On April 27, 2022, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule in the Federal Register titled “Medicare Program; Implementing Certain Provisions of the Consolidated Appropriations Act, 2021 and Other Revisions to Medicare Enrollment and Eligibility Rules”, 87 Fed Reg 25090 (April 27, 2022), available here. CMS also published a press release and separate fact sheet about the proposed rule on April 22, 2022.
The proposal would implement certain provisions of the Consolidated Appropriations Act of 2021 (CAA), including: 1) key provisions of the Beneficiary Enrollment Notification and Eligibility Simplification (BENES) Act which simplifies and accelerates Medicare enrollment by mandating that Part B insurance begin the first of the month following an individual’s enrollment during both the later months of the beneficiary’s Initial Enrollment Period (IEP) and during the General Enrollment Period (GEP); 2) establish new special enrollment periods (SEPs) for certain exceptional conditions; and 3) extend immunosuppressive drug coverage under Part B for certain ESRD beneficiaries. The rule also proposes several provisions relating to dual eligibles and would make technical changes to how enrollment forms are referenced in regulations.
As discussed in this CMA Alert (January 2021), the BENES Act provisions, effective January 2023, will help close some of the coverage gaps that people face surrounding enrollment in Part A and B of Medicare. Medicare rules currently allow for an array of special enrollment periods (SEPs) surrounding Part C (Medicare Advantage) and Part D plan enrollments. In this proposed rule, CMS uses its discretion to propose new Part A and B Special Enrollment Periods (SEPs) for certain exceptional conditions, including relating to:
- Individuals Impacted by an Emergency or Disaster that would allow CMS to provide relief to those beneficiaries who missed an enrollment opportunity because they were impacted by a disaster or other emergency as declared by a Federal, state, or local government entity.
- Health Plan or Employer Error that would provide relief in instances where an individual can demonstrate that their employer or health plan materially misrepresented information related to enrolling in Medicare timely.
- Formerly Incarcerated Individuals that would allow individuals to enroll following their release from correctional facilities.
- Coordinate with Termination of Medicaid Coverage that would allow individuals to enroll after termination of Medicaid eligibility.
- Other Exceptional Conditions that would, on a case-by-case basis, grant an enrollment period to an individual when circumstances beyond the individual’s control prevented them from enrolling during the IEP, GEP or other SEPs.
As noted in the CMS fact sheet discussing this proposed rule, “[t]hese proposals would expand Medicare enrollment opportunities and reduce multi-month coverage gaps in Medicare.” We couldn’t agree more, and we applaud CMS for proposing SEPs that would address many of the barriers to timely Medicare enrollment, including reliance on erroneous information from an employer or plan sponsor. In addition, the proposed SEP that would apply when someone loses Medicaid coverage would assist individuals who lose Medicaid eligibility following the end of the COVID-19 Public Health Emergency (PHE) and who did not enroll in Medicare in a timely manner.
The proposed rule includes several provisions relating to individuals dually eligible for Medicare and Medicaid, including proposals to: 1) extend the Medicare Savings Programs (MSPs) to cover premiums and cost sharing for individuals enrolling in the new Part B immunosuppressive drug benefit, 2) specify that state buy-in agreements reside entirely within the Medicaid state plan (which, among other things, would enhance accountability for state payment of Medicare premiums on behalf of low-income individuals) and 3) limit retroactive Medicare Part B premium liability for states to 36 months. The proposed regulations also make a number of technical updates that affect dually eligible beneficiaries, including proposals to: 1) clarify buy-in coverage groups in 50 states and the District of Columbia, 2) codify the requirement that states buy in for all eligible individuals, 3) clarify populations for whom states can obtain federal financial participation, and 4) codify MSP eligibility groups in Medicaid regulations.
Comments on the proposed rule are due June 27, 2022. The Center for Medicare Advocacy is currently reviewing the rule and plans to submit comments. We strongly encourage Medicare advocates and other stakeholders to submit comments in support of this proposed rule.
April 28, 2022 – D. Lipschutz