TN 6 (04-14)

GN 00210.700 Same-Sex Marriage - Eligibility for Medicare Special Enrollment Period (SEP)

A. Introduction

As a result of the Windsor decision, we are now able to process Special Enrollment Period (SEP) requests for individuals with Group Health Plan (GHP) or Large Group Health Plan (LGHP) coverage based on the current employment of a same-sex spouse.

B. SEP Policy

1. Eligibility

An individual must meet all factors of general eligibility before we approve an SEP request. For general eligibility requirements, see HI 00805.270.

Same-sex marriages are treated the same as opposite-sex marriages for purposes of the SEP. The gender of the married individuals, domicile and date of marriage are not factors in determining eligibility for the SEP.

Aged individuals in other legal same-sex relationships, such as civil unions and domestic partnerships, at the time of the SEP request are not considered spouses and do not meet eligibility requirements for the SEP.

Disabled individuals in other legal same-sex relationships (same-sex or opposite-sex), such as civil unions and domestic partnerships, are not considered spouses, but may be considered family members for purposes of eligibility for the SEP.

For a description of terms used in the SEP, except as explicitly stated here, see HI 00805.266. For more information about SEP enrollments, see HI 00805.275.

2. Date of filing and effective date

Approve all SEP requests filed after May 2013, if all other eligibility criteria are met.

Approve all SEP requests filed prior to June 2013, if:

  • the SEP for the individual did not end before June 2013 and

  • all other eligibility criteria are met.

Deny all SEP requests, including those currently on hold, when the SEP for the individual ended before June 2013. Individuals who have been denied an SEP have the right to appeal the decision. Denied individuals can reapply for enrollment during the GEP, and they may request a premium surcharge rollback as set out in GN 00210.701.

Do not consider the date of the Windsor decision to determine date of entitlement. Entitlement is based on month of filing as set out in HI 00805.276.

3. Equitable Relief

Equitable relief is available in limited situations for individuals whose SEP request was denied.

a. Second SEP request following a denial

Some individuals filed SEP requests prior to the Windsor decision on June 26, 2013 or prior to the August 22, 2013 instructions to hold cases as set out in GN 00210.005 and their requests were denied due to their same-sex marriage. The denial notice for these individuals provided information about the General Enrollment Period (GEP). These individuals may not have known that they could re-submit an SEP request after the Windsor decision and during the remaining months of their SEP. Therefore, CMS is granting equitable relief for individuals affected by this specific situation.

NOTE: When an SEP request with Windsor involvement is received, check the MBR and ORS to determine if a previous denial exists. This equitable relief is based on a prior denial.

Certain SEP requests filed after the 8-month SEP ended may be approved if all of the following criteria are met:

  • The individual filed a SEP request for SMI after October 2012 and was denied.

  • The SEP for the individual must end within the months of June 2013 through April 2014.

  • The second SEP request is received prior to June 2014.

  • The first denial was based on the existence of a same-sex marriage due to the application of Defense of Marriage Act (DOMA) rules and all other eligibility criteria were met.

Give the individual the option to have the date of entitlement be based on the month of the first or the second filing.

b. Untimely General Enrollment Period request following SEP denial

Some individuals may not have enrolled during the 2014 General Enrollment Period (GEP) while waiting for the SEP decision. These individuals may not have known that they had to enroll in the GEP to ensure coverage. Due to the delays in issuing instructions to process SEP requests, an individual whose SEP is denied following these instructions may not have sufficient time to enroll in the 2014 GEP. To address this lack of sufficient time, certain GEP enrollments requests may be processed as timely following HI 00805.060 and HI 00805.130. This equitable relief ends on May 31, 2014.

To be eligible for this equitable relief for an untimely GEP request following an SEP denial, all the following criteria must be met:

  • The individual’s SEP request was held due to the same-sex relationship.

  • The held SEP request was subsequently denied.

  • The individual requests enrollment no later than May 31, 2014.

For GEP enrollment, premium surcharges may apply. For policy on premium surcharge, see HI 01001.010.

C. Procedure

1. All eligibility factors are met

When all eligibility factors listed in HI 00805.270 are met, process the request following the instructions in HI 00805.277.

2. All eligibility factors are not met

When any of the enrollment factors listed in HI 00805.270 and GN 00210.700B.3.a is not met, deny the request. Advise the individual of the ability to:

  • Enroll during the next General Enrollment Period, and

  • Request a premium surcharge reduction based on months he or she had GHP/LGHP coverage.

NOTE: Possible equitable relief for the 2014 GEP might be applicable, see GN 00210.700B.3.b. If the equitable relief as set out in GN 00210.700B.3.b is applicable, advise the individual of the ability to submit a 2014 GEP request through May 31, 2014.

3. Processing SEP denial requests currently on hold

If you deny an SEP request following these instructions, send the individual a notice shell from DPS to explain the extended GEP.

Attach a completed form CMS-40B to the notice. Annotate E-GEP in the top right hand corner of the form CMS-40B. Include a courtesy return envelope to the FO. Process the form CMS-40B upon receipt.

If the individual comes in or calls due to the receipt of the notice, answer questions about the extended GEP enrollment and process the form CMS-40B as appropriate.

The suggested language for the notice shell is as follows:

This letter is about your enrollment in Medicare Part B. If you do not qualify for a Special Enrollment Period, you may be eligible to enroll in the General Enrollment Period which has been extended through May 31, 2014 for some individuals. If you have filed a request for a Special Enrollment Period and your request was being held because of a same-sex relationship, you qualify for the extended General Enrollment Period.

We have enclosed the Application for Enrollment in Medicare, form CMS 40-B for your convenience. If you would like to enroll in Medicare during the extended General Enrollment Period, please return this form to us in the enclosed envelope by May 31, 2014. If you enroll in the General Enrollment Period, your coverage will begin July 1, 2014.

If you have any questions about this letter, please call us at 1-xxx-xxx-xxxx. The office hours are xxxxxxxxx.

D. Examples

1. Examples of approvals

The following three examples are SEP approvals following general SEP rules.

  • Greg and Harry are married. Greg refuses SMI during his IEP, which ended February 2011. Greg had GHP coverage through Harry’s employer at the time he refused SMI and for all months until Harry’s employment ended in May 2013. Greg’s SEP is from June 2013 through January 2014. Greg files an SEP request for SMI on June 10, 2013 and the request is held. Following the issuance of these instructions, the case is reviewed. Approve the request with entitlement based on the month of filing because Greg meets all factors of SEP eligibility.

  • Tim enrolls in SMI during his IEP, which ended April 2008. Tim is the spouse of Charles. Tim voluntarily terminates his SMI effective October 2009 because he now has GHP coverage through Charles’ employer starting October 2009. Charles is retiring July 30, 2013, and the GHP coverage will end in July 2013. Tim had the GHP coverage based on Charles’ employment for all months he didn’t have SMI. Tim’s SEP is from August 2013 through March 2014. Tim files an SEP request for SMI on August 10, 2013. Approve the request with entitlement based on the month of filing because Tim meets all factors of SEP eligibility.

The following is an example of a SEP approval for a disabled beneficiary covered by an LGHP based on his or her domestic partner’s employment.

  • Steve and Robert are domestic partners. They are not married. Steve is currently employed and Robert is covered under Steve’s employer’s LGHP. Robert is entitled to Medicare based on DIB. Robert was automatically enrolled in Medicare but he refused his Part B coverage during his IEP which ended in July 2011. Robert has LGHP coverage for all months he was not enrolled in SMI. Robert submits a SEP request on January 14, 2014. Approve the SEP request because it meets the requirements in HI 00805.270. Domestic partners are included as family members as defined in HI 00805.266.

The following are examples of granting equitable relief for a second SEP request following a denial (GN 00210.700B.3.a)

  • Linda and Maria are married. Linda refused SMI during her IEP, which ended February 2009. Linda had GHP coverage through Maria’s employer from February 2009 until the GHP coverage ended in April 2013. Linda’s SEP is from May 2013 through December 2013. Linda filed an SEP request for SMI in April 2013. Her request was denied because of the same-sex marriage. In January 2014, Linda files a second SEP request for SMI. Her second SEP request is held following instructions in GN 00210.005. Following the issuance of these instructions, the case is reviewed. Linda meets all factors for eligibility with the exception of filing her second request after her SEP ended. Grant equitable relief following instructions in GN 00210.700B.3.a.

  • Mary and Allison are married. Mary refused SMI during her IEP, which ended September 2010. Mary has GHP coverage through Allison’s employer, where Allison currently works, from the time she refused SMI to the present. Mary submitted a SEP request for SMI on May 30, 2013 and was denied because of the same-sex marriage. On August 10, 2013, Mary files a second SEP request for SMI. Mary is still in an SEP period since her GHP coverage has not ended. Mary meets all factors for eligibility. Grant equitable relief following instructions in GN 00210.700B.3.a.

The following two examples are approvals following equitable relief for an untimely GEP request following SEP denial (GN 00210.700B.3.b)

  • Jane refuses SMI during her IEP, which ended November 2010. She has GHP coverage through her spouse, Jill, from August 2010 through July 2012. Her SEP is from August 2012 to March 2013. On August 10, 2013, Jane files an SEP request for SMI. Her request is held. Following issuance of instructions, the case is reviewed. Her request is denied in April 2014, and the FO notifies her of the equitable relief following GN 00210.700C.3. Jane files a GEP request on May 14, 2014. Grant equitable relief to process the GEP request as timely following instructions on GN 00210.700B.3.b.

  • Alexander and Mario are domestic partners. They are not married. Alexander is entitled to Medicare based on age and refuses SMI during his IEP, which ended January 2012, because he had coverage through Mario’s employer. Mario loses his employer coverage on August 31, 2013. His SEP is from September 2013 to April 2014. On September 18, 2013, Alexander files a SEP request for SMI. His request is held. Following issuance of instructions, the case is reviewed. His request is denied in April 2014, because he doesn’t meet the requirements in HI 00805.270. Domestic partners are not included as spouses. The FO notifies him of the equitable relief following GN 00210.700C.3. Alexander files a GEP request on May 5, 2014. Grant equitable relief to process the GEP request as timely following instructions on GN 00210.700B.3.b.

2. Examples of denials

The following four examples are SEP denials following general SEP rules in HI 00805.270.

  • Maria and Jennifer are married. Maria refused SMI during her IEP which ended March 2012. Maria filed an SEP request for SMI on August 15, 2013. Maria did not have GHP coverage with her employer or Jennifer’s employer. Deny the SEP request because it did not meet requirements in HI 00805.270. NOTE: The marital relationship is not material to the decision.

  • Samuel refuses SMI during his IEP, which ended November 2008. Samuel and Johnathan marry in February 2011. Samuel obtains GHP coverage after he and Johnathan marry. Samuel has GHP coverage through Johnathan’s employer until December 2013. In December, 2013, Samuel files an SEP request for SMI. Deny the SEP request because it did not meet requirements in HI 00805.270. Samuel did not have GHP coverage for all months in which he was eligible but did not enroll in SMI.

  • Henry is entitled to Medicare based on DIB. He is automatically enrolled in SMI. Henry is the spouse of Michael. Henry voluntarily terminates his SMI effective April 2010. Henry files an SEP request for SMI on October 7, 2013. He is not able to produce any verification of LGHP coverage based on current employment of himself, Michael or another family member. Deny the SEP request because it did not meet requirements in HI 00805.270.

    NOTE: The marital relationship is not material to the decision.

  • Kim and Kelly are domestic partners. They are not married. Kim is currently employed and Kelly is covered under Kim’s employer’s GHP. Kelly signed up for Medicare during her IEP, which ended April of 2011, but refused Part B because of the GHP coverage through Kim’s employer. Kelly submits an SEP request on April 20, 2014. Deny the SEP request because it did not meet requirements in HI 00805.270. GHP coverage for individuals over the age of 65 has to be from the current employer of the beneficiary or beneficiary’s spouse’s. Domestic partners do not meet the definition of spouse.

The following is an example of a denial based on the SEP ending prior to the Windsor decision in June 2013.

  • Karen refuses SMI during her IEP, which ended January 2010. Karen is the spouse of Shelley. Karen has GHP coverage through Shelley’s employer starting January 2010 and for all months until Shelley retired in September 2011. Karen files a SEP request for SMI on May 5, 2014. Her SEP was from October 2011 through May 2012. Because her SEP enrollment period ended prior to June 2013, deny the SEP request.

NOTE: Equitable relief in GN 00210.700B.3.a does not apply because Karen’s SEP ended prior to June 2013 but premium surcharge rollback as described in GN 00210.701 could apply if Karen files a GEP in the future.

E. References

  • GN 00210.005 Holding Claims, Appeals, and Post-Entitlement Actions Involving Same-Sex Marriages or Legal Same-Sex Relationships other than Marriage

  • HI 01001.010 Premium Increase for Late Enrollment

  • HI 00805.060 Voluntary Request for Enrollment

  • HI 00805.130 When an Enrollment Received by Mail Is Considered Filed

  • HI 00805.266 Definitions of Terms Used in the Special Enrollment Period and Premium Surcharge Rollback Provisions

  • HI 00805.270 General Eligibility Requirements for the Special Enrollment Period

  • HI 00805.275 Special Enrollment Period (SEP) Enrollments

  • HI 00805.276 SMI Effective Date for SEP Enrollments

  • HI 00805.277 Processing SEP Enrollments

  • HI 00805.295 Evidence of GHP or LGHP Coverage Based on Current Employment Status

  • HI 00805.322 Equitable Relief for Domestic (Or Life) Partners Covered Under a GHP

  • HI 00830.001 Granting Equitable Relief


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GN 00210.700 - Same-Sex Marriage - Eligibility for Medicare Special Enrollment Period (SEP) - 04/02/2014
Batch run: 04/02/2014
Rev:04/02/2014