, entitlement would begin with following month. If an
individual enrolls in the month following the month of eligibility,
entitlement would begin with the second month after the month of
enrollment. If the individual enrolls more than one month after the
month of eligibility, entitlement would begin with the third month
after the month of enrollment.
<bullet> New Sec. 406.22(d) would set out the start dates for
entitlement for individuals under age 65 who enroll in premium Part A
on or after January 1, 2023. For individuals enrolling during the first
3 months of their IEP, entitlement would begin with the first month of
eligibility. If an individual enrolls during the last 4 months of their
IEP, their entitlement would begin with the following month.
We propose the following to reflect changes related to the start of
entitlement for individuals enrolling in Part B during their IEP:
<bullet> We would revise section 407.25(a)(1) to apply the existing
entitlement date requirements to individuals who first satisfy the Part
B eligibility requirements before January 1, 2023 and enroll during
their IEP or deemed IEP.
<bullet> Section 407.25(a)(2) would apply to individuals who first
satisfy the Part B eligibility requirements on or after January 1,
2023. Entitlement for such individuals would begin with the first month
of eligibility for enrollments made during the first 3 months of the
IEP. We are proposing that Sec. 407.25(a)(2)(ii) would specify that if
such an individual enrolls during the last 4 months of their IEP,
entitlement would begin with the month following the month in which
they enroll.
Section 120(a)(1)(A) of the CAA also modified section 1838(a)(2) of
the Act, to address the beginning of the entitlement for individuals
enrolling during their GEP according to 1837(e) of the Act. We are
proposing the following changes to reflect those requirements for
individuals enrolling in premium Part A:
<bullet> Section 406.21(c)(3) would be revised to reflect the
revised entitlement periods for individuals who enroll or reenroll
during a GEP. Specifically, Sec. 406.21(c)(3)(i) would require that
for individuals who enroll or reenroll during a GEP prior to January 1,
2023, entitlement would begin July 1st following their enrollment,
consistent with section 1838(a)(2)(D)(i) of the Act and the existing
entitlement date requirements. Section 406.21(c)(3)(ii) would require
that for individuals who enroll or reenroll during a GEP on or after
January 1, 2023, entitlement would begin on the first day of the month
after the month of enrollment, consistent with section
1838(a)(2)(D)(ii) of the Act.
<bullet> Section 407.25(b)(1) would be revised to require that for
individuals enrolling or reenrolling in Part B during a GEP before
January 1, 2023, the current requirements governing the entitlement
date would continue to apply. Specifically, revised Sec. 407.25(b)(1)
would state that for all such individuals enrolling or reenrolling
during a GEP before April 1, 1981, or after September 30, 1981 and
before January 1, 2023, entitlement would begin on July 1 of that
calendar year.
<bullet> New Sec. 407.25(b)(3) would require that for individuals
who enroll or reenroll in Part B during a GEP on or after January 1,
2023, entitlement would begin the first day of the month following the
month of enrollment.
We note that CMS would update all public facing materials to
reflect date changes from any final rule. This would include updated
information in CMS publications, on <a href="http://Medicare.gov">Medicare.gov</a>, and in training
materials.
2. Special Enrollment Periods for Exceptional Conditions
Under normal conditions, individuals who want to enroll in premium
Part A, Part B, or both must submit a timely enrollment request during
their IEP, the GEP, or an existing SEP for which they are eligible.
Those who fail to enroll during their IEP may face a life-long penalty
for late enrollment and a potential gap in coverage. Prior to the
enactment of the CAA, CMS did not have broad authority to create SEPs
based on exceptional conditions for enrollees in Medicare Parts A and
B.\2\ Section 120(a)(2)(A) of the CAA established section 1837(m) of
the Act to provide the Secretary with authority to establish SEPs for
individuals who satisfy the requirements in paragraph (1) or (2) of
section 1836(a) of the Act, and meet such exceptional conditions as the
Secretary may provide, beginning January 1, 2023. Section 120 of the
CAA also created section 1838(g) of the Act to provide the Secretary
the discretion to determine the entitlement period for individuals who
enroll pursuant to an SEP established according to section 1837(m) of
the Act, in a manner that protects the continuity of health benefit
coverage to the extent practicable. The CAA also modified section
1839(b) of the Act to exempt individuals who enroll pursuant to an SEP
for exceptional conditions established under section 1838(m) of the
Act, from paying an LEP. Section 1818(c) of the Act provides that
individuals enrolling under premium Part A are generally afforded the
same enrollment opportunities as those available under Part B, so our
proposals would apply to both premium Part A and Part B, except where
noted.
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\2\ CMS has separate authority for Medicare Parts C and D under
sections 1851(e)(4)(d) and 1860D-1(b)(3)(C) of the Act,
respectively.
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Several SEPs currently exist that permit individuals to enroll in
premium Part A or Part B outside of the IEP or GEP. The existing SEPs
are briefly described as follows:
<bullet> Sections 1837(i)(1) through (3) of the Act provide an SEP
for certain individuals who are enrolled in a qualified group health
plan (GHP) or large GHP (LGHP) at the time they first become eligible
for Medicare and elect not to enroll (or to be deemed enrolled) in
Medicare during their IEP.
[[Page 25095]]
<bullet> Section 1837(i)(4) of the Act establishes an SEP for
certain workers who are eligible for disability benefits. Specifically,
an SEP is available to covered individuals who are enrolled in a GHP
(based on their own current or former employment or the current or
former employment of a family member) at the time they first become
eligible for Medicare, and who elect not to enroll (or be deemed
enrolled) during their IEP, when their continuous enrollment in such
GHP is involuntarily terminated, provided certain other requirements
are met.
<bullet> The SEP for international volunteers, established under
section 1837(k) of the Act, establishes an SEP for individuals serving
as volunteers outside the United States at the time they first become
eligible for Medicare, through a program covering at least a 12-month
period, sponsored by a 501(c)(3) tax exempt organization, and who
demonstrate health insurance coverage while serving in the program.
These international volunteers are eligible for an SEP, if they elect
not to enroll (or be deemed enrolled) under section 1837 of the Act
during their IEP or terminate Medicare enrollment during a month in
which they are serving in such program.
<bullet> Section 1837(l) of the Act establishes a 12-month SEP for
certain individuals who are enrolled in TRICARE and become eligible to
enroll in Part A on the basis of disability or ESRD status under
sections 226(b) or 226A of the Act, respectively, but who elect not to
enroll (or to be deemed enrolled) during their IEP.
We are proposing to establish new exceptional conditions SEPs under
section 1837(m) of the Act in Sec. Sec. 406.27 and 407.23 of the
regulations for Medicare parts A and B, respectively. These SEPs would
be available to individuals who have missed an enrollment period due to
a covered exceptional condition. Specifically, individuals who miss an
IEP, GEP, or another SEP, such as the GHP SEP, due to a covered
exceptional condition, would be eligible to enroll in Medicare premium
Part A or Part B using the new SEPs. We believe our proposals will
create the flexibility needed for eligible individuals to enroll in the
program while simultaneously establishing parameters to ensure
appropriate use of the new exceptional conditions SEPs.
In determining what new exceptional conditions SEPs would be
beneficial to the Medicare program and its beneficiaries and that
should be established in regulations, CMS considered numerous factors
including the following:
<bullet> Whether the conditions that caused the individual to miss
an enrollment period are ``exceptional'' as required under the CAA, and
whether they are likely to be a one-time event.
<bullet> The SEP should not create an incentive for individuals to
delay timely enrollment into Medicare.
<bullet> The SEP should not create an incentive for individuals to
not educate themselves about the importance of enrolling in Medicare
timely and make informed decisions during other available enrollment
periods.
<bullet> Whether an SEP would be the most appropriate resolution to
the exceptional conditions in question and whether other remedies such
as individualized equitable relief under section 1837(h) of the Act,
would more appropriately apply.
<bullet> The SEP should be expected to apply to a significant
number or broad category of individuals, which would justify the
establishment of a specific SEP in regulation instead of relying on the
Secretary's authority under section 1837(h) of the Act to evaluate
individual conditions and approve SEPs on a case-by-case basis.
With these parameters in mind, we leveraged our previous program
experience with Medicare enrollment in determining which SEPs to
propose. We also considered the SEPs for exceptional conditions
established under Medicare Parts C and D (section 1851(e)(4) of the
Act), the Health Insurance Marketplace (29 U.S.C. 1163), and commercial
health plans for insight into what SEPs are available in both public
and private healthcare settings. Finally, we also considered whether
the proposed new SEPs and the associated entitlement would protect
access to continuous coverage for individuals eligible for Medicare
Part A and Part B, such as through expediting individuals' entitlement
date or by creating opportunities for individuals to enroll in coverage
sooner.
Based on these considerations, CMS is proposing to establish five
SEPs under Medicare Parts A and B based on the Secretary's authority in
section 1837(m) of the Act. Four of the proposed SEPs address specific
exceptional conditions. One SEP would permit CMS or SSA to evaluate
individuals' particular conditions and grant SEPs on a case-by-case
basis due to unanticipated conditions that may arise in the future. We
anticipate these proposed changes would have a positive impact on
Medicare beneficiaries, including those in communities impacted by lack
of continuous health coverage.
To accommodate these changes, we propose to establish a new Sec.
406.27, entitled ``Special enrollment periods for exceptional
conditions'' to provide SEPs for individuals who missed enrolling in
premium Part A during an enrollment period due to exceptional
conditions. Similarly, we propose to establish a new Sec. 407.23, also
entitled ``Special enrollment periods for exceptional conditions'' to
provide SEPs for individuals who missed enrolling in Part B during an
enrollment period due to exceptional conditions. Both proposed
Sec. Sec. 406.27(a) and 407.23(a) would provide in part that the SEPs
for exceptional conditions would be available beginning January 1,
2023. Specifically, the proposed SEPs for exceptional conditions would
be applicable for exceptional conditions that took place on or after
January 1, 2023 with the exception of the SEP to Coordinate with
Termination of Medicaid Coverage discussed in section II.2.d. of this
proposed rule.
Each of these SEPs would provide an opportunity for individuals to
enroll without having to wait for the GEP. Individuals who enroll in
Medicare Part A or Part B using an SEP for exceptional conditions and
subsequently disenroll would have to wait until the next GEP or another
SEP to reenroll and may potentially be subjected to a LEP.
Late Enrollment Penalties Associated With Special Enrollment Periods
for Exceptional Conditions
Section 120(a)(2)(C)(ii) of the CAA modified section 1839(b) of the
Act to provide that individuals who enroll during an SEP established
under the Secretary's authority under new section 1837(m) of the Act
are not subject to the LEP. Specifically, section 1839(b) of the Act,
as amended, provides that an individual who enrolls in Medicare ``after
his initial enrollment period [. . .] and not pursuant to a special
enrollment period under subsection (i)(4), (l), or (m) of section 1837
[. . .] shall be increased by 10 percent of the monthly premium so
determined for each full 12 months (in the same continuous period of
eligibility) in which he could have been but was not enrolled.''
Therefore, we propose that should an individual who missed an
enrollment period due to an exceptional condition, enroll in premium
Part A or Part B using one of the following SEPs, they would not be
subject to a LEP. Specifically, we are proposing at Sec. 406.33(c)(2)
that for enrollments on or after January 1, 2023 under one of the SEPs
established pursuant to the Secretary's authority in section 1837(m) of
the Act and established in Sec. 406.27, any months of non-coverage
would be excluded from the calculation of the
[[Page 25096]]
LEP. Similarly, we are proposing at Sec. 408.24(b)(2) that for
enrollments on or after January 1, 2023 under one of the SEPs
established pursuant to the Secretary's authority in section 1837(m) of
the Act and established in Sec. 407.23, any months of non-coverage
would be excluded from the calculation of the LEP.
We are also proposing changes to our regulations to reflect that
certain individuals who reenroll in premium Part A or Part B would also
be exempted from paying an LEP. Specifically, we are proposing under
Sec. Sec. 406.34(a) and 408.24(c) that, for individuals who reenroll
prior to January 1, 2023, the requirements currently in place for
determining the months taken into account for purposes of calculating
the LEP would continue to apply. In addition, we are proposing in
Sec. Sec. 406.34(e) and 408.24(d)(2)(ii) that for reenrollments on or
after January 1, 2023, pursuant to one of the SEPs for exceptional
conditions established under the Secretary's authority in section
1837(m) of the Act and promulgated in Sec. Sec. 406.27 or 407.23,
respectively, any months of non-coverage would be excluded from the
calculation of the LEP. However, if the individual fails to enroll or
reenroll during the available exceptional condition SEP, any months of
non-coverage, including the months during the exceptional condition
SEP, would be taken into consideration for calculating the LEP in
accordance with Sec. Sec. 406.33, 406.34, and 408.22.
In the following sections, we discuss each of the proposed SEPs for
exceptional conditions.
a. SEP for Individuals Impacted by an Emergency or Disaster
The severity and duration of extreme weather-related events and
other emergencies can be difficult to accurately predict, but may strip
individuals of their ability to carry out day-to-day activities. In
many cases, impacted individuals need additional time after the end of
an emergency to return to their normal routine. We know from program
experience that these events can result in disruptions in mail
delivery, SSA office closings, and operational delays at Social
Security field offices, any of which can prevent individuals from
submitting their enrollment applications in a timely manner.
For Medicare Parts A and B, we have the authority under section
1837(h) of the Act to provide relief to individuals whose enrollment or
non-enrollment in Part A or Part B was unintentional or erroneous and
resulted from an error, misrepresentation or inaction by the federal
government. Disrupted mail delivery and Social Security office closures
due to disasters might justify relief under 1837(h) in some cases. For
example, during the COVID-19 pandemic, we utilized this equitable
relief authority to provide assistance to individuals who missed their
opportunity to enroll in Medicare during their IEP, GEP, or SEP.
However, disasters or emergencies may interfere with individuals'
ability to enroll in Medicare without any error or inaction by the
Federal government. As a result, these conditions would not meet the
requirements for equitable relief under section 1837(h) of the Act.
To address such exceptional conditions, we are proposing an SEP for
individuals impacted by an emergency or disaster under the Secretary's
authority to establish SEPs beginning January 1, 2023, under section
1837(m) of the Act. Establishing such an SEP would permit the agency to
provide immediate relief to individuals impacted by certain emergencies
and disasters without being subject to the requirements applicable
under our existing equitable relief authority. Providing an SEP for
individuals who missed enrolling in Medicare during an enrollment
period because they were impacted by an emergency or disaster will
permit Medicare beneficiaries to maintain healthcare coverage and
access healthcare services in times of disruption when healthcare may
be most critical. We believe these effects would be most significant,
and the proposed SEP for individuals impacted by and emergency or
disaster would be most beneficial, for communities where social risk
factors such as food, housing, or financial insecurity are prevalent.
CMS is proposing, at new Sec. Sec. 406.27(b) and 407.23(b), to
create an SEP for individuals prevented from submitting a timely
Medicare enrollment request by an emergency or disaster declared by
either a Federal, state, or local government. These SEPs would apply
for individuals enrolling in premium Part A or Part B and would
eliminate potential gaps in coverage and otherwise applicable LEPs
resulting from eligible individuals' inability to submit a timely
enrollment request as a result of emergency or disaster.
At new Sec. Sec. 406.27(b)(1) and 407.23(b)(1), we propose this
SEP would be available to those who were not able to enroll in premium
Part A or Part B or both if they reside (or resided) in an area for
which a Federal, state or local government entity newly declared a
disaster or other emergency. The individual must demonstrate that they
reside (or resided) in the area during the period covered by that
declaration. We understand that not every emergency declaration would
impact an individual's ability to enroll in a timely manner. Therefore,
we are specifically soliciting comments regarding this proposal,
including whether CMS should limit the time frame of the SEP based on
the type of emergency, or specify that the type of emergency must
explicitly restrict an individual's ability to enroll.
At Sec. Sec. 406.27(b)(2) and 407.23(b)(2), we propose that the
SEP would begin on the date an emergency or disaster is declared, or if
different, the start date identified in the declaration, whichever is
earlier, so long as the date is on or after January 1, 2023. The SEP
ends 2 months after the end date identified in the disaster or
emergency declaration or, if applicable, the end date of any extensions
or the date when the declaration has been determined to have ended or
has been revoked. The intention of having the SEP end 2 months after
the end of the declaration is to provide individuals enough time to
recover from the emergency before needing to enroll in Medicare.
We are proposing in Sec. Sec. 406.27(b)(3) and 407.23(b)(3),
according to the Secretary's authority under section 1838(g) of the Act
to specify the coverage period for individuals enrolling during SEPs
established under section 1837(m) of the Act, that the coverage period
for individuals who enroll under this SEP would begin the first day of
the month following the month of enrollment, so long as the date is on
or after January 1, 2023.
b. SEP for Health Plan or Employer Misrepresentation or Providing
Incorrect Information
As codified in Sec. 406.6(c) of our regulations, some individuals
are not auto-enrolled into Medicare, and thus must apply in order to
enroll. Often, the primary source of information about Medicare for
working aged individuals is their employer or the carrier of their GHP.
CMS is aware of multiple instances in which individuals received
erroneous information from their employer that resulted in the
individual not enrolling in Part B timely and consequently they were
assessed an LEP. CMS's ability to offer assistance to individuals who
are misinformed about Medicare enrollment periods by their employer or
GHP is very limited. As a result, these individuals have historically
faced gaps in coverage or been required to pay significant LEPs for the
rest of their lives after failing to enroll in Part B based on
[[Page 25097]]
misrepresentation by an employer, GHP or a representative of such an
entity.
In order to provide relief to individuals who missed an enrollment
period because of misrepresentation by or incorrect information from
their employer or GHP, we are proposing to create a new SEP at Sec.
406.27(c) and at Sec. 407.23(c) based on exceptional conditions. This
SEP would apply for individuals whose non-enrollment in premium Part A
or Part B is unintentional, inadvertent, or erroneous and results from
material misrepresentation or reliance on incorrect information
provided by the individual's employer or GHP, or any person authorized
to act on behalf of the employer or GHP. We are proposing at Sec. Sec.
406.27(c)(1) and 407.23(c)(1) that an individual is eligible for such
an SEP if they can demonstrate that he or she did not enroll in premium
Part A or Part B during an enrollment period in which they were
eligible based on information received from an employer or GHP, or any
person authorized to act on such organization's behalf, and an
employer, GHP or their representative materially misrepresented
information or provided incorrect information relating to enrollment in
premium Part A or Part B, so long as the misrepresentation or error
occurred on or after January 1, 2023.
To demonstrate material misrepresentation, an individual would be
required to provide documentation of the relevant misrepresentation to
SSA. The documentation must show that the information was provided on
or after January 1, 2023, was directly from an employer, GHP or their
representative prior to an enrollment period, and that the inaccuracy
caused the individual not to enroll timely. Examples of such evidence
could be a letter from the employer or GHP that materially
misrepresents the Medicare enrollment process or a letter from the
employer or GHP acknowledging that they provided misinformation in a
previous communication. An omission by the employer or GHP or the
representative of such organization would not be considered a
misrepresentation for purposes of this proposed SEP, as employers and
GHPs do not have an affirmative responsibility to educate employees
about Medicare.
We are proposing at Sec. 406.27(c)(2) and Sec. 407.23(c)(2) that
this SEP would begin the day the individual notifies SSA of the
employer or GHP misrepresentation or incorrect information provided, so
long as the misrepresentation or error occurred on or after January 1,
2023, and would end 2 months later. Individuals would be required to
provide SSA or CMS evidence that shows what misinformation was
initially provided by the employer, GHP, or their representative. We
are soliciting comments on whether we should require additional
evidence, for example, evidence of what new information was received
that caused discovery of the misinformation and evidence of when the
discovery was made. Finally, at Sec. Sec. 406.27(c)(3) and
407.23(c)(3), we propose that the coverage period would begin the first
day of the month following enrollment.
c. SEP for Formerly Incarcerated Individuals
Section 1862(a)(2) and (3) of the Act generally prohibits Medicare
payment for covered services while the recipient is incarcerated, as
the incarcerated individual is provided healthcare through their penal
institution. Further, section 202(x)(1)(A) of the Act prohibits the
payment of Old-age, Survivors, and Disability Insurance (OASDI)
benefits to individuals who are incarcerated. Therefore, if an
individual turns 65 and qualifies for Medicare while incarcerated
(meaning the individual is in custody of penal authorities as described
in 42 CFR 411.4(b)) and is not yet receiving OASDI benefits, that
individual is not automatically enrolled in Medicare Part A. Moreover,
current law does not provide any special enrollment opportunities for
formerly incarcerated individuals who miss a Medicare enrollment period
while incarcerated. If these individuals do not enroll into Medicare
because they are incarcerated, they may go months without health
coverage upon their release. For example, upon their release such
individuals would only be able to enroll in Medicare during the GEP
which could result in a significant delay in coverage. Further,
delaying enrollment means that they may incur an LEP for premium Part A
and/or Part B for the rest of their lives. Regardless of whether they
are newly eligible for Medicare coverage or not, individuals who are
incarcerated are required to begin and maintain their monthly premium
payments for premium Part A and/or Part B to avoid termination of
Medicare coverage.
To address the exceptional conditions that an individual faces
while incarcerated as described previously, and to ensure that formerly
incarcerated individuals have access to health coverage under Medicare,
we are proposing at Sec. Sec. 406.27(d) and 407.23(d) an SEP for
individuals who are released from incarceration on or after January 1,
2023. This SEP would allow formerly incarcerated individuals to avoid
potential gaps in coverage and late enrollment penalties. We propose at
Sec. Sec. 406.27(d)(1) and 407.23(d)(1) that an individual would be
eligible for this SEP if they demonstrate that they are eligible for
Medicare and failed to enroll or reenroll in Medicare premium Part A or
Part B during another enrollment period in which they were eligible to
enroll while they were incarcerated. Further, there must be a record of
release either through discharge documents or data available to SSA.
We propose at Sec. Sec. 406.27(d)(2) and 407.23(d)(2) that this
SEP would start the day of the individual's release from incarceration
and end the last day of the sixth month after the month in which the
individual is released from incarceration. We propose this duration
because (1) it takes approximately 3 months for OASDI payments to be
reinstated upon an individual's release from incarceration; and (2)
data demonstrate that individuals with arrest or conviction records
face barriers in obtaining employment. Such lack of income from
employment or OASDI might dissuade formerly incarcerated individuals
from enrolling in Medicare upon their release because of concerns about
their ability to pay Medicare premiums and cost sharing. Formerly
incarcerated individuals may experience social risk factors including
financial, housing or food insecurity, social isolation, and other
factors that can increase the likelihood of chronic physical or mental
health conditions that require healthcare services. Lack of
institutional support may impair the ability of formerly incarcerated
persons from obtaining employment, housing, and other stabilizing
supports necessary for successful reentry. Therefore, by providing this
extended SEP duration, we ensure this at-risk population has adequate
opportunity to enroll in Medicare. Further, we anticipate this change
having a positive impact on formerly incarcerated Medicare
beneficiaries, including those in communities who may be
disproportionally impacted by a lack of continuous health coverage.
Finally, at new Sec. Sec. 406.27(d)(3) and 407.23(d)(3), we
propose that entitlement would begin the first day of the month after
the month of enrollment, so long as it is after January 1, 2023.
d. SEP To Coordinate With Termination of Medicaid Coverage
Many beneficiaries are enrolled in Medicaid when they initially
qualify for Medicare at age 65, or if they are under age 65, after
receiving 24 months of Social Security Disability Insurance (SSDI).
While some of these individuals
[[Page 25098]]
retain Medicaid coverage after becoming eligible for Medicare, others
lose Medicaid benefits or eligibility entirely. For example, when an
individual enrolled in the adult group under Sec. 435.119 becomes
eligible for Medicare, they become ineligible for the Medicaid adult
group. (Individuals enrolled in the adult group have an annual income
below 138 percent of the Federal Poverty Level ($20,398 for an
individual in 2022)).\3\ Unless such individuals are eligible for
Medicaid on another basis, they will no longer be eligible for
Medicaid. Many such individuals qualify for another Medicaid
eligibility group, such as a Medicare Savings Programs (MSP) group, but
others lose Medicaid coverage entirely because they do not qualify for
another Medicaid eligibility group.
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\3\ The adult group under Sec. 435.119 (b) has an income limit
of 133 percent of the FPL, but a basic standard deduction of 5
percent of the FPL is applicable as described in section 6012(a)(1)
of the Internal Revenue Services Code. (See 42 CFR 434.603(e).)
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Low-income Medicare beneficiaries experience poorer health outcomes
than their higher-income counterparts.\4\ Based on program experience
and reports from stakeholders, we are aware that some individuals who
lose all Medicaid coverage after newly qualifying for Medicare may
experience confusion and administrative barriers that undermine a
seamless transition from Medicaid to Medicare coverage, risking a
period of time without health insurance and a possible LEP for these
at-risk individuals.
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\4\ For information about the health outcomes of low-income
Medicare beneficiaries, see HHS Office of the Assistant Secretary
for Planning and Evaluation (2016, December). Social Risk Factors
and Performance Under Medicare's Value-Based Purchasing Programs.
<a href="https://aspe.hhs.gov/sites/default/files/migrated_legacy_files//171041/ASPESESRTCfull.pdf">https://aspe.hhs.gov/sites/default/files/migrated_legacy_files//171041/ASPESESRTCfull.pdf</a>.
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Before terminating or reducing the scope of Medicaid coverage for
individuals who become eligible for Medicare, the state Medicaid agency
must conduct a redetermination of eligibility, including a
determination of whether the individual is eligible for Medicaid upon
another basis (42 CFR 435.916(d) and 435.916(f)(1)). The state must
continue the same level of Medicaid coverage until the state completes
the eligibility redetermination and provides at least 10 days advance
notice and fair hearing rights in accordance with Sec. 435.917 and 42
CFR part 431 Subpart E. If during the redetermination process, an
individual is found to no longer be eligible for the eligibility group
under which they had been most recently receiving coverage, the state
would then: (1) Move the individual to a different eligibility group,
which could include an MSP eligibility group, for which the person is
eligible; or (2) determine the individual's potential eligibility for
other insurance affordability programs, in accordance with Sec.
435.916(f)(2), and terminate the individual's Medicaid coverage.
Despite these requirements, there are multiple scenarios that can
prevent a seamless transition to Medicare coverage. States sometimes
fail to complete redeterminations timely. Additionally, individuals
sometimes lose coverage for procedural reasons (for example, failure to
submit required paperwork in time) even though they likely remain
eligible for Medicaid.\5\ In the first situation, while Sec.
435.916(d) requires that states ``promptly'' conduct redeterminations
based on changes in circumstances, including new eligibility for
Medicare, we believe that some states do not complete redeterminations
until months after the individual first becomes eligible for Medicare
even though Medicare eligibility is generally predictable.\6\ If a
state does not complete a redetermination when the beneficiary attains
Medicare eligibility, an individual may retain Medicaid even though the
individual no longer technically meets the Medicaid eligibility
criteria. State Health Insurance Assistance Programs and beneficiary
advocacy groups report that these individuals may then miss their IEP
because they continue to be covered by Medicaid and may think they do
not need or cannot afford Medicare coverage at that time, especially
when individuals expect to be liable for Medicare premiums. While some
states cover the Part B premiums for individuals remaining in the adult
group pending a redetermination under their buy-in agreement,\7\ others
do not.\8\ States cannot include the payment of the Part A premium for
adult group beneficiaries in their buy-in agreement.\9\
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\5\ See HHS Office of the Assistant Secretary for Planning and
Evaluation. (2019, May 8). Loss of Medicare-Medicaid Dual Eligible
Status: Frequency, Contributing Factors and Implications. <a href="https://aspe.hhs.gov/reports/loss-medicare-medicaid-dual-eligible-status-frequency-contributing-factors-implications">https://aspe.hhs.gov/reports/loss-medicare-medicaid-dual-eligible-status-frequency-contributing-factors-implications</a>, page 38.
\6\ Recent HHS Office of Inspector General reports and state
audits have cited cases in which states continued to provide
coverage for many months after a change impacting eligibility was
identified that should have prompted a redetermination. See for
example: Louisiana Legislative Auditor. (2018, November 8). Medicaid
Eligibility: Wage Verification Process of the Expansion Population.
https://www.lla.la.gov/PublicReports.nsf/
1CDD30D9C8286082862583400065E5F6/$FILE/0001ABC3.pdf; HHS Office of
the Inspector General. (2019a, August). Colorado Did Not Correctly
Determine Medicaid Eligibility for Some Newly Enrolled
Beneficiaries. <a href="https://oig.hhs.gov/oas/reports/region7/71604228.pdf">https://oig.hhs.gov/oas/reports/region7/71604228.pdf</a>;
HHS Office of the Inspector General. (2019b, August). Illinois
Medicaid Managed Care Organizations Received Capitation Payments
After Beneficiaries' Deaths. <a href="https://oig.hhs.gov/oas/reports/region5/51800026.pdf">https://oig.hhs.gov/oas/reports/region5/51800026.pdf</a>; HHS Office of the Inspector General. (2019c,
May). California Medicaid Managed Care Organizations Received
Capitation Payments After Beneficiaries' Deaths. <a href="https://oig.hhs.gov/oas/reports/region4/41806220.pdf">https://oig.hhs.gov/oas/reports/region4/41806220.pdf</a>; HHS Office of the
Inspector General. (2018d, October). Ohio Medicaid Managed Care
Organizations Received Capitation Payments After Beneficiaries'
Deaths. <a href="https://oig.hhs.gov/oas/reports/region5/51700008.pdf">https://oig.hhs.gov/oas/reports/region5/51700008.pdf</a>.
\7\ Under their buy-in agreements with CMS, some states are
required to enroll all Medicaid beneficiaries in Medicare Part B and
to pay the premiums on their behalf (known as ``Part B buy-in''). If
such a state has not completed the eligibility redetermination for
an individual enrolled in the adult group before the first month
they qualify for Medicare, the state must enroll the individual in
Part B buy-in for all months in which the individual is enrolled in
the adult group. CMS Manual for the State Payment of Medicare
Premiums, chapter 1, section 1.4, <a href="https://www.cms.gov/files/document/chapter-1-program-overview-and-policy.pdf">https://www.cms.gov/files/document/chapter-1-program-overview-and-policy.pdf</a>.
\8\ See section II.D.3.e. of this proposed rule for a discussion
of buy-in coverage groups available for Part B.
\9\ As described in section II.D.1. of this proposed rule,
states can only pay the Part A premiums for individuals who enrolled
in the Qualified Medicare Beneficiary (QMB) group.
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During the ongoing Public Health Emergency in response to the
Coronavirus Disease 2019 outbreak (COVID-19 PHE), as a condition of
receiving the federal medical assistance percentage (FMAP) increase
authorized by the Families First Coronavirus Response Act (FFCRA) (Pub.
L. 116-127), states have been required to maintain Medicaid enrollment
for nearly all individuals enrolled in Medicaid as of March 18, 2020,
through the end of the month in which the PHE ends. This condition,
known as the continuous enrollment requirement, applies to, among
others, individuals who qualified during this time period in the adult
group and subsequently became eligible for Medicare. In the preamble to
the interim final rule with comment period published in the November 6,
2020 Federal Register (85 FR 71142), CMS explained that states would be
in compliance with the continuous enrollment requirement if they were
to transition an adult group beneficiary who becomes eligible for
Medicare to an MSP group for which such an individual is eligible (but
that such an individual could not be transitioned to an MSP group if
the individual did not meet the eligibility requirements for any MSP
group). CMS articulated this policy after initially directing states
that they had to retain such individuals in both the adult group and
MSP groups in order to comply
[[Page 25099]]
with the continuous enrollment requirement.\10\
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\10\ See CMS. COVID-19 Frequently Asked Questions (FAQs) for
State Medicaid and Children's Health Insurance Program (CHIP)
Agencies. Last updated January 6, 2021, available at <a href="https://www.medicaid.gov/state-resource-center/downloads/covid-19-faqs.pdf">https://www.medicaid.gov/state-resource-center/downloads/covid-19-faqs.pdf</a>.
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Since the start of the COVID-19 PHE, beneficiary advocacy groups
and State Health Insurance Assistance Programs have reported to us that
a substantial number of beneficiaries who became eligible for Medicare
while enrolled in the adult group may have interpreted states'
notifications that their Medicaid coverage would remain throughout the
COVID-19 PHE (and the ensuing months of continuous coverage after they
qualified for Medicare) to mean they did not need to take any action
during the COVID-19 PHE to secure health coverage, including enrolling
in Medicare. As mentioned previously, some beneficiaries who stay in
the adult group are ineligible for coverage of their Part B premiums
under state buy-in. Further, certain beneficiaries should have been
enrolled in Medicare on the basis of their state's buy-in agreement but
were not because, although their state includes all Medicaid
beneficiaries in their buy-in agreement for Part B premiums, the state
may have been unclear this includes individuals whom states kept in the
adult group on the basis of the continuous enrollment requirement.
Consequently, some beneficiaries who maintained adult group eligibility
are likely to have missed their IEPs as a result of confusion based on
the COVID-19 PHE. Based on these reports, we are concerned that when
the COVID-19 PHE ends and states resume routine eligibility and
enrollment operations for Medicaid, including taking action on pending
applications, renewals, and redeterminations necessitated by changes in
beneficiary circumstances, such individuals may end up being terminated
from Medicaid and will experience a gap in coverage and lose access to
critical health care as a result. Further, once they do enroll in
Medicare, they may incur late enrollment penalties.
As an existing requirement under the Medicaid program designed to
maximize continuity of coverage for beneficiaries whom states have
determined ineligible for Medicaid, states must determine or assess
their potential eligibility for other Insurance Affordability Programs,
such as the Children's Health Insurance Program (CHIP) and health
insurance coverage available on the Marketplace with financial
assistance and transfer their accounts to such programs as appropriate
under Sec. Sec. 435.916(f)(2) and 435.1200(e). Although Insurance
Affordability Programs have not been defined to include Medicare, we
believe promoting a seamless transition from Medicaid to Medicare
coverage is also very important. The ability to enroll in Medicare can
be vital in preventing gaps in health coverage, especially if
individuals lack access to other health insurance and may be subject to
an LEP when they do enroll in Medicare.
To remove barriers that present an exceptional condition that could
prevent individuals from transitioning from coverage under the Medicaid
program to coverage under the Medicare program, we are proposing an SEP
at Sec. Sec. 406.27(e) and 407.23(e) for individuals who lose Medicaid
eligibility entirely after the COVID-19 PHE ends or on or after January
1, 2023 (whichever is earlier) and have missed a Medicare enrollment
period. We anticipate our proposals will advance health equity by
improving low-income individuals' access to continuous, affordable
health coverage and use of needed health care consistent with the
Executive Order on Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government and the Executive Order on
Continuing to Strengthen Americans' Access to Affordable, Quality
Health Coverage.
We are proposing at Sec. Sec. 406.27(e)(1) and 407.23(e)(1) that
to be eligible for this SEP, an individual must demonstrate they are
eligible for Medicare and their Medicaid eligibility is terminated on
or after January 1, 2023, or is terminated after the last day of the
COVID-19 PHE as determined by the Secretary, whichever is earlier. At
Sec. Sec. 406.27(e)(2)(i) and 407.23(e)(2)(i), we propose that if the
termination of Medicaid eligibility occurs after the last day of the
COVID-19 PHE and before January 1, 2023, the SEP starts on January 1,
2023 and ends on June 30, 2023. At Sec. Sec. 406.27(e)(2)(ii) and
407.23(e)(2)(ii), we propose that if the termination of Medicaid
eligibility occurs on or after January 1, 2023, the SEP starts when the
beneficiary receives notice of an upcoming termination of Medicaid
eligibility and ends 6 months after the termination of eligibility. We
believe this extended duration would allow this at-risk population
sufficient opportunity to enroll in Medicare.
We note that unlike the other proposed SEPs for exceptional
conditions, this SEP could apply to a circumstance that occurs before
January 1, 2023 (that is, if the end of the PHE and the individual's
Medicaid termination occur before such time). We believe that such a
deviation is warranted in this limited circumstance given the novel
COVID-19 outbreak and unprecedented federal, state and local efforts to
combat it. As mentioned earlier, to comply with the continuous
enrollment requirement under section 6008 of FFRCA, states have kept
substantial numbers of beneficiaries in the adult group for several
months after they qualified for Medicare (more than 2 years in some
cases). As described previously, state notices regarding extended
Medicaid eligibility and the provision of continuous enrollment may
have contributed to confusion, causing many individuals to miss their
IEP during the PHE. To minimize beneficiary burden and help reduce gaps
in coverage from Medicaid-only to Medicare-only once states restore
routine eligibility and enrollment operations, it is critical to
provide this SEP to individuals who lose coverage after the PHE if that
occurs before January 1, 2023. In short, the PHE presents a unique
convergence of circumstances that will affect a defined group of
individuals currently known to CMS.
We propose at Sec. Sec. 406.27(e)(3) and 407.23(e)(3) that
entitlement would begin the first day of the month following the month
of enrollment, so long as it is effective after the end of the PHE or
January 1, 2023, whichever is earlier. We note that individuals whose
Medicaid eligibility is terminated after the end of the COVD-19 PHE,
but before January 1, 2023 (if applicable), have the option of
requesting that entitlement begin back to the first of the month
following termination of Medicaid eligibility provided the individual
pays the monthly premiums for the period of coverage.
Lastly, we propose at Sec. Sec. 406.27(e)(4) and Sec.
407.23(e)(4) that individuals who otherwise would be eligible for this
SEP, but enrolled during the COVID-19 PHE prior to January 1, 2023, if
applicable, are eligible to have LEPs collected under Sec. Sec.
406.32(d) or 408.22 reimbursed and ongoing penalties removed. Given the
unique nature of this specific SEP, and the fact that we are proposing
that individuals could be eligible for the SEP if the COVID-19 PHE ends
before January 1, 2023, we believe it is appropriate and fair that
these individuals not be subject to an LEP that would not have been
collected had they known about this remedy at the time of enrollment.
This proposed SEP would allow an individual who loses Medicaid
eligibility entirely once the PHE ends or on or after January 1, 2023,
if earlier,
[[Page 25100]]
and who has missed a Medicare enrollment period, to enroll in Medicare
without a gap in coverage or an LEP. We anticipate that the SEP would
most frequently apply to individuals who do not sign up for Medicare
while they still have Medicaid, including those eligible in the adult
group. At least initially, we suspect that the individuals who are most
likely to need and use this proposed SEP are those who were in the
Medicaid adult group under Sec. 435.119, especially those individuals
who remained in the adult group during the COVID-19 PHE and while
pending an eligibility determination once normal operations resume
because, for example, they believe they do not need additional coverage
or cannot afford to pay the Medicare premiums. This SEP would apply to
individuals who lose Medicaid coverage altogether, regardless of
whether the Medicaid termination results from their new eligibility for
Medicare, other changes in circumstances, or procedural reasons. As
noted previously, an individual would need to have missed a Medicare
enrollment period and if eligible, the SEP would be available once the
individual is notified of their Medicaid termination. Further,
individuals who are determined to no longer meet the eligibility
requirements for one Medicaid eligibility group but are determined
eligible for a separate Medicaid eligibility group that is included in
their state's buy-in agreement would not use this SEP because they do
not need it as the state can already enroll them in Medicare without
regard to Medicare enrollment periods and LEPs.
We seek comment on the parameters of this proposed SEP,
particularly whether the SEP's duration (that is, the trigger, which is
after the loss of Medicaid eligibility, rather than while the
individual is still enrolled in Medicaid, as well as the end date for
the SEP) and Medicare entitlement date (that is, earliest date Medicare
benefits can start) prevent gaps in coverage and promote continuity of
care for low-income beneficiaries who lose Medicaid coverage after
qualifying for Medicare.
e. SEP for Other Exceptional Conditions
CMS is proposing to retain the ability to provide SEPs on a case-
by-case basis for other unanticipated situations that involve
exceptional conditions and warrant an SEP. This SEP would allow us to
grant SEPs on a case-by-case basis for circumstances we do not have
enough experience to consider or anticipate that could create a barrier
to enrollment. We acknowledge that there is no way to predict the full
range of circumstances that would warrant an SEP--they are
``exceptional''--so we need this SEP for exceptional conditions to be
timely in our response to beneficiaries with unique cases, given the
time it takes to establish a more targeted SEP via rulemaking. There is
a similar SEP under Medicare Part C and Part D, and we are leveraging
our experience from those programs to afford beneficiaries who have
unique exceptional conditions beyond their control that prevent them
from enrolling in Medicare, an SEP. In addition, some of the SEPs that
are now codified under Part C and Part D started out as case-by-case
SEPs. We were able to use the information and experience gained as a
basis for establishing a new SEP, through rulemaking, for a broad
category of people corresponding to a more specific set of
circumstances.
Specifically, we are proposing to create an SEP for other
exceptional conditions to provide individuals an opportunity to enroll
in premium Part A, Part B or both. This SEP would provide an enrollment
opportunity for individuals where conditions beyond their control
caused them to miss an enrollment period and prevented them from timely
enrolling in premium Part A or Part B or both during the IEP, GEP or
other prescribed SEPs. This SEP would apply to individuals whose unique
conditions do not qualify for one of the other proposed SEPs and would
be proposed at new Sec. Sec. 406.27(f) and 407.23(f). We are proposing
at Sec. Sec. 406.27(f)(1) and 407.23(f)(1) that such SEPs would be
granted on or after January 1, 2023, if two conditions are met. First,
an individual must demonstrate that conditions outside of their control
caused them to miss an enrollment period. Second, the condition must be
determined exceptional in nature.
Due to the numerous reasons an individual might request an SEP for
other exceptional conditions, individuals may reasonably need different
amounts of time to enroll in Medicare in the event an SEP is granted.
Setting forth a specific duration for this SEP could disadvantage
enrollees whose condition may require additional time. In light of
these facts, at Sec. Sec. 406.27(f)(2) and 407.23(f)(2), we propose
that the SEP duration would be determined on a case-by-case basis. CMS
believes that this SEP will be infrequently used and that it will only
be granted in conditions that are truly exceptional in nature. This SEP
will not be used to grant individuals enrollment due to forgetfulness
or lack of knowledge. For example, an individual who turns 65 and fails
to enroll because they simply forgot to enroll during their IEP would
not qualify for this proposed SEP as they do not have evidence that
their situation that prevented them from enrolling timely was beyond
their control nor was it exceptional in nature. Finally, consistent
with the other SEPs we are proposing under section 1837(m) of the Act
at Sec. Sec. 406.27(f)(3) and 407.23(f)(3) that entitlement would
begin the first day of the month following the month of enrollment, and
only for exceptional conditions that arise on or after January 1, 2023.
f. Alternatives Considered
As discussed previously, we considered several factors in
determining which SEPs to propose under the new authority established
by section 120 of the CAA. With these principles in mind, and to
provide relief for individuals in truly exceptional conditions as
directed by section 120 of the CAA, there were a number of SEPs that we
considered but did not believe warranted establishing a separate SEP
for exceptional conditions. For example, we considered an SEP for
individuals who previously decided not to enroll in Medicare but now
want to enroll outside of the GEP or other enrollment periods because
they are experiencing a health event and want Medicare coverage. We
decided not to propose an SEP for individuals in such conditions
because there was not an exceptional condition that prevented the
individual from enrolling during an earlier enrollment period; allowing
enrollment outside of the GEP could provide an incentive for other
individuals to delay enrollment in Medicare, which we believe is
inconsistent with the statutory framework that imposes penalties for
late enrollment. We also considered an SEP for individuals who lost
Medicare coverage due to non-payment of premiums who are not eligible
for another SEP or equitable relief and now want to re-enroll outside
of the GEP. We opted not to propose this SEP because we did not want to
create an environment where there could be cycles of an individual
losing and reenrolling in Medicare based on whether they have paid
their premiums. If a beneficiary is experiencing financial constraints,
there are mechanisms in place (including state buy-in, MSP and premium
payment plans) that would more appropriately provide support for
affected individuals while ensuring continuity in their health care
coverage.
In order to be eligible for any of the SEPs other than the new
exceptional condition SEPs, individuals must have had separate health
insurance coverage when they first become eligible for
[[Page 25101]]
Medicare and have elected not to enroll (or to be deemed enrolled)
during their IEP. To be consistent with the existing Medicare SEPs and
to ensure appropriate use of the exceptional condition SEPs, we
considered proposing a requirement that new SEPs would only be
available to individuals who have missed their IEP due to an
exceptional condition. However, because of the potential need to use
the exceptional condition SEPs outside of the IEP and because section
1837(m) of the Act allows for additional flexibility to establish these
SEPs we have not included this limitation.
We welcome comments on our proposed changes to the coverage period
dates and on our proposed SEPs for exceptional conditions. We note that
we may establish additional SEPs for exceptional conditions through
rulemaking in the future if experience demonstrates that additional
SEPs would be necessary or beneficial. We also welcome recommendations
for additional SEPs based on exceptional conditions. We request that
any suggestions for additional SEPs for exceptional conditions include
a robust discussion of why commenters believe the potential SEPs would
be consistent with the policy considerations and guiding parameters
discussed previously.
3. Technical Correction to the Calculation of the Late Enrollment
Penalty for Individuals Enrolling on or After January 1, 2023
Currently, section 1839(b) of the Act specifies that the LEP is
based on the number of months that have elapsed between the close of
the individual's IEP and the close of the enrollment period during
which they enroll, plus certain additional months for individuals who
reenroll. However, section 120(a)(3) of the CAA amended section 1839(b)
of the Act to specify that, for enrollments on or after January 1,
2023, the months that will be taken into account for purposes of
determining any LEP include months which elapse between the close of
the individual's IEP and the close of the month in which they enroll,
plus, for individuals who reenroll, the months that elapse between the
date of termination of previous coverage and the close of the month in
which the individual enrolls. We expect that these changes will
decrease the number of months individuals are subject to the LEP. To
implement these changes, we propose the following changes to our
regulations:
<bullet> At Sec. 406.33, we propose to revise paragraph (a) to
reflect the requirement that, for individuals enrolling for the first
time, the existing Part A LEP calculation requirements continue to
apply to enrollments before January 1, 2023.
<bullet> We also propose to redesignate paragraph (c) of Sec.
406.33 as paragraph (d) and add new paragraph (c) to address the
calculation of the LEP for individuals enrolling for the first time on
or after January 1, 2023. Specifically, the introductory text of Sec.
406.33(c) would require that the months to be counted for calculating
the Part A LEP begin with the end of the individual's IEP, and extend
through the end of the month in which the individual enrolls. In
proposed Sec. 406.33(c)(1), we would continue to exclude certain
months from the calculation of the LEP, based on the requirements
currently in effect under Sec. 406.33(a)(1) through (6). We are
proposing to exclude additional months from the calculation of the LEP
for enrollments on or after January 1, 2023 at Sec. 406.33(c)(2),
however those changes are unrelated to the technical correction
implemented under section 120(a)(3) of the CAA, and are discussed in
greater detail in section II.A.2. of this proposed rule.
<bullet> At Sec. 408.24, we propose to revise paragraph (a) to
apply the existing Part B LEP calculation months and exceptions to
individuals who satisfy the requirements of Sec. 408.24 before January
1, 2023.
<bullet> At Sec. 408.24, we also propose to redesignate paragraph
(b) as paragraph (c) and add new paragraph (b) to address the
calculation of the LEP for enrollments on or after January 1, 2023.
Specifically, the paragraph at Sec. 408.24(b) would require that for
individuals who satisfy the requirements of Sec. 408.24 after January
1, 2023, the months to be counted for calculating the Part B LEP begin
with the end of the individual's IEP, and extends through the end of
the month in which the individual enrolls. In proposed Sec.
408.24(b)(1), we would continue to exclude certain months from the
calculation of the LEP, consistent with the requirements currently in
effect under Sec. 408.24 (a)(1) through (10). We are proposing to
exclude additional months from the calculation of the LEP for
enrollments on or after January 1, 2023 at Sec. 408.24(b)(2), however
those changes are unrelated to the technical correction implemented
under section 120(a)(3) of the CAA, and are discussed in greater detail
in section II.A.2. of this proposed rule.
<bullet> At Sec. 406.34, we propose to revise paragraph (a) to
reflect the requirement that, for individuals reenrolling in Premium
Part A, the existing Part A LEP calculation requirements continue to
apply to enrollments before January 1, 2023.
<bullet> At 406.34, we propose to redesignate paragraph (e) as
paragraph (f) and add new paragraph (e) to address the calculation of
the LEP for individuals reenrolling on or after January 1, 2023.
Specifically, new Sec. 406.34(e)(1) would require that the months to
be counted for calculating the Part A LEP begin with the end of the
individual's IEP and extend through the end of the month in which the
individual reenrolls, and we would continue to include the months
currently specified in paragraphs (b) and (d) of this section, as
applicable, and the months from the end of the first period of
entitlement through the end of the month during the GEP in which the
individual reenrolled. In proposed Sec. 406.34(e)(2), we would exclude
the months of non-coverage in accordance with an individual's use of an
exceptional condition SEP under Sec. 406.27. Those months are not
counted for premium increases, provided the individual enrolls within
the duration of the SEP.
<bullet> We are also proposing coordinating changes related to the
LEP for reenrollments at Sec. 408.24. Specifically, we propose to
amend Sec. 408.24, to revise newly redesignated paragraph (c) to apply
the existing Part B LEP calculation months and exceptions for
reenrollments to individuals who satisfy the requirements of Sec.
408.24 before January 1, 2023. New Sec. 408.24(d) would require that
for individuals who satisfy the requirements of Sec. 408.24 after
January 1, 2023, the months to be counted for calculating the Part B
LEP include the number of months elapsed between the close of the
individual's IEP and the close of the month in which he or she first
enrolled and the number of months elapsed between the individual's
initial period of coverage and the close of the month in which he or
she reenrolled (as well as the number of months elapsed between each
subsequent period of coverage and the close of the month in which he or
she reenrolled). In proposed Sec. 408.24(d)(2)(i), we would continue
to exclude certain months from the calculation of the LEP, consistent
with the requirements currently in effect under Sec. 408.24 (a)(1)
through (10) and also excluding months before April 1981 during which
the individual was precluded from reenrolling by the two-enrollment
limitation in effect before that date. Further, as discussed
previously, an individual who missed an enrollment period due to an
[[Page 25102]]
exceptional condition, and who enrolls in Part B using an exceptional
condition SEP, would not be subject to a LEP. Therefore, we propose in
Sec. 408.24(d)(2)(ii) that if an individual uses an exceptional
condition SEP under Sec. 407.23 any months of non-coverage would not
be counted towards the calculation of the SEP, provided the individual
enrolls within the duration of the SEP.
B. Proposals for Extended Coverage of Immunosuppressive Drugs for
Certain Kidney Transplant Patients (Sec. Sec. 407.1, 407.55, 407.57,
407.59, 407.62, 408.20, and 423.30)
1. History and Definition of Benefit
In 1972, Congress enacted section 299I of the Social Security
Amendments of 1972 (Pub. L. 92-603), which amended section 226 of the
Act to allow qualified individuals with ESRD \11\ under the age of 65,
to enroll in the federal Medicare health care program, beginning in
1973. These requirements are now codified in section 226A of the Act
and implemented in our regulations at 42 CFR 406.13. As mentioned
earlier, section 226A(a) of the Act provides that certain individuals
who are medically determined to have ESRD and apply for Medicare
coverage are entitled to benefits under Medicare Part A and eligible to
enroll in Part B. However, section 226A(b)(2) of the Act currently
requires that an individual's entitlement under Part A and eligibility
under Part B based on ESRD status ends with the 36th month after the
month in which the individual receives a kidney transplant.
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\11\ Under 42 CFR 406.13(b), ESRD means that stage of kidney
impairment that appears irreversible and permanent and requires a
regular course of dialysis or kidney transplantation to maintain
life.
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The termination of Medicare entitlement has led to some
beneficiaries losing coverage of immunosuppressive drugs that
transplant patients would still need. Per the 2018 US Renal Data System
(USRDS) Annual Report, 32 percent of kidney transplant recipients ages
45-64 years old have no known or other creditable prescription drug
coverage.\12\ Section 402(a) of the CAA established an exception that
permits certain beneficiaries who were successful kidney transplant
patients to receive a limited Part B benefit effective January 1,
2023--covering only those immunosuppressive drugs described in section
1861(s)(2)(J) of the Act. Section 402(b) of the CAA also amended
section 1836(b) of the Act to support limited eligibility under Part B
for beneficiaries whose entitlement to insurance benefits under Part A
ends by reason of section 226A(b)(2). These individuals are eligible to
enroll (or to be deemed enrolled) for the new Part B immunosuppressive
drug benefit (herein referred to as the Part B-ID benefit).
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\12\ United States Renal Data System: 2018 USRDS Annual Data
Report: Epidemiology of Kidney Disease in the United States,
Bethesda, MD, National Institutes of Health, National Institute of
Diabetes and Digestive and Kidney Diseases, 2018, from <a href="https://cjasn.asnjournals.org/content/14/3/327">https://cjasn.asnjournals.org/content/14/3/327</a>.
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Not all Medicare kidney transplant patients who lose entitlement to
Part A coverage based on section 226A(b)(2), however, are eligible to
enroll in the new Part B-ID benefit. The CAA provided that certain
individuals are not eligible to enroll in the new program. In general,
if the individuals are enrolled in certain specific forms of health
insurance or other programs that cover immunosuppressive drugs, the
individuals would not be eligible to enroll in the Part B-ID benefit.
We will discuss the excepted individuals and the specific forms of
insurance and programs in greater detail in section II.B.2.b of this
proposed rule entitled ``Determination of Eligibility'' and in our
proposed rule at Sec. 407.55(b). Individuals that are seeking
entitlement under the new Part B-ID benefit would also need to meet
additional statutory criteria, as discussed in section II.B.2.b. of
this proposed rule, and in the proposed rule at Sec. 407.57.
Individuals enrolled in the new Part B-ID benefit would not receive
Medicare coverage for any other items or services, other than coverage
of immunosuppressive drugs.
Section 402 of the CAA made conforming amendments to sections 1836,
1837, 1838, 1839, 1844, 1860D-1, 1902, and 1905 of the Act. We discuss
each of those changes elsewhere in this document, along with the
corresponding proposals to modify our regulations in order to implement
these changes. We are proposing to revise Sec. Sec. 407.1, 408.20,
410.30, 423.30 and establish a new Subpart D (Sec. Sec. 407.55 through
407.65) in 42 CFR part 407, entitled Part B Immunosuppressive Drug
Benefit to implement the new Part B-ID benefit.
Sections 226A, 1836(b) and 1837(n) of the Act provide the statutory
authority for this new, limited Medicare entitlement program, and we
are proposing to add a description of this basis for the Part B-ID
benefit at Sec. 407.1(a)(6). We specifically propose in Sec.
407.1(a)(6) that, sections 1836(b) and 1837(n) of the Act will provide
for coverage of immunosuppressive drugs as described in section
1861(s)(2)(J) of the Act under Part B beginning on or after January 1,
2023. Coverage of immunosuppressive drugs would be for eligible
individuals whose benefits under Medicare Part A and eligibility to
enroll in Part B on the basis of ESRD would otherwise end with the 36th
month after the month in which the individual receives a kidney
transplant by reason of section 226A(b)(2) of the Act.
We are also proposing to revise Sec. 407.1(b) and establish a new
paragraph (2) to incorporate the eligibility, enrollment, and
entitlement requirements for the Part B-ID benefit within the scope of
part 407. We specifically propose to revise Sec. 407.1(b) to retain
the language that states that part 407 sets forth the eligibility,
enrollment, and entitlement requirements and procedures for
supplementary medical insurance at Sec. 407.1(b)(1), including the
reference to the rules governing premiums in part 408 of this chapter.
At new Sec. 407.1(b)(2), we propose to add language stating that this
part also sets forth the eligibility, enrollment, and entitlement
requirements and procedures for the immunosuppressive drug benefit
provided for under sections 1836(b) and 1837(n) of the Act, including
the short title for the Part B-immunosuppressive drug benefit (Part B-
ID).
The Part B-ID benefit is unique because it is available to a
defined subset of Medicare beneficiaries and provides coverage only for
immunosuppressive drugs. Since immunosuppressive drug therapy is a Part
B benefit under section 1861(s)(2)(J) of the Act, certain rules and
requirements applicable to Part B apply to the Part B-ID benefit. Where
there are specific differences, we address them in this rulemaking.
2. Part B-ID Benefit Eligibility, Enrollment, Entitlement, and
Termination
a. Eligibility for the Part B-ID Benefit
Section 402(a)(2) of the CAA adds section 1836(b) of the Act, which
establishes specific eligibility criteria for the Part B-ID benefit.
Subject to exceptions, new section 1836(b)(1) of the Act provides that
individuals whose entitlement to insurance benefits under Part A ends
(whether before, on, or after January 1, 2023) by reason of section
226A(b)(2), and who meet certain additional requirements, would be
eligible to enroll (or to be deemed enrolled) in Part B solely for
purposes of coverage of immunosuppressive drugs in accordance with
section 1837(n) of the Act. The principal limitations on eligibility
for the Part B-ID benefit are set out in new section
[[Page 25103]]
1836(b)(2) of the Act. Under section 1836(b)(2)(A) of the Act,
individuals enrolled in certain other types of health coverage would
not be eligible for the Part B-ID benefit. As discussed in greater
detail in this section, we are proposing to specify that an individual
who has such other health coverage would not be eligible for the Part
B-ID benefit in Sec. 407.55(b).
b. Determination of Eligibility
Section 1836(b)(2)(B)(i) of the Act requires the Secretary, in
coordination with the Commissioner of Social Security (Commissioner),
to establish a process for determining whether an individual who is to
be enrolled, or deemed to be enrolled, in the Part B-ID benefit meets
the requirements for such enrollment, including the requirement that
the individual not be enrolled in other health coverage that would make
them ineligible for the Part B-ID benefit under 1836(b)(2)(A) of the
Act.
In order for an individual to be enrolled in the Part B-ID benefit,
section 1836(b)(2)(B)(ii)(I) of the Act requires that an individual
provide to the Commissioner an attestation that they are not enrolled
and do not expect to enroll in the excepted coverage, as described in
section II.B.2.a. of this proposed rule (``Eligibility for the Part B-
ID Benefit''), that would make the individual ineligible for the Part
B-ID benefit under section 1836(b)(2)(A) of the Act. Section
1836(b)(2)(B)(ii)(II) of the Act requires that the individual notify
SSA within 60 days of enrollment in such excepted coverage. Based on
these requirements, we are proposing at Sec. 407.59(a) and (b), that
all prospective enrollees in the Part B-ID benefit must provide to the
Commissioner, in the form and manner specified by CMS and SSA in the
final rule, an attestation that the individual is not enrolled and does
not expect to enroll in other health coverage that would make the
individual ineligible for the Part B-ID benefit, and that the
individual agrees to notify the Commissioner within 60 days of
enrollment in such other coverage as described in Sec. 407.55(b).
Individuals who currently have Medicare entitlement based on ESRD,
and whose coverage would be terminated 36 months after the month of a
successful transplant, are notified in advance of the 36-month
termination by SSA. We refer to such notices as ``pre-termination
notices.'' We plan to include information about the Part B-ID benefit
in this pre-termination notice and include instructions for individuals
to enroll in the Part B-ID benefit, including how to provide the
required attestation.
We are proposing that beneficiaries will be able to primarily use a
verbal (telephonic) attestation as part of enrolling in the Part B-ID
benefit. Generally, for the verbal attestation, an individual would
contact SSA, and an SSA representative, using a standard script, will
convey the requirements to the individual that are in the CMS-10798
attestation form, described in Sec. 407.59 of this proposed rule. The
individual will then attest that the individual does not have coverage
under any of the specified health programs or insurance. The individual
will also affirm that the statement provided was true and correct and
that the individual acknowledged that there may be criminal penalties
for making a false statement for purposes of obtaining these Medicare
benefits. After the individual provides the oral attestation, the SSA
representative will document the content of the call, and the document
will be retained as required under SSA processes.
Having interested beneficiaries call SSA to attest and enroll is
the simplest and most efficient method, and would avoid potential
delays in an individual mailing a signed written statement that could
potentially result in a delay in the individual continuing to receive
this vital coverage of these necessary drugs.
Using a verbal attestation and enrollment process also aligns with
the President's December 13, 2021 Executive Order, titled Executive
Order on Transforming Federal Customer Experience and Service Delivery
to Rebuild Trust in Government, which, among other things, directs
Federal agencies to improve the public's experience of interacting with
agency services. Of particular relevance, the executive order directs
the Commissioner of SSA to provide a report that identifies potential
opportunities for policy reforms that can support modernized customer
experiences while ensuring original or physical documentation
requirements remain where there is a statutory or strong policy
rationale. The executive order further directs the Commissioner to,
consistent with applicable law and to the extent practicable, remove
requirements that members of the public provide physical signatures.
We are also proposing that individuals would be permitted to
provide the attestation in writing with a pen-and-ink signature, if
they choose to do so. Under our proposal, individuals could download a
PDF-fillable version of an attestation form from SSA or CMS websites to
print, sign, and mail to SSA, or to call SSA to request the form in
hard copy. We are further soliciting public comment on whether SSA
should only accept attestations in writing with a pen-and-ink
signature, and not allow an individual to attest verbally to their
eligibility to enroll in the Part B-ID benefit. We are soliciting
public comment on all of these proposed methods of attestation, and
other potential methods such as electronic submission, submission by
fax, or a signed document.
We are proposing to rely on enrollee attestations to ensure
eligibility for the Part B-ID benefit, and we will monitor developments
in the Part B-ID benefit program and take appropriate action to address
any potential areas of concern, including with respect to inaccurate
attestations or other conditions involving ineligible individuals
enrolling or remaining enrolled in the Part B-ID benefit. We will
continue to evaluate opportunities to enhance our oversight to ensure
compliance with the eligibility requirements on an ongoing basis. We
specifically request public comments on whether additional procedures
would be helpful or necessary to ensure the integrity of this program.
Upon receipt of public comment, CMS will consider if proposals received
would need to be set out in future notice-and-comment rulemaking prior
to implementation.
As mentioned previously, we are proposing to establish the
eligibility criteria for the Part B-ID benefit in new Sec. 407.55,
entitled ``Eligibility to enroll.'' Specifically, in Sec. 407.55(a),
we propose that an individual would be eligible to enroll in, be deemed
enrolled, or re-enroll in the Part B-ID benefit if their Part A
entitlement ends at the end of the 36th month after the month in which
the individual received a successful kidney transplant, as set out
under revised Sec. 406.13(f)(2), and discussed in section II.B.5 of
this proposed rule.
The types of coverage that would make an individual ineligible for
the Part B-ID benefit are specified in section 1836(b)(2)(A)(i) through
(v) of the Act. Specifically, the Act requires that individuals shall
not be eligible for enrollment in the Part B-ID benefit during any
period the individual is:
<bullet> Enrolled in a group health plan or group or individual
health insurance coverage, as such terms are defined in section 2791 of
the Public Health Service Act;
<bullet> Enrolled for coverage under the TRICARE for Life program
under section 1086(d) of title 10, United States Code;
<bullet> Enrolled under a state plan (or waiver of such plan) under
title XIX of the Act and is eligible to receive benefits for
immunosuppressive drugs described
[[Page 25104]]
in section 1836(b) of the Act under such plan (or such waiver);
<bullet> Enrolled under a state child health plan (or waiver of
such plan) under title XXI of the Act and is eligible to receive
benefits for such drugs under such plan (or such waiver); or
<bullet> Enrolled in the patient enrollment system of the
Department of Veterans Affairs established and operated under section
1705 of title 38, United States Code and is either of the following:
++ Is not required to enroll under section 1705 of such title to
receive immunosuppressive drugs described in section 1836(b) of the
Act; or
++ Is otherwise eligible under a provision of title 38 of the
United States Code (other than section 1710), to receive
immunosuppressive drugs described in section 1836(b) of the Act.
We are proposing regulation text at Sec. 407.55(b) that would
mirror those requirements, as set out in sections 1836(b)(2)(A)(i)
through (v) of the Act. Section 1836(b)(2) of the Act contains specific
exceptions that prevent individuals from enrolling in the Part B-ID
benefit. For some of those provisions, section 402 of the CAA includes
an additional limitation that the coverage must include coverage of
immunosuppressive drugs. For other coverage, the statute does not
include this limitation. When specific restrictions are included in one
section of a statute but not in another, we presume that the language
of the statute is intentional and deliberate with respect to adding the
limitations. This is sometimes called the negative implication canon or
expessio unius est exclusion alterius.
Other than coverage under Medicaid, child health plan coverage, or
in regard to immunosuppressive drugs, an individual is eligible to
receive from the Department of Veterans Affairs with or without
enrolling in the system established and operated under section 1705 of
Title 38, the statute does not address the level of coverage, or the
benefits that must be provided under an individual's other coverage,
that would make an individual ineligible for the Part B-ID benefit.
Therefore, we interpret section 1836(b)(2)(A) of the Act to require
that, except in the case of an individual who receives title XIX or XXI
benefits under a state plan or waiver, or immunosuppressive drugs
individuals are eligible to receive through the Department of Veterans
Affairs with or without enrolling in the system established and
operated under section 1705 of Title 38, an individual's enrollment in
any other coverage specified under 1836(b)(2)(A), regardless of the
scope of benefits offered to the individual under that coverage, would
make the individual ineligible for the Part B-ID benefit.
As indicated previously, section 1836(b)(2)(B)(ii)(I) of the Act
requires that an individual provide to the Commissioner an attestation
that they are not enrolled and do not expect to enroll in such other
coverage as described in section II.B.2.b. of this proposed rule, in
order for SSA to determine if they are eligible for the Part B-ID
benefit. Section 1836(b)(2)(B)(ii)(II) of the Act requires that
individuals must also notify SSA within 60 days of enrollment in such
other coverage as that would then make them no longer eligible for
immunosuppressive drug coverage under the Part B-ID benefit. We propose
to establish corresponding requirements in regulation at new Sec.
407.59. Specifically, we are proposing at Sec. 407.59(a) that, in
order to be eligible for immunosuppressive drug coverage, the
individual must attest in either a verbal attestation or signed paper
form provided by SSA, that they are not enrolled, and do not expect to
enroll in, coverage as described in Sec. 407.55(b). Similarly, at
Sec. 407.59(b) we are proposing that individuals must notify SSA
within 60 days of enrollment in such coverage.
c. Enrollment in the Part B-ID Benefit
Section 1837(n)(1) of the Act states that any individual who is
eligible for coverage of immunosuppressive drugs under section 1836(b)
of the Act, that is, whose entitlement for hospital insurance benefits
under part A ends by reason of section 226A(b)(2), may enroll or be
deemed to have enrolled in the Part B-ID benefit as established in
regulations and during an enrollment period. We are proposing in Sec.
407.57(d) that, to enroll in the Part B-ID benefit, an individual must
submit the required attestation as described in Sec. 407.59. We will
have historical information about individuals who will be eligible to
enroll in the Part B-ID benefit based on their Medicare entitlement at
the time of their transplant. In light of this fact, we believe that
submission of an attestation and confirmation of an individual's
eligibility as described previously will be sufficient for SSA to
enroll individuals in the Part B-ID benefit. We are proposing in Sec.
407.55(c) that, if SSA denies an individual's enrollment in the Part B-
ID benefit, the individual will be afforded an initial determination
entitlement appeal as described in Sec. 405.904(a)(1). This will
ensure that the beneficiary's statutory and due process rights will be
adequately protected.
Section 1837(n)(2) of the Act provides that an individual whose
entitlement for hospital insurance benefits under part A ends by reason
of section 226A(b)(2) prior to January 1, 2023, may enroll in the Part
B-ID benefit beginning on October 1, 2022, or the day on which the
individual first satisfies section 1836(b) of the Act, whichever is
later. Section 1837(n)(3) of the Act specifies that an individual whose
entitlement for hospital insurance benefits under part A ends by reason
of section 226A(b)(2) on or after January 1, 2023, shall be deemed to
have enrolled in the medical insurance program established by this part
for purposes of coverage of immunosuppressive drugs.
We propose to establish the provisions relating to enrollment and
the entitlement to the Part B-ID benefit in new Sec. 407.57, titled
``Part B-ID benefit enrollment.'' Specifically, we are proposing at
Sec. 407.57(a) that an individual whose Part A entitlement ends at the
end of the 36th month after the month in which the individual received
a successful kidney transplant, on or after January 1, 2023, is deemed
to have enrolled into the Part B-ID benefit effective the first day of
the month in which the individual first satisfies the eligibility
requirements proposed at Sec. 407.55, and provides the attestation
required in proposed Sec. 407.59, prior to the termination of their
Part A benefits.
In accordance with new subsections 1837(n)(2) and (3) of the Act,
certain individuals have an ongoing opportunity to enroll in the Part
B-ID benefit regardless of whether their entitlement under Part A ended
before or after January 1, 2023. Therefore, we are proposing at Sec.
407.57(b) that an individual whose Part A entitlement ends in
accordance with revised Sec. 406.13(f)(2) (as discussed in section
II.B.5. of this proposed rule), and who meets the proposed Part B-ID
benefit eligibility requirements proposed at Sec. 407.55 and provides
the attestation required in proposed Sec. 407.59, may enroll in the
Part B-ID benefit as follows:
<bullet> An individual whose entitlement ended prior to January 1,
2023, may enroll in the Part B-ID benefit beginning on October 1, 2022
or later.
<bullet> An individual whose entitlement ends on or after January
1, 2023 can enroll at any time after such entitlement ends.
We are further proposing at Sec. 407.57(c) that an individual who
had previously enrolled in the Part B-ID benefit but whose
participation in the benefit was terminated may re-enroll in the Part
B-ID benefit at any time if they meet the eligibility requirements
proposed at Sec. 407.55 and provides the
[[Page 25105]]
attestation required in proposed Sec. 407.59. For instance, if an
individual lost Part B-ID benefits because the individual had health
coverage under a health program or insurance plan described in Sec.
407.55(b), but then later lost that other coverage, the individual can
re-enroll in the Part B-ID benefit. There are no late enrollment
penalties assessed, regardless of when an individual enrolls or
disenrolls from the benefit.
d. Effective Date of Entitlement
Provided the individual meets the eligibility requirements
described at Sec. 407.55 and provides the attestation as required
under Sec. 407.59, we are proposing the following entitlement dates in
Sec. 407.57(e):
<bullet> For individuals whose Medicare Part A entitlement based on
ESRD status ends on or after January 1, 2023, and who submit the
attestation required under Sec. 407.59 before the end of the 36th
month after the month in which they receive a successful kidney
transplant, their entitlement begins with the month their Part A
benefits under section 226A of the Act would end.
<bullet> For individuals who do not provide an attestation as part
of the enrollment process for the Part B-ID benefit before their Part A
entitlement under section 226A of the Act ends, but later provides an
attestation, their entitlement begins with the month following the
month in which the individual provides the attestation required in
Sec. 407.59.
<bullet> For individuals whose entitlement ended prior to January
1, 2023 and who submit an attestation as part of the enrollment process
from October 1, 2022 through December 31, 2022, their entitlement
begins January 1, 2023.
e. Termination of the Part B-ID Benefit
Under sections 1838(b) and (h)(4) of the Act, individuals are not
required to enroll or remain enrolled in the Part B-ID benefit.
Individuals enrolled in the Part B-ID benefit can terminate their
enrollment in the Part B-ID benefit by notifying SSA that they no
longer wish to participate in the Part B-ID benefit. SSA would also
terminate the Part B-ID benefit under certain conditions. Consistent
with these requirements, we are proposing in new Sec. 407.62,
``Termination of coverage,'' that the effective date of the termination
of an individual's entitlement under the Part B-ID benefit will depend
upon the conditions of his or her termination, as described in this
section.
As discussed in section II.B.2.b. of this proposed rule, section
1836(b)(2)(A) of the Act requires that an individual is not eligible
for the Part B-ID benefit if they are enrolled in certain other health
coverage. Under proposed Sec. 407.62(a)(1), when an individual enrolls
in such other health coverage that would make them ineligible for the
Part B-ID benefit as set out in Sec. 407.55(b) and notifies the
Commissioner of this health coverage consistent with Sec. 407.59(b),
their Part B-ID benefit would be terminated effective the first day of
the month after the month of notification.
We are proposing at Sec. 407.62(a)(1) that an individual may
request a different, prospective termination date for the Part B-ID
benefit to align with the coverage period under the other insurance
plan or government program. While section 402 of the CAA does not
explicitly authorize CMS to permit individuals to request a future
termination date, it also does not prohibit a beneficiary from
requesting a future termination date. In these cases, if an individual
chooses their Part B-ID benefit termination date, they will be able to
retain the benefit up to the effective date of their new coverage,
which will alleviate potential gaps or overlaps in coverage. For
example, if an individual enrolls in employer coverage during an
employer's open enrollment period in October, for a January 1st
effective date, the individual can submit their request for termination
of the Part B-ID benefit in October or November, and not lose their
Part B-ID benefit prior to the January 1st effective date. If we only
permitted an individual to use a default termination date (for example,
termination on the first of the month after the month of notification),
an individual submitting a termination notice in October or November
would lose their Part B-ID benefit prior to the effective date of their
new coverage. However, CMS would not permit individuals to request a
future termination date that is after the effective date of enrollment
in other health insurance coverage, as described in Sec. 407.55(b),
that would make them ineligible for the Part B-ID benefit. The law
provides that individuals will lose their Part B-ID benefit eligibility
when the individual is enrolled in certain other health coverage, and
they notify the Commissioner of this other coverage within 60 days of
their enrollment in such coverage. Individuals may wish to terminate
Part B-ID benefits as soon as coverage is provided by another program
so that they are not required to pay duplicative premiums for the same
coverage. We believe this proposal will be helpful for beneficiaries as
it would facilitate the coordination of benefit coverage and avoid
duplicative costs for beneficiaries.
The rules for terminating Part B coverage based on a voluntary
request for termination, set out in section 1838(b) of the Act, require
that Part B coverage ends effective the close of the month following
the month in which the notice is filed, except for an individual who
loses coverage under a state buy-in agreement as described in Sec.
407.50(b)(2)(i). For example, if an individual submits a voluntary
notice to terminate Part B April 1st, the individual's last day of Part
B coverage would be May 31st. In contrast, we are proposing a shorter
timeframe for effectuating termination of the Part B-ID benefit in
Sec. 407.62(a)(1), specifically that when an individual enrolls in
other coverage and provides notification consistent with Sec.
407.59(b), their enrollment in the Part B-ID benefit would end
effective the first day of the month after the month they provide the
required notification. For example, if an individual notified SSA on
April 1st to end their Part B-ID benefit, their Part B-ID benefit will
be terminated effective the first day of the month after the month of
notification, May 1st. We are proposing this shorter period between
notification and the end of individuals' Part B-ID coverage in order to
minimize periods of overlapping coverage that could result in
unnecessary and overlapping premium liability.
Although the statute requires that an individual's eligibility for
the Part B-ID benefit ends at the time they enroll in prohibited
coverage, SSA would need additional time upon the individual's
notification of such other coverage, to effectuate the termination of
the Part B-ID benefit. Therefore, the individual's eligibility would
end as of the first day of the month after the month they provide the
required notification. Further, although 1836(b)(2)(B)(ii) provides up
to 60 days for Part B-ID beneficiaries to notify the Commissioner that
the individual has enrolled in other health coverage, some individuals
will want to notify the Commissioner sooner to reduce the financial
responsibility for Part B-ID benefit premiums. We believe this approach
would implement the requirements of section 1838(h) of the Act, which
requires that the entitlement for Part B-ID beneficiaries ends when an
individual enrolls in other health coverage that makes them ineligible
for the Part B-ID benefit.
As discussed previously in this rule, we will continue to evaluate
opportunities to enhance our oversight to ensure compliance with the
Part B-ID benefit's eligibility requirements. Therefore, we are
proposing in Sec. 407.62(a)(2) that if an individual who is enrolled
in the Part B-ID benefit fails
[[Page 25106]]
to provide the notice of other excepted health coverage, and it is
determined that an individual has such other health coverage, the
individual would be ineligible for the Part B-ID benefit as described
in proposed Sec. 407.55(b), and their enrollment in the Part B-ID
benefit would be terminated on a prospective basis. If it is
determined, through investigation, that an individual has such other
coverage, and SSA terminates the individual's Part B-ID benefit, the
individual will be provided notification and appeal rights, as
currently established for Medicare Part B. Specifically, we are
proposing at Sec. 407.62(a)(2) that the enrollment for an individual
who enrolls in the Part B-ID benefit, but who subsequently enrolls in
other health coverage as described in Sec. 407.55(b) but does not
notify SSA within 60 days consistent with Sec. 407.59(b), the
individual's Part B-ID enrollment would be terminated effective the
first day of the month after the month in which SSA determines the
individual is enrolled in health coverage described in Sec. 407.55(b).
We are proposing this shorter period (as typically would occur with
termination of Part B coverage), between SSA making a determination
that an individual has certain other health coverage as set out in
proposed Sec. 407.55(b), and termination of the Part B-ID benefit, in
order to minimize periods of overlapping coverage that could result in
unnecessary and overlapping premium liability. We believe this approach
would implement the requirements of section 1838(h) of the Act which
requires that the entitlement for the Part B-ID benefit ends when an
individual enrolls in other health coverage that makes them ineligible
for the Part B-ID benefit.
However, we are proposing in Sec. 407.62(f) that, if an individual
is involuntarily disenrolled from the Part B-ID benefit based on Sec.
407.62(a)(2), (b) or (c), they will be permitted an initial
determination appeal as outlined in Sec. 405.904(a)(1), which is
consistent with existing requirements applicable to Part B coverage.
This ensures that the beneficiary's statutory and due process rights
will be adequately protected. Consistent with appeals filed by
individuals whose Medicare entitlement based on disability is denied or
terminated, the individual would be entitled to the Medicare Part B-ID
benefit while the appeal is in adjudication. CMS believes that this
position lessens burden on beneficiaries by ensuring that there is no
lapse in coverage for these necessary drugs.
Consistent with existing requirements applicable to Part B benefits
at Sec. 407.27(a), which state that entitlement to Part B benefits
ends on the last day of the month in which an individual dies, we are
proposing that entitlement to the Part B-ID benefit would end on the
last day of the month in which the individual dies under new proposed
Sec. 407.62(b). Based on our experience administering the Part B
program, we believe this approach is easy to understand, familiar to
members of the public, fair, and administratively straightforward.
Based on these facts we are proposing to apply this policy to the Part
B-ID benefit as well.
In order to maintain consistency with existing Part B premium
payment rules, and as established under section 1838(b)(2) of the Act
and revised under section 402 of the CAA, we are proposing at Sec.
407.62(c) that termination of the Part B-ID benefit for individuals who
fail to pay their Part B-ID benefit premiums would end as set forth in
42 CFR part 408. This would include provisions governing a grace period
by which premiums must be paid in order to avoid termination. Based on
our experience administering the Part B program, we believe an approach
that would apply the existing Part B requirements to the Part B-ID
benefit would be easy to understand, familiar to members of the public,
fair, and administratively straightforward.
Consistent with existing requirements applicable to Part B coverage
under section 1838(b)(1) of the Act, we are proposing that an
individual may request voluntary termination of the Part B-ID benefit.
To voluntarily terminate their Part B-ID benefit, an individual will
provide notification to SSA. Primarily, we are proposing that an
individual would contact SSA to request termination, either
telephonically, or by visiting an SSA field office. We are also
proposing that individuals could notify SSA in writing, by completing a
CMS-1763 termination form, indicating that the individual no longer
wishes to participate in the Part B-ID benefit (even if the individual
does not have other health insurance coverage). Individuals could
obtain a termination form (CMS-1763) from the SSA or CMS website to
print, sign, and mail to SSA, or they can call SSA to request the form
in hard copy. Providing options for beneficiaries to terminate their
Part B-ID benefit aligns with the President's December 13, 2021
Executive Order on Transforming Federal Customer Experience and Service
Delivery to Rebuild Trust in Government, which directs Federal agencies
to improve the public's experience of interacting with agency services.
We are soliciting public comment on these proposed methods of
attestation, and other potential methods such as electronic submission,
or submission by fax. Once an individual contacts SSA to inform them
that they want to disenroll from the Part B-ID benefit, their benefit
would be terminated effective the first day of the month following the
month in which they submit their request. Accordingly, we are proposing
at new Sec. 407.62(d) that an individual may request disenrollment at
any time by contacting SSA to inform them that they no longer want to
be enrolled in the Part B-ID benefit. Such individuals' enrollment
would end with the last day of the month in which the individual
provides the disenrollment request. Similar to the rationale for our
proposals for Sec. 407.62(b), based on our experience administering
the Part B program we believe this approach would be easy to
understand, familiar to members of the public, fair, and
administratively straightforward. Based on these facts we are proposing
to apply this policy to the Part B-ID benefit as well.
Under section 1838(h)(4) of the Act, individuals' entitlement to
the Part B-ID benefit ends when an individual becomes entitled to
Medicare based on age, disability, or ESRD status (see Sec. Sec.
406.5, 406.12 and 406.13). Consistent with these statutory
requirements, we are proposing that in such conditions individuals'
entitlement to the Part B-ID benefit will terminate effective the last
day of the month prior to the month in which the individual becomes
entitled to Medicare based on either age, disability, or ESRD under new
proposed Sec. 407.62(e).
3. Ensuring Coverage Under the Medicare Savings Programs
The MSPs includes three primary \13\ Medicaid eligibility groups
that cover the Medicare Part A and/or B premiums and sometimes cost-
sharing for over 10 million low income individuals and are defined at
sections 1905(p)(1) and 1902(a)(10)(E) of the Act. One MSP eligibility
group is the Qualified Medicare Beneficiary (QMB) group, which provides
medical assistance through coverage of Medicare Part A and B premiums
and cost-sharing for certain individuals that meet specific
requirements. In general, the individual
[[Page 25107]]
must have income that does not exceed 100 percent of the federal
poverty line (FPL) and resources that do not exceed three times the
limit for SSI with adjustments for inflation as described in section
1905(p)(1) of the Act. A second MSP eligibility group is the Specified
Low-Income Beneficiary (SLMB) group, which provides medical assistance
through coverage of Part B premiums for individuals who would otherwise
be eligible in the QMB eligibility group, except that their income
exceeds 100 percent of the FPL and is below 120 percent of the FPL as
defined at section 1902(a)(10)(E)(iii) of the Act. A third MSP
eligibility group is the Qualifying Individuals (QI) group, which
provides medical assistance of coverage of Part B premiums for
individuals who would otherwise be eligible in the QMB group, except
that their income exceeds 120 percent of the FPL and is below 135
percent of the FPL as defined at section 1902(a)(10)(E)(iv) of the Act.
Federal statute does not allow states to implement MSP eligibility
criteria (that is, income and resource limits and methodologies) that
are more restrictive than those federal baselines. However, through
authority granted by section 1902(r)(2) of the Act, states may choose
to implement income and/or resource methodologies that are more
generous than the federal baselines for QMB, SLMB and QI.
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\13\ There is a fourth and much smaller MSP eligibility group
that is the Qualified Disabled Working Individuals (QDWI) group,
which provides medical assistance of coverage of Part A premiums for
individuals who are entitled to Part A under section 1818A of the
Act, and with income that does not exceed 200 percent of the FPL and
whose resources do not exceed twice the maximum amount permitted
under the SSI program. Section 402 of the CAA does not apply to
QDWIs.
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As a result of changes made under section 402(f) of the CAA, low
income individuals who are entitled to Medicare based on enrollment in
the Part B-ID benefit may also be eligible for enrollment in QMB, SLMB,
or QI MSPs for payment of some or all of their Part B-ID benefit
premiums and cost-sharing.
Section 402(f) of the CAA revised section 1905(p)(1)(A) of the Act
to change the definition of QMB to allow for individuals enrolled in
the Part B-ID benefit to be eligible for medical assistance through
Medicare cost-sharing as QMBs if they otherwise meet the income and
resource limits established at 1905(p)(1)(B) and (C) of the Act. The
CAA also made similar changes under section 1902(a)(10)(E)(iii) and
(iv) of the Act to make medical assistance available for Medicare cost-
sharing for Part B-ID benefit enrollees who qualify for the SLMB and QI
eligibility groups. These changes would allow individuals enrolled in
the Part B-ID benefit to attain eligibility for these MSPs for payment
of their Part B-ID benefit premium and cost-sharing for QMBs, and for
payment of their Part B-ID benefit premium as SLMBs and QIs, if such
beneficiaries also meet the relevant income and resource criteria. We
propose to codify this expansion of MSPs to apply to the Part B-ID
benefit at new Sec. 435.123 described in section II.D.3.h. of this
proposed rule.
Under section 1905(p)(1) and 1902(a)(10)(E) of the Act, as modified
by section 402(f) of the CAA, individuals eligible for the Part B-ID
benefit could become enrolled in MSPs for payment of the Part B-ID
benefit (MSP Part B-ID) through two paths on or after January 1, 2023.
First, individuals could enroll in the Part B-ID benefit and newly
apply for Medicaid and be determined eligible for the QMB, SLMB, or QI
eligibility groups by their state. Second, individuals who are enrolled
in an MSP eligibility group and whose Medicare eligibility is based on
ESRD, can transition to an MSP based on Part B-ID (MSP Part B-ID) the
month after 36 months after transplant if they enroll in the Part B-ID
benefit under certain conditions. In order to transition to MSP Part B-
ID under this latter condition, the individual must (a) return the
attestation to be deemed to enroll in the Part B-ID benefit by the end
of the 36th month after the month in which they receive a kidney
transplant in accordance with the attestation requirements in section
1836(b)(2)(B) of the Act and (b) continue to meet the other eligibility
criteria for an MSP eligibility group described in section 1905(p)(1),
1902(a)(10)(E)(iii), or (iv) of the Act. We anticipate the second
situation will help ensure continuity of coverage for beneficiaries,
but note that continuity of coverage depends on many factors, including
the timing of when an individual attests to not having other
disqualifying insurance coverage under Sec. 407.59 as well as
coordination among multiple entities including states, CMS and SSA.
Given its greater complexity, the second situation is the primary focus
of our discussion here.
The simplest way to maintain continuity of coverage for individuals
enrolled in an MSP who are losing Medicare entitlement based on ESRD
status is through the Medicaid redetermination process. For full- and
partial-benefit (that is, individuals enrolled only in an MSP and
receiving coverage of only Medicare premiums and sometimes cost
sharing) Medicaid beneficiaries who have Medicare entitlement based on
ESRD status and lose full Medicare coverage 36 months after the month
in which they received a kidney transplant, this loss of full Medicare
coverage would constitute a change in circumstance under Sec.
435.916(d) even if they might obtain coverage under Medicare through
enrollment in the Part B-ID benefit. Under Sec. 435.916(d)(1), state
Medicaid agencies are required to promptly redetermine an individual's
eligibility for Medicaid whenever it receives information about a
change in a beneficiary's circumstances that may affect their
eligibility. We are providing an overview of how the Medicaid
redetermination process will operate under the existing Medicaid
regulations for both full- and partial-benefit Medicaid beneficiaries
who have Medicare entitlement based on ESRD status and lose full
Medicare coverage. However, for clarity, we want to highlight up front
that individuals who remain or become full-benefit Medicaid
beneficiaries after this redetermination process will not be eligible
for the Part B-ID benefit, as explained in this section.
During this redetermination process, under Sec. Sec. 435.916(b)
and 435.911, individuals who are already eligible for a full-benefit
Medicaid eligibility group, such as those receiving Supplemental
Security Income (SSI) \14\ would still retain their Medicaid
eligibility as long as there are no other disqualifying changes to
income or disability status. This is true of the redetermination
process for all individuals who are eligible for more than one
eligibility group in Medicaid. If the change in circumstance only ends
the individual's eligibility for one eligibility group but not the
other, the individual remains eligible for the eligibility group for
which they still qualify. Even if the individual was not eligible
previously for a full-benefit Medicaid eligibility group, if the
individual nonetheless qualifies for a full-benefit Medicaid
eligibility group (for example, the adult group) after the
redetermination, the state must enroll the individual in that group per
Sec. Sec. 435.916(f) and 435.911.
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\14\ In most states, receipt of SSI automatically qualifies an
individual for Medicaid. See Sec. 435.120.
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We anticipate that individuals who are eligible for a full-benefit
Medicaid eligibility group would not be eligible for the Part B-ID
benefit, because all states currently opt to cover immunosuppressive
drug coverage for all full-benefit Medicaid eligibility groups and by
virtue of having such drug coverage under Medicaid they would be
ineligible according to section 1836(b)(2)(A)(iii) of the Act.
On the other hand, if the individual is not eligible for Medicaid
on any basis, the state is required to screen the individual for
potential eligibility for other insurance affordability programs as
defined in Sec. 435.4 in accordance with Sec. 435.1200(e), as
required under Sec. 435.916(f). This would include referring the
individual to an Exchange
[[Page 25108]]
to determine whether the individual is eligible for enrollment in a
Qualified Health Plan with Advance Premium Tax Credit (APTC), cost
sharing reductions (CSRs) or both as described in Sec. 435.4. We also
encourage states to inform the beneficiary of the Part B-ID benefit and
coordinate with SSA, State Health Insurance Assistance Programs
(SHIPs), and beneficiary groups, among others, to help individuals
complete the telephonic Part B-ID benefit attestation, and provide
other personalized assistance if the individual does not qualify for
full-benefit Medicaid or the Exchange with either APTC or CSRs. We note
that if the individual enrolls in an Exchange plan, it will make them
ineligible for the Part B-ID benefit as set out in Sec. 407.55(b). If
the individual has already enrolled in the Part B-ID benefit prior to
enrollment in the Exchange, they will need to notify SSA of this health
care coverage in the Exchange consistent with Sec. 407.59(b).
If the individual does not ultimately enroll in the Part B-ID
benefit, the state would terminate MSP enrollment because individuals
must have Part A entitlement or be enrolled in the Part B-ID benefit to
be eligible for the MSPs under sections 1905(p)(1)(A) and
1902(a)(10)(E)(iii) and (iv) of the Act. Prior to termination, states
must provide affected beneficiaries with advance notice and an
opportunity for a fair hearing in accordance with Sec. 435.917 and
part 431, subpart E.
If, as a result of the redetermination process that must be
completed prior to termination under Sec. 435.916(f), the state
identifies that the individual has completed the required attestation
and would be enrolled in the Part B-ID benefit the month after Medicare
entitlement based on ESRD ends (the end of the 36th month after the
month in which the individual received a kidney transplant), the state
must maintain the individual in the appropriate MSP eligibility group
for payment of Part B-ID benefit premiums and, if eligible, cost-
sharing, provided there are no other disqualifying changes in the
income and resources of the individual under section Sec. 435.911.
As noted previously, the changes to section 402(f) of the CAA
expand the definition of QMB, SLMB, and QI to allow individuals to
qualify for those MSPs based on their enrollment in the Part B-ID
benefit and meeting the income and resource standards of MSPs. As such,
as part of considering all bases of eligibility in the redetermination
process under Sec. 435.916(f)(1), states must consider the revised
eligibility criteria in section 402(f) of the CAA and enroll
individuals in MSP Part B-ID benefit who are enrolled in the Part B-ID
benefit and meet the income and resource criteria for MSPs.
If an individual was enrolled in an MSP while entitled to Medicare
on the basis of ESRD, their continued enrollment in MSPs for the Part
B-ID benefit will ultimately depend on how quickly the state completes
its redetermination, whether the individual has full Medicaid benefits
(and whether the State plan would cover immunosuppressive drugs for the
individual), and whether the individual enrolls in the Part B-ID
benefit. If the state does not complete the redetermination process
prior to the end of the 36th month after the month in which the
individual received a kidney transplant, when an individual's Medicare
entitlement based on ESRD status ends under section 226A(b)(2) of the
Act, and the individual had full Medicaid plus an MSP prior to the
point at which their Medicare entitlement ends according to section
226A(b)(2) of the Act, the individual would retain full Medicaid until
the redetermination is complete per Sec. 435.930(b), but would lose
MSP coverage when Medicare entitlement based on ESRD Medicare coverage
expires. While states are required to continue furnishing Medicaid
until the state determines an individual ineligible for Medicaid under
Sec. 435.930(b), the only medical assistance provided for MSPs is
payment of Medicare premiums and sometimes cost-sharing. As such, when
Medicare entitlement ends, states stop providing MSP coverage because
the individual no longer has a Medicare benefit for which they owe
premiums, deductibles, coinsurance and copayments. Beneficiaries losing
MSP coverage under these conditions may remain eligible for Medicaid on
another basis, and states must furnish the Medicaid coverage for which
they are eligible until they are found to be ineligible under Sec.
435.930(b).
If the state does not complete the redetermination process by the
end of the 36th month after the month in which the individual received
a kidney transplant, when Medicare entitlement based on ESRD status
would end, and the individual is enrolled only in an MSP and does
complete the Part B-ID benefit attestation prior to losing Medicare
based on ESRD status, then, under Sec. 435.930(b), the individual
would maintain enrollment in their current MSP until the
redetermination is complete, and the MSP would cover the appropriate
costs for the Part B-ID benefit. In this scenario, once CMS receives
enrollment confirmation of the individual in the Part B-ID benefit from
SSA, CMS systems will automatically switch the individual from state
buy-in for Part B to the Part B-ID benefit buy-in and alert the state
of the individual's new enrollment and billing status. The reason for
the difference in the outcome when the individual returns the
attestation is that under Sec. 435.930(b), the state must continue
furnishing MSP because there would be a Medicare benefit to wrap around
through coverage of premiums, deductibles, coinsurance and copayments.
If the state does not complete the redetermination process by the
end of the 36th month after the month in which the individual received
a kidney transplant, when Medicare entitlement based on ESRD status
would end, and the individual is enrolled only in an MSP and does not
complete the Part B-ID benefit attestation prior to losing Medicare
entitlement based on ESRD status, then the individual would not be
entitled to coverage of immunosuppressive drugs therapy under section
1836(b)(2)(B) of the Act or state payment of the premiums for the Part
B-ID benefit because enrollment in the Part B-ID benefit is a pre-
requisite to state payment of premiums under section 402(f) of the CAA.
After a kidney transplant, individuals must diligently take
immunosuppressive drug therapy in order to avoid the rejection of the
kidney.\15\ In order to prevent gaps in coverage of such medication
when individuals transition off Medicare entitlement based on ESRD
status, for partial-benefit Medicaid beneficiaries (beneficiaries
enrolled in an MSP and not full-benefit Medicaid), states will need to
complete redeterminations regarding Medicaid eligibility under Sec.
435.916(d) before individuals' Medicare eligibility based on ESRD
status ends. While we note that these individuals could continue
coverage under the MSP Part B-ID benefit if they complete the
attestation, many of these individuals will be eligible for full-
benefit Medicaid under the adult group described at Sec. 435.119 in
all states that expanded Medicaid since the MSPs generally have an
income limit up to 135 percent of the FPL and the adult group has an
income limit up to 138 percent of the FPL. Enrolling individuals in
adult group coverage at the outset instead of enrolling them
retroactively is vastly preferable--both to provide immediate coverage
of their health coverage needs and to reduce administrative burden.
Additionally, if these individuals are ultimately
[[Page 25109]]
enrolled retroactively in full-benefit Medicaid after enrolling in the
Part B-ID benefit--and these Medicaid benefits continue to include
coverage of immunosuppressive drugs for the individual, the individuals
will need to inform SSA that they have other insurance coverage in
order for SSA to terminate them from the Part B-ID benefit in
accordance with Sec. 407.62. These individuals will also need to ask
their providers to submit all of their bills to Medicaid for payment
beginning from the date Medicare entitlement based on ESRD status ended
until the date of the new notice of determination of full Medicaid. For
any immunosuppressive drugs received during that time, the individuals
would need to ask their pharmacy to bill Medicaid for any Medicare
copays paid by the individual because Medicaid would pay secondary to
Medicare. As such, we are strongly recommending that states start an
early advance redetermination process for those partial-benefit
beneficiaries whose Medicare entitlement is based on ESRD status and
who receive kidney transplants. As noted previously, during this
redetermination process, we encourage states to reach out to
individuals who are likely eligible for the MSP Part B-ID benefit to
explain the Part B-ID benefit and if necessary, coordinate with SSA,
SHIPs and beneficiary advocates to help them submit the attestation to
enroll in the Part B-ID benefit, which will assist the state in
enrolling them in the appropriate MSP. We are also exploring steps to
conduct outreach and education for beneficiaries and multiple external
partners, including those who regularly assist beneficiaries with
health insurance counseling, regarding the most appropriate coverage
options for MSP beneficiaries transitioning off Medicare entitlement
based on ESRD. Additionally, CMS will be engaged and able to assist
beneficiaries in assessing their health care options and enrolling in
the Part B-ID benefit as needed. We welcome comments regarding steps
CMS can take to assist beneficiaries and promote awareness of coverage
choices upon loss of the ESRD Medicare benefit with the goal of
minimizing gaps in coverage and ensuring enrollment in the most
comprehensive benefit available to them.
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\15\ <a href="https://www.medicare.gov/Pubs/pdf/10128-medicare-coverage-esrd.pdf">https://www.medicare.gov/Pubs/pdf/10128-medicare-coverage-esrd.pdf</a>.
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Both the early redetermination process and the outreach effort to
beneficiaries will help reduce the risk of gaps in coverage for
immunosuppressive drugs for this vulnerable beneficiary population.
We anticipate this early redetermination process and outreach
effort will improve the customer service experience of kidney
transplant recipients, consistent with the Executive Order on
Transforming Federal Customer Experience and Service Delivery to
Rebuild Trust in Government. We also believe it will have a positive
health equity impact consistent with the Executive Order on Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government. Finally, by helping to avoid gaps in Medicaid and
Marketplace coverage, it is consistent with the Executive Order on
Strengthening Medicaid and the Affordable Care Act. In general,
individuals with ESRD are more likely to be from racial or ethnic
minority groups.\16\ Additionally, individuals who are younger, poorer
and less educated have more difficulty affording transplant medication,
which has led to lower rates of graft survival among those
populations.\17\ Making immunosuppressive drugs more affordable to
individuals through MSPs would improve lower income individuals' access
to immunosuppressive drugs critical to prevent transplant failure.
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\16\ See <a href="https://www.niddk.nih.gov/health-information/health-statistics/kidney-disease">https://www.niddk.nih.gov/health-information/health-statistics/kidney-disease</a> discussing that ESRD prevalence is about
3.7 times greater in African Americans, 1.4 times greater in Native
Americans, and 1.5 times greater in Asian Americans.
\17\ Gordon, Elisa J., Prohaska, Thomas R., and Sehgal, Ashwin
R. The Financial Impact of Immunosuppressant Expenses on New Kidney
Transplant Recipients Clin Transplant 2008: 22, 736. Available at
<a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2592494/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2592494/</a>.
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As discussed previously, if an individual who had MSP coverage
while entitled to Medicare based on ESRD status fails to enroll in the
Part B-ID benefit after losing Medicare entitlement based on ESRD
status, by the end of the 36th month after the month in which the
individual received a kidney transplant the individual would also lose
access to the MSPs after the state provides appropriate notice and fair
hearing rights. However, an individual may re-apply for the MSPs if
they later enroll in the Part B-ID benefit under section 402(f) of the
CAA. Moreover, if an individual did not previously enroll in an MSP
while entitled to Medicare based on ESRD status, once they enroll in
the Part B-ID benefit they may apply for and enroll in an MSP provided
they meet the applicable eligibility criteria.
We note that states will be required to enroll individuals in an
MSP if they are enrolled in the Part B-ID benefit, apply for an MSP,
and meet the income and resource requirements of an MSP. As explained
previously, section 402(f) of the CAA modified the eligibility
requirements for QMB, SLMB, and QI at 1905(p)(1) and
1902(a)(10)(E)(iii) and (iv) of the Act to make those MSPs available to
individuals enrolled in the Part B-ID benefit. Thus, states must make
an MSP eligibility determination for individuals who enroll in the Part
B-ID benefit and apply for an MSP. If a state determines that
individuals enrolled in the Part B-ID benefit meet the income and
resource requirements for an MSP, the state must enroll those
individuals in an MSP to pay for Part B-ID benefit premiums and cost-
sharing, as applicable.
Finally, we note that individuals enrolled in the Part B-ID benefit
and an MSP would lose coverage under both programs in any of four
conditions described in Sec. Sec. 407.62(a),(b),(d), and (e).
Specifically, an individual's enrollment in both the MSPs and the Part
B-ID benefit would end in accordance with Sec. 407.62 if the
individual (1) enrolls in other health insurance that makes them
ineligible for the Part B-ID benefit as described in Sec. 407.55(b);
(2) becomes eligible for Medicare Part A on the basis of age,
disability or ESRD status; (3) voluntarily terminates coverage; or (4)
dies. In order to be eligible for MSPs, individuals must be entitled
either to Part A under section 1905(p)(1)(A) and 1902(a)(E)(10) or the
Part B-ID benefit as described in section 402(f) of the CAA. When
individuals lose their entitlement to Medicare, they are terminated
from MSPs after notice and fair hearing rights have been provided in
accordance with Sec. 435.917 and part 431, subpart E. As such, when
individuals who are enrolled in an MSP for payment of Part B-ID benefit
lose their underlying basis for enrollment in the Part B-ID benefit,
they would no longer qualify for an MSP under section 402(f) of the
CAA. In the first instance, if the individual is enrolled in an MSP
based on his or her enrollment in the Part B-ID benefit, and they
obtain other coverage that would make the individual ineligible for the
Part B-ID benefit under section 1836(b)(2) of the Act, they would also
no longer qualify for the MSP. In the second condition, if the
individual is enrolled in an MSP based on his or her enrollment in the
Part B-ID benefit, and they become entitled to Medicare based on age,
disability or ESRD status, the Part B-ID benefit ends under section
1838(h)(4) of the Act; they would no longer be eligible for the MSP
Part B-ID benefit. However, assuming there were no other disqualifying
conditions, the individual would continue to be eligible for an
[[Page 25110]]
MSP, which would then pay the Medicare Part B premiums and, if
applicable, Part A premiums and cost-sharing on behalf of the
individual, rather than the Part B-ID benefit premium. In the third
condition, if the individual is enrolled in an MSP based on enrollment
in the Part B-ID benefit and the individual voluntarily disenrolls from
the Part B-ID benefit in accordance with section 1838(b)(1) of the Act,
the individual would also become ineligible for the MSP Part B-ID
benefit. Finally, if the individual is enrolled in an MSP based on his
or her enrollment in the Part B-ID benefit and the individual dies, he
or she is ineligible for the Part B-ID benefit under Sec. 407.27(a),
and would no longer be eligible for an MSP.
4. Part B-ID Benefit Premiums
The Secretary of the Department of Health and Human Services (HHS)
is required by section 1839 of the Act to announce the Part B monthly
actuarial rates for aged and disabled beneficiaries. These amounts,
according to actuarial estimates, will equal, respectively, one half of
the expected average monthly cost of Part B for each aged enrollee (age
65 or over) and one half of the expected average monthly cost of Part B
for each disabled enrollee (under age 65). The standard monthly Part B
premium represents roughly 25 percent of estimated program costs for
aged enrollees and is calculated to be 50 percent of this aged
actuarial rate, plus the $3.00 repayment amount required under current
law. (Although the costs to the program per disabled enrollee are
different than for the aged, the statute provides that the two groups
pay the same premium amount.) Premiums may be further adjusted based on
an individual's conditions, such as based on late enrollment or
reenrollment (Sec. 408.22), the income-related monthly adjustment
amount (Sec. 408.28), or for beneficiaries subject to non-standard
premiums (Sec. 408.20).
We are proposing to create a new paragraph Sec. 408.20(f) to
implement the requirements established under section 1839(j) of the Act
and propose to modify other existing requirements for Part B premiums
found in 42 CFR part 408 as required by statute for the Part B-ID
benefit. We are proposing in Sec. 408.20(f)(1), that beginning in
2022, as required by new section 1839(j) of the Act, the Secretary
would determine and promulgate a monthly premium rate in September of
each year for the succeeding calendar year for individuals enrolled
only in the Part B-ID benefit. Such premium would be equal to 15
percent of an actuarial rate that represents 100 percent of the
estimated average monthly cost of Part B for each aged enrollee (age 65
or over). This amount is then rounded to the nearest $0.10.
The standard 20 percent coinsurance and annual Part B deductible
would apply to the Part B-ID benefit. As required under new section
1839(j) of the Act and other conforming changes of the Act, we are
proposing in Sec. 408.20(f)(2)(i) that the Part B-ID benefit premium
would be subject to adjustments specified in Sec. Sec. 408.20(e)
(Nonstandard premiums for certain cases), 408.27 (Rounding the monthly
premium), and 408.28 (Increased premiums due to the income-related
monthly adjustment amount (IRMAA)). In addition, under section 1839(j)
of the Act, the Part B-ID benefit premiums are also not subject to the
LEP. Accordingly, we are proposing to provide in section Sec.
408.20(f)(2)(ii) that premiums for the Part B-ID benefit would not be
subject to increased premiums for late enrollment or reenrollment under
Sec. 408.22.
Section 1840 of the Act requires that for individuals receiving
monthly railroad retirement or Social Security benefits or a civil
service annuity, payment for Part B premiums for those individuals must
generally be deducted from those payments. In light of these
requirements, we are proposing in Sec. 408.20(f)(3) that the
collection of premiums for the Part B-ID benefit would follow the
existing requirements governing the collection of Part B premiums set
out in Sec. 408.6 and part 408, subpart C of title 42. Under those
provisions, if a beneficiary is receiving a monthly Social Security or
Railroad retirement benefit, or civil service annuity, their Part B
premium must typically be deducted from that monthly benefit. In
conditions where an individual does not receive benefits of the sort
described previously, premiums must be paid by direct remittance; in
such cases CMS bills the beneficiary directly.
5. Conforming Changes
Certain individuals are entitled to hospital insurance coverage
under Medicare Part A on the basis of ESRD, as provided under section
226A of the Act. Section 406.13(f)(2) currently specifies that the
period of entitlement to Medicare Part A for individuals whose Medicare
entitlement is based on ESRD ends with the end of the 36th month after
the month in which the individual has received a kidney transplant. We
are proposing to revise Sec. 406.13(f)(2) to provide that beginning
January 1, 2023, individuals no longer entitled to Part A benefits due
to their coverage ending at the end of the 36th month after the month
in which the individual received a kidney transplant, may be eligible
to enroll in Part B solely for purposes of coverage of
immunosuppressive drugs as described in Sec. 407.55.
Medicare Part B covers health services including prescription drugs
used in immunosuppressive therapy furnished to an individual who
receives an organ transplant for which Medicare payment is made.
Section 410.30(b) currently lays out the requirements governing
eligibility for coverage of prescription drugs used in
immunosuppressive therapy, stating that coverage is only available for
prescription drugs used in immunosuppressive therapy, furnished to an
individual who received an organ or tissue transplant for which
Medicare payment is made, and provided the individual is eligible to
receive Medicare Part B benefits. Chapter 15 of the Medicare Benefit
Policy Manual, section 50.5.1,\18\ lists some of the Food and Drug
Administration (FDA)-approved, specifically labeled immunosuppressive
drugs. They are: Sandimmune (cyclosporine), Imuran (azathioprine),
Atgam (antithymocyte globulin), Orthoclone OKT3 (Muromonab-CD3),
Prograf (tacrolimus), Celicept (mycophenolate mefetil, Daclizumab
(Zenapax); Cyclophosphamide (Cytoxan); Prednisone; and Prednosolone.
However, this is not intended to be an all-inclusive list and is
subject to change. The manual guidance states that CMS ``expects
contractors to keep informed of FDA additions to the list of the
immunosuppressive drugs.'' This expectation would carry over to the
Part B-ID benefit. Medicare Administrative Contractors have issued
Local Coverage Determinations on this topic and, generally speaking
(using Local Coverage Determination #L33824 as an example \19\),
covered immunosuppressive drugs are oral tablets or capsules. However,
certain immunosuppressive drugs may be intravenously infused or
intramuscularly injected. The majority of the immunosuppressive drugs
have generic equivalents; however, certain newer agents remain
available as brand only.
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\18\ <a href="https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c15.pdf">https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c15.pdf</a>.
\19\ <a href="https://www.cms.gov/medicare-coverage-database/search.aspx">https://www.cms.gov/medicare-coverage-database/search.aspx</a>.
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A beneficiary will typically gain access to the drug through a
pharmacy, where applicable supplying fees to
[[Page 25111]]
pharmacies (as described in section 1842(o)(6) of the Act) are paid.
However, where the conditions require an infused or injectable
immunosuppressive therapy, these would be administered in the physician
office or outpatient setting. In this case of Part B-ID, only the cost
of the drug would be covered (not the service of administration).
Immunosuppressive therapies covered under Part B are paid based on
pricing methodology in 1847A of the SSA (typically, this is an ASP-
based payment limit). Payment limits for many immunosuppressive
therapies can be found on the ASP Drug Pricing File,\20\ which is
updated quarterly. Cost sharing is typically 20 percent.
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\20\ <a href="https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Part-B-Drugs/McrPartBDrugAvgSalesPrice">https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Part-B-Drugs/McrPartBDrugAvgSalesPrice</a>.
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We are proposing to revise Sec. 410.30(b) to specify that
beginning January 1, 2023, individuals who meet the requirements as
specified in section Sec. 407.55 are eligible to receive Medicare Part
B benefits for purposes of Sec. 410.30(b).
An individual is eligible for enrollment into a Part D plan if
certain conditions are met, as set out in section 1860D-1(a) of the
Act. Section 423.30(a)(1)(i) of the regulations establishes that an
individual is eligible for Part D if they have Medicare benefits under
Part A or are enrolled in Medicare Part B. Section 423.30(a)(1)(i)
would be revised to specify that an individual is eligible for Part D
if they are entitled to Medicare benefits under Part A or enrolled in
Part B, but does not include an individual enrolled solely in Part B
for coverage of immunosuppressive drugs under Sec. 407.1(a)(6).
Section 402 of the CAA states that the Secretary may conduct public
education activities to raise awareness of the availability of more
comprehensive, individual health insurance coverage (as defined in
section 2791 of the Public Health Service Act) for individuals eligible
under section 1836(b) of the Act to enroll or to be deemed enrolled in
the medical insurance program established under this part for purposes
of coverage of immunosuppressive drugs.
As a part of implementation, CMS will conduct education and
outreach across the broad span of partners (that is, beneficiary
advocacy groups, providers, associations, etc.) to ensure awareness and
understanding of this benefit. Also, we note that all appropriate
beneficiary notices, such as the Medicare based on ESRD pre-termination
notice, (discussed in this proposed rule), the notice that will be
provided to individuals who were previously terminated from Medicare
based on ESRD to inform of the Part B-ID benefit, as well as the annual
notice to individuals that have the Part B-ID benefit, will include
information on the availability of, and contact information for, other
comprehensive coverage that an individual may want to explore, such as
Marketplace or Medicaid coverage. Additionally, as discussed in section
II.B.3, we are encouraging states to provide education and assistance
to individuals as part of the Medicaid redetermination process. We are
also exploring steps to conduct outreach and education for
beneficiaries and multiple external partners, including those who
regularly assist beneficiaries with health insurance counseling,
regarding the most appropriate coverage options for MSP beneficiaries
transitioning off Medicare entitlement based on ESRD.
We welcome comments on our proposals implementing the Part B-ID
benefit for eligible individuals.
C. Proposal on Simplifying Regulations Related to Medicare Enrollment
Forms (Sec. 406.7 and 407.11)
We propose to revise Sec. Sec. 406.7 and 407.11 to remove
references to specific forms that are used to enroll in Medicare Part A
and Part B, respectively. This is an administrative change that would
simplify existing regulations and would have no impact on current
eligibility requirements or enrollment processes or the use or
availability of these forms. We propose to continue to update our
forms, including form numbers, and the conditions in which each form is
used, through subregulatory guidance because these are procedural, and
not substantive rules.
Identifying each form in regulation as we have historically done
means that rulemaking is required to change the description of those
forms or the numbers of the forms, which in turn makes it challenging
for CMS and SSA to update forms or to adopt new forms or new
applications of existing forms as necessary. For example, the CMS-18-F-
5 is currently described in Sec. Sec. 406.7 and 407.11 as an
application for Part A and Part B for individuals who are not eligible
for benefits through Social Security or under the Railroad Retirement
Act. CMS and SSA decided that the form should be used for all Part A
enrollments irrespective of individual enrollee's eligibility for
retirement benefits. OMB approved the use of the form under this new
scope. However, in order to carry out this change, it would be
necessary to revise our regulations at Sec. Sec. 406.7 and 407.11 to
reflect the revised uses of the form. Similarly, listing the forms in
regulation also means that rulemaking is necessary to update our
regulations when forms are removed from use. Currently Sec. 407.11
lists the forms 40-D and 40-F, which are obsolete.
We are proposing to change our regulations in Sec. Sec. 406.7 and
407.11 to remove all references to specific enrollment forms that are
used to apply for entitlement under Medicare Part A and enrollment
under Medicare Part B. Specifically, we are revising Sec. 406.7 to
provide that forms used to apply for Medicare entitlement are available
free of charge by mail from CMS or at any Social Security branch or
district office or online at the CMS and SSA websites. We are also
proposing to make technical edits to the text to state that an
individual who files an application for monthly Social Security cash
benefits as defined in Sec. 400.200 to apply also applies for Medicare
entitlement if he or she is eligible for hospital insurance at that
time. Similarly, we are revising Sec. 407.11 to provide that forms
used to apply for enrollment under the supplementary medical insurance
program are available free of charge by mail from CMS, or at any Social
Security branch or district office and online at the CMS and SSA
websites. These changes would allow both agencies to quickly adapt to
the needs of beneficiaries by adding, removing, or updating forms as
necessary. We believe that the form numbers and descriptions would be
disseminated most appropriately through sub-regulatory guidance.
We are also proposing a technical change in the last paragraph of
Sec. 406.7 to refer to ``monthly Social Security benefits'' instead of
``monthly social benefits.''
D. Modernizing State Payment of Medicare Premiums (Sec. Sec. 400.200,
406.21, 406.26, 407.40 Through 407.48, 431.625, 435.4, 435.123 Through
126)
CMS seeks to modernize the Medicare Savings Programs through which
states cover Medicare premiums and cost-sharing. As part of these
efforts, we are proposing to update the various federal regulations
that affect a state's payment of Medicare Part A and B premiums for
beneficiaries enrolled in the Medicare Savings Programs and other
Medicaid eligibility groups. Specifically, CMS is proposing updates at
(1) Sec. 406.21, which was last revised in 1996; (2) Sec. Sec.
406.26, and 407.40 through 48, which were last revised in 1991; \21\
(3) Sec. 431.625, which
[[Page 25112]]
was last revised in 1988; and (4) Sec. 400.200, which was last revised
in 1983. We also propose to add new Sec. Sec. 435.123 through 435.126
and to revise Sec. 435.4 to codify in CMS Medicaid regulations the
Medicare Savings Programs under section 1902(a)(10)(E) of the Act.
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\21\ We note that CMS made a minor technical update to Sec.
407.42 to remove the reference to the obsolete regulatory provision,
Sec. 435.114 (Individuals Who Would Be Eligible for AFDC Except for
Increased OASDI in the Income Under Pub. L. 92-336) in the November
30, 2016 Federal Register (81 FR 86382), entitled ``Medicaid and
Children's Health Insurance Programs: Eligibility Notices, Fair
Hearing and Appeal Processes for Medicaid and Other Provisions
Related to Eligibility and Enrollment for Medicaid and CHIP,''
(hereinafter referred to as the November 2016 final rule).
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Our proposed rulemaking includes policy proposals to modernize the
state buy-in program and technical updates to reflect statutory changes
over the last three-plus decades. We also propose to codify in the
regulations certain administrative practices that have evolved over the
years and seek comment on alternative policies we considered that might
be adopted in a final rule based on comments received. The provisions
described in this section of the rule would clarify minimum
requirements for the state payment of Medicare premiums and options for
states to streamline eligibility and enrollment in the Medicare Savings
Programs and other Medicaid eligibility groups. We believe that our
proposals would improve the customer service experience of dually
eligible beneficiaries under Executive Order on Transforming Federal
Customer Experience and Service Delivery to Rebuild Trust in
Government. We anticipate our proposals will also advance health equity
by improving low income individuals' access to continuous, affordable
health coverage and use of needed health care consistent with Executive
Order on Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government.
1. State Plan Amendment as Agreement Between State and CMS (Sec.
407.40)
Section 1843 of the Act provides for ``agreements'' between a state
Medicaid agency and the Secretary to facilitate the payment of Part B
premiums for Medicare-eligible Medicaid beneficiaries (``buy-in
agreements''). All states currently have elected to enter into such
agreements, and process Part B premium payments as provided under
section 1843 of the Act. Under section 1818(g) of the Act, starting
January 1, 1990, states could expand their buy-in agreements to enroll
Qualified Medicare Beneficiaries (QMBs) in Premium Part A, with the
state paying the Part A premiums on their behalf. As of the date of
this proposed rule, 36 states and the District of Columbia include the
payment of Part A premiums for QMBs in their buy-in agreement (``Part A
buy-in states''), but 14 states use the group payer arrangement to pay
Part A on behalf of QMBs under Sec. 406.32(g) (``group payer
states'').\22\
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\22\ The group payer arrangement allows certain parties (for
example, states) to pay Part A premiums for a class of
beneficiaries. See Program Operations Manual System (POMS) HI
01001.230 Group Collection-General at <a href="http://policynet.ba.ssa.gov/poms.nsf/lnx/0601001230">http://policynet.ba.ssa.gov/poms.nsf/lnx/0601001230</a>.
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To execute agreements under section 1843 of the Act, the Secretary
and states initially signed free-standing, written agreements that
defined the then-scope of a state's buy-in agreement for Part B and
bind the states to follow federal regulations and guidance under
section 1843 of the Act. However, none of these original signed
agreements have been updated for decades, despite ensuing federal
statutory requirements and agreed-upon changes to state or federal buy-
in policy. In fact, there have been no amendments since 1992 to any of
the free-standing written agreements currently in place. None of the
freestanding written agreements were modified to include buy-in for
premium Part A under section 1818(g) of the Act. For example, as stated
in the preamble to final rule with comment period published in the
August 12, 1991 Federal Register (56 FR 38074), entitled ``Medicare and
Medicaid; Eligibility for Premium Hospital Insurance; State Buy-In
Agreements,'' (hereinafter referred to as the August 1991 final rule),
states were deemed by regulation to include Part B and premium Part A
coverage for QMBs in their buy-in agreement unless they opted out for
either or both Parts, even though the agreements themselves were not
amended to reflect this. Likewise, the existing free-standing
agreements do not expressly provide for Part B coverage for two other
Medicare Savings Program groups--the Specified Low-Income Beneficiary
(SLMB) and Qualifying Individual (QI) groups--although, as explained in
section II.D.5. of this proposed rule, CMS subregulatory guidance and
operational policy consider all agreements to incorporate these
eligibility groups. In lieu of amending the decades-old free-standing
written agreements, CMS and states have used Medicaid state plans and
state plan amendments (SPAs) to document current state buy-in election
choices and modifications. We believe that the vast majority of current
Medicaid state plans accurately reflect the buy-in coverage groups and
elections agreed upon by CMS and the states.\23\ However, there are
provisions in the free-standing buy-in agreements that are not
reflected in these state plan provisions, and these non-current
agreements have never officially been superseded. As such, for a
complete picture of the full obligations a state has agreed to under
section 1843 of the Act, it is necessary to review both the free-
standing agreement and deemed amendments to this agreement done through
the SPA process. This is not an efficient or effective way to reflect
the state's obligations under its buy-in agreement with CMS.
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\23\ States generally include this information at section 3.2 of
the state plan template, under ``Coordination of Medicaid with
Medicare and Other Insurance of their state Medicaid Plan.''
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Section 1902(a)(4) of the Act authorizes the Secretary to specify
``methods of administration'' states should adopt under their Medicaid
state plans that are ``found by the Secretary to be necessary for
proper and efficient administration'' of the state's Medicaid program.
We propose to use this authority to amend the definition of a state
buy-in agreement at Sec. 407.40(b) by specifying that state plan
provisions addressing what a state has agreed to under sections 1843
and 1818(g) constitute the state's buy-in agreement for purposes of
those sections, including the scope of a state's buy-in practice, and
that all aspects of a state's buy-in agreement with the Secretary,
including what is set forth in the original buy-in agreements that is
not currently in the state plan, should be set forth in the state's
Medicaid state plan. The state's submission of a SPA addressing what it
is agreeing to under sections 1843 and/or 1818(g), and CMS's approval,
would under our proposal constitute the ``agreement'' between the two
parties for purposes of sections 1843 and 1818(g). This proposal would
codify CMS' long-standing practice of effectuating changes in buy-in
policy through the Medicaid state plans, rather than through the free-
standing written agreements originally executed with each state, and
also consolidate all terms of the buy-in agreement authorized or
modified under sections 1843 and 1818(g) in one ``agreement'' between
the parties in the form of submission and approval of relevant SPAs.
If this proposal is finalized, the free-standing buy-in agreements
would be superseded by provisions related to buy-in practices within a
state Medicaid plan, and, to the extent that any states seek to update
their state plans, we would work with states to modify their state
plans as needed and reiterate that
[[Page 25113]]
they bind the state to follow Medicare regulations and guidance under
sections 1843 and 1818(g) of the Act.
We believe our proposal would help remove ambiguity about the
prevailing buy-in policies in each state and foresee no negative
impacts or substantive changes for coverage policies or buy-in
processes. We welcome comments on whether there are benefits to
maintaining the free-standing buy-in agreements or other unintended
effects of our proposal.
Because approved state plan provisions addressing what a state has
agreed to under sections 1843 or 1818(g) or both would constitute the
buy-in agreement referenced in those sections, and there are existing
mechanisms for: (1) A state to modify or terminate this buy-in
agreement through the State plan amendment process; and (2) CMS to
enforce under section 1904 of the Act compliance with the state plan
requirements that reflect a state's buy-in agreement, we are also
proposing to delete Sec. 407.45, which currently addresses a decision
by a state to terminate its buy-in agreement, and CMS termination of a
state's buy-in agreement for a state failure to comply with it.
2. Limiting State Liability for Retroactive Changes and Related Updates
(Sec. 407.47)
Under section 1843 of the Act, states must pay Part B premiums for
any individual starting the first month they are both a member of the
state buy-in coverage group specified in the buy-in agreement and
eligible for Part B.\24\ In some instances, SSA determines Medicaid
beneficiaries eligible for Medicare for a retroactive period. This
generally occurs when an individual under age 65 who files a claim for
disability benefits at SSA \25\ receives a favorable social security
disability insurance (SSDI) award multiple years after the initial
application, and SSA determines the individual eligible for SSDI
benefits at or up to 12 months prior to the point of application, even
though they were not able to receive SSDI payments timely because
eligibility had not yet been determined. Individuals entitled to SSDI
become entitled to premium-free Medicare Part A after 24 months of
entitlement to SSDI. As described in the examples that follow, on
occasion, an individual's favorable determination of SSDI is
retroactive more than 24 months, in which case the determination of
SSDI eligibility for a retroactive period for the individual means that
the individual's Part A entitlement is retroactive as well. The
individual is also retroactively eligible to enroll in Part B over this
period.\26\ However, SSA does not enroll the individual in Part B for
the past months unless the individual pays SSA a lump sum amount
reflecting the total costs of Part B premiums the individual would have
paid had they been enrolled in Part B during that time or the
individual is a member of the state buy-in coverage group as explained
in this section of this rule.
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\24\ For individuals enrolled in Medicaid eligibility groups
related to cash assistance and QMB, SLMB, and QI, Sec. 407.47(b)
and (c) specify that the buy-in coverage period begins the later of
the first month the individual is a member of a buy-in coverage
group (that is, the effective date of the individual's underlying
coverage) and eligibility for Part B, or the effective date of the
buy-in agreement or modification that includes the buy-in coverage
group to which the individual belongs. However, for individuals
enrolled in one of the other Medicaid eligibility groups, Sec.
407.47(c) specifies that the buy-in coverage period starts the later
of the second month the individual meets the requirements for both
eligibility in the buy-in coverage group and Medicare Part B, or the
effective date of the buy-in agreement or modification that includes
the buy-in coverage group to which the individual belongs.
\25\ When individuals file for disability benefits, SSA
determines eligibility for both SSDI and supplemental security
income (SSI). The same disability requirements apply to both
programs, but other requirements differ. As a result, some
individuals receive an SSI award while their SSDI claim or appeal is
pending.
\26\ Individuals who are entitled to premium-free Part A are
also eligible to enroll in Medicare Part B under Sec. 407.10(a)(1).
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Retroactive Medicare Part A entitlement for a Medicaid-eligible
individual can have multiple implications for state Medicaid agencies.
First, states may, under their buy-in agreement, be liable for Medicare
Part B premiums for the retroactive period. If a state learns that SSA
established retroactive Medicare Part A entitlement for a member of a
buy-in coverage group, the state must review the individual's
eligibility for Part B buy-in over the retroactive period. Under
section 1843(d)(2) of the Act and the current version of Sec.
407.47(a), states must pay Medicare Part B premiums for individuals
beginning with the start of the buy-in coverage period. The buy-in
coverage period begins with the first month a Medicaid beneficiary is
enrolled in Medicaid and qualifies for Medicare, with no limit on
retroactivity.\27\ Therefore, states are retroactively liable for
Medicare premiums back to the first month such individuals are
determined eligible for Medicare, even in instances involving lengthy
delays in Medicare determinations that result in effective dates far in
the past.
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\27\ For individuals enrolled in Medicaid eligibility groups
related to cash assistance and QMB, SLMB and QI, Sec. 407.47(b) and
(c) specify that the buy-in coverage period begins the later of the
first month the individual is a member of a buy-in coverage group
(that is, the effective date of the individual's underlying
coverage) and eligibility for Part B, or the effective date of the
buy-in agreement or modification that includes the buy-in coverage
group to which the individual belongs. However, for individuals
enrolled in one of the other Medicaid eligibility groups, Sec.
407.47(c) states that the buy-in coverage period starts the later of
the second month the individual meets the requirements for both
eligibility in the buy-in coverage group and Medicare Part B, or the
effective date of the buy-in agreement or modification that includes
the buy-in coverage group to which the individual belongs.
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The following two examples illustrate how retroactive Part A
Medicare entitlement for buy-in coverage group members currently
affects state liability for retroactive Part B premiums.
Example 1--Individual is receiving SSI and is enrolled in Medicaid
under Sec. 435.120 (``Individuals receiving SSI'') or meets the
eligibility requirements under Sec. 435.121 (``Individuals in states
using more restrictive requirements for Medicaid than the SSI
requirements'' \28\) and is retroactively entitled to Part A.
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\28\ States that have elected the authority provided under
section 1902(f) of the Act to apply financial eligibility
methodologies more restrictive than SSI's must provide Medicaid
eligibility to certain low-income individuals who seek Medicaid
eligibility on the basis of being 65 years of age or older or having
blindness or disability.
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<bullet> A 55-year-old individual applies for disability-related
benefits at SSA in January 2014. SSA determines that the individual is
eligible for SSI effective February 2014, and the individual is
enrolled in Medicaid and SSI in the same month. (As discussed further
in section II.D.5. of this preamble, all states include SSI-related
individuals in their buy-in coverage group.) As noted previously, SSA
will concurrently determine SSI and SSDI eligibility for an individual
who files a disability-related claim. While the disability evaluation
is the same for both programs, other programmatic differences result on
occasion in some individuals receiving favorable SSI determinations
while their SSDI claims are pending.\29\
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\29\ A notable difference in criteria between the two programs
is that individuals can seek SSDI payments for up to 12 months
before the date of application under Sec. 404.622 of chapter 20,
whereas individuals can obtain SSI payments no earlier than the
first month after they applied for benefits under Sec. 416.335 of
chapter 20.
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<bullet> In January 2019, SSA determines the individual to be
entitled to SSDI, dating back to January 2013 (one year prior to the
disability-related application). The individual's entitlement to
Medicare Part A is therefore effective in January 2015. The individual
would also be eligible to
[[Page 25114]]
enroll in Medicare Part B in the same month.
<bullet> Because the individual was enrolled in a Medicaid
eligibility group that was (and remains) included in the state's buy-in
agreement at the point at which the individual became eligible for Part
B, and the individual maintained enrollment in the eligibility group,
the state Medicaid agency is liable for the individual's Part B
premiums effective January 2015 (that is, 48 months of retroactive Part
B premium liability).
Example 2--Individual who is enrolled in Medicaid under Sec.
435.119 (``Coverage for individuals age 19 or older and under 65 at or
below 133 percent of the federal poverty level (FPL),'' or the ``adult
group'') is retroactively entitled to Part A.
<bullet> A 55-year-old individual applies for disability-related
benefits at SSA in January 2014. The individual simultaneously applies
for Medicaid. The state determines the individual eligible for the
adult group and enrolls him/her in it effective February 2014. The
individual's Medicaid eligibility group, the adult group, is included
in the state buy-in agreement. (As discussed further in section II.D.5.
of this preamble, some states include all Medicaid eligibility groups
in their state buy-in coverage group, which means that all eligibility
groups added to a state's plan, including ones the state adopted after
the state's buy-in election, are included in the buy-in coverage
group.)
<bullet> In January 2019, SSA determines that the individual is
entitled to SSDI, dating back to January 2013 (1 year prior to the
disability-related application). The individual's entitlement to
Medicare Part A is therefore effective in January 2015. The individual
would also be eligible to enroll in Medicare Part B in the same month.
<bullet> The state is liable for Part B premiums effective January
2015, the first month the individual is a member of buy-in coverage
group and eligible for Part B (that is, 48 months of retroactive Part B
premium liability).\30\
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\30\ Individuals eligible for Medicare are not eligible for
coverage under the adult group under Sec. 435.119. A state must
redetermine propsective eligibility for adult group beneficiaries
under Sec. 435.916(d) when they become eligible for Medicare.
However, an adult group individual who is retroactively entitled to
Part A would not in this example have his or her eligibility group
retroactively adjusted, and, assuming the state includes all
Medicaid eligibility groups in its buy-in agreement, the state would
have to enroll this individual in Part B.
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A second implication for states when Medicare enrollment is
established retroactively for Medicaid beneficiaries is that the state
must determine if it has already paid a Medicaid claim for the
individual, because Medicare is the primary payer for dually eligible
beneficiaries when services are covered by both programs. In this
situation, under section 1902(a)(25)(B) of the Act and Sec.
433.139(d), the state must seek to recoup Medicaid payments to
providers for any Medicare-covered services during the period of
retroactive Medicare coverage, unless the state determines it is not
cost-effective to do so. If Medicaid recoups funds paid to a provider,
the provider may bill Medicare, which may require the provider to
obtain an exception to Medicare's 1-year timely filing requirement as
described in CMS guidance published in Pub. 100-04, Medicare Claims
Processing Manual, Chapter 1, Section 70.7.3.\31\ However, the greater
the length of time from the date of service, the more labor-intensive
and administratively burdensome it is for the state to recoup Medicaid
payments from providers, for the provider to submit a claim to
Medicare, and for Medicare to process it.
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\31\ Available on the CMS website at <a href="https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/clm104c01.pdf">https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/clm104c01.pdf</a>.
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Retroactive Medicare determinations have also resulted from
operational and systems problems preventing the federal government from
issuing timely SSDI awards to SSI beneficiaries. Over the past 20
years, SSA has initiated efforts to retroactively enroll SSI recipients
in SSDI and Medicare (known as the Special Disability Workload (SDW))--
dating as far back as the 1970s--to remedy operational and systems
shortcomings that prevented SSA from originally screening individuals
entitled to SSI for disability insurance benefits. SSI beneficiaries
who qualify for Medicaid are buy-in coverage group members in all
states.\32\ Under section 1843(d)(2) of the Act, and the current
version of Sec. 407.47(g), states technically became liable for
retroactive Part B premiums for such beneficiaries going many years
back, starting the first month SSA retroactively established Part A
entitlement, with no limit on this retroactivity.\33\ In 2009, a
federal district court ruled that it was not reasonable to require
retroactive Part B premium payments by states for long past periods for
which the state could not get the benefit of the retroactively
determined Medicare eligibility that would be covered by these premium
payments and the state had already incurred the costs of coverage under
Medicaid (NY State v. Sebelius (N.D. NY, June 22, 2009)). In response
to this ruling, CMS implemented a policy under which it does not impose
an obligation on states to make retroactive Part B premium payments
when SSA operational and systems errors cause lengthy delays in SSDI
awards and Medicare eligibility determinations for full-benefit
Medicaid beneficiaries and the state cannot obtain the benefit of the
Medicare coverage associated with the Part B premium payments the state
would otherwise be obligated to make. In addition, CMS currently allows
states to request relief on a case-by-case basis from retroactive
premiums for periods involving lengthy delays in Medicare
determinations to the extent that such delays cover periods for which
the state asserts it is too late to benefit from Medicare coverage. CMS
considers the potential for beneficiary harm and the state's recoupment
policy (that is, time limits on state actions to recoup Medicaid
payments from providers) as factors in assessing these state requests.
We believe rulemaking is warranted to ensure that the regulations
reflect a clear and consistent policy, transparent to all states, on
how CMS is addressing the equitable concerns addressed in the
previously discussed court decision and subsequent CMS policy
implementing it.
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\32\ In most states, individ
[…truncated; see source link]Indexed from Federal Register on April 27, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.