TN 19 (03-93)

Citations:

Social Security Act as Amended in 1972, Section 1837(h)

Regulations 42 CFR 406.26 and 407.32

A. Policy - General

1. Correct errors

SSA/CMS may take action to prevent or correct inequity to the individual when his/her SMI or Premium-HI enrollment, termination, or coverage rights are prejudiced because of the error, misrepresentation, or inaction of an employee or agent of the Government.

The actions include (but are not limited to) the designation of enrollment and coverage periods, and appropriate adjustment of premium liability.

The actions may be part of the initial claims process, post- adjudicative processing, or as a result of information or decisions that arise from the appeals processes.

NOTE: In the following sections dealing with equitable relief, when the PSC is mentioned, the instructions also apply to the FO if District Office Final Authorization (DOFA) is involved.

2. No time limit

Because the effective date of this “equitable relief” amendment was 7/1/ 66, there is no time limitation on granting relief.

3. No request necessary

Where the Government clearly erred, equitable relief should be considered by the FO, PSC, or ODO on its own motion without the beneficiary having to ask for it.

4. Does not apply to Premium-Free HI

Equitable relief applies to SMI in disability and ESRD cases as well as to cases involving the aged. It also applies to Premium- HI for the aged and for the working disabled. Equitable relief, however, never applies to premium-free HI.

NOTE: Equitable relief is the way of undoing harm caused an individual by the Government's actions, failure to act, or misinformation. However, it is still important to ensure that only correct actions are taken and proper information given to an individual about Medicare.

CAUTION: It is little consolation to an individual that we can give relief to pay for his/her surgeon's bill but cannot pay for the hospital stay during which the surgery occurred (except in the rare case where Premium-HI is involved).

5. Appeal rights

An equitable relief decision per se is not subject to appeal. However, an appeal can be made concerning the correctness of, for example, the entitlement date or the termination date. Additional information relating to erroneous information can be presented during the appeals process.

B. Policy - Requirements for equitable relief

The elements that must be present in each case where equitable relief is granted are:

• Government error, misrepresentation, or inaction;

• Prejudice to the individual's SMI or Premium-HI rights; and

• Evidence of the error (see HI 00805.175).

EXCEPTION: If the individual caused or contributed materially to the Government error by fraud or similar fault, equitable relief is not granted even if the main elements are present in the case.

C. Policy - Prejudice to SMI rights

Prejudice to the individual's rights may consist of:

• carrying private insurance he/she did not need;

• electing surgery in advance of entitlement because he/she was misinformed about the entitlement date;

• missing an enrollment period;

• inability to pay a large premium arrearage which accrued due to Government delay; or

• any other hardship with health insurance or health care needs that is traced to Government error, misrepresentation, or inaction on enrollment, premium collection, or termination of entitlement.

D. Policy - What the evidence must show

There must be evidence meeting the definition in HI 00805.175 which shows that:

• the individual took such appropriate and timely measures to assert his /her rights as could reasonably be expected under the circumstances; and

• because of administrative fault, delay, or erroneous action or inaction by an employee or agent of SSA/CMS or another Federal Government instrumentality, the enrollment or premium rights would be impaired unless relief is given.

NOTE: An “agent” of the Federal Government is one who is authorized to act on behalf of the Federal Government in matters pertaining to Medicare, such as a social security employee or an employee of a Medicare carrier.

If the evidence shows that an individual received misinformation from someone (e.g., employer, insurance company) which received the misinformation from an employee or agent of the Federal Government, this would also qualify for equitable relief.

E. Policy - What does not justify relief

Relief cannot be provided under this amendment merely because of hardship or because of “good cause” for failure to enroll. There must be some erroneous action or inaction by the Government which is prejudicial to the rights of the individual.

EXAMPLE: Where an individual failed to enroll for SMI because he/ she was covered under private non-employment-based health insurance, which was later terminated, the fact that he/she had “good cause” for not enrolling earlier and may now need SMI urgently does not justify relief.

F. Policy - No minimum amount of premiums

When an individual complains about an error, and the requirements of this section are met, equitable relief may be granted no matter how few months of coverage or premiums are involved.

For automatic consideration of, and notices about, the various kinds of equitable relief in the situations described in HI 00805.195, HI 00805.205, HI 00805.215, and HI 00805.220, the coverage months must be more than 5, or the premium arrearage must exceed 5 months.