[Federal Register Volume 60, Number 201 (Wednesday, October 18, 1995)]
[Rules and Regulations]
[Pages 53876-53877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25840]



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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Health Care Financing Administration

42 CFR Part 411

[BPD-482-CN]
RIN 0938-AD73


Medicare Program; Medicare Secondary Payer for Individuals 
Entitled to Medicare and Also Covered Under Group Health Plans; 
Correction

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

ACTION: Final rule with comment period; Correcting amendments.

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SUMMARY: This document makes corrections to the final rule with comment 
period entitled ``medicare program; medicare secondary payer for 
individuals entitled to medicare and also covered under group health 
plans'' that was published in the Federal Register on Thursday, August 
31, 1995 (60 FR 45344).

EFFECTIVE DATE: September 29, 1995.

FOR FURTHER INFORMATION CONTACT: Roya D. Lotfi, (410) 786-1898

SUPPLEMENTARY INFORMATION:

Background

    In the August 31, 1995 issue, we amended the rules to implement 
certain provisions of section 1862(b) of the Social Security Act, as 
amended by the Omnibus Budget Reconciliation Acts of 1986, 1989, 1990, 
and 1993 and the Social Security Act Amendments of 1994 that affected 
the Medicare secondary payer rules for individuals who are entitled to 
Medicare on the basis of age or who are eligible or entitled on the 
basis of end stage renal disease, and who are also covered under group 
health plans. We also established limits on Medicare payment for 
services furnished to individuals who are entitled to Medicare on the 
basis of disability and who are covered under large group health plans 
by virtue of their own or a family member's current employment status 
with an employer; and prohibit large group health plans from taking 
into account that those individuals are entitled to Medicare on the 
basis of disability.
    The final rule with comment period that is the subject of these 
corrections was necessary because of the statutory changes referenced 
above. Those changes required a new subpart for the provisions that now 
apply generally to all group health plans and Medicare secondary payer 
situations. We also needed to make room for incorporating in logical 
order any additional regulations that may be required by future 
amendments to the Act.

Correction of Publication

    As published, the final rule with comment period contains errors. 
Accordingly, the publication on August 31, 1995 of the final rule with 
comment that was the subject of FR Doc. 95-21265, is corrected as 
follows (see also correction published September 20, 1995 at 60 FR 
48749):
    In the preamble, we correct typographical errors on page 45358, 
first column, last paragraph. As corrected the first sentence reads:
    ``In contrast, a plan that is paying primary benefits takes into 
account ESRD-based eligibility if it attempts to shift that primary 
payment responsibility to Medicare when an individual becomes eligible 
for Medicare based on ESRD, or when an individual is already eligible 
for Medicare based on ESRD but has not completed the 18-month 
coordination period.''
    Also in the preamble, on page 45360, third column, first paragraph, 
several words were inadvertently omitted from the third sentence. As 
corrected the sentence reads:
    ``However, section 13561(c)(2) and (3) of OBRA '93 provides that 
there will be an 18-month coordination period during which employer 
sponsored primary insurance plans must continue to pay primary benefits 
even if an individual who is eligible for or entitled to Medicare based 
on ESRD is also entitled to Medicare on another basis.''
    In the regulations text of Sec. 411.108(a)(8) on page 46364, we 
correct drafting errors by removing the words ``no more than the 
Medicare payment rate'' and adding the word ``less''; by removing the 
words ``but making payments at a higher rate'' and adding the word 
``than''; and by adding the word ``furnished'' after the word 
``services'' the second place it appears. As written, a group health 
plan could pay one dollar more than the Medicare rate, but less than 
the rate it pays for non-Medicare enrollees, and not be in violation of 
this paragraph. Paragraph (8) presents an example as the rule, when it 
should simply state that where the group health plan pays less for the 
same services for a Medicare beneficiary than for others, the group 
health plan has taken Medicare entitlement into account. (See 
Sec. 411.161(b)(2)(iv).)
    Also in the text, we are making a conforming change in the second 
sentence of Secs. 411.163 (b)(2) and (b)(3) on page 45369 by removing 
the word ``If'' and adding the words ``Except as provided in paragraph 
(b)(4) of this section, if'' so that paragraphs (2) and (3) cannot be 
misconstrued to conflict with paragraph (4).
    Finally in the text, we are making a change in the first sentence 
of Sec. 411.172(b) to conform this section to Sec. 411.170(a)(2) and 
the statutory provisions of section 1862(b) by adding ``and of 
subparagraph (iii) of Sec. 411.170(a)(2)'' after the word ``section''.

List of Subjects in 42 CFR Part 411

    Exclusions from Medicare, Limitations on Medicare payments, 
Medicare, Recovery against third parties, Reporting and recordkeeping 
requirements.

PART 411--EXCLUSIONS FROM MEDICARE AND LIMITATIONS ON MEDICARE 
PAYMENT

    42 CFR Part 411 is corrected by making the following correcting 
amendments:
    1. The authority citation for Part 411 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).


Sec. 411.108  [Corrected]

    2. In Sec. 411.108, paragraph (a)(8) is revised to read as follows:
    (a) Examples of actions that constitute ``taking into account''. * 
* *
    (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.
* * * * *


Sec. 411.163  [Corrected]

    3. In Sec. 411.163, paragraphs (b)(2) and (b)(3) are revised to 
read as follows:
* * * * *
    (b) * * *
    (2) First month of ESRD-based eligibility or entitlement and first 
month 

[[Page 53877]]
of dual eligibility/entitlement after February 1992 and before August 
10, 1993. Except as provided in paragraph (b)(4) of this section, if 
the first month of ESRD-based eligibility or entitlement and first 
month of dual eligibility/entitlement were after February 1992 and 
before August 10, 1993, Medicare--
    (i) Is primary payer from the first month of dual eligibility/
entitlement through August 9, 1993;
    (ii) Is secondary payer from August 10, 1993, through the 18th 
month of ESRD-based eligibility or entitlement; and
    (iii) Again becomes primary payer after the 18th month of ESRD-
based eligibility or entitlement.
    (3) First month of ESRD-based eligibility or entitlement after 
February 1992 and first month of dual eligibility/entitlement after 
August 9, 1993. Except as provided in paragraph (b)(4) of this section, 
if the first month of ESRD-based eligibility or entitlement is after 
February 1992, and the first month of dual eligibility/entitlement is 
after August 9, 1993, the rules of Sec. 411.162(b) and (c) apply; that 
is, Medicare--
    (i) Is secondary payer during the first 18 months of ESRD-based 
eligibility or entitlement; and
    (ii) Becomes primary after the 18th month of ESRD-based eligibility 
or entitlement.
* * * * *


Sec. 411.172  [Corrected]

    4. In Sec. 411.172, paragraph (b) is revised to read as follows:
* * * * *
    (b) Special rule for multi-employer plans. The requirements and 
limitations of paragraph (a) of this section and of (a)(2)(iii) of 
Sec. 411.170 do not apply with respect to individuals enrolled in a 
multi-employer plan if--
    (1) The individuals are covered by virtue of current employment 
status with an employer that has fewer than 20 employees; and
    (2) The plan requests an exception and identifies the individuals 
for whom it requests the exception as meeting the conditions specified 
in paragraph (b)(1) of this section.
* * * * *
(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)

    Dated: October 13, 1995.
Neil J. Stillman,
Deputy Assistant Secretary for Information Resources Management.
[FR Doc. 95-25840 Filed 10-17-95; 8:45 am]
BILLING CODE 4120-01-P