TN 31 (06-04)

A. Policy – Prescribed form and retroactivity

The CMS-43 is the prescribed application form for ESRD Medicare. However, any signed request for or inquiry about Medicare on behalf of a specified ESRD patient (including a signed CMS-2728-U3) is considered a protective writing on behalf of the patient. (See HI 00801.196.4.b. below for when a hospital statement may protect filing date.)

The date of filing is the date of receipt of the signed statement by SSA or CMS (or the date of postmark, if advantageous to the beneficiary). However, if a protective writing is received, the prescribed application must be filed within 6 months after the month SSA makes a written request for the application.

An application filed (or deemed to be filed) in a given month establishes R-HI beginning with the earliest of the preceding 12 months in which all other conditions of eligibility were met.

The beneficiary may restrict retroactivity of his/her application for any reason so that

R-HI begins with a month after the first month of eligibility. The file must be documented with a signed statement showing the reason for the choice.

B. Policy – Who may apply

The patient is the usual applicant. However, because of the debilitating effect of ESRD, which may even cause death before an application can be filed, a relative or other person assuming responsibility for the patient, or a survivor (see HI 00801.196.D.), may file the application.

If the claimant cannot transact business, the person filing the application should sign a statement describing briefly why the claimant cannot act on his /her own behalf, and giving the relationship to the patient.

If someone files on behalf of a patient who is able to transact business, the patient must also file an application which, if timely, is considered filed when the prior application was filed. The patient’s application is timely if filed no later than 6 months after the month in which he/she is sent a written notice that a completed application is necessary.

The patient’s application should be obtained before the claim is adjudicated, if possible. The notice of determination is sent to the patient, and only he/ she is allowed to refuse SMI.

NOTE: Do not develop a new application for R-HI if the individual currently has R-HI coverage but is trying to reenroll in R-SMI. When this situation occurs, the individual may reenroll during a GEP or withdraw the original ESRD application and refile as discussed in HI 00801.197.

See HI 00820.030 and HI 00801.215 if the individual currently has R-HI coverage that should be terminated and he/she submits a CMS-2728 showing that a new period of R-HI (and R-SMI) coverage is applicable.

C. Paying SMI premiums

1. Patient or interested party

If the ESRD patient does not receive monthly benefits, he/she must pay R-SMI premiums in response to quarterly billing unless the patient, or someone on his /her behalf, indicates that the premium bills should be sent to a third party. Refer to HI 01001.225 for information on sending premium billing notices to someone other than the beneficiary.

2. ESRD facility

The Health Insurance Portability and Accountability Act of 1996 (HIPPA) amended the law to prohibit ESRD facilities or suppliers from paying Part B premiums for ESRD beneficiaries. Thus, a facility or supplier cannot set up an informal arrangement with the beneficiary to pay premiums or become a formal third-party group payer.

In addition, an ESRD facility or supplier may not become a “premium payer for” an ESRD beneficiary. This is primarily because the beneficiary’s own address is dropped from the MBR when a “premium payer for” is selected. Without the beneficiary’s address, CMS and SSA lose direct contact with the beneficiary, leaving him/her dependent on an agency for receipt of notices and other information about benefit rights.

It is not necessary to search for any cases where an ESRD facility or supplier is a “premium payer for” a Medicare beneficiary. However, when such a situation comes to your attention, another premium payer should be located who has other than a fiscal interest in the beneficiary.

3. Equitable relief

Equitable relief is considered where Part B entitlement is terminated because an ESRD facility or supplier who was “premium payer for” a beneficiary neglected to pay premiums. Direct contact with the beneficiary is lost when the facility or supplier is made the premium payer.

Government error in terminating Part B under these circumstances may be found unless there is evidence that the premium payer told the beneficiary to:

• contact CMS/SSA to receive his/her own bills, or

• obtain another premium payer.

  See HI 00805.215, “SMI Terminated Erroneously,” for equitable relief instructions.

D. Policy – Patient dies before filing

1. Who may file

If the patient dies before an ESRD Medicare application is filed, the application may be filed by his/her legal representative, a surviving spouse, child, or parent, or by a supplier of dialysis services, i.e., by anyone who could file an application for him/her if he/she were alive but unable to transact business (see HI 00801.196.B.). However, benefits that would have been paid to, or on behalf of, the patient if he/she were alive will be paid in accordance with GN 02335.025.

EXAMPLE: In 9/02, Mr. Jackson, a fully insured worker, files a CMS-43 on behalf of his son, Alan, who died in 4/02 at age 17 of complications following kidney transplantation. Alan began a regular course of dialysis on 2/15/02, but entered the hospital in 3/02 and had a transplant that month.

The application Mr. Jackson filed in 9/02 permits entitlement beginning 3/1/02, the first month in which Alan met all R-HI eligibility requirements. However, if the application were not filed until May 2003, the 12 month limit on retroactivity would be the controlling factor and no entitlement to R-HI could be established.

2. Statement filed with hospital protects filing date

If an application is filed too late to permit R-HI entitlement with the earliest possible month, action should be taken to see if a signed statement showing intent to claim title XVIII or title II payments was filed with a hospital on the patient’s behalf as discussed in GN 00204.010A.4.a. and HI 00801.022D.