Some Relief For Confused Claimants Because "Nobody Knew Healthcare Could Be So Complicated"

     From Emergency Message EM-16033-REV:

This emergency message (EM) provides instructions for handling Medicare Part B (Supplementary Medical Insurance) enrollment requests from beneficiaries with Medicare Part A (Hospital Insurance) who also are or were enrolled in an individual Marketplace plan. It also contains instructions for Part B premium surcharge rollback for certain beneficiaries with both Medicare Part A and Part B who have or had Marketplace coverage.

Coverage under Medicare Part A meets the legal requirement for minimum essential coverage. Individuals with Medicare Part A are not eligible to receive premium and cost-sharing assistance (often referred to as advanced payments of the premium tax credit (APTC) or income-based cost sharing reductions (CSRs)) to help pay for a Marketplace plan premium and covered services to make the costs of a Marketplace plan more affordable. Individuals receiving APTC while dually-enrolled in coverage through the a Marketplace and Medicare may have to pay back all or some of the APTC received for months an individual was enrolled in both Marketplace coverage with APTC and Medicare Part A when they file their federal income tax return.

Some people may have had coverage through the Marketplace (and possibly received APTC or CSRs) before being eligible for Medicare. When first eligible for premium-free Medicare Part A, these individuals may have refused or dropped Medicare Part B coverage because the costs for Marketplace coverage, with any financial assistance they may have been receiving, was more affordable than Medicare Part B, and they believed they were eligible for APTC and CSRs. In addition, some people with Medicare Part A coverage may have enrolled in coverage through the Marketplace believing it was an alternative way to get medical coverage equivalent to Medicare Part B at a more affordable cost. These individuals may not have found out they were not eligible for APTCs or CSRs or not learned about the coverage rules prior to the end of their Medicare Initial Enrollment Period (IEP), resulting in them either 1) declining to enroll in Medicare Part B at all; or 2) enrolling in Medicare Part B during the General Enrollment Period (GEP) and being assessed a Medicare Part B late enrollment penalty.

CMS [Centers for Medicare and Medicaid Services] believes that many of these individuals did not receive the information necessary at the time of their Medicare IEP or initial enrollment in coverage through the Marketplace to make an informed decision regarding their Medicare Part B enrollment. ...

Equitable relief will be considered on a case-by-case basis for certain dually-enrolled beneficiaries (those who have or had both Medicare and Marketplace coverage) of any age who refused or dropped Part B and for those who subsequently enrolled in Part B during the 2015, 2016 or 2017 GEP. 

Beneficiaries who refused or dropped Part B may receive equitable relief in the form of an enrollment opportunity with an effective date outlined in Section E of this instruction. The ability to provide the enrollment opportunity under equitable relief is limited to Part B enrollment requests received from September 1, 2016 through September 30, 2017. No late enrollment penalty will be applied for individuals who enroll in Part B under this limited equitable relief. ...

     By the way, I had clients who asked about declining Part B for this reason and I told them not to do it. I can't think of a reason to decline Part B other than getting all of one's healthcare from the VA (and being happy with it) or living outside the U.S.
     Also, by the way, I can just imagine a Trump transition team member trying to review this Emergency Message and being completely befuddled by it. As President Trump said, "nobody knew healthcare could be so complicated."

Something We Rarely See

     Here's a report from Social Security's Office of Inspector General (OIG) about Social Security underpaying claimants. Underpayments happen a lot but OIG seems vastly more interested in overpayments. Both issues deserve attention.

SSR On Application Of Supreme Court Rulings On Constitutionality

     From Social Security Ruling 17-1p, to be published in the Federal Register tomorrow (footnote omitted):

In recent years, we have received a number of questions regarding how our reopening rules should be applied when we applied a Federal or State law in making our determination or decision, and the Supreme Court of the United States later determines that the law we applied is unconstitutional. The issue has arisen most recently in light of the Supreme Court’s decisions regarding the constitutionality of the Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013) and the constitutionality of State law bans on same-sex marriage in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). We are issuing this SSR to explain our policy on reopening a determination or decision due to an error on the face of the evidence when, in making that determination or decision, we applied a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional, and we find that application of that law was material to our determination or decision. ...

When we make a determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional, and we find that application of that law was material to our determination or decision, we may reopen the determination or decision within the time frames specified in our regulations based on an error on the face of the evidence under 20 CFR 404.988(b), 404.988(c)(8), 404.989(a)(3), 416.1488(b), and 416.1489(a)(3). In this specific situation, we do not consider a holding by the Supreme Court that a Federal or State law is unconstitutional to be a “change of legal interpretation or administrative ruling upon which the determination or decision was made,” as contemplated in 20 CFR 404.989(b) and 416.1489(b). ...

When we have made a determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional, the application of that law would not have been correct and reasonable when made. Consequently, we do not interpret the change in legal interpretation criteria in our rules to prevent us from applying our reopening rules in that specific situation. Accordingly, we may reopen a determination or decision based on an error on the face of the evidence in the limited circumstance where all of the following criteria are met:

1. we made our determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional;

2. we find that the application of that law was material to our determination or decision; and

3. we reopen and revise the determination or decision within the following time frames:

-- For claims under title II of the Social Security Act (Act), within four years of the notice of the initial determination, for good cause, under 20 CFR 404.988(b), 404.989(a)(3);

-- For claims under title II of the Act, at any time, if the determination or decision was fully or partially unfavorable, under 20 CFR 404.988(c)(8); and

-- For claims under title XVI of the Act , within two years of the notice of the initial determination, for good cause, under 20 CFR 416.1488(b), 416. 1489(a)(3). ...

Missing A Crucial Page

     We've had several reports from North Carolina attorneys of Administrative Law Judge decisions arriving in attorney offices that lack their final page and the final page is crucial because it contains the decisional paragraph which says what the actual decision is. This is affecting decisions from multiple hearing offices. I suspect this could be a national problem since the printing of decisions has been centralized. I hope that the field offices and payment centers that effectuate these decisions are receiving the entire decision.

"Billy With Social Security"

     From The Gazette of Colorado Springs:

Lately I've heard from a half a dozen people who have gotten phone calls from "Billy with Social Security." ... We can tell you "Billy" is not an employee of the Social Security Administration. ... They say that Billy claimed he could help them get disability payments from Social Security if they would share some of their personal information with him. ...

According to the Office of the Inspector General, which prevents and detects fraud in the Social Security Administration, they hear about crooks impersonating their employees. I'm told the intent may be to steal your identity or raid your bank account. They may ask for your Social Security number, date of birth, your mother's maiden name, or your bank account information. Those should be red flags. Don't give a stranger those details. ...

No Social Security Cuts To Be Proposed "Now"

     The Treasury Secretary said this morning that there would be no Social Security cuts proposed "now" in this Administration's first budget. I would caution that Republicans sometimes think that Social Security Disability benefits aren't really Social Security and, of course, they never regard Supplemental Security Income benefits as Social Security.

The Sort Of Contract Battle That Mostly Stays Out Of Sight

From the minutes of a recent meeting of the Social Security Advisory Board (SSAB):

... In the morning session, the Board met with Robert Klopp, the Chief Information Officer and Deputy Commissioner for Systems at SSA, and John Garrigues, Chief Programs Officer for the SSA Disability Case Processing System (DCPS) development team. Mr. Klopp updated the Board on SSA’s in-house efforts to develop a second-generation disability case processing system (the DCPS2 project). The project was launched in fall 2015 after DCPS’s earlier efforts failed to produce a usable system. This effort, DCPS1, included a contract with Lockheed Martin. Mr. Klopp said that his office has conducted some early testing of DCPS2 with several state Disability Determination Services offices (DDSs). He reported that users found the system useful and intuitive. He acknowledged that, as yet, the system can support only quick disability determinations and compassionate allowance cases. Mr. Klopp said he expects the system to be able to handle about 50% of all cases by May 2017. Mr. Klopp also discussed a disability case processing and management system in development by MicroPact, a private company. MicroPact recently merged with Iron Data Solutions, a sub-contractor under Lockheed Martin on DCPS1.  

MicroPact has informed SSA that it is building a system for the DDSs and believes that its system will meet the needs of the individual DDSs better than the system being developed internally. Mr. Klopp said the MicroPact project was in its early stages of development. He also expressed the opinion that the MicroPact system does not yet have and may never have as broad a range of functionalities as he claims that DCPS2 will have. He expressed the view that MicroPact is selling its product to Congress before it is built through an intense lobbying effort. Mr. Klopp said that he is looking for a fair and independent evaluation of the two systems before one was chosen over the other. He also said that he believes that such an evaluation will be impossible until MicroPact has completed the first phase of development of its software, which Mr. Klopp said MicroPact projects to be complete in spring, 2017. 

In its afternoon session, the Board met with Tom Sechler, the Chief Executive Officer of MicroPact. Mr. Sechler explained to the Board that the current corporate structure of MicroPact was established in 2015, when the company merged with Iron Data Solutions, of which Mr. Sechler was CEO. Although Iron Data worked with Lockheed Martin on DCPS1, Mr. Sechler stated that Iron Data should not be held responsible for the failure of DCPS1, as the language in that contract limited Iron Data’s role in the project and precluded it from raising with SSA concerns Sechler said that Iron Data had with Lockheed’s management of the project. Iron Data is also the developer of the legacy disability case processing systems currently in use by 47 DDSs. Mr. Sechler said this experience gives his company an advantage over competitors, as staff at Iron Data understand DDS processes. Mr. Sechler said that MicroPact is currently investing in developing that system with its own funding. If SSA chooses to use their system, Mr. Sechler said that MicroPact would charge SSA only for installation and upkeep, which Mr. Sechler said would be less than SSA currently pays. Mr. Sechler hopes to prove to Congress that he has a system worth investing in and that a version of the software would be ready for use by April 2017. Mr. Sechler was asked directly whether he would support Mr. Klopp’s call for an independent evaluation of the two systems in the Spring of 2017 but did not say whether he does so.

Taking A Bigger Bite

From Center for Retirement Research At Boston College