CMS Issues Final Rules That Address Significant Medicare Enrollment Pitfalls for Parts A and B

On November 3, 2022, CMS issued a final rule implementing 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. Establishing new special enrollment periods (SEPs) for certain exceptional conditions; and
3. Extending immunosuppressive drug coverage under Part B for certain ESRD beneficiaries. 

The final rule, titled “Medicare Program; Implementing Certain Provisions of the Consolidated Appropriations Act, 2021 and Other Revisions to Medicare Enrollment and Eligibility Rules” is available here.  87 Fed Reg 66454 (Nov. 3, 2022). CMS also issued an accompanying press release and fact sheet (both dated Oct. 28, 2022).

As discussed in this CMA Alert (Jan. 7, 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 a proposed rule issued earlier this year, CMS indicated that it planned to use its discretion to issue new Part A and B Special Enrollment Periods (SEPs) for exceptional conditions.

As the Center for Medicare Advocacy and others noted in comments to the proposed rule (see discussion in this CMA Alert (April 28, 2022)) we applauded CMS for exercising this authority, and for the importance of the identified triggering events for the SEPs that the agency proposed, but urged CMS to make changes to some of these proposals in order to make them more accessible (see the Center’s comments to the proposed rule here).  For example, in the proposed SEP for health plan or employer error, CMS proposed an evidentiary standard that would be difficult for affected individuals to meet.

We are pleased to report that CMS meaningfully responded to the concerns of advocates and others, and issued a final rule that make these SEPs far more workable and accessible.  We applaud CMS for doing so.  

New Part A and B Special Enrollment Periods (SEPs) – Effective January 2023

Note: The following language is adapted from the CMS fact sheet (linked above). CMS has finalized the following SEPs for individuals who meet certain exceptional conditions and who missed a Medicare enrollment period:

• An SEP for Individuals Impacted by an Emergency or Disaster that will 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. This SEP is modified in the final rule to extend the duration to six months after the end of the emergency declaration and to also allow for usage if the disaster or emergency takes place where the individual’s authorized representative, legal guardian, or person who makes health care decisions on their behalf resides.
• An SEP for Health Plan or Employer Error that will provide relief in instances where an individual can demonstrate that their employer or health plan materially misrepresented information related to enrolling in Medicare timely. The duration of this SEP has been extended to six months after the individual notifies SSA and it will allow for a written attestation from the beneficiary when documentation of misinformation from the employer or health plan is not available and will also include brokers and agents of health plans as sources of misinformation.
• An SEP for Formerly Incarcerated Individuals that will allow individuals to enroll following their release from correctional facilities. This SEP is modified in the final rule to extend the duration to 12 months post-release and allow individuals to choose between retroactive coverage back to their release date (not to exceed 6 months) or coverage beginning the month after the month of enrollment. An individual selecting retroactive coverage must pay the premiums for the retroactive covered time period.
• An SEP to Coordinate with Termination of Medicaid Coverage after January 1, 2023 that will allow individuals who have missed a Medicare enrollment period to enroll in Medicare after termination of Medicaid eligibility. This SEP is modified in the final rule to allow individuals to choose between retroactive coverage back to the date of termination from Medicaid (but no earlier than January 1, 2023) or coverage beginning the month after the month of enrollment. An individual selecting retroactive coverage must pay the premiums for the retroactive covered time period.
• An SEP for Other Exceptional Conditions that will, 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. This SEP is modified to provide for a minimum 6-month duration [to enroll].

As CMS notes in their fact sheet, “These changes will expand Medicare enrollment opportunities and reduce multi-month coverage gaps in Medicare.”

Additional Provisions of Final Rule

Extend Coverage of Immunosuppressives

The Consolidated Appropriations Act (CAA) extended immunosuppressive drug coverage under Part B for certain individuals whose Medicare entitlement based on End-Stage Renal Disease (ESRD) would otherwise end 36-months after the month in which they received a kidney transplant, provided they do not have certain other health coverage.  The benefit will only cover immunosuppressive drugs and will not include coverage for any other Part B benefits or services. CMS is referring to this benefit as the immunosuppressive drug benefit, or the Part B-ID benefit.  Eligible individuals can enroll in the new immunosuppressive drug benefit beginning in October 2022 and coverage starts as early as January 1, 2023.  The monthly premium in 2023 will be $97.10 for the Part B-ID benefit, which is lower than the standard Part B premium of $164.90 for 2023.  Note that individuals with higher incomes ($97,000 for an individual, $194,00 for couples filing joint tax returns) will pay a higher income-related premium (similar to Part B and D premiums) – see this CMS Fact Sheet (Sept. 7, 2022).

State Payment of Medicare Premiums

As noted in the CMS Fact Sheet, “CMS is finalizing updates to the various regulations that affect a state’s payment of the Medicare Part A and B premiums on behalf of 10 million low-income individuals (often known as “state buy-in”).  These changes will better align the regulations with federal statute, policy, and operations that have evolved over time.  By clarifying and streamlining existing requirements, these changes will promote access to affordable health coverage and essential medical treatment and improve health equity for underserved populations.”

Conclusion

We commend CMS for this final rule.  In particular, we appreciate that CMS used its authority to initially propose the new SEPs, and further commend the agency for responding to comments and improving the proposed rule so that Medicare beneficiaries are better served.