TN 19 (03-93)
HI 00805.240 Other Situations Where Equitable Relief May Apply
HI 00805.170 through HI 00805.235, HI 00805.260, and HI 00805.720 through HI 00805.730 set forth specific situations that call for relief and the appropriate remedies. It is unreasonable to expect to cover in POMS all types of Government error that may occur.
Because certain similarities exist among the types of Government error, additional situations can be resolved with reference to existing instructions.
Follow the procedures below to see how cases can be handled using instructions from the preceding sections.
1. Delayed notice of SMI
Grant relief as described in HI 00805.195 when there has been a delay in sending notice of SMI entitlement to the individual.
NOTE: The delay is usually apparent from the claims file.
2. Earlier SMI entitlement date
In cases of amended awards or allowances of previously denied claims resulting in a SMI award or SMI entitlement date earlier than on a prior award, process in accordance with HI 00805.195.
3. Later SMI entitlement date (Non-DIB)
If an amended award results in a SMI entitlement date later than the date on the prior award, process in accordance with HI 00805.210 except for DIB cases.
4. Later SMI entitlement date (DIB)
When the SMI entitlement date is changed to a later month in a DIB case, it is usually because a competent individual did not promptly report some event affecting entitlement to DIB.
Grant equitable relief in such a case only if there is evidence (HI 00805.175) that it was because of Government error that the individual withheld pertinent information.
NOTE: There does not have to be a finding of fraud or similar fault to preclude equitable relief in such cases.
5. SMI refusal Is not recorded
If an eligible individual who refused SMI has SMI entitlement shown on the HI record and received a Medicare card or other notice of SMI entitlement without having had premiums billed or deducted from benefits:
offer the individual the opportunity to have SMI and pay the premiums due from the first month of coverage;
develop waiver under HI 00805.220;
accept premium payments on an installment basis (see HI 00805.180), if waiver is not applicable.
IMPORTANT: The individual also has the choice of electing no coverage at all, or coverage beginning only with the current month. However, if he/she does this, any Part B benefits paid during the retroactive period for which the premiums are owed are overpayments and are subject to recovery. Waiver of such Part B overpayments is never applicable.
6. Erroneous entitlement information
If an individual is erroneously informed that he/she has SMI as of a certain date when in fact the entitlement is either to be denied or to begin later:
award SMI as of the first day of the month in which the individual received the misinformation or, if later, the erroneous month of entitlement, and
terminate SMI with the last day of the month in which he/she receives the correct information that he/she is not entitled (unless by such date the beneficiary is in or has passed the IEP).
7. Delays by Department of Homeland Security (DHS)
Where there are cases of delays by the DHS in changing status of Cubans, Indo-Chinese, and other refugees who have been in the U.S. for 5 or more years, use the following procedures:
If a claim for Medicare entitlement was denied solely for lack of the required evidence of change in status (i.e., form I-151 or I-551) which the individual stated he/she had requested from DHS, reopen the claim if the I-151 or I-551 is submitted within 4 years of the date of the denial notice.
Ensure that the I-151 or I-551 shows a date of lawful admission for permanent residence that predates or is within the life of the original application.
NOTE: Make the award effective with the month the evidence was submitted to SSA by the individual.
The award may be retroactive to the first possible month of entitlement based on the original application if the individual pays the retroactive premiums (installment payments are acceptable, see HI 00805.180);
If the same circumstances as in a., above exist, but the original claim was also subject to denial because it was not filed in an IEP or a GEP, deemed it filed in the first subsequent GEP after the date of the application with the choice of entitlement dates being July 1 after such GEP or the month the evidence is submitted;
If the individual had not filed an application while awaiting the I-151 or I-551 from DHS, consider the month of receipt of the I-151 or I-551 to be the 4th month of the IEP (even if a retroactively established date of entry is shown on the forms).
Obtain verification of the date this evidence was issued from DHS.
Assume that the date of receipt of the I-151 or I-551 by the claimant is within 7 days of the date of issuance, unless the claimant is convincing in his /her statement that the date of receipt was later than 7 days after issuance.
If the claimant alleges that 30 days or more elapsed between the date of issue and date of receipt, obtain confirmation of the likelihood of such a delay from DHS or the Post Office. In the absence of such verification, use the 7-day assumption to establish the month of receipt.
IMPORTANT: Obtain an application at the initial contact to protect the individual's rights to choose an alternative (earlier) date of SMI entitlement. (See HI 00805.185D where State buy-in is involved.)
8. Change in date of birth
Follow the procedures in HI 00805.210 in the following circumstances (assuming there is no formal finding of fraud or similar fault on the part of the enrollee):
SSA made the proper determination of an individual's DB based on the information in file, but it later comes to SSA's attention that the initial determination was wrong (e.g., a birth certificate is discovered) and the individual was not age 65 until later than originally determined.
9. Changes in SMI due to appeal
Consider equitable relief in any SSA decision affecting SMI entitlement or termination which is subsequently reversed on appeal, even if the original decision was the only one possible based on the evidence in file (i.e., the appeal decision was affected by receipt of new evidence).
If, after the appeal, the date of entitlement to SMI is earlier, offer to the beneficiary the choices described in HI 00805.195.
If SMI begins later, follow HI 00805.210 to permit the former period of entitlement to stand unless the individual promptly requests that his/her entitlement to SMI be changed.
If a SMI termination is reversed or changed to a later date, follow HI 00805.215.
If SMI is terminated earlier, allow the erroneous period to stand unless the individual promptly requests that the period of SMI entitlement be altered in accordance with the revised determination.
10. Untimely notice of termination
If a SMI terminating event occurs but the individual does not receive timely notice of the termination, continue SMI entitlement through the end of the month in which the individual learns that SMI entitlement has ended.