Editor’s Note: Journalist Philip Moeller, who writes widely on aging and retirement, is here to provide the answers you need in “Ask Phil.” Send your questions to Phil.
I regularly advise, warn and sometimes shriek at people that they must look out for themselves, must not assume that Medicare will do the right thing for them, and that wrestling with complex Medicare rules and a giant health care bureaucracy is a full-contact sport not meant for the meek.
Today, I give you section 1851(c)(3)(A)(ii) of the Social Security Act. It sets forth a provision of the law where a private Medicare Advantage plan can enroll a person even if the person has not requested such coverage, so long as the person had previously been insured by the plan in either a commercial policy, or a Medicaid plan before they turned 65 or otherwise became eligible to enroll in Medicare.
I do not know how often this happens.
But I do know that it happened to an unnamed woman – “Ms. M” — who lives in the Southwest. She turned 65 last fall and thought she had enrolled in basic Medicare (Plans A and B), a Medigap plan and a Part D drug plan. At this point in the narrative, I will turn things over to the nonprofit Center for Medicare Advocacy (CMA), which took up her case:
Shortly after becoming eligible for Medicare, Ms. M. required two surgeries, one in October and one in November 2015. She lives in a rural area near the state line and went to the closest hospital – over that state line. Following the surgeries, her doctor’s office called and told her that the claims had been denied by Medicare because she was enrolled in a Medicare Advantage (MA) plan and the surgeries were performed at a hospital that was outside of the MA plan’s network. Ms. M. called the MA plan and was shocked to find out that because she had coverage through this insurance company before she joined Medicare, they were allowed to enroll her in one of the company’s MA plans without her choosing to do so.
Ms. M found out that the insurer was required to give her 60 days advance notice of what is formally called a “seamless continuation of coverage.” Seriously? Where is John Oliver when you need him? During this period, she could have shifted to other Medicare plans. But to do so, she would have had to have seen the notice. Here is the CMA narrative again:
Similar to many individuals approaching Medicare eligibility, Ms. M. received mail from numerous Medicare Advantage, Part D and Medigap plan sponsors in the months prior to her 65th birthday. Having already decided that she wanted to have traditional Medicare and enroll in a Medigap plan and a stand-alone Part D plan, she discarded these materials, including, presumably, the notice sent by her commercial plan sponsor informing her that she would be enrolled in the same company’s Medicare Advantage plan unless she actively opted out. She received no other notice or communication about her plan’s seamless conversion enrollment, and had no idea she was enrolled in an MA plan until her providers’ bills were rejected because the services were out of the plan’s network.
In case you missed it above, I wanted to emphasize that the rule permits the conversion to be automatic unless a person opts out. Surely, the Centers for Medicare & Medicaid Services (CMS) should change this and, at a minimum, provide opt-in protection to beneficiaries. If not, the real-world effect of this rule is that not reading every piece of your mail – even mail you are not expecting and did not ask be sent to you – can cost you enormous amounts of money and even your financial solvency.
Fortunately, the CMA went to bat for Ms. M. and got Medicare to change its mind. Now, this part of the process was quite complicated. I reproduce it here in case you or someone you know finds themselves put through a seamless conversion nightmare:
In order to undo her undesired predicament, Ms. M. had one apparent option: submit a request to CMS to be retroactively dis-enrolled from her MA plan. CMS may grant a request for retroactive disenrollment from an MA plan when “there never was a legally valid enrollment”, or “a valid request for disenrollment was properly made but not processed or acted upon.”
An enrollment that is not complete is not considered to be legally valid. According to the relevant Manual provision, “CMS does not regard an enrollment as actually complete if the member or his/her legal representative did not intend to enroll in the MA organization. If there is evidence that the individual did not intend to enroll in the MA organization, the MA organization should submit a retroactive disenrollment request to CMS.” Such evidence of lack of intent to enroll may include “[e]nrolling in a supplemental insurance program immediately after enrolling in the MA organization; or Receiving non-emergency or non-urgent services out-of-plan immediately after the effective date of coverage under the plan.”
Ms. M. had no intent to enroll in the MA plan, as evidenced by her enrollment in a Medigap plan, a stand-alone Part D plan, and her efforts to obtain services out of the plan’s network. With assistance from the Center, Ms. M’s local advocate successfully petitioned CMS for retroactive disenrollment from her MA plan. This resulted in the cancellation of Ms. M’s seamless enrollment conversion into the MA plan. Ms. M. was put in traditional Medicare as of October 1, 2015. Because she had signed up for a Medigap plan to start on October 1st, the surgeries she had would, assuming they were medically reasonable and necessary, be covered by traditional Medicare and the cost-sharing picked up by her Medigap plan. The traditional Medicare program has no network restrictions, so that would no longer be a barrier to coverage for her surgeries.
I tried to find out Ms. M’s real name and the name of her insurer, so I could speak with them. But the agencies that helped her declined. I also tried to find out details about seamless conversions from CMS. According to the wording of the law, it’s clear that CMS must be involved in these conversion plans and thus knows the details of who uses them and how often they are invoked.
Here’s an explanatory excerpt from the law, which has been around long enough that it uses the old name for Medicare Advantage plans, which formerly were called “Medicare+Choice” plans. The “Secretary” referred to in the law is the Secretary of the U.S. Department of Health & Human Services; currently, that’s Sylvia Burwell.
(ii) Seamless continuation of coverage.—The Secretary may establish procedures under which an individual who is enrolled in a health plan (other than Medicare+Choice plan) offered by a Medicare+Choice organization at the time of the initial election period and who fails to elect to receive coverage other than through the organization is deemed to have elected the Medicare+Choice plan offered by the organization (or, if the organization offers more than one such plan, such plan or plans as the Secretary identifies under such procedures).
Of course, in Ms. M’s case, she clearly did elect to receive coverage other than through the Medicare Advantage insurer who “seamlessly” enrolled her. And Medicare rules do not require consumers to contact all the insurers with whom they DON’T do business.
Now, to be clear, I do not think Ms. M’s story applies to lots of people. But this would be nice to know, wouldn’t it? And you’d think this would be easy enough to find out. Ha!
I contacted the six largest sellers of Medicare Advantage plans.
Aetna and Humana do not currently do seamless conversions, their spokesmen said.
UnitedHealthcare didn’t do any of them in 2015 but recently received CMS approval to enroll Medicaid members in Arizona and Tennessee into its Medicare Advantage Dual Special Needs Plans beginning this November. A spokeswoman said UHC policy is to follow up its written notice with a phone call about two weeks after the letter is sent to confirm the person received the letter and understands how the seamless conversion process works. If they later decide to opt out of coverage or switch plans, they can do so without having a lapse in their Medicare insurance coverage.
“We aren’t going to have anything on this for you,” a Cigna spokesman said.
“I looked into this with my colleagues who work on Medicare and they decided that it was a sensitive issue that they’d rather not comment on,” a spokeswoman for Kaiser Permanente said. “But thank you for the opportunity and hopefully we can help you in the future with other Medicare stories.”
Anthem did not respond to my request.
Of course, all of this could easily be clarified by CMS. But the agency rarely provides such information. The Association of Health Care Journalists recently polled its members and found they encountered worrisomely high levels of stonewalling from their sources. And the worst offenders were at the federal level.
When I contacted CMS for a comment (journalists are instructed to use an online form to even request help from the agency’s media-relations staff), the response was, “I’m sorry, but we won’t be able to provide you the data/information you’re looking for. You’re welcome to submit a FOIA request.”
FOIA refers to the Freedom of Information Act. It often is used to permit government agencies to appear to be open while burying such requests in a growing mountain of pending items. I sent CMS a FOIA request in July of last year. It was determined to be a valid request but not of an emergency nature. I am still waiting for that information! In fact, and I’m guessing this is the point of obfuscation, I can’t even remember what I wanted to know!
All of which reinforces the message at the top of this story. You must look out for yourself when dealing with Medicare. Do not assume anyone is looking out for you. CMS professes nearly every day that it is doing exactly that. But its actions or, rather, inactions, say otherwise.