Social Security Policies Related to Medicare: A Primer

This blog post was made by Beth Witten, MSW, ACSW, LSCSW on May 2nd, 2019.
Social Security Policies Related to Medicare: A Primer

People with kidney disease and kidney failure may have access to Medicare and disability benefits that require knowledge of certain Social Security policies. These policies apply to patients whether they are doing in-center or home dialysis—and some may allow those on dialysis who qualify for disability due to ESRD to keep disability benefits and keep Medicare longer in some cases after a transplant. The following policies are ones that relate to problems social workers have posted on the National Kidney Foundation’s CNSW listserv.

The Social Security Administration’s Program Operations Manual System describes many policies. Some may help dialysis and/or transplant patients get coverage they need when they need it. Before sharing key policies, here are some commonly used Social Security acronyms and abbreviations:

  • R-HI – Health Insurance (Part A) due to ESRD

  • D-HI – Health Insurance (Part A) due to disability

  • R-SMI – Supplemental Medical Insurance (Part B) due to ESRD

  • D-SMI – Part B due to disability

HI 00801.233 Medical Evidence of ESRD – CMS Form 2728-U3

This policy describes how this CMS form is to be processed by the ESRD facility, ESRD Network, and SSA:

  • The physician signs the CMS 2728 using blue ink.

  • The patient signs the CMS 2728 at the dialysis clinic when starting dialysis.

  • If the patient isn’t applying for Medicare, SSA sends the form back to the facility.

    • If the patient chooses to enroll later, the physician following him/her then re-signs and dates the original form in the Remarks section and sends a copy to the local SSA office.

    • SSA needs a new form only if the original is lost.

  • IF a new ESRD patient has Medicare when SSA receives the CMS 2728, the patient gets a new initial enrollment period (IEP) to apply for SMI (Part B) if s/he doesn’t have it.

  • If a patient who got a transplant or stopped dialysis resumes dialysis or is re-transplanted, this starts a new Medicare IEP even if Part A hasn’t ended.

  • A patient who chose not to enroll in Part B, terminated Part B, or had Part B terminated due to nonpayment can enroll in Part B with no premium penalty by filing a CMS-40B form or signing a statement to that effect.

NOTE: If the dates the patient gives on the ESRD Medicare application, CMS-43, are different from the dates the facility provides on the CMS 2728, SSA will contact the patient and/or the facility to correct the dates. If necessary, SSA will send the form to the facility to correct the date(s).

https://secure.ssa.gov/apps10/poms.nsf/lnx/0600801233

HI 00801.201 R-HI Insured Status

To get R-HI (Part A), a person with ESRD must be fully or currently insured under his/her own work record or the work record of a spouse or a parent (if a dependent child). To be fully insured, a person with ESRD (or spouse or parent) must have at least 1 credit per year from age 21 to the ESRD onset year (minimum is 6 credits if that’s less than 7 years). SSA doesn’t count the year ESRD starts, but counts credits earned that year. If a patient has too few credits to get Medicare, s/he can earn more credits if s/he is able to work. Medicare will start when s/he has enough credits.

To be currently insured, the person with ESRD (or spouse or parent) must have at least 6 credits in the 13 calendar quarters before disability (e.g., ESRD) onset. Definitions of these relationships follow:

  • A spouse of a living or deceased wage earner doesn’t have to have been married any length of time for ESRD Medicare. Marrying a wage earner with enough credits gets the ESRD patient ESRD Medicare. To get ESRD Medicare, married couples do not have to live together, and could be divorced if married ≥10 years. Divorce after ESRD Medicare starts won’t end ESRD Medicare.

  • A dependent child of the wage earner must be unmarried under age 22 or if 22 to 26, the wage earner (parent or in some cases grandparent) must have provided at least 50% of the child’s support from age 22. If older than age 22 and disabled, the disability must have started before age 22. The disabled child/disabled adult child does not have to be eligible or receiving benefits.

https://secure.ssa.gov/poms.nsf/lnx/0600801201

HI 00801.215 Date of Entitlement (General Policy)

When an ESRD patient is eligible for Medicare, coverage starts:

  • The 3rd month after the month in-center dialysis starts*

  • The 1st month of dialysis if s/he starts a self-dialysis (home or in-center) training program before the end of the 3-month qualifying period*

  • The month of a kidney transplant

  • The month the patient is a hospital inpatient to prepare for kidney transplant surgery if the surgery occurs within 2 months

  • The 2nd month prior to a transplant if procedures in preparation for a transplant took place as a hospital inpatient more than 2 months prior to that transplant

*Determine when Medicare will start for a given patient with the handy Home Dialysis Central calculator. https://www.homedialysis.org/home-dialysis-basics/calculator

Medicare cannot begin until someone is eligible for it, but Medicare Part A can start later than when s/he is first eligible for it. Some ESRD patients choose to delay enrolling in Medicare if they have employer group health plan coverage. S/he can limit how far back Medicare goes as long as it’s no more than 12 months.

https://secure.ssa.gov/poms.nsf/lnx/0600801215

HI 00801.258 Relationship Between R-HI, D-HI, and Age 65 HI

A patient can have Medicare due to ESRD, age and/or disability. A person with a disability can get ESRD Medicare sooner than Disability Medicare since Disability Medicare requires receipt of SSDI checks for 24 months.

A patient with ESRD Medicare and Disability Medicare can keep Medicare even if s/he is no longer eligible for one or the other. When someone with Medicare due to age, disability or ESRD has another reason for Medicare, there is a new 7-month initial enrollment period (IEP). The IEP starts 3 months before the month s/he is eligible for that new reason and lasts 3 months after that month. Having a new IEP can:

  • Provide a new chance to enroll in Medicare Part B if the patient didn’t enroll in it when s/he enrolled in Medicare Part A;

  • End a premium penalty if enrolled late in Medicare Part B;

  • Provide an earlier Medicare effective date than Medicare due to age or disability;

  • Provide free Medicare Part A to someone 65 or older who was paying a Medicare Part A premium if s/he has enough credits to be fully insured for ESRD Medicare. Fewer credits are needed for ESRD Medicare than for Medicare due to age or disability.

https://secure.ssa.gov/poms.nsf/ilnx/0600801258

HI 00801.247 Medicare as a Secondary Payer of ESRD Benefits

ESRD Medicare pays second for 30 months after an employer group health plan (EGHP) through current work or retirement. The clock starts the month a patient is eligible for Medicare whether or not s/he enrolls. Social Security employees should (but may not) tell ESRD patients with group health plans that they do not have a “special enrollment period” to sign up for Part B when the 30-month period ends. They are supposed to explain these choices:

  • Take Part A and B together when first eligible; or

  • Delay enrolling in both Part A and B until the end of the 30-month coordination period.

An ESRD patient who enrolls in Medicare Part A when first eligible, but delays enrolling in Part B until the end of the 30-month period can only enroll in Part B January through March yearly with Part B starting July 1. S/he may also have a higher Part B premium.

https://secure.ssa.gov/poms.nsf/lnx/0600801247

HI 00801.197 Withdrawal of Application

An ESRD patient took Part A but delayed enrolling in Part B. When learning s/he has a limited time to enroll in Part B and may have a higher premium, s/he may want to withdraw the Part A application. An application for Part A and/or B based on ESRD can be withdrawn any time after it is filed, even after it has started. However, Medicare claims paid, if any, must be reimbursed.

An ESRD patient can reapply for Part A and B together on the same day the Part A application is withdrawn. This way both will be in effect when the 30-month Medicare secondary payer period is ending, or if the ESRD patient’s job or EGHP is lost (see HI 00801.002 Waiver of HI Entitlement by Monthly Beneficiary).

Withdrawal of application can help avoid patients having to wait to enroll in Part B during the general enrollment period, and a higher premium. A Medicare application can be backdated up to 12 months. Note that withdrawing the application for Part A can affect Part B coverage of immunosuppressants if Part A was not in effect the month of the transplant. A patient could use Part D for immunosuppressants—but this may cost more, unless the patient has other insurance.

https://secure.ssa.gov/poms.nsf/lnx/0600801197

HI 00801.002 Waiver of HI Entitlement by Monthly Beneficiary

Some people who get monthly Social Security retirement or disability benefits ask to waive Medicare Part A because of religious or philosophical reasons or because they prefer other health insurance. If monthly benefits make patients eligible for Medicare Part A, they may not waive Medicare Part A. The only way recipients of monthly benefits can waive Medicare Part A is to withdraw applications for Social Security retirement or disability and repay all Social Security retirement or disability benefits and pay back any Medicare Part A payments.

https://secure.ssa.gov/poms.nsf/lnx/0600801002

HI 00805.170 – Conditions for Providing Equitable Relief

If someone who works for Social Security provides incorrect advice, it can be costly. Requesting equitable relief provides recourse for the patient. For example, a dialysis patient with an EGHP starts dialysis and the Social Security staff tells the patient s/he can delay enrolling in Medicare Part B until the end of the 30-month period under a “special enrollment period.” (The SSA staff member may think this, because people who apply for Medicare due to age or disability can do this.) When the patient applies for Part B, s/he learns there is NO special enrollment period—and if s/he missed the January - March (general enrollment period or GEP), s/he must wait until next year. There could be a long gap in coverage for dialysis and other care and s/he may have to pay a higher Medicare Part B premium. Patients who in enroll in Medicare Part A and B together or delay enrolling in both until the 30-month period ends have no coverage gap or higher premium.

https://secure.ssa.gov/poms.nsf/lnx/0600805170

SSA Policies That Continue Medicare Coverage

Section 301 Payments to Individuals Participating in a Vocational Rehabilitation or Similar Program

Someone who receives SSI or SSDI, was working with an “appropriate” program of Vocational Rehabilitation (VR) services, employment services, or other support services, and has “medically improved,” may be able to keep SSI or SSDI under Section 301. The state’s Disability Determination Services (DDS) decides if someone’s disability or blindness has ended (“medical recovery”). Then, the Office of Disability Operations (ODO) decides eligibility for Section 301. A transplant recipient with no other disability besides ESRD may be eligible for SSDI or SSI cash under Section 301 if all other conditions are met.

SSA considers an “appropriate program” to include such things as:

  • an individual education plan (IEP) for a disabled student 18-21;

  • an individual work plan (IWP) with an employment network under the Ticket to Work;

  • an individualized plan for employment (IPE) under state Vocational Rehabilitation;

  • a plan for achieving self-support (PASS);

  • a program of VR or employment/support services through a federal agency (SSA, VA, Promoting the Readiness of Minors in Supplemental Security Income);

  • one stop center; or

  • other SSA-approved service provider.

Getting cash under Section 301 includes Medicare, Medicaid, and a State Supplement (where applicable) and continues until:

  • S/he completes the program; or

  • S/he stops taking part in the program for any reason (excludes a temporary interruption of 3 months or less); or

  • SSA determines the program won’t increase the likelihood of not returning to the disability or blindness rolls.

Patients who get SSI under Section 301 must still meet income and resource limits. They can use such SSI work incentives as impairment related work expenses, blind work expenses, and student earned income exclusion.

https://secure.ssa.gov/apps10/poms.nsf/lnx/0414505010

Continuation of Medicare Coverage

Someone with a disability who loses SSDI cash due to work can keep Medicare Part A for free for 93 months after they have used all 9 trial work months. Having Medicare Part A allows a patient to keep Part B and Part D by paying those premiums. If s/he continues to work with a disability longer than 93 months, s/he can keep Medicare Part A, Part B and Part D by paying a premium. The Part A cost will depend on the number of work credits s/he has. A transplant patient who works with another disability besides ESRD can use this work incentive. Dialysis patients do not risk Medicare by working.

https://secure.ssa.gov/apps10/poms.nsf/lnx/0455055001

Social Security policies are complex and time consuming to read and understand. I hope this description will help you help your in-center and home dialysis patients get the benefits they need and deserve. If you have other questions related to SSA policies, the Social Security Program Operations Manual System (POMS) table of contents can be found at https://secure.ssa.gov/apps10/poms.nsf/partlist!OpenView.

Comments

  • Melville Hodge

    May 2, 2019 2:19 PM

    “HI 00801-247 Medicare as a Secondary Payer of ESRD Benefits”
    This section might be more aptly titled the Medicare Death Incentive. It guarantees that after month 30 of treatment your dialysis provider will lose money every month you remain their patient until you die (or transfer to another facility). Thus, it places your interest in life in direct conflict with their financial interest in your death after month 30.

    Consider what incentives...or disincentives...this Federal policy has created for your provider. This, along with the consequences of government reimbursing providers through paying providers a bundled amount per dialysis treatment rather than a bundled amount per treatment-hour (thus incentivizing shortest possible treatments) makes it unsurprising that mean survival for U.S. dialysis patients is only about 42 months...many feeling rotten too much of the time before they die.

    Feeling much better and living much longer doesn’t require breakthrough research, it just requires the U.S. government to change these two policies and thus align the interests of dialysis patients and their providers...no more dialysis death incentive.

    For more on these two policy proposals see my papers in January 2017 American Journal of Kidney Diseases and August 2017 Nephrology News & Issues.

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    • Beth Witten

      May 2, 2019 3:39 PM

      In your Nephrology News & Issues article at https://www.healio.com/nephrology/policy-and-politics/news/online/%7b70e30398-8343-4b35-9217-46f66b0f5303%7d/lets-get-rid-of-the-dialysis-death-incentive, you proposed payment on the basis of time, which a totally agree with. You also suggested getting rid of coordination of benefits for dialysis. I believe what you're may be proposing is to go to the same coordination of benefits policy that CMS has for workers who are eligible for Medicare due to disability or age who don't have ESRD. For those two groups, an indefinite COB depends on the number of employees. Medicare is secondary to employer plans for disabled workers with employers who have 100 or more employees and for those working after 65, Medicare is only secondary to employer plans for employers with 20 or more employees (or multiple employers or multi-employer plans with at least one employer with 20 or more employees). Would you want to establish an employer size limitation?

      As long as the protections in the ACA continue to exist that prohibit plans from setting annual or lifetime caps on benefits, patients might not be harmed--at least not if they enrolled in Medicare as a secondary payer. When they do that, a provider that accepts Medicare assignment cannot balance bill the patient if the employer plan pays at least 100% of Medicare's allowed charge. I knew patients prior to the ACA who had exhausted their employer plan benefits due to very high medical costs, including dialysis. They had to buy costly state-run high-risk insurance if they weren't eligible for Medicaid.

      For some historical perspective, when I started working in dialysis in 1978, Medicare was always the primary payer for dialysis. It was easy to explain how it paid for dialysis. Dialysis clinics seemed to do well enough that there was some growth in clinics. In 1981, Medicare secondary payer (MSP) started with Medicare being secondary to employer plans for 12 months for people who had Medicare solely due to ESRD. MSP was extended for those with Medicare solely due to ESRD to 18 months in 1991 and to anyone with Medicare due to any reason and ESRD in 1993. It was extended to 30 months in 1996.

      The first national corporate dialysis chain I remember was W.R. Grace's National Medical Care, now Fresenius. It wasn't founded until 1984, 3 years after the ESRD Medicare secondary payer period allowed dialysis clinics to charge employer plans a higher negotiated rate than Medicare allowed. In 1997, Fresenius had 20% of market share of dialysis. Vivra, the second largest dialysis corporation (precursor to DaVita) had 8% of the market. More corporations have formed over the years and multiple mergers have occurred as profits for dialysis corporations have climbed and CEO and upper managers' salaries have skyrocketed to multi-millions. If corporations didn't have to pay fines for illegal practices and invested more home dialysis and in helping patients keep their jobs or find new ones with insurance, I suspect dialysis clinics would do OK even with the 30-month MSP. But that's just my opinion and I'm not knocking yours.

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