[Code of Federal Regulations]

[Title 42, Volume 2]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR411.108]



[Page 399-400]

 

                         TITLE 42--PUBLIC HEALTH

 

                    CHAPTER IV--CENTERS FOR MEDICARE

                          & MEDICAID SERVICES,

                        DEPARTMENT OF HEALTH AND

                             HUMAN SERVICES

 

PART 411_EXCLUSIONS FROM MEDICARE AND LIMITATIONS ON MEDICARE PAYMENT

--Table of Contents

 

Subpart E_Limitations on Payment for Services Covered Under Group Health 

                        Plans: General Provisions

 

Sec. 411.108  Taking into account entitlement to Medicare.



    (a) Examples of actions that constitute ``taking into account''. 

Actions by GHPs



[[Page 400]]



or LGHPs that constitute taking into account that an individual is 

entitled to Medicare on the basis of ESRD, age, or disability (or 

eligible on the basis of ESRD) include, but are not limited to, the 

following:

    (1) Failure to pay primary benefits as required by subparts F, G, 

and H of this part 411.

    (2) Offering coverage that is secondary to Medicare to individuals 

entitled to Medicare.

    (3) Terminating coverage because the individual has become entitled 

to Medicare, except as permitted under COBRA continuation coverage 

provisions (26 U.S.C. 4980B(f)(2)(B)(iv); 29 U.S.C. 1162.(2)(D); and 42 

U.S.C. 300bb-2.(2)(D)).

    (4) In the case of a LGHP, denying or terminating coverage because 

an individual is entitled to Medicare on the basis of disability without 

denying or terminating coverage for similarly situated individuals who 

are not entitled to Medicare on the basis of disability.

    (5) Imposing limitations on benefits for a Medicare entitled 

individual that do not apply to others enrolled in the plan, such as 

providing less comprehensive health care coverage, excluding benefits, 

reducing benefits, charging higher deductibles or coinsurance, providing 

for lower annual or lifetime benefit limits, or more restrictive pre-

existing illness limitations.

    (6) Charging a Medicare entitled individual higher premiums.

    (7) Requiring a Medicare entitled individual to wait longer for 

coverage to begin.

    (8) Paying providers and suppliers less for services furnished to a 

Medicare beneficiary than for the same services furnished to an enrollee 

who is not entitled to Medicare.

    (9) Providing misleading or incomplete information that would have 

the effect of inducing a Medicare entitled individual to reject the 

employer plan, thereby making Medicare the primary payer. An example of 

this would be informing the beneficiary of the right to accept or reject 

the employer plan but failing to inform the individual that, if he or 

she rejects the plan, the plan will not be permitted to provide or pay 

for secondary benefits.

    (10) Including in its health insurance cards, claims forms, or 

brochures distributed to beneficiaries, providers, and suppliers, 

instructions to bill Medicare first for services furnished to Medicare 

beneficiaries without stipulating that such action may be taken only 

when Medicare is the primary payer.

    (11) Refusing to enroll an individual for whom Medicare would be 

secondary payer, when enrollment is available to similarly situated 

individuals for whom Medicare would not be secondary payer.

    (b) Permissible actions. (1) If a GHP or LGHP makes benefit 

distinctions among various categories of individuals (distinctions 

unrelated to the fact that the individual is disabled, based, for 

instance, on length of time employed, occupation, or marital status), 

the GHP or LGHP may make the same distinctions among the same categories 

of individuals entitled to Medicare whose plan coverage is based on 

current employment status. For example, if a GHP or LGHP does not offer 

coverage to employees who have worked less than one year and who are not 

entitled to Medicare on the basis of disability or age, the GHP or LGHP 

is not required to offer coverage to employees who have worked less than 

one year and who are entitled to Medicare on the basis of disability or 

age.

    (2) A GHP or LGHP may pay benefits secondary to Medicare for an aged 

or disabled beneficiary who has current employment status if the plan 

coverage is COBRA continuation coverage because of reduced hours of 

work. Medicare is primary payer for this beneficiary because, although 

he or she has current employment status, the GHP coverage is by virtue 

of the COBRA law rather than by virtue of the current employment status.

    (3) A GHP may terminate COBRA continuation coverage of an individual 

who becomes entitled to Medicare on the basis of ESRD, when permitted 

under the COBRA provisions.



[60 FR 45362, Aug. 31, 1995; 60 FR 53876, Oct. 18, 1995]