42 USC 1395w-22 - Benefits and beneficiary protections

U.S Code last checked for updates: Apr 28, 2024

§ 1395w–22.

Benefits and beneficiary protections

(a)

Basic benefits

(1)

Requirement

(A)

In general

(B)

Benefits under the original medicare fee-for-service program option defined

(i)

In general

(ii)

Special rule for regional plans

(iii)

Limitation on variation of cost sharing for certain benefits

(iv)

Services described

The following services are described in this clause:

(I)

Chemotherapy administration services.

(II)

Renal dialysis services (as defined in section 1395rr(b)(14)(B) of this title).

(III)

Skilled nursing care.

(IV)

Clinical diagnostic laboratory test administered during any portion of the emergency period defined in paragraph (1)(B) of section 1320b–5(g) of this title beginning on or after March 18, 2020, for the detection of SARS–CoV–2 or the diagnosis of the virus that causes COVID–19 and the administration of such test.

(V)

Specified COVID–19 testing-related services (as described in section 1395l(cc)(1) of this title) for which payment would be payable under a specified outpatient payment provision described in section 1395l(cc)(2) of this title.

(VI)

A COVID–19 vaccine and its administration described in section 1395x(s)(10)(A) of this title.

(VII)

A drug or biological product that is a selected drug (as referred to in section 1320f–1(c) of this title).

(VIII)

Such other services that the Secretary determines appropriate (including services that the Secretary determines require a high level of predictability and transparency for beneficiaries).

(v)

Exception

(vi)

Prohibition of application of certain requirements for COVID–19 testing

(2)

Satisfaction of requirement

(A)

In general

A Medicare+Choice plan (other than an MSA plan) offered by a Medicare+Choice organization satisfies paragraph (1)(A), with respect to benefits for items and services furnished other than through a provider or other person that has a contract with the organization offering the plan, if the plan provides payment in an amount so that—

(i)

the sum of such payment amount and any cost sharing provided for under the plan, is equal to at least

(ii)

the total dollar amount of payment for such items and services as would otherwise be authorized under parts A and B (including any balance billing permitted under such parts).

(B)

Reference to related provisions

For provision relating to—

(i)

limitations on balance billing against Medicare+Choice organizations for non-contract providers, see subsection (k) and section 1395cc(a)(1)(O) of this title, and

(ii)

limiting actuarial value of enrollee liability for covered benefits, see section 1395w–24(e) of this title.

(C)

Election of uniform coverage determination

(3)

Supplemental benefits

(A)

Benefits included subject to Secretary’s approval

(B)

At enrollees’ option

(i)

In general

(ii)

Special rule for MSA plans

(C)

Application to Medicare+Choice private fee-for-service plans

(D)

Expanding supplemental benefits to meet the needs of chronically ill enrollees

(i)

In general

(ii)

Supplemental benefits described

(I)

In general

(II)

Authority to waive uniformity requirements

(iii)

Chronically ill enrollee defined

In this subparagraph, the term “chronically ill enrollee” means an enrollee in an MA plan that the Secretary determines—

(I)

has one or more comorbid and medically complex chronic conditions that is life threatening or significantly limits the overall health or function of the enrollee;

(II)

has a high risk of hospitalization or other adverse health outcomes; and

(III)

requires intensive care coordination.

(4)

Organization as secondary payer

Notwithstanding any other provision of law, a Medicare+Choice organization may (in the case of the provision of items and services to an individual under a Medicare+Choice plan under circumstances in which payment under this subchapter is made secondary pursuant to section 1395y(b)(2) of this title) charge or authorize the provider of such services to charge, in accordance with the charges allowed under a law, plan, or policy described in such section—

(A)

the insurance carrier, employer, or other entity which under such law, plan, or policy is to pay for the provision of such services, or

(B)

such individual to the extent that the individual has been paid under such law, plan, or policy for such services.

(5)

National coverage determinations and legislative changes in benefits

If there is a national coverage determination or legislative change in benefits required to be provided under this part made in the period beginning on the date of an announcement under section 1395w–23(b) of this title and ending on the date of the next announcement under such section and the Secretary projects that the determination will result in a significant change in the costs to a Medicare+Choice organization of providing the benefits that are the subject of such national coverage determination and that such change in costs was not incorporated in the determination of the annual Medicare+Choice capitation rate under section 1395w–23 of this title included in the announcement made at the beginning of such period, then, unless otherwise required by law—

(A)

such determination or legislative change in benefits shall not apply to contracts under this part until the first contract year that begins after the end of such period, and

(B)

if such coverage determination or legislative change provides for coverage of additional benefits or coverage under additional circumstances, section 1395w–21(i)(1) of this title shall not apply to payment for such additional benefits or benefits provided under such additional circumstances until the first contract year that begins after the end of such period.

The projection under the previous sentence shall be based on an analysis by the Chief Actuary of the Centers for Medicare & Medicaid Services of the actuarial costs associated with the coverage determination or legislative change in benefits.

(6)

Special benefit rules for regional plans

(7)

Limitation on cost-sharing for dual eligibles and qualified medicare beneficiaries

(b)

Antidiscrimination

(1)

Beneficiaries

(2)

Providers

(c)

Disclosure requirements

(1)

Detailed description of plan provisions

A Medicare+Choice organization shall disclose, in clear, accurate, and standardized form to each enrollee with a Medicare+Choice plan offered by the organization under this part at the time of enrollment and at least annually thereafter, the following information regarding such plan:

(A)

Service area

(B)

Benefits

(C)

Access

(D)

Out-of-area coverage

(E)

Emergency coverage

Coverage of emergency services, including—

(i)

the appropriate use of emergency services, including use of the 911 telephone system or its local equivalent in emergency situations and an explanation of what constitutes an emergency situation;

(ii)

the process and procedures of the plan for obtaining emergency services; and

(iii)

the locations of (I) emergency departments, and (II) other settings, in which plan physicians and hospitals provide emergency services and post-stabilization care.

(F)

Supplemental benefits

Supplemental benefits available from the organization offering the plan, including—

(i)

whether the supplemental benefits are optional,

(ii)

the supplemental benefits covered, and

(iii)

the Medicare+Choice monthly supplemental beneficiary premium for the supplemental benefits.

(G)

Prior authorization rules

(H)

Plan grievance and appeals procedures

(I)

Quality improvement program

(2)

Disclosure upon request

Upon request of a Medicare+Choice eligible individual, a Medicare+Choice organization must provide the following information to such individual:

(A)

The general coverage information and general comparative plan information made available under clauses (i) and (ii) of section 1395w–21(d)(2)(A) of this title.

(B)

Information on procedures used by the organization to control utilization of services and expenditures.

(C)

Information on the number of grievances, redeterminations, and appeals and on the disposition in the aggregate of such matters.

(D)

An overall summary description as to the method of compensation of participating physicians.

(d)

Access to services

(1)

In general

A Medicare+Choice organization offering a Medicare+Choice plan may select the providers from whom the benefits under the plan are provided so long as—

(A)

the organization makes such benefits available and accessible to each individual electing the plan within the plan service area with reasonable promptness and in a manner which assures continuity in the provision of benefits;

(B)

when medically necessary the organization makes such benefits available and accessible 24 hours a day and 7 days a week;

(C)

the plan provides for reimbursement with respect to services which are covered under subparagraphs (A) and (B) and which are provided to such an individual other than through the organization, if—

(i)

the services were not emergency services (as defined in paragraph (3)), but (I) the services were medically necessary and immediately required because of an unforeseen illness, injury, or condition, and (II) it was not reasonable given the circumstances to obtain the services through the organization,

(ii)

the services were renal dialysis services and were provided other than through the organization because the individual was temporarily out of the plan’s service area, or

(iii)

the services are maintenance care or post-stabilization care covered under the guidelines established under paragraph (2);

(D)

the organization provides access to appropriate providers, including credentialed specialists, for medically necessary treatment and services; and

(E)

coverage is provided for emergency services (as defined in paragraph (3)) without regard to prior authorization or the emergency care provider’s contractual relationship with the organization.

(2)

Guidelines respecting coordination of post-stabilization care

(3)

“Emergency services” defined

In this subsection—

(A)

In general

The term “emergency services” means, with respect to an individual enrolled with an organization, covered inpatient and outpatient services that—

(i)

are furnished by a provider that is qualified to furnish such services under this subchapter, and

(ii)

are needed to evaluate or stabilize an emergency medical condition (as defined in subparagraph (B)).

(B)

Emergency medical condition based on prudent layperson

The term “emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in—

(i)

placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii)

serious impairment to bodily functions, or

(iii)

serious dysfunction of any bodily organ or part.

(4)

Assuring access to services in Medicare+Choice private fee-for-service plans

In addition to any other requirements under this part, in the case of a Medicare+Choice private fee-for-service plan, the organization offering the plan must demonstrate to the Secretary that the organization has sufficient number and range of health care professionals and providers willing to provide services under the terms of the plan. Subject to paragraphs (5) and (6), the Secretary shall find that an organization has met such requirement with respect to any category of health care professional or provider if, with respect to that category of provider—

(A)

the plan has established payment rates for covered services furnished by that category of provider that are not less than the payment rates provided for under part A, part B, or both, for such services, or

(B)

the plan has contracts or agreements (other than deemed contracts or agreements under subsection (j)(6)) with a sufficient number and range of providers within such category to meet the access standards in subparagraphs (A) through (E) of paragraph (1),

or a combination of both. The previous sentence shall not be construed as restricting the persons from whom enrollees under such a plan may obtain covered benefits, except that, if a plan entirely meets such requirement with respect to a category of health care professional or provider on the basis of subparagraph (B), it may provide for a higher beneficiary copayment in the case of health care professionals and providers of that category who do not have contracts or agreements (other than deemed contracts or agreements under subsection (j)(6)) to provide covered services under the terms of the plan.

(5)

Requirement of certain nonemployer Medicare Advantage private fee-for-service plans to use contracts with providers

(A)

In general

(B)

Network area defined

(C)

Network-based plan defined

(i)

In general

For purposes of subparagraph (B), the term “network-based plan” means—

(I)

except as provided in clause (ii), a Medicare Advantage plan that is a coordinated care plan described in section 1395w–21(a)(2)(A)(i) of this title;

(II)

a network-based MSA plan; and

(III)

a reasonable cost reimbursement plan under section 1395mm of this title.

(ii)

Exclusion of non-network regional PPOS

(6)

Requirement of all employer Medicare Advantage private fee-for-service plans to use contracts with providers

(e)

Quality improvement program

(1)

In general

(2)

Chronic care improvement programs

(3)

Data

(A)

Collection, analysis, and reporting

(i)

In general

(ii)

Special requirements for specialized MA plans for special needs individuals

(iii)

Application to local preferred provider organizations and MA regional plans

(iv)

Definition of preferred provider organization plan

In this subparagraph, the term “preferred provider organization plan” means an MA plan that—

(I)

has a network of providers that have agreed to a contractually specified reimbursement for covered benefits with the organization offering the plan;

(II)

provides for reimbursement for all covered benefits regardless of whether such benefits are provided within such network of providers; and

(III)

is offered by an organization that is not licensed or organized under State law as a health maintenance organization.

(B)

Limitations

(i)

Types of data

(ii)

Changes in types of data

(iii)

Construction

(4)

Treatment of accreditation

(A)

In general

(B)

Requirements described

The provisions described in this subparagraph are the following:

(i)

Paragraphs (1) through (3) of this subsection (relating to quality improvement programs).

(ii)

Subsection (b) (relating to antidiscrimination).

(iii)

Subsection (d) (relating to access to services).

(iv)

Subsection (h) (relating to confidentiality and accuracy of enrollee records).

(v)

Subsection (i) (relating to information on advance directives).

(vi)

Subsection (j) (relating to provider participation rules).

(vii)

The requirements described in section 1395w–104(j) of this title, to the extent such requirements apply under section 1395w–131(c) of this title.

(C)

Timely action on applications

(D)

Construction

(f)

Grievance mechanism

(g)

Coverage determinations, reconsiderations, and appeals

(1)

Determinations by organization

(A)

In general

(B)

Explanation of determination

(2)

Reconsiderations

(A)

In general

(B)

Physician decision on certain reconsiderations

(3)

Expedited determinations and reconsiderations

(A)

Receipt of requests

(i)

Enrollee requests

(ii)

Physician requests

(B)

Organization procedures

(i)

In general

(ii)

Expedition required for physician requests

(iii)

Timely response

(4)

Independent review of certain coverage denials

(5)

Appeals

(h)

Confidentiality and accuracy of enrollee records

Insofar as a Medicare+Choice organization maintains medical records or other health information regarding enrollees under this part, the Medicare+Choice organization shall establish procedures—

(1)

to safeguard the privacy of any individually identifiable enrollee information;

(2)

to maintain such records and information in a manner that is accurate and timely; and

(3)

to assure timely access of enrollees to such records and information.

(i)

Information on advance directives

(j)

Rules regarding provider participation

(1)

Procedures

Insofar as a Medicare+Choice organization offers benefits under a Medicare+Choice plan through agreements with physicians, the organization shall establish reasonable procedures relating to the participation (under an agreement between a physician and the organization) of physicians under such a plan. Such procedures shall include—

(A)

providing notice of the rules regarding participation,

(B)

providing written notice of participation decisions that are adverse to physicians, and

(C)

providing a process within the organization for appealing such adverse decisions, including the presentation of information and views of the physician regarding such decision.

(2)

Consultation in medical policies

(3)

Prohibiting interference with provider advice to enrollees

(A)

In general

(B)

Conscience protection

Subparagraph (A) shall not be construed as requiring a Medicare+Choice plan to provide, reimburse for, or provide coverage of a counseling or referral service if the Medicare+ÐChoice organization offering the plan—

(i)

objects to the provision of such service on moral or religious grounds; and

(ii)

in the manner and through the written instrumentalities such Medicare+ÐChoice organization deems appropriate, makes available information on its policies regarding such service to prospective enrollees before or during enrollment and to enrollees within 90 days after the date that the organization or plan adopts a change in policy regarding such a counseling or referral service.

(C)

Construction

(D)

“Health care professional” defined

(4)

Limitations on physician incentive plans

(A)

In general

(i)

No specific payment is made directly or indirectly under the plan to a physician or physician group as an inducement to reduce or limit medically necessary services provided with respect to a specific individual enrolled with the organization.

(ii)

If the plan places a physician or physician group at substantial financial risk (as determined by the Secretary) for services not provided by the physician or physician group, the organization provides stop-loss protection for the physician or group that is adequate and appropriate, based on standards developed by the Secretary that take into account the number of physicians placed at such substantial financial risk in the group or under the plan and the number of individuals enrolled with the organization who receive services from the physician or group.

(B)

“Physician incentive plan” defined

(5)

Limitation on provider indemnification

(6)

Special rules for Medicare+Choice private fee-for-service plans

For purposes of applying this part (including subsection (k)(1)) and section 1395cc(a)(1)(O) of this title, a hospital (or other provider of services), a physician or other health care professional, or other entity furnishing health care services is treated as having an agreement or contract in effect with a Medicare+Choice organization (with respect to an individual enrolled in a Medicare+Choice private fee-for-service plan it offers), if—

(A)

the provider, professional, or other entity furnishes services that are covered under the plan to such an enrollee; and

(B)

before providing such services, the provider, professional, or other entity—

(i)

has been informed of the individual’s enrollment under the plan, and

(ii)

either—

(I)

has been informed of the terms and conditions of payment for such services under the plan, or

(II)

is given a reasonable opportunity to obtain information concerning such terms and conditions,

in a manner reasonably designed to effect informed agreement by a provider.

The previous sentence shall only apply in the absence of an explicit agreement between such a provider, professional, or other entity and the Medicare+Choice organization.

(7)

Promotion of e-prescribing by MA plans

(A)

In general

(B)

Considerations

Such payment may take into consideration the costs of the physician in implementing such a program and may also be increased for those participating physicians who significantly increase—

(i)

formulary compliance;

(ii)

lower cost, therapeutically equivalent alternatives;

(iii)

reductions in adverse drug interactions; and

(iv)

efficiencies in filing prescriptions through reduced administrative costs.

(C)

Structure

(k)

Treatment of services furnished by certain providers

(1)

In general

(2)

Application to Medicare+Choice private fee-for-service plans

(A)

Balance billing limits under Medicare+ÐChoice private fee-for-service plans in case of contract providers

(i)

In general

(ii)

Procedures to enforce limits

(iii)

Assuring enforcement

(B)

Enrollee liability for noncontract providers

For provision—

(i)

establishing minimum payment rate in the case of noncontract providers under a Medicare+Choice private fee-for-service plan, see subsection (a)(2); or

(ii)

limiting enrollee liability in the case of covered services furnished by such providers, see paragraph (1) and section 1395cc(a)(1)(O) of this title.

(C)

Information on beneficiary liability

(i)

In general

(ii)

Advance notice before receipt of inpatient hospital services and certain other services

In addition, such organization shall, in its terms and conditions of payments to hospitals for inpatient hospital services and for other services identified by the Secretary for which the amount of the balance billing under subparagraph (A) could be substantial, require the hospital to provide to the enrollee, before furnishing such services and if the hospital imposes balance billing under subparagraph (A)—

(I)

notice of the fact that balance billing is permitted under such subparagraph for such services, and

(II)

a good faith estimate of the likely amount of such balance billing (if any), with respect to such services, based upon the presenting condition of the enrollee.

(l)

Return to home skilled nursing facilities for covered post-hospital extended care services

(1)

Ensuring return to home SNF

(A)

In general

In providing coverage of post-hospital extended care services, a Medicare+Choice plan shall provide for such coverage through a home skilled nursing facility if the following conditions are met:

(i)

Enrollee election

(ii)

SNF agreement

(B)

Manner of payment to home SNF

(2)

No less favorable coverage

(3)

Rule of construction

Nothing in this subsection shall be construed to do the following:

(A)

To require coverage through a skilled nursing facility that is not otherwise qualified to provide benefits under part A for medicare beneficiaries not enrolled in a Medicare+Choice plan.

(B)

To prevent a skilled nursing facility from refusing to accept, or imposing conditions upon the acceptance of, an enrollee for the receipt of post-hospital extended care services.

(4)

Definitions

In this subsection:

(A)

Home skilled nursing facility

The term “home skilled nursing facility” means, with respect to an enrollee who is entitled to receive post-hospital extended care services under a Medicare+Choice plan, any of the following skilled nursing facilities:

(i)

SNF residence at time of admission

(ii)

SNF in continuing care retirement community

(iii)

SNF residence of spouse at time of discharge

(B)

Continuing care retirement community

(m)

Provision of additional telehealth benefits

(1)

MA plan option

(2)

Additional telehealth benefits defined

(A)

In general

For purposes of this subsection and section 1395w–24 of this title:

(i)

Definition

The term “additional telehealth benefits” means services—

(I)

for which benefits are available under part B, including services for which payment is not made under section 1395m(m) of this title due to the conditions for payment under such section; and

(II)

that are identified for such year as clinically appropriate to furnish using electronic information and telecommunications technology when a physician (as defined in section 1395x(r) of this title) or practitioner (described in section 1395u(b)(18)(C) of this title) providing the service is not at the same location as the plan enrollee.

(ii)

Exclusion of capital and infrastructure costs and investments

(B)

Public comment

Not later than November 30, 2018, the Secretary shall solicit comments on—

(i)

what types of items and services (including those provided through supplemental health care benefits, such as remote patient monitoring, secure messaging, store and forward technologies, and other non-face-to-face communication) should be considered to be additional telehealth benefits; and

(ii)

the requirements for the provision or furnishing of such benefits (such as training and coordination requirements).

(3)

Requirements for additional telehealth benefits

The Secretary shall specify requirements for the provision or furnishing of additional telehealth benefits, including with respect to the following:

(A)

Physician or practitioner qualifications (other than licensure) and other requirements such as specific training.

(B)

Factors necessary for the coordination of such benefits with other items and services including those furnished in-person.

(C)

Such other areas as determined by the Secretary.

(4)

Enrollee choice

If an MA plan provides a service as an additional telehealth benefit (as defined in paragraph (2))—

(A)

the MA plan shall also provide access to such benefit through an in-person visit (and not only as an additional telehealth benefit); and

(B)

an individual enrollee shall have discretion as to whether to receive such service through the in-person visit or as an additional telehealth benefit.

(5)

Treatment under MA

(6)

Construction

(n)

Provision of information relating to the safe disposal of certain prescription drugs

(1)

In general

(2)

Criteria

(Aug. 14, 1935, ch. 531, title XVIII, § 1852, as added Pub. L. 105–33, title IV, § 4001, Aug. 5, 1997, 111 Stat. 286; amended Pub. L. 106–113, div. B, § 1000(a)(6) [title III, § 321(k)(6)(B), title V, §§ 518, 520(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A–367, 1501A–384, 1501A–385; Pub. L. 106–554, § 1(a)(6) [title V, § 521(b), title VI, §§ 611(b), 615, 616, 621(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–543, 2763A–560, 2763A–561, 2763A–564; Pub. L. 108–173, title I, § 102(b), title II, §§ 211(j), 221(d)(3), 222(a)(2), (3), (h), (l)(1), 233(a)(1), (2), (c), title VII, § 722(a), (b), title IX, §§ 900(e)(1)(F), 940(b)(2)(A), 948(b)(2), Dec. 8, 2003, 117 Stat. 2153, 2180, 2193, 2195, 2196, 2204, 2206, 2209, 2347, 2348, 2371, 2417, 2426; Pub. L. 110–275, title I, §§ 125(b)(6), 162(a)(1)–(3)(A), 163(a), (b), 164(f)(1), 165(a), July 15, 2008, 122 Stat. 2519, 2569–2571, 2574, 2575; Pub. L. 111–148, title III, § 3202(a)(1), Mar. 23, 2010, 124 Stat. 454; Pub. L. 114–255, div. C, title XVII, § 17006(a)(2)(A), (c)(1), Dec. 13, 2016, 130 Stat. 1334, 1335; Pub. L. 115–123, div. E, title III, §§ 50322(a), 50323(a), Feb. 9, 2018, 132 Stat. 201, 202; Pub. L. 115–271, title VI, § 6103(a), Oct. 24, 2018, 132 Stat. 4005; Pub. L. 116–127, div. F, § 6003(a), Mar. 18, 2020, 134 Stat. 203; Pub. L. 116–136, div. A, title III, § 3713(c), Mar. 27, 2020, 134 Stat. 423; Pub. L. 117–169, title I, § 11001(b)(1)(B), Aug. 16, 2022, 136 Stat. 1851.)

cite as: 42 USC 1395w-22

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