Important Rules Implement Key BENES Act Provisions to Simplify Medicare Enrollment

Today, the Centers for Medicare & Medicaid Services (CMS) finalized rules implementing the Beneficiary Enrollment Notification and Eligibility Simplification (BENES) Act policies that were signed into law as part of the Consolidated Appropriations Act, 2021 (CAA). Those landmark provisions include:

• Eliminating the months-long wait for coverage that occurs when people enroll during the General Enrollment Period (GEP) or in the later months of their Initial Enrollment Period (IEP). Starting in 2023, Medicare will begin the month following enrollment.
• Giving Medicare the authority to establish Part B Special Enrollment Periods (SEPs) for “exceptional circumstances,” a flexibility long available within Medicare Advantage and Part D. Starting in 2023, people who qualify for a Part B SEP can enroll without having to wait for the GEP and without being subject to a Part B Late Enrollment Penalty.

In draft rules earlier this year, CMS outlined plans to put these changes into regulations and suggested several new Part B SEPs. The final rules largely align with those proposals but include vital updates Medicare Rights and others requested via comment.

Specifically, CMS is finalizing the following SEPs:

• An SEP for individuals impacted by an emergency or disaster. As proposed, this would have applied only to beneficiaries who missed an enrollment opportunity because they were in an area affected by a government-declared disaster or emergency. The final rule creates an SEP that lasts six months, rather than the proposed two months, after the end of the emergency declaration. It also expands the SEP’s availability, allowing individuals to use it if the disaster or emergency occurs where their authorized representative, legal guardian, or person who makes health care decisions on their behalf resides.

• An SEP for health plan or employer error that constitutes “material misrepresentation” of information related to timely enrollment. The proposed rule sought to provide relief in instances where an individual could demonstrate that their non-enrollment was due to a misrepresentation or incorrect information provided by their employer or health plan. The final rule extends the SEP duration by four months; it will now last six months after the individual notifies the Social Security Administration (SSA) about the misrepresentation. Critically, it makes this notification process less burdensome by permitting the beneficiary’s written attestation to suffice when documentation from the employer or health plan is not available. It also expands the sources of misinformation to include plan brokers and agents.

• An SEP for formerly incarcerated individuals to enroll in Medicare following their release from a correctional facility. The final rule extends the SEP from six months post-release to 12. To reduce the risk of gaps in coverage, it allows qualifying individuals to choose between retroactive coverage going back to their release date (not to exceed six months and for which premium payments would be owed) or coverage beginning the month after they enroll.

• An SEP to coordinate with the termination of Medicaid eligibility. This is a particularly timely flexibility given the inevitable wind-down of the COVID-19 public health emergency. To minimize access problems, the final rule permits affected individuals to choose their coverage effective date: either retroactive to their Medicaid termination (January 1, 2023, at the earliest, and premium payments would be owed for this back-dated period) or beginning the month after enrollment.

• An SEP for other unanticipated exceptional conditions. CMS will retain the ability to provide SEPs on a case-by-case basis for other unanticipated situations that involve exceptional conditions. The final rule provides for a minimum six-month SEP duration.

Importantly, CMS notes that “[a]s a part of implementing this final rule, we will be updating CMS publications, websites, and outreach materials. We also intend to work with stakeholders (for example, SHIPs, beneficiary advocacy groups, etc.) to raise awareness and understanding of all the new SEPs.” We commend and welcome this promised engagement.

The rule is not just related to the BENES Act; it additionally formalizes a new Medicare Part B immunosuppressive drug benefit that was also created by the CAA. This policy allows certain people with Medicare due to end-stage renal disease (ESRD)—those who have no other insurance or Medicare eligibility and are 36 months post-kidney transplant and, therefore, set to lose their ESRD Medicare—to access continued immunosuppressive drug coverage through Part B. Eligible individuals can enroll now. The program begins on January 1, 2023. A monthly premium applies, and people who are eligible for the Medicare Savings Programs (MSPs) can access cost sharing.

It also finalizes meaningful, largely administrative, updates to MSP operations, including limiting the premium liability of states in situations where a person is awarded retroactive Medicare enrollment and is eligible for both Medicare and Medicaid.

Medicare Rights applauds these and other much-needed Medicare improvements. We appreciate CMS taking many of our suggestions into account when drafting the final rule and will continue to recommend reforms throughout the implementation process and beyond. We will also keep urging Congress to further modernize Medicare enrollment through the passage of the Beneficiary Enrollment Notification and Eligibility Simplification (BENES) 2.0 Act (S. 3675). This important legislation would promote informed enrollment choices and more fully realize the goals of the original BENES Act.

Read the final rules.

Read a CMS press release and fact sheet on the final rule.

Read Medicare Rights comments.

Read more about the BENES Act and BENES 2.0.