42 USC 1395w-21 - Eligibility, election, and enrollment

U.S Code last checked for updates: Apr 27, 2024

§ 1395w–21.

Eligibility, election, and enrollment

(a)

Choice of medicare benefits through Medicare+Choice plans

(1)

In general

Subject to the provisions of this section, each Medicare+Choice eligible individual (as defined in paragraph (3)) is entitled to elect to receive benefits (other than qualified prescription drug benefits) under this subchapter—

(A)

through the original medicare fee-for-service program under parts A and B, or

(B)

through enrollment in a Medicare+Choice plan under this part,

and may elect qualified prescription drug coverage in accordance with section 1395w–101 of this title.

(2)

Types of Medicare+Choice plans that may be available

A Medicare+Choice plan may be any of the following types of plans of health insurance:

(A)

Coordinated care plans (including regional plans)

(i)

In general

(ii)

Specialized MA plans for special needs individuals

(B)

Combination of MSA plan and contributions to Medicare+Choice MSA

(C)

Private fee-for-service plans

(3)

Medicare+Choice eligible individual

(b)

Special rules

(1)

Residence requirement

(A)

In general

(B)

Continuation of enrollment permitted

(C)

Continuation of enrollment permitted where service changed

Notwithstanding subparagraph (A) and in addition to subparagraph (B), if a Medicare+Choice organization eliminates from its service area a Medicare+Choice payment area that was previously within its service area, the organization may elect to offer individuals residing in all or portions of the affected area who would otherwise be ineligible to continue enrollment the option to continue enrollment in an MA local plan it offers so long as—

(i)

the enrollee agrees to receive the full range of basic benefits (excluding emergency and urgently needed care) exclusively at facilities designated by the organization within the plan service area; and

(ii)

there is no other Medicare+Choice plan offered in the area in which the enrollee resides at the time of the organization’s election.

(2)

Special rule for certain individuals covered under FEHBP or eligible for veterans or military health benefits

(A)

FEHBP

(B)

VA and DOD

(3)

Limitation on eligibility of qualified medicare beneficiaries and other medicaid beneficiaries to enroll in an MSA plan

(4)

Coverage under MSA plans

(A)

In general

(B)

Evaluation

(C)

Reports

(c)

Process for exercising choice

(1)

In general

(2)

Coordination through Medicare+Choice organizations

(A)

Enrollment

(B)

Disenrollment

(3)

Default

(A)

Initial election

(i)

In general

(ii)

Seamless continuation of coverage

(B)

Continuing periods

An individual who has made (or is deemed to have made) an election under this section is considered to have continued to make such election until such time as—

(i)

the individual changes the election under this section, or

(ii)

the Medicare+Choice plan with respect to which such election is in effect is discontinued or, subject to subsection (b)(1)(B), no longer serves the area in which the individual resides.

(4)

Deemed enrollment relating to converted reasonable cost reimbursement contracts

(A)

In general

On the first day of the annual, coordinated election period under subsection (e)(3) for plan years beginning on or after January 1, 2017, an MA eligible individual described in clause (i) or (ii) of subparagraph (B) is deemed, unless the individual elects otherwise, to have elected to receive benefits under this subchapter through an applicable MA plan (and shall be enrolled in such plan) beginning with such plan year, if—

(i)

the individual is enrolled in a reasonable cost reimbursement contract under section 1395mm(h) of this title in the previous plan year;

(ii)

such reasonable cost reimbursement contract was extended or renewed for the last reasonable cost reimbursement contract year of the contract (as described in subclause (I) of section 1395mm(h)(5)(C)(iv) of this title) pursuant to such section;

(iii)

the eligible organization that is offering such reasonable cost reimbursement contract provided the notice described in subclause (III) of such section that the contract was to be converted;

(iv)

the applicable MA plan—

(I)

is the plan that was converted from the reasonable cost reimbursement contract described in clause (iii);

(II)

is offered by the same entity (or an organization affiliated with such entity that has a common ownership interest of control) that entered into such contract; and

(III)

is offered in the service area where the individual resides;

(v)

in the case of reasonable cost reimbursement contracts that provide coverage under parts A and B (and, to the extent the Secretary determines it to be feasible, contracts that provide only part B coverage), the difference between the estimated individual costs (as determined applicable by the Secretary) for the applicable MA plan and such costs for the predecessor cost plan does not exceed a threshold established by the Secretary; and

(vi)

the applicable MA plan—

(I)

provides coverage for enrollees transitioning from the converted reasonable cost reimbursement contract to such plan to maintain current providers of services and suppliers and course of treatment at the time of enrollment for a period of at least 90 days after enrollment; and

(II)

during such period, pays such providers of services and suppliers for items and services furnished to the enrollee an amount that is not less than the amount of payment applicable for such items and services under the original Medicare fee-for-service program under parts A and B.

(B)

MA eligible individuals described

(i)

Without prescription drug coverage

(ii)

With prescription drug coverage

An MA eligible individual described in this clause, with respect to a plan year, is an MA eligible individual who is enrolled in a reasonable cost reimbursement contract under section 1395mm(h) of this title in the previous plan year and who, for such previous plan year, is enrolled in a prescription drug plan under part D—

(I)

through such contract; or

(II)

through a prescription drug plan, if the sponsor of such plan is the same entity (or an organization affiliated with such entity) that entered into such contract.

(C)

Applicable MA plan defined

In this paragraph, the term “applicable MA plan” means, in the case of an individual described in—

(i)

subparagraph (B)(i), an MA plan that is not an MA–PD plan; and

(ii)

subparagraph (B)(ii), an MA–PD plan.

(D)

Identification and notification of deemed individuals

(d)

Providing information to promote informed choice

(1)

In general

(2)

Provision of notice

(A)

Open season notification

At least 15 days before the beginning of each annual, coordinated election period (as defined in subsection (e)(3)(B)), the Secretary shall mail to each Medicare+Choice eligible individual residing in an area the following:

(i)

General information

(ii)

List of plans and comparison of plan options

(iii)

Additional information

The mailing of such information shall be coordinated, to the extent practicable, with the mailing of any annual notice under section 1395b–2 of this title.

(B)

Notifications required

(i)

Notification to newly eligible Medicare Advantage eligible individuals

(ii)

Notification related to certain deemed elections

The Secretary shall require a Medicare Advantage organization that is offering a Medicare Advantage plan that has been converted from a reasonable cost reimbursement contract pursuant to section 1395mm(h)(5)(C)(iv) of this title to mail, not later than 30 days prior to the first day of the annual, coordinated election period under subsection (e)(3) of a year, to any individual enrolled under such contract and identified by the Secretary under subsection (c)(4)(D) for such year—

(I)

a notification that such individual will, on such day, be deemed to have made an election with respect to such plan to receive benefits under this subchapter through an MA plan or MA–PD plan (and shall be enrolled in such plan) for the next plan year under subsection (c)(4)(A), but that the individual may make a different election during the annual, coordinated election period for such year;

(II)

the information described in subparagraph (A);

(III)

a description of the differences between such MA plan or MA–PD plan and the reasonable cost reimbursement contract in which the individual was most recently enrolled with respect to benefits covered under such plans, including cost-sharing, premiums, drug coverage, and provider networks;

(IV)

information about the special period for elections under subsection (e)(2)(F); and

(V)

other information the Secretary may specify.

(C)

Form

(D)

Periodic updating

(3)

General information

General information under this paragraph, with respect to coverage under this part during a year, shall include the following:

(A)

Benefits under original medicare fee-for-service program option

A general description of the benefits covered under the original medicare fee-for-service program under parts A and B, including—

(i)

covered items and services,

(ii)

beneficiary cost sharing, such as deductibles, coinsurance, and copayment amounts, and

(iii)

any beneficiary liability for balance billing.

(B)

Election procedures

(C)

Rights

(D)

Information on medigap and medicare select

(E)

Potential for contract termination

(F)

Catastrophic coverage and single deductible

(4)

Information comparing plan options

Information under this paragraph, with respect to a Medicare+Choice plan for a year, shall include the following:

(A)

Benefits

The benefits covered under the plan, including the following:

(i)

Covered items and services beyond those provided under the original medicare fee-for-service program.

(ii)

Any beneficiary cost sharing, including information on the single deductible (if applicable) under section 1395w–27a(b)(1) of this title.

(iii)

Any maximum limitations on out-of-pocket expenses.

(iv)

In the case of an MSA plan, differences in cost sharing, premiums, and balance billing under such a plan compared to under other Medicare+Choice plans.

(v)

In the case of a Medicare+Choice private fee-for-service plan, differences in cost sharing, premiums, and balance billing under such a plan compared to under other Medicare+Choice plans.

(vi)

The extent to which an enrollee may obtain benefits through out-of-network health care providers.

(vii)

The extent to which an enrollee may select among in-network providers and the types of providers participating in the plan’s network.

(viii)

The organization’s coverage of emergency and urgently needed care.

(B)

Premiums

(i)

In general

(ii)

Reductions

(C)

Service area

(D)

Quality and performance

To the extent available, plan quality and performance indicators for the benefits under the plan (and how they compare to such indicators under the original medicare fee-for-service program under parts A and B in the area involved), including—

(i)

disenrollment rates for medicare enrollees electing to receive benefits through the plan for the previous 2 years (excluding disenrollment due to death or moving outside the plan’s service area),

(ii)

information on medicare enrollee satisfaction,

(iii)

information on health outcomes, and

(iv)

the recent record regarding compliance of the plan with requirements of this part (as determined by the Secretary).

(E)

Supplemental benefits

(5)

Maintaining a toll-free number and Internet site

(6)

Use of non-Federal entities

(7)

Provision of information

(e)

Coverage election periods

(1)

Initial choice upon eligibility to make election if Medicare+Choice plans available to individual

(2)

Open enrollment and disenrollment opportunities

Subject to paragraph (5)—

(A)

Continuous open enrollment and disenrollment through 2005

(B)

Continuous open enrollment and disenrollment for first 6 months during 2006

(i)

In general

(ii)

Limitation of one change

(C)

Annual 45-day period from 2011 through 2018 for disenrollment from MA plans to elect to receive benefits under the original Medicare fee-for-service program

(D)

Continuous open enrollment for institutionalized individuals

At any time after 2005 in the case of a Medicare+Choice eligible individual who is institutionalized (as defined by the Secretary), the individual may elect under subsection (a)(1)—

(i)

to enroll in a Medicare+Choice plan; or

(ii)

to change the Medicare+Choice plan in which the individual is enrolled.

(E)

Limited continuous open enrollment of original fee-for-service enrollees in medicare advantage non-prescription drug plans

(i)

In general

(ii)

Unenrolled fee-for-service individual defined

In this subparagraph, the term “unenrolled fee-for-service individual” means, with respect to a date, a Medicare Advantage eligible individual who—

(I)

is receiving benefits under this subchapter through enrollment in the original medicare fee-for-service program under parts A and B;

(II)

is not enrolled in an MA plan on such date; and

(III)

as of such date is not otherwise eligible to elect to enroll in an MA plan.

(iii)

Limitation of one change during the applicable period

(iv)

No effect on coverage under a prescription drug plan

Nothing in this subparagraph shall be construed as permitting an individual exercising the right under clause (i)—

(I)

who is enrolled in a prescription drug plan under part D, to disenroll from such plan or to enroll in a different prescription drug plan; or

(II)

who is not enrolled in a prescription drug plan, to enroll in such a plan.

(F)

Special period for certain deemed elections

(i)

In general

(ii)

Limitation of one change

(G)

Continuous open enrollment and disenrollment for first 3 months in 2016 and subsequent years

(i)

In general

Subject to clause (ii) and subparagraph (D)—

(I)

in the case of an MA eligible individual who is enrolled in an MA plan, at any time during the first 3 months of a year (beginning with 2019); or

(II)

in the case of an individual who first becomes an MA eligible individual during a year (beginning with 2019) and enrolls in an MA plan, during the first 3 months during such year in which the individual is an MA eligible individual;

such MA eligible individual may change the election under subsection (a)(1).

(ii)

Limitation of one change during open enrollment period each year

(iii)

Limited application to part D

(iv)

Limitations on marketing

(3)

Annual, coordinated election period

(A)

In general

(B)

Annual, coordinated election period

For purposes of this section, the term “annual, coordinated election period” means—

(i)

with respect to a year before 2002, the month of November before such year;

(ii)

with respect to 2002, 2003, 2004, and 2005, the period beginning on November 15 and ending on December 31 of the year before such year;

(iii)

with respect to 2006, the period beginning on November 15, 2005, and ending on May 15, 2006;

(iv)

with respect to 2007, 2008, 2009, and 2010, the period beginning on November 15 and ending on December 31 of the year before such year; and

(v)

with respect to 2012 and succeeding years, the period beginning on October 15 and ending on December 7 of the year before such year.

(C)

Medicare+Choice health information fairs

(D)

Special information campaigns

(4)

Special election periods

Effective as of January 1, 2006, an individual may discontinue an election of a Medicare+ÐChoice plan offered by a Medicare+Choice organization other than during an annual, coordinated election period and make a new election under this section if—

(A)

(i)

the certification of the organization or plan under this part has been terminated, or the organization or plan has notified the individual of an impending termination of such certification; or

(ii)

the organization has terminated or otherwise discontinued providing the plan in the area in which the individual resides, or has notified the individual of an impending termination or discontinuation of such plan;

(B)

the individual is no longer eligible to elect the plan because of a change in the individual’s place of residence or other change in circumstances (specified by the Secretary, but not including termination of the individual’s enrollment on the basis described in clause (i) or (ii) of subsection (g)(3)(B));

(C)

the individual demonstrates (in accordance with guidelines established by the Secretary) that—

(i)

the organization offering the plan substantially violated a material provision of the organization’s contract under this part in relation to the individual (including the failure to provide an enrollee on a timely basis medically necessary care for which benefits are available under the plan or the failure to provide such covered care in accordance with applicable quality standards); or

(ii)

the organization (or an agent or other entity acting on the organization’s behalf) materially misrepresented the plan’s provisions in marketing the plan to the individual; or

(D)

the individual meets such other exceptional conditions as the Secretary may provide.

Effective as of January 1, 2006, an individual who, upon first becoming eligible for benefits under part A at age 65, enrolls in a Medicare+Choice plan under this part, the individual may discontinue the election of such plan, and elect coverage under the original fee-for-service plan, at any time during the 12-month period beginning on the effective date of such enrollment.

(5)

Special rules for MSA plans

Notwithstanding the preceding provisions of this subsection, an individual—

(A)

may elect an MSA plan only during—

(i)

an initial open enrollment period described in paragraph (1), or

(ii)

an annual, coordinated election period described in paragraph (3)(B);

(B)

subject to subparagraph (C), may not discontinue an election of an MSA plan except during the periods described in clause (ii) or (iii) of subparagraph (A) and under the first sentence of paragraph (4); and

(C)

who elects an MSA plan during an annual, coordinated election period, and who never previously had elected such a plan, may revoke such election, in a manner determined by the Secretary, by not later than December 15 following the date of the election.

(6)

Open enrollment periods

Subject to paragraph (5), a Medicare+Choice organization—

(A)

shall accept elections or changes to elections during the initial enrollment periods described in paragraph (1), during the period described in paragraph (2)(F), during the month of November 1998 and during the annual, coordinated election period under paragraph (3) for each subsequent year, and during special election periods described in the first sentence of paragraph (4); and

(B)

may accept other changes to elections at such other times as the organization provides.

(f)

Effectiveness of elections and changes of elections

(1)

During initial coverage election period

(2)

During continuous open enrollment periods

(3)

Annual, coordinated election period

(4)

Other periods

(g)

Guaranteed issue and renewal

(1)

In general

(2)

Priority

If the Secretary determines that a Medicare+Choice organization, in relation to a Medicare+Choice plan it offers, has a capacity limit and the number of Medicare+Choice eligible individuals who elect the plan under this section exceeds the capacity limit, the organization may limit the election of individuals of the plan under this section but only if priority in election is provided—

(A)

first to such individuals as have elected the plan at the time of the determination, and

(B)

then to other such individuals in such a manner that does not discriminate, on a basis described in section 1395w–22(b) of this title, among the individuals (who seek to elect the plan).

The preceding sentence shall not apply if it would result in the enrollment of enrollees substantially nonrepresentative, as determined in accordance with regulations of the Secretary, of the medicare population in the service area of the plan.

(3)

Limitation on termination of election

(A)

In general

(B)

Basis for termination of election

A Medicare+Choice organization may terminate an individual’s election under this section with respect to a Medicare+Choice plan it offers if—

(i)

any Medicare+Choice monthly basic and supplemental beneficiary premiums required with respect to such plan are not paid on a timely basis (consistent with standards under section 1395w–26 of this title that provide for a grace period for late payment of such premiums),

(ii)

the individual has engaged in disruptive behavior (as specified in such standards), or

(iii)

the plan is terminated with respect to all individuals under this part in the area in which the individual resides.

(C)

Consequence of termination

(i)

Terminations for cause

(ii)

Termination based on plan termination or service area reduction

(D)

Organization obligation with respect to election forms

(h)

Approval of marketing material and application forms

(1)

Submission

No marketing material or application form may be distributed by a Medicare+Choice organization to (or for the use of) Medicare+ÐChoice eligible individuals unless—

(A)

at least 45 days (or 10 days in the case described in paragraph (5)) before the date of distribution the organization has submitted the material or form to the Secretary for review, and

(B)

the Secretary has not disapproved the distribution of such material or form.

(2)

Review

(3)

Deemed approval (1-stop shopping)

(4)

Prohibition of certain marketing practices

Each Medicare+Choice organization shall conform to fair marketing standards, in relation to Medicare+Choice plans offered under this part, included in the standards established under section 1395w–26 of this title. Such standards—

(A)

shall not permit a Medicare+Choice organization to provide for, subject to subsection (j)(2)(C), cash, gifts, prizes, or other monetary rebates as an inducement for enrollment or otherwise;

(B)

may include a prohibition against a Medicare+Choice organization (or agent of such an organization) completing any portion of any election form used to carry out elections under this section on behalf of any individual;

(C)

shall not permit a Medicare Advantage organization (or the agents, brokers, and other third parties representing such organization) to conduct the prohibited activities described in subsection (j)(1); and

(D)

shall only permit a Medicare Advantage organization (and the agents, brokers, and other third parties representing such organization) to conduct the activities described in subsection (j)(2) in accordance with the limitations established under such subsection.

(5)

Special treatment of marketing material following model marketing language

(6)

Required inclusion of plan type in plan name

(7)

Strengthening the ability of States to act in collaboration with the Secretary to address fraudulent or inappropriate marketing practices

(A)

Appointment of agents and brokers

Each Medicare Advantage organization shall—

(i)

only use agents and brokers who have been licensed under State law to sell Medicare Advantage plans offered by the Medicare Advantage organization;

(ii)

in the case where a State has a State appointment law, abide by such law; and

(iii)

report to the applicable State the termination of any such agent or broker, including the reasons for such termination (as required under applicable State law).

(B)

Compliance with State information requests

(i)

Effect of election of Medicare+Choice plan option

(1)

Payments to organizations

(2)

Only organization entitled to payment

(3)

FFS payment for expenses for kidney acquisitions

(j)

Prohibited activities described and limitations on the conduct of certain other activities

(1)

Prohibited activities described

The following prohibited activities are described in this paragraph:

(A)

Unsolicited means of direct contact

(B)

Cross-selling

(C)

Meals

(D)

Sales and marketing in health care settings and at educational events

Sales and marketing activities for the enrollment of individuals in Medicare Advantage plans that are conducted—

(i)

in health care settings in areas where health care is delivered to individuals (such as physician offices and pharmacies), except in the case where such activities are conducted in common areas in health care settings; and

(ii)

at educational events.

(2)

Limitations

The Secretary shall establish limitations with respect to at least the following:

(A)

Scope of marketing appointments

(B)

Co-branding

(C)

Limitation of gifts to nominal dollar value

(D)

Compensation

(E)

Required training, annual retraining, and testing of agents, brokers, and other third parties

(Aug. 14, 1935, ch. 531, title XVIII, § 1851, as added Pub. L. 105–33, title IV, § 4001, Aug. 5, 1997, 111 Stat. 275; amended Pub. L. 106–113, div. B, § 1000(a)(6) [title III, § 321(k)(6)(A), title V, §§ 501(a)(1), (b), (c), 502(a), 519(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A–367, 1501A–378 to 1501A–380, 1501A–385; Pub. L. 106–554, § 1(a)(6) [title VI, §§ 606(a)(2)(C), 613(a), 619(a), 620(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–558, 2763A–560, 2763A–563; Pub. L. 107–188, title V, § 532(a), (c)(1), June 12, 2002, 116 Stat. 696; Pub. L. 108–173, title I, § 102(a), (c)(1), title II, §§ 221(a)(1), (d)(5), 222(l)(3)(A), (B), (D), (E), 231(a), 233(b), (d), 237(b)(2)(A), Dec. 8, 2003, 117 Stat. 2152, 2154, 2180, 2193, 2206, 2207, 2209, 2212; Pub. L. 109–432, div. B, title II, § 206(a), Dec. 20, 2006, 120 Stat. 2990; Pub. L. 110–48, § 2, July 18, 2007, 121 Stat. 244; Pub. L. 110–275, title I, § 103(a)(1), (b)(1), (c)(1), (d)(1), July 15, 2008, 122 Stat. 2498–2501; Pub. L. 111–5, div. B, title IV, § 4102(d)(2), Feb. 17, 2009, 123 Stat. 486; Pub. L. 111–148, title III, §§ 3201(e)(2)(A)(i), 3204(a)(1), (b), Mar. 23, 2010, 124 Stat. 446, 456; Pub. L. 111–152, title I, § 1102(a), Mar. 30, 2010, 124 Stat. 1040; Pub. L. 114–10, title II, § 209(b)(1)–(2)(B)(i), (3), (c), Apr. 16, 2015, 129 Stat. 147–150; Pub. L. 114–255, div. C, title XVII, §§ 17005, 17006(a)(1), (c)(2), Dec. 13, 2016, 130 Stat. 1333–1335.)

cite as: 42 USC 1395w-21