DI 45010.045 Equitable Relief in Postentitlement ESRD Cases
See HI 00805.170.
Equitable relief in ESRD Medicare claims is granted when an individual's enrollment or coverage rights to R-SMI are prejudiced because of the error, delay, or other fault of an employee or agent of the Government or its instrumentalities. The individual, in order to be eligible for such relief, must have taken such appropriate and timely measures to assert his/her rights as could reasonably be expected under the circumstances. Accordingly, if an individual is erroneously or prematurely awarded R-SMI, or his/her R-SMI is terminated retroactively through no fault of his/her own, the possibility of equitable relief must be considered. If R-SMI is awarded erroneously or prematurely, be guided by the instructions for granting equitable relief in HI 00805.210. On the other hand, if it is a case of SSA's belated action to terminate and to notify the individual of such termination of R-SMI, determine from the guidelines below whether equitable relief is appropriate.
A. Granting equitable relief and extending R-SMI coverage
Equitable relief will be granted (unless it disadvantages the beneficiary) and R-SMI coverage extended through the end of the current operating month in which the termination action is being taken if:
The ESRD beneficiary (or a responsible representative, or a treating source, or a Medicare intermediary) reported that he/she received a kidney transplant or ceased a regular course of dialysis; or in transplant cases only, any indirect report (generally to HCFA) of the transplant, including reports represented by the Kidney Transplant Beneficiaries Listing, claims for reimbursement for medical services, reports of death, transplant information records, etc.; and
The report was timely; i.e., made before the end of the 33rd month after the month of the transplant or before the end of the 9th month after the month the course of dialysis ended (unless the beneficiary can show that he/she was misinformed about requirements to report, or that he/she or a family member could not have reasonably been expected to notify us within the specific period); and
SSA failed to terminate the R-SMI entitlement at the end of the 36th month after the month of transplant or the 12th month after the month the course of dialysis ended; and
SSA failed to timely (as in 3. above) notify the beneficiary of the exact date that his/her Medicare entitlement would be subject to termination because of kidney transplant or cessation of dialysis. Be aware that timely notification of impending termination such as in DI 45001.091 or DI 45001.092 are sufficient SSA notices to preclude granting equitable relief to the beneficiary. However, general notices such as the acknowledgement of receipt of reports (e.g., DI 45001.089 or DI 45001.090) cannot be considered to meet SSA's notice responsibility, and these may not be used as a basis not to grant equitable relief.
B. Application of equitable relief provisions
Equitable relief provisions do not apply to R-HI. Therefore, termination of R-HI (if based on the 1978 Amendments) will always be the end of the 12th month after the month of dialysis cessation or the 36th month after the month of transplant, even though termination of R-SMI may occur at the end of the month of the actual terminating action. Although equitable relief provisions do not apply to R-HI, in any case in which an R-HI overpayment resulted from the same government fault requiring R-SMI equitable relief, R-HI overpayment recovery action should not be taken. In such cases, the beneficiary is considered to be without fault and recovery is deemed to be against equity and good conscience. However, if any one of the requirements for equitable relief indicated in item A.1. through A.4. above is not present, then both R-HI and R-SMI should terminate retroactively; i.e., at the end of the 36th month after the month of transplant or the 12th month after the month of cessation of a regular course of dialysis, whichever is applicable. Retroactive termination of both R-HI and R-SMI requires that normal overpayment recovery proceedings be instituted.
C. Completion of SSA-892-U3
Completion of the SSA-892-U3 for ESRD terminations involving equitable relief should follow the instructions in DI 45010.030 with the following exceptions:
Complete item 31. The R-HI terminating date will be the first day of the month after entitlement ends (e.g., 03/01/86); however, the R-SMI terminating date w