[Federal Register Volume 60, Number 112 (Monday, June 12, 1995)]
[Notices]
[Pages 30877-30891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14314]



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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Health Care Financing Administration
[BPD-832-N]


Medicare Program: HHS' Approval of NAIC Statements Relating to 
Duplication of Medicare Benefits

AGENCY: Health Care Financing Administration (HCFA), HHS.

ACTION: Notice.

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SUMMARY: This notice contains 10 disclosure statements that have been 
developed by the National Association of Insurance Commissioners (NAIC) 
and approved by the Secretary, consistent with the requirements 
contained in the Social Security Act, as amended in 1994. The purpose 
of these statements is to inform prospective buyers of health insurance 
policies of the extent to which benefits under the policy duplicate 
Medicare benefits. Each of the 10 statements applies to a different 
type of health insurance policy the NAIC identified as needing a 
disclosure statement. As of the effective date of this notice, issuers 
of policies that duplicate Medicare benefits must display the 
applicable statement in a prominent manner as part of, or together 
with, the application for the policy. Issuers who fail to provide the 
duplication notice could be subject to penalties relating to the sale 
of duplicate health insurance coverage.

EFFECTIVE DATE: Health insurance policy issuers subject to this notice 
must comply with its provisions on and after August 11, 1995.

ADDRESSES: Copies: To order copies of the Federal Register containing 
this document, send your request to: New Orders, Superintendent of 
Documents, [[Page 30878]] P.O. Box 371954, Pittsburgh, PA 15250-7954. 
Specify the date of the issue requested and enclose a check or money 
order payable to the Superintendent of Documents, or enclose your Visa 
or Master Card number and expiration date. Credit card orders can also 
be placed by calling the order desk at (202) 512-1800 or by faxing to 
(202) 512-2250. The cost for each copy (in paper or microfiche form) is 
$8. As an alternative, you may view and photocopy the Federal Register 
document at most libraries designated as U.S. Government Depository 
Libraries and at many other public and academic libraries throughout 
the country that receive the Federal Register.

FOR FURTHER INFORMATION CONTACT: Julie Walton, (410) 966-4622.

SUPPLEMENTARY INFORMATION:

I. Background

    The Medicare program covers approximately 38 million beneficiaries 
who are age 65 or over, are disabled, or have permanent kidney failure. 
The program consists of two separate but complementary insurance 
programs, a hospital insurance program (Part A) and a supplementary 
medical insurance program (Part B). Although Part A is called hospital 
insurance, covered benefits also include medical services furnished in 
skilled nursing facilities or by home health agencies and hospices.
    Part B covers a wide range of medical services and supplies such as 
those furnished by physicians or others in connection with physicians' 
services, outpatient hospital services, outpatient physical and 
occupational therapy services, and home health services. Part B also 
covers other items including certain drugs and biologicals that cannot 
be self-administered, diagnostic x-ray and laboratory tests, purchase 
or rental of durable medical equipment, ambulance services, prosthetic 
devices, and certain medical supplies.
    While the Medicare program provides extensive hospital insurance 
benefits and supplementary medical insurance, it was not designed to 
cover the total cost of providing medical care for its beneficiaries. 
In particular:
     Benefits under both Parts A and B are reduced by certain 
deductible and coinsurance amounts, for which the beneficiary is 
responsible.
     When beneficiaries receive covered services from 
physicians who do not accept assignment of their Medicare claims, the 
beneficiaries may also be required to pay amounts in excess of the 
Medicare approved amount (``excess charges''), up to a limit 
established under the Social Security Act (the Act).
     There are a number of items generally not covered under 
either of Medicare's two insurance programs, such as most outpatient 
prescription drugs, custodial nursing home care, dental care, and 
eyeglasses.
    Beneficiaries are liable for all of the costs listed above and may 
choose to purchase additional private insurance to help pay these 
costs.

A. Supplements to Medicare

    Because Medicare does not cover the total cost of providing medical 
care, approximately 75 percent of Medicare beneficiaries purchase, or 
have available through their own or a spouse's employment or former 
employment, some type of private health insurance coverage to help pay 
for medical expenses, services, and supplies that Medicare either does 
not cover or does not pay in full. This coverage includes Medicare 
supplemental (``Medigap'') insurance; employer group health plans based 
on active employment or retiree coverage; hospital indemnity insurance; 
nursing home or long-term care insurance; and specified disease 
insurance. (Throughout this notice, the terms ``Medicare supplemental 
policy'' and ``Medigap policy'' will be used interchangeably.)
    An alternative to Medigap is enrollment in a managed care plan that 
has a risk or cost contract with HCFA under section 1876 of the Act or 
a Health Care Prepayment Plan (HCPP) agreement under section 1833 of 
the Act. Beneficiaries who enroll in these plans are generally covered 
for out-of-pocket costs associated with Medicare benefits and often 
receive additional benefits such as prescription drugs coverage and 
preventive health care services at little or no cost.
    In addition to the approximately 75 percent of Medicare 
beneficiaries with private insurance coverage, nearly 12 percent of 
Medicare beneficiaries are eligible for at least some Medicaid 
benefits. For most of these beneficiaries, Medicaid covers their 
Medicare coinsurance and deductible liabilities and may also provide 
additional benefits that Medicare does not cover, such as long term 
care.
B. Federal and State Regulation of Insurance

    After Medicare was enacted in 1965, a number of States enacted laws 
and regulations governing insurance sold to supplement Medicare. 
However, the scope and enforcement of these laws varied considerably. 
Although Federal law recognizes the States as the primary regulators of 
insurance, in 1980 the Congress addressed certain abuses associated 
with the sale of health insurance to elderly Medicare beneficiaries. On 
June 9, 1980, Congress enacted section 507(a) of the Social Security 
Disability Amendments of 1980 (Public Law 96-265) (the ``Baucus 
Amendment''), adding section 1882 to the Act.
    In adding section 1882 to the Act, Congress recognized the progress 
already made by the National Association of Insurance Commissioners 
(NAIC) and some States in the area of Medigap regulation and chose not 
to alter the traditional role of the States in regulating insurance.
    Created in 1871, the NAIC is the organization of the chief 
insurance regulatory officials from all 50 States, the District of 
Columbia and the four territories. It provides a forum for the 
development of uniform public policy where uniformity is deemed 
appropriate by its members. The NAIC's primary instruments of public 
policy are model laws, regulations, and guidelines. States are free to 
adopt the NAIC models in their entirety, modify them, or not adopt them 
at all. Federal statutory requirements, however, require all States to 
adopt at least the minimum standards reflected in the NAIC's ``Model 
Regulation to Implement the Requirements of the NAIC Medicare 
Supplement Minimum Standards Model Act''.
    The Baucus Amendment established a voluntary program under which 
the Federal government would certify that Medigap policies met minimum 
standards established by section 1882 of the Act, although policies 
could still be sold even if they were not certified. It also provided 
that if State regulatory programs met or exceeded minimum standards, 
including standards established by the NAIC, Medigap policies issued in 
those States would be deemed to meet the Federal certification 
requirements, and separate Federal certification would not be available 
in those States. However, after hearing reports of continuing abuses in 
the marketplace, as part of extensive Medigap reforms contained in the 
Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) enacted on 
November 5, 1990, the Congress made the certification program mandatory 
for both States and issuers. The Congress continued to base the Federal 
standards on the NAIC model regulation for Medicare supplement policies 
and continued to leave enforcement to the States. The model regulation 
was amended on July 30, 1991, to reflect the requirements of the new 
statutory [[Page 30879]] provisions. By July 1992, all States had 
adopted standards equal to or more stringent than the 1991 NAIC model 
regulation for Medigap policies.
    The Federal certification program applies exclusively to Medigap 
policies, as defined in section 1882 of the Act. State regulation, by 
contrast, includes a wider range of policies that might be sold to 
Medicare beneficiaries, including limited health benefit insurance such 
as indemnity, specified disease, and long term care policies. (In fact 
some States prohibit the sale of some types of policies that are the 
subject of this notice, such as specified disease policies). Section 
1882 of the Act does, however, affect these policies, to the extent 
that they duplicate other coverage a beneficiary may have.

II. Anti-Duplication Provisions

A. Medigap Legislation Before 1990

    Section 1882 of the Act contains a sanctions section that 
establishes criminal and civil money penalties designed to assist 
States and the Federal government in dealing with abuses identified in 
the various studies and investigations of Medigap insurance. Before 
OBRA '90 was enacted, penalties applied if an individual sold to a 
Medicare beneficiary any health insurance policy (that is, not just a 
Medigap policy) that was known to substantially duplicate the 
beneficiary's Medicare coverage or other health insurance. However, 
benefits that were payable without regard to the individual's other 
health benefit coverage were to be considered non-duplicative. Section 
1882(d)(3)(C) of the Act further provided that the penalties for 
selling or issuing duplicative coverage did not apply to group policies 
or plans of employers or labor organizations.

B. The Omnibus Budget Reconciliation Act of 1990

    Section 4354(a) of OBRA '90 amended section 1882(d)(3) of the Act 
to broaden the earlier anti-duplication provisions by making several 
significant changes. In section 1882(d)(3)(A) of the Act, it removed 
the qualifier ``substantially'' that modified ``duplicates'' in the 
earlier version of the Act. As a result, any amount of duplication 
became illegal. Section 4354(a) of OBRA '90 also deleted the original 
wording in section 1882(d)(3)(B) of the Act that provided that if the 
policy paid benefits without respect to other coverage (that is, the 
policy did not coordinate benefits with other coverage), it would be 
considered non-duplicative. Section 4354(a) of OBRA '90 also broadened 
the anti-duplication provisions to make it illegal to duplicate 
Medicaid as well as Medicare benefits or other private coverage. As 
amended by OBRA '90, section 1882(d)(3)(A) of the Act now made it:

    * * * unlawful for a person to sell or issue a health insurance 
policy to an individual entitled to benefits under part A or 
enrolled under part B of this title, with knowledge that such policy 
duplicates health benefits to which such individual is otherwise 
entitled [including Medicare and Medicaid or any private coverage 
the individual might have] * * *

Under section 1882(d)(3)(C) of the Act, employer group health plans 
continued to be exempt from these requirements.
    While the provisions of OBRA '90 were intended to protect Medicare 
beneficiaries from abusive sales practices and prevent them from buying 
unnecessary and expensive duplicate coverage, it became apparent soon 
after enactment that a total prohibition against any amount of 
duplication of benefits, including even any incidental overlap, had the 
unintended effect of denying Medigap or other types of desired 
coverage, such as long term care insurance policies, to people who 
already had some coverage that would be at least partially duplicated 
by the new policy. This was true even in cases in which the beneficiary 
had good reasons for wanting to buy the additional coverage.

C. Social Security Act Amendments of 1994

    The Social Security Act Amendments of 1994 (SSAA '94) (Public Law 
103-432) retained, in section 1882(d)(3)(A)(i)(I) of the Act, the basic 
prohibition against selling or issuing to a Medicare beneficiary a 
health insurance policy with knowledge that the policy duplicates 
health benefits to which the individual is entitled under Medicare or 
Medicaid. However, the new law provides an exception to this basic 
prohibition.
    The penalties for selling a policy that duplicates Medicare or 
Medicaid benefits (other than a Medigap policy to an individual 
entitled to any Medicaid benefits) do not apply if two conditions are 
met. First, all benefits under the policy must be fully payable 
directly to, or on behalf of, the beneficiary without regard to other 
health benefit coverage of the individual. Second, the issuer must 
display in a prominent manner as part of (or together with) the 
application a prescribed statement disclosing the extent to which 
benefits payable under the policy or plan duplicate Medicare benefits. 
The latter requirement only applies to policies sold or issued more 
than 60 days after the date that the required statements are published 
or promulgated under the provisions established in section 171(d)(3)(D) 
of SSAA '94. Therefore policies issued on or after August 11, 1995 must 
include these disclosure statements.
    Section 171(d)(3)(D) of SSAA '94 provides that if, within 90 days 
of the statute's enactment, the NAIC develops and submits to the 
Secretary a statement for each type of non-Medigap health insurance 
policy and the Secretary approves all the statements as meeting the 
requirements of SSAA '94, the statements developed by the NAIC will be 
the ones prescribed by the law. The statute instructs the NAIC to 
consult with consumer and insurance industry representatives in 
developing the statements. The statute also specifies that the separate 
types of health insurance policies that need disclosure statements 
include, but are not limited to, fixed cash indemnity policies and 
specified disease policies. The statute gives the Secretary 30 days to 
review and approve or disapprove all the statements submitted by the 
NAIC. Upon approval of these statements the statute requires the 
Secretary to publish the statements.

III. Implementation of SSAA '94

A. Development of Disclosure Statements

    In an effort to assure that consumer and insurance industry 
representatives had an opportunity to provide meaningful input into the 
NAIC's development of the disclosure statements, the NAIC undertook the 
following steps:
     On November 1, 1994, a Request for Comment was mailed to 
over 500 representatives of consumer organizations and insurance 
industry representatives as well as to the program directors of the 
Insurance Counseling and Assistance Programs established in each State.
     A Request for Comment was also sent to all NAIC members 
and the person responsible for health issues in each State as well as 
to all members of Congress and certain congressional health staff 
members.
     The Fall edition of the NAIC NEWS and the NAIC Senior 
Counseling Letter included a short summary of the major components of 
section 171 of the SSAA '94 (in particular, the provisions on 
duplication) and solicited input from the readers. These solicitations 
generated 33 written comment letters providing suggestions on how the 
NAIC should proceed. [[Page 30880]] 
     On December 2, 1994, a public hearing was conducted during 
an NAIC meeting in New Orleans, Louisiana. Sixteen representatives of 
organizations provided testimony at this hearing. On December 3 and 5, 
1994, additional public meetings were held to begin drafting the 
statements.
     On December 13, 1994, draft disclosure statements were 
mailed to the same persons who received the Request for Comment. This 
mailing asked for comment on the draft statements and announced another 
public meeting. This mailing generated an additional 16 comment 
letters.
     On January 9 and 10, 1995, public meetings were held in 
Washington, D.C., to solicit further input from consumer and insurance 
industry representatives.
     On January 12, 1995, copies of the revised disclosure 
statements were faxed to the participants of the January 9 and 10 
meetings requesting additional input and announcing the final public 
meeting. An additional 5 comment letters were received.
     On January 20, 1995, a final public meeting was held in 
Washington, D.C., seeking additional public comment on the statements 
before submitting them for adoption by the Commissioners in a plenary 
session held on January 21.
    The NAIC delivered the statements to the Secretary on January 27, 
1995. The Secretary approved them on February 24, 1995.

B. Availability of Comments Received During Development of NAIC 
Disclosure Statements

    Comments concerning the 10 disclosure statements received during 
the development and approval process will be available for public 
inspection beginning with the date of the publication of this document. 
They may be viewed in Room 309-G of the Department's offices at 200 
Independence Avenue, SW., Washington DC, on Monday through Friday of 
each week from 8:30 a.m. to 5 p.m. (phone: (202) 690-7890), and in Room 
132 East High Rise building, 6325 Security Boulevard, Baltimore 
Maryland, on Monday through Friday, of each week from 8:30 a.m. to 4:00 
p.m. (phone: (410) 966-5633).

C. Criminal and Civil Money Penalties

    Any issuer who is required to provide the appropriate statement as 
part of, or together with, the application after the effective date of 
this notice and fails to do so, or fails to pay benefits under the 
policy without regard to other coverage, is subject to the imposition 
of the Federal criminal and/or civil penalties that are identified in 
section 1882(d)(3)(A) of the Act. The criminal penalties identified in 
this section are fines under title 18 of the U.S. Code, which could be 
as much as $25,000, or imprisonment of not more than 5 years, or both. 
In addition to or in lieu of criminal penalties, an issuer who violates 
these requirements could be subject to a civil money penalty of up to 
$25,000 per violation. In the case of violation of these requirements 
by any person other than the issuer (e.g., an agent), the civil money 
penalty per violation may not exceed $15,000.
D. Policies Not Requiring Disclosure Statements

    Certain policies do not have to carry a disclosure statement.
     Policies that do not duplicate Medicare benefits, even 
incidentally.
    (An argument has been made that a policy that coordinates benefits 
with Medicare (that is, does not pay otherwise covered benefits if 
Medicare has already paid benefits) does not ``duplicate'' Medicare 
within the meaning of section 1882(d)(3) of the Act. However, this 
interpretation would make section 1882(d)(3)(C)(ii) of the Act 
meaningless. The latter provision permits duplication of Medicare only 
if a policy makes benefits fully payable without regard to other health 
benefit coverage. Therefore, section 1882 (d)(3)(C)(ii) of the Act only 
makes sense if the policy in question has a coordination of benefits 
clause. In other words, the controlling factor is whether the policy 
provides coverage of benefits that would duplicate Medicare benefits, 
not whether or not it actually pays.
    A question was also raised as to whether policies that pay fixed 
dollar amounts that are not for specific services duplicate Medicare. 
Section 1882(d)(3)(D)(i)(I) of the Act specifically requires the NAIC 
to draft statements for policies that pay ``fixed, cash benefits.'' 
This represents a congressional determination that these policies 
``duplicate'' Medicare.)
     Life insurance policies that contain long term care riders 
or accelerated death benefits.
    (These types of policies are not covered under the disclosure 
requirements for two reasons. First, they are advertised, marketed, and 
sold as life products, not as ``health insurance.'' Second, as life 
insurance policies, these products will always pay the same amount of 
benefit whether the payment is made before or after death. By contrast, 
if a long term care insurance policyholder dies without ever filing a 
claim for long term care benefits, there is usually no return on his or 
her ``investment'' in premiums.)
     Disability insurance policies.
    (Although in some contexts these types of policies may be 
considered to be a form of health insurance, we believe that they are 
not the type of insurance policies Congress intended to come within the 
scope of this legislation. They have traditionally been considered to 
be a separate type of insurance, and the Internal Revenue Code treats 
them differently from health insurance.)
     Property and casualty policies, including personal 
liability and automobile insurance.
    (These types of policies may pay certain health benefits, but State 
laws do not consider property and casualty coverage to be ``health 
insurance.'')
     Employer and union group health plans.
    (These types of policies are exempt from the anti-duplication 
prohibition under section 1882(d)(3)(C)(i) of the Act and therefore do 
not have to meet the requirements of section 1882 (d)(3)(C)(ii) of the 
Act. Such plans do not need to carry disclosure statements even though 
they may fit one of the above categories.)
     Managed care organizations with Medicare contracts under 
section 1876 of the Social Security Act.
    (These plans do not ``duplicate'' Medicare benefits; rather their 
purpose is to actually provide all covered Medicare benefits directly 
to enrolled beneficiaries.)
     HCPPs that provide some or all Part B benefits under an 
agreement with HCFA under section 1833(a) of the Act.
    (As with section 1876 managed care plans, under these agreements, 
HCPPs provide the actual Medicare benefits; they do not duplicate 
Medicare.)

E. Policies Requiring Disclosure Statements

    The NAIC has identified 10 separate types of health insurance 
policies that each need an individualized statement of the extent to 
which the policy duplicates Medicare. These types of policies are--
    (1) policies that provide benefits for expenses incurred for an 
accidental injury only;
    (2) policies that provide benefits for specified limited services;
    (3) policies that reimburse expenses incurred for specified disease 
or other specified impairments (including cancer policies, specified 
disease policies and other policies that limit reimbursement to named 
medical conditions);
    (4) policies that pay fixed dollar amounts for specified disease or 
other [[Page 30881]] specified impairments (including cancer, specified 
disease policies and other policies that pay a scheduled benefit or 
specified payment based on diagnosis of the conditions named in the 
policy);
    (5) indemnity policies and other policies that pay a fixed dollar 
amount per day, excluding long term care policies;
    (6) policies that provide benefits for both expenses incurred and 
fixed indemnity;
    (7) long-term care policies providing both nursing home and non-
institutional coverage;
    (8) long-term care policies primarily providing nursing home 
benefits only;
    (9) home care policies; and
    (10) other health insurance policies not specifically identified 
above.

IV. Policy Disclosure Statements

    We have reviewed and approved the statements developed by the NAIC 
along with the instructions for their use and they are set forth as an 
addendum to this notice.

V. Other

    This notice was reviewed by the Office of Management and Budget.

(Section 1882(d)(3) of the Social Security Act (42 U.S.C. 
1395ss(d)(3)))

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)

    Dated: April 17, 1995.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.

Addendum

Adopted by the NAIC on 1/21/95

Instructions for Use of the Disclosure Statements for Health Insurance 
Policies Sold to Medicare Beneficiaries That Duplicate Medicare

    1. Federal law, P.L. 103-432, prohibits the sale of a health 
insurance policy (the term policy includes certificate) to Medicare 
beneficiaries that duplicates Medicare benefits unless it will pay 
benefits without regard to a beneficiary's other health coverage and 
it includes the prescribed disclosure statement on or together with 
the application for the policy.
    2. All types of health insurance policies that duplicate 
Medicare shall include one of the attached disclosure statements, 
according to the particular policy type involved, on the application 
or together with the application. The disclosure statement may not 
vary from the attached statements in terms of language or format 
(type size, type proportional spacing, bold character, line spacing, 
and usage of boxes around text).
    3. State and Federal law prohibits insurers from selling a 
Medicare supplement policy to a person that already has a Medicare 
supplement policy except as a replacement policy.
    4. Property/Casualty and Life insurance policies are not 
considered health insurance.
    5. Disability income policies are not considered to provide 
benefits that duplicate Medicare.
    6. The federal law does not pre-empt state laws that are more 
stringent than the federal requirements.
    7. The federal law does not pre-empt existing state form filing 
requirements.

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[FR Doc. 95-14314 Filed 6-9-95; 8:45 am]
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