42 U.S.C. § 1395w–28 – Definitions; miscellaneous provisions

(a) Definitions relating to Medicare+Choice organizations In this part—
1. (1) Medicare+Choice organization The term “Medicare+Choice organization” means a public or private entity that is certified under section 1395w–26 of this title as meeting the requirements and standards of this part for such an organization.
2. (2) Provider-sponsored organization The term “provider-sponsored organization” is defined in section 1395w–25(d)(1) of this title.
(b) Definitions relating to Medicare+Choice plans
1. (1) Medicare+Choice plan The term “Medicare+Choice plan” means health benefits coverage offered under a policy, contract, or plan by a Medicare+Choice organization pursuant to and in accordance with a contract under section 1395w–27 of this title.
2. (2) Medicare+Choice private fee-for-service plan The term “Medicare+Choice private fee-for-service plan” means a Medicare+Choice plan that—
  1. (A) reimburses hospitals, physicians, and other providers at a rate determined by the plan on a fee-for-service basis without placing the provider at financial risk;
  2. (B) does not vary such rates for such a provider based on utilization relating to such provider; and
  3. (C) does not restrict the selection of providers among those who are lawfully authorized to provide the covered services and agree to accept the terms and conditions of payment established by the plan.
  Nothing in subparagraph (B) shall be construed to preclude a plan from varying rates for such a provider based on the specialty of the provider, the location of the provider, or other factors related to such provider that are not related to utilization, or to preclude a plan from increasing rates for such a provider based on increased utilization of specified preventive or screening services.
3. (3) MSA plan
  1. (A) In general The term “MSA plan” means a Medicare+ÐChoice plan that—
    1. (i) provides reimbursement for at least the items and services described in section 1395w–22(a)(1) of this title in a year but only after the enrollee incurs countable expenses (as specified under the plan) equal to the amount of an annual deductible (described in subparagraph (B));
    2. (ii) counts as such expenses (for purposes of such deductible) at least all amounts that would have been payable under parts A and B, and that would have been payable by the enrollee as deductibles, coinsurance, or copayments, if the enrollee had elected to receive benefits through the provisions of such parts; and
    3. (iii) provides, after such deductible is met for a year and for all subsequent expenses for items and services referred to in clause (i) in the year, for a level of reimbursement that is not less than—
      1. (I) 100 percent of such expenses, or
      2. (II) 100 percent of the amounts that would have been paid (without regard to any deductibles or coinsurance) under parts A and B with respect to such expenses,
    whichever is less.
  2. (B) Deductible The amount of annual deductible under an MSA plan—
    1. (i) for contract year 1999 shall be not more than $6,000; and
    2. (ii) for a subsequent contract year shall be not more than the maximum amount of such deductible for the previous contract year under this subparagraph increased by the national per capita Medicare+Choice growth percentage under section 1395w–23(c)(6) of this title for the year.
    If the amount of the deductible under clause (ii) is not a multiple of $50, the amount shall be rounded to the nearest multiple of $50.
4. (4) MA regional plan The term “MA regional plan” means an MA plan described in section 1395w–21(a)(2)(A)(i) of this title—
  1. (A) that has a network of providers that have agreed to a contractually specified reimbursement for covered benefits with the organization offering the plan;
  2. (B) that provides for reimbursement for all covered benefits regardless of whether such benefits are provided within such network of providers; and
  3. (C) the service area of which is one or more entire MA regions.
5. (5) MA local plan The term “MA local plan” means an MA plan that is not an MA regional plan.
6. (6) Specialized MA plans for special needs individuals
  1. (A) In general The term “specialized MA plan for special needs individuals” means an MA plan that exclusively serves special needs individuals (as defined in subparagraph (B)) and that, as of January 1, 2010, meets the applicable requirements of paragraph (2), (3), or (4) of subsection (f), as the case may be.
  2. (B) Special needs individual The term “special needs individual” means an MA eligible individual who—
    1. (i) is institutionalized (as defined by the Secretary);
    2. (ii) is entitled to medical assistance under a State plan under subchapter XIX; or
    3. (iii) meets such requirements as the Secretary may determine would benefit from enrollment in such a specialized MA plan described in subparagraph (A) for individuals with severe or disabling chronic conditions who have one or more comorbid and medically complex chronic conditions that are substantially disabling or life threatening, have a high risk of hospitalization or other significant adverse health outcomes, and require specialized delivery systems across domains of care.
    The Secretary may apply rules similar to the rules of section 1395eee(c)(4) of this title for continued eligibility of special needs individuals.
(c) Other references to other terms
1. (1) Medicare+Choice eligible individual The term “Medicare+Choice eligible individual” is defined in section 1395w–21(a)(3) of this title.
2. (2) Medicare+Choice payment area The term “Medicare+Choice payment area” is defined in section 1395w–23(d) of this title.
3. (3) National per capita Medicare+Choice growth percentage The “national per capita Medicare+Choice growth percentage” is defined in section 1395w–23(c)(6) of this title.
4. (4) Medicare+Choice monthly basic beneficiary premium; Medicare+Choice monthly supplemental beneficiary premium The terms “Medicare+Choice monthly basic beneficiary premium” and “Medicare+Choice monthly supplemental beneficiary premium” are defined in section 1395w–24(a)(2) of this title.
5. (5) MA local area The term “MA local area” is defined in section 1395w–23(d)(2) of this title.
(d) Coordinated acute and long-term care benefits under Medicare+Choice plan Nothing in this part shall be construed as preventing a State from coordinating benefits under a medicaid plan under subchapter XIX with those provided under a Medicare+Choice plan in a manner that assures continuity of a full-range of acute care and long-term care services to poor elderly or disabled individuals eligible for benefits under this subchapter and under such plan.
(e) Restriction on enrollment for certain Medicare+Choice plans
1. (1) In general In the case of a Medicare+Choice religious fraternal benefit society plan described in paragraph (2), notwithstanding any other provision of this part to the contrary and in accordance with regulations of the Secretary, the society offering the plan may restrict the enrollment of individuals under this part to individuals who are members of the church, convention, or group described in paragraph (3)(B) with which the society is affiliated.
2. (2) Medicare+Choice religious fraternal benefit society plan described For purposes of this subsection, a Medicare+Choice religious fraternal benefit society plan described in this paragraph is a Medicare+Choice plan described in section 1395w–21(a)(2) of this title that—
  1. (A) is offered by a religious fraternal benefit society described in paragraph (3) only to members of the church, convention, or group described in paragraph (3)(B); and
  2. (B) permits all such members to enroll under the plan without regard to health status-related factors.
  Nothing in this subsection shall be construed as waiving any plan requirements relating to financial solvency.
3. (3) “Religious fraternal benefit society” defined For purposes of paragraph (2)(A), a “religious fraternal benefit society” described in this section is an organization that—
  1. (A) is described in section 501(c)(8) of the Internal Revenue Code of 1986 and is exempt from taxation under section 501(a) of such Act;
  2. (B) is affiliated with, carries out the tenets of, and shares a religious bond with, a church or convention or association of churches or an affiliated group of churches;
  3. (C) offers, in addition to a Medicare+ÐChoice religious fraternal benefit society plan, health coverage to individuals not entitled to benefits under this subchapter who are members of such church, convention, or group; and
  4. (D) does not impose any limitation on membership in the society based on any health status-related factor.
4. (4) Payment adjustment Under regulations of the Secretary, in the case of individuals enrolled under this part under a Medicare+Choice religious fraternal benefit society plan described in paragraph (2), the Secretary shall provide for such adjustment to the payment amounts otherwise established under section 1395w–24 of this title as may be appropriate to assure an appropriate payment level, taking into account the actuarial characteristics and experience of such individuals.
(f) Requirements regarding enrollment in specialized MA plans for special needs individuals
1. (1) Requirements for enrollment In the case of a specialized MA plan for special needs individuals (as defined in subsection (b)(6)), notwithstanding any other provision of this part and in accordance with regulations of the Secretary and for periods before January 1, 2019, the plan may restrict the enrollment of individuals under the plan to individuals who are within one or more classes of special needs individuals.
2. (2) Additional requirements for institutional SNPS In the case of a specialized MA plan for special needs individuals described in subsection (b)(6)(B)(i), the applicable requirements described in this paragraph are as follows:
  1. (A) Each individual that enrolls in the plan on or after January 1, 2010, is a special needs individuals described in subsection (b)(6)(B)(i). In the case of an individual who is living in the community but requires an institutional level of care, such individual shall not be considered a special needs individual described in subsection (b)(6)(B)(i) unless the determination that the individual requires an institutional level of care was made—
    1. (i) using a State assessment tool of the State in which the individual resides; and
    2. (ii) by an entity other than the organization offering the plan.
  2. (B) The plan meets the requirements described in paragraph (5).
  3. (C) If applicable, the plan meets the requirement described in paragraph (7).
3. (3) Additional requirements for dual SNPS In the case of a specialized MA plan for special needs individuals described in subsection (b)(6)(B)(ii), the applicable requirements described in this paragraph are as follows:
  1. (A) Each individual that enrolls in the plan on or after January 1, 2010, is a special needs individuals ¹ described in subsection (b)(6)(B)(ii).
  2. (B) The plan meets the requirements described in paragraph (5).
  3. (C) The plan provides each prospective enrollee, prior to enrollment, with a comprehensive written statement (using standardized content and format established by the Secretary) that describes—
    1. (i) the benefits and cost-sharing protections that the individual is entitled to under the State Medicaid program under subchapter XIX; and
    2. (ii) which of such benefits and cost-sharing protections are covered under the plan.
    Such statement shall be included with any description of benefits offered by the plan.
  4. (D) The plan has a contract with the State Medicaid agency to provide benefits, or arrange for benefits to be provided, for which such individual is entitled to receive as medical assistance under subchapter XIX. Such benefits may include long-term care services consistent with State policy.
  5. (E) If applicable, the plan meets the requirement described in paragraph (7).
4. (4) Additional requirements for severe or disabling chronic condition SNPS In the case of a specialized MA plan for special needs individuals described in subsection (b)(6)(B)(iii), the applicable requirements described in this paragraph are as follows:
  1. (A) Each individual that enrolls in the plan on or after January 1, 2010, is a special needs individual described in subsection (b)(6)(B)(iii).
  2. (B) The plan meets the requirements described in paragraph (5).
  3. (C) If applicable, the plan meets the requirement described in paragraph (7).
5. (5) Care management requirements for all SNPS The requirements described in this paragraph are that the organization offering a specialized MA plan for special needs individuals—
  1. (A) have in place an evidenced-based model of care with appropriate networks of providers and specialists; and
  2. (B) with respect to each individual enrolled in the plan—
    1. (i) conduct an initial assessment and an annual reassessment of the individual’s physical, psychosocial, and functional needs;
    2. (ii) develop a plan, in consultation with the individual as feasible, that identifies goals and objectives, including measurable outcomes as well as specific services and benefits to be provided; and
    3. (iii) use an interdisciplinary team in the management of care.
6. (6) Transition and exception regarding restriction on enrollment
  1. (A) In general Subject to subparagraph (C), the Secretary shall establish procedures for the transition of applicable individuals to—
    1. (i) a Medicare Advantage plan that is not a specialized MA plan for special needs individuals (as defined in subsection (b)(6)); or
    2. (ii) the original medicare fee-for-service program under parts A and B.
  2. (B) Applicable individuals For purposes of clause (i), the term ‘applicable individual’ means an individual who—
    1. (i) is enrolled under a specialized MA plan for special needs individuals (as defined in subsection (b)(6)); and
    2. (ii) is not within the 1 or more of the classes of special needs individuals to which enrollment under the plan is restricted to.
  3. (C) Exception The Secretary shall provide for an exception to the transition described in subparagraph (A) for a limited period of time for individuals enrolled under a specialized MA plan for special needs individuals described in subsection (b)(6)(B)(ii) who are no longer eligible for medical assistance under subchapter XIX.
  4. (D) Timeline for initial transition The Secretary shall ensure that applicable individuals enrolled in a specialized MA plan for special needs individuals (as defined in subsection (b)(6)) prior to January 1, 2010, are transitioned to a plan or the program described in subparagraph (A) by not later than January 1, 2013.
7. (7) Authority to require special needs plans be NCQA approved For 2012 and subsequent years, the Secretary shall require that a Medicare Advantage organization offering a specialized MA plan for special needs individuals be approved by the National Committee for Quality Assurance (based on standards established by the Secretary).
(g) Special rules for senior housing facility plans
1. (1) In general In the case of a Medicare Advantage senior housing facility plan described in paragraph (2), notwithstanding any other provision of this part to the contrary and in accordance with regulations of the Secretary, the service area of such plan may be limited to a senior housing facility in a geographic area.
2. (2) Medicare Advantage senior housing facility plan described For purposes of this subsection, a Medicare Advantage senior housing facility plan is a Medicare Advantage plan that—
  1. (A) restricts enrollment of individuals under this part to individuals who reside in a continuing care retirement community (as defined in section 1395w–22(l)(4)(B) of this title);
  2. (B) provides primary care services onsite and has a ratio of accessible physicians to beneficiaries that the Secretary determines is adequate;
  3. (C) provides transportation services for beneficiaries to specialty providers outside of the facility; and
  4. (D) has participated (as of December 31, 2009) in a demonstration project established by the Secretary under which such a plan was offered for not less than 1 year.

(Aug. 14, 1935, ch. 531, title XVIII, § 1859, as added Pub. L. 105–33, title IV, § 4001, Aug. 5, 1997, 111 Stat. 325; amended Pub. L. 106–113, div. B, § 1000(a)(6) [title V, § 523], Nov. 29, 1999, 113 Stat. 1536, 1501A–387; Pub. L. 108–173, title II, §§ 221(b)(1), (d)(2), 231(b), (c), Dec. 8, 2003, 117 Stat. 2180, 2193, 2207, 2208; Pub. L. 110–173, title I, § 108(a), Dec. 29, 2007, 121 Stat. 2496; Pub. L. 110–275, title I, §§ 162(b), 164(a), (c)(1), (d)(1), (e)(1), July 15, 2008, 122 Stat. 2571–2574; Pub. L. 111–148, title III, §§ 3205(a), (c), (e), (g), 3208(a), Mar. 23, 2010, 124 Stat. 457–459; Pub. L. 112–240, title VI, § 607, Jan. 2, 2013, 126 Stat. 2349; Pub. L. 113–67, div. B, title I, § 1107, Dec. 26, 2013, 127 Stat. 1197; Pub. L. 113–93, title I, § 107, Apr. 1, 2014, 128 Stat. 1043; Pub. L. 114–10, title II, § 206, Apr. 16, 2015, 129 Stat. 145; Pub. L. 114–255, div. C, title XVII, § 17006(a)(2)(B), Dec. 13, 2016, 130 Stat. 1334.)

Applicability of Amendment

Amendment of section by section 17006(a)(2)(B) of Pub. L. 114–255 applicable with respect to plan years beginning on or after Jan. 1, 2021. See 2016 Amendment note below.

References in Text

The Internal Revenue Code of 1986, referred to in subsec. (e)(3)(A), is classified generally to Title 26, Internal Revenue Code.

Amendments

2016—Subsec. (b)(6). Pub. L. 114–255 struck out “may waive application of section 1395w–21(a)(3)(B) of this title in the case of an individual described in clause (i), (ii), or (iii) of this subparagraph and” after “The Secretary” in concluding provisions.

2015—Subsec. (f)(1). Pub. L. 114–10 substituted “2019” for “2017”.

2014—Subsec. (f)(1). Pub. L. 113–93 substituted “2017” for “2016”.

2013—Subsec. (f)(1). Pub. L. 113–67 substituted “2016” for “2015”.

Subsec. (f)(1). Pub. L. 112–240 substituted “2015” for “2014”.

2010—Subsec. (f)(1). Pub. L. 111–148, § 3205(a), substituted “2014” for “2011”.

Subsec. (f)(2)(C). Pub. L. 111–148, § 3205(e)(1), added subpar. (C).

Subsec. (f)(3)(E). Pub. L. 111–148, § 3205(e)(2), added subpar. (E).

Subsec. (f)(4)(C). Pub. L. 111–148, § 3205(e)(3), added subpar. (C).

Subsec. (f)(5). Pub. L. 111–148, § 3205(g), struck out “described in subsection (b)(6)(B)(i)” after “individuals” in introductory provisions.

Subsec. (f)(6), (7). Pub. L. 111–148, § 3205(c), (e)(4), added pars. (6) and (7).

Subsec. (g). Pub. L. 111–148, § 3208(a), added subsec. (g).

2008—Subsec. (b)(2). Pub. L. 110–275, § 162(b), inserted concluding provisions.

Subsec. (b)(6)(A). Pub. L. 110–275, § 164(c)(1)(A), inserted “and that, as of January 1, 2010, meets the applicable requirements of paragraph (2), (3), or (4) of subsection (f), as the case may be” before period at end.

Subsec. (b)(6)(B)(iii). Pub. L. 110–275, § 164(e)(1), inserted “who have one or more comorbid and medically complex chronic conditions that are substantially disabling or life threatening, have a high risk of hospitalization or other significant adverse health outcomes, and require specialized delivery systems across domains of care” before period at end.

Subsec. (f). Pub. L. 110–275, § 164(c)(1)(B)(ii), (iii), designated existing provisions as par. (1), inserted par. heading, and added pars. (2) to (4).

Pub. L. 110–275, § 164(c)(1)(B)(i), amended heading generally. Prior to amendment, heading read “Restriction on enrollment for specialized MA plans for special needs individuals”.

Pub. L. 110–275, § 164(a), substituted “2011” for “2010”.

Subsec. (f)(5). Pub. L. 110–275, § 164(d)(1), added par. (5).

2007—Subsec. (f). Pub. L. 110–173 substituted “2010” for “2009”.

2003—Subsec. (b)(4), (5). Pub. L. 108–173, § 221(b)(1), added pars. (4) and (5).

Subsec. (b)(6). Pub. L. 108–173, § 231(b), added par. (6).

Subsec. (c)(5). Pub. L. 108–173, § 221(d)(2), added par. (5).

Subsec. (f). Pub. L. 108–173, § 231(c), added subsec. (f).

1999—Subsec. (e)(2). Pub. L. 106–113 substituted “section 1395w–21(a)(2) of this title” for “section 1395w–21(a)(2)(A) of this title” in introductory provisions.

Change of Name

References to Medicare+Choice deemed to refer to Medicare Advantage or MA, subject to an appropriate transition provided by the Secretary of Health and Human Services in the use of those terms, see section 201 of Pub. L. 108–173, set out as a note under section 1395w–21 of this title.

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–255 applicable with respect to plan years beginning on or after Jan. 1, 2021, see section 17006(a)(3) of Pub. L. 114–255, set out as a note under section 1395w–21 of this title.

Effective Date of 2010 Amendment

Pub. L. 111–148, title III, § 3208(b), Mar. 23, 2010, 124 Stat. 460, provided that:

“The amendment made by this section [amending this section] shall take effect on
January 1, 2010, and shall apply to plan years beginning on or after such date.”

Effective Date of 2008 Amendment

Amendment by section 164(c)(1), (d)(1), (e)(1) of Pub. L. 110–275 applicable to plan years beginning on or after Jan. 1, 2010, and applicable to all specialized Medicare Advantage plans for special needs individuals regardless of when the plan first entered the Medicare Advantage program under this part, see section 164(g) of Pub. L. 110–275, set out as a note under section 1395w–27 of this title.

Effective Date of 2003 Amendment

Amendment by section 221(b)(1), (d)(2) of Pub. L. 108–173 applicable with respect to plan years beginning on or after Jan. 1, 2006, see section 223(a) of Pub. L. 108–173, set out as a note under section 1395w–21 of this title.

Amendment by section 231(b), (c) of Pub. L. 108–173 effective Dec. 8, 2003, see section 231(f)(1) of Pub. L. 108–173, set out as a note under section 1395w–21 of this title.

Regulations

Pub. L. 108–173, title II, § 231(f)(2), Dec. 8, 2003, 117 Stat. 2208, provided that:

“No later than 1 year after the date of the enactment of this Act [
Dec. 8, 2003], the Secretary [of Health and Human Services] shall issue final regulations to establish requirements for special needs individuals under section 1859(b)(6)(B)(iii) of the Social Security Act [
42 U.S.C. 1395w–28(b)(6)(B)(iii)], as added by subsection (b).”

Authorization To Operate; Resources for State Medicaid Agencies; Contracting Requirements

Pub. L. 110–275, title I, § 164(c)(2)–(4), July 15, 2008, 122 Stat. 2573, as amended by Pub. L. 111–148, title III, § 3205(d), Mar. 23, 2010, 124 Stat. 458, provided that:

“(2) Authority to operate but no service area expansion for dual snps that do not meet certain requirements.— Notwithstanding subsection (f) of section 1859 of the Social Security Act (42 U.S.C. 1395w–28), during the period beginning on January 1, 2010, and ending on December 31, 2012, in the case of a specialized Medicare Advantage plan for special needs individuals described in subsection (b)(6)(B)(ii) of such section, as amended by this section, that does not meet the requirement described in subsection (f)(3)(D) of such section, the Secretary of Health and Human Services—
“(A) shall permit such plan to be offered under part C of title XVIII of such Act [42 U.S.C. 1395w–21 et seq.]; and
“(B) shall not permit an expansion of the service area of the plan under such part C.
“(3) Resources for state medicaid agencies.— The Secretary of Health and Human Services shall provide for the designation of appropriate staff and resources that can address State inquiries with respect to the coordination of State and Federal policies for specialized MA plans for special needs individuals described in section 1859(b)(6)(B)(ii) of the Social Security Act (42 U.S.C. 1395w–28(b)(6)(B)(ii)), as amended by this section.
“(4) No requirement for contract.— Nothing in the provisions of, or amendments made by, this subsection [amending this section] shall require a State to enter into a contract with a Medicare Advantage organization with respect to a specialized MA plan for special needs individuals described in section 1859(b)(6)(B)(ii) of the Social Security Act (42 U.S.C. 1395w–28(b)(6)(B)(ii)), as amended by this section.”

Panel of Clinical Advisors to Determine Conditions

Pub. L. 110–275, title I, § 164(e)(2), July 15, 2008, 122 Stat. 2574, provided that:

“The Secretary of Health and Human Services shall convene a panel of clinical advisors to determine the conditions that meet the definition of severe and disabling chronic conditions under section 1859(b)(6)(B)(iii) of the Social Security Act (
42 U.S.C. 1395w–28(b)(6)(B)(iii)), as amended by paragraph (1). The panel shall include the Director of the Agency for Healthcare Research and Quality (or the Director’s designee).”

No Effect on Medicaid Benefits for Duals

Pub. L. 110–275, title I, § 164(h), July 15, 2008, 122 Stat. 2575, provided that:

“Nothing in the provisions of, or amendments made by, this section [amending this section and sections 1395w–22 and 1395w–27 of this title and enacting provisions set out as notes under this section and sections 1395w–21, 1395w–22, and 1395w–27 of this title] shall affect the benefits available under the Medicaid program under title XIX of the Social Security Act [
42 U.S.C. 1396 et seq.] for special needs individuals described in section 1859(b)(6)(B)(ii) of such Act (
42 U.S.C. 1395w–28(b)(6)(B)(ii)).”

Authority To Designate Other Plans as Specialized MA Plans

Secretary of Health and Human Services authorized, in promulgating regulations to carry out subsection (b)(6) of this section, to provide, notwithstanding subsection (b)(6)(A) of this section, for the offering of specialized MA plans for special needs individuals by MA plans that disproportionately serve special needs individuals, see section 231(d) of Pub. L. 108–173, set out as a note under section 1395w–21 of this title.

¹ So in original. Probably should be “individual”.