The 1972 amendments to the Social Security Act extended hospital insurance (HI) and supplementary medical insurance (SMI) protection, effective July 1, 1973, to the Social Security Administration (SSA) and Railroad Retirement Board (RRB) beneficiaries whose kidney failure progressed to the point that they have ESRD and require dialysis (including peritoneal dialysis) or a kidney transplant. Entitlement to HI and SMI based on ESRD extends only to the claimant who has ESRD, not to other members of the family. The amendments protect the beneficiary for all services covered by Medicare, not only those related to kidney disease.

Effective October 1, 1978, amendments to title II and title XVIII of the Social Security Act significantly modified the ESRD provisions of the Medicare program. These provisions:

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  encouraged self-dialysis and transplant surgery;

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  removed the age restriction (prior to the 1978 amendments, the claimant had to be under age 65);

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  waived the three month qualifying period for those who participated in self-dialysis;

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  extended coverage for early transplant by two months prior to transplant surgery; and

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  changed post-transplant Medicare coverage from 12 months to 36 months following a transplant.

In addition, the Tax Equity and Fiscal Responsibility Act of 1982 extended coverage to Federal employees with ESRD effective on January 1, 1983.

NOTE: To distinguish between HI and SMI based on ESRD and HI and SMI based on other eligibility requirements, we refer to HI and SMI based on renal failure as R-HI and R-SMI respectively.

The law provides coverage under R-HI and R-SMI based on ESRD if the claimant:

Is determined to have ESRD, defined as irreversible damage to an individual’s kidneys so severely affecting his or her ability to remove or adjust blood wastes that, to maintain life, the person must have either a regular course of dialysis or a kidney transplant.

1. 1. 

   Has R-HI insured status on or after the date of onset (the first day or month in which the claimant meets the transplant or regular dialysis requirements). To meet R-HI insured status, the claimant must be:

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     fully or currently insured;

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     entitled to a monthly benefit under title II or an annuity under the Railroad Retirement Act ; or

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     the spouse or dependent child of an individual who is either entitled to a monthly benefit or is fully or currently insured.

2. 2. 

   Files an application; the Centers for Medicare & Medicaid Services (CMS) form CMS-43 (Application for Health Insurance under Medicare for Individual with Chronic Renal Disease), or Modernized Claims System (MCS) claim, is the prescribed application form. Signature proxy makes an electronic MCS application for ESRD benefits the preferred filing method. We consider any signed request for or inquiry about Medicare on behalf of the patient as a protective writing. The date of filing is the date that SSA, CMS, or RRB receives the signed statement (or the postmark date, if that is more advantageous to the beneficiary). Upon receipt of a protective writing, the claimant must file a prescribed application within 6 months of the month SSA makes a written request for the application.

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     If the claimant does not sign his or her own application, the person filing the application must sign a statement stating why the claimant cannot act on his or her own behalf.

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     If the claimant dies, a proper applicant acting on his or her behalf after the claimant’s death may file an application. (see Application Requirement, HI 00801.196) We limit retroactivity to 12 months from the protected filing date.

NOTE: The law does not prohibit entitlement to R-HI or R-SMI for undocumented aliens or anyone else based on length of United States residency, or any other “alien residence” requirements as long as they meet all other factors of entitlement. For more information on this requirement, see RS 00301.102 and HI 00801.191.

References

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  HI 00801.191, Requirements for Entitlement to R-HI

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  HI 00801.201, R-HI Insured Status

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  HI 00801.247, Medicare as Secondary Payer of ESRD Benefits

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  RS 00301.102, Additional Requirements for Alien Workers- Social Security Protection Act of 2004

R-HI and R-SMI cannot begin before the first month in which a claimant meets either fully or currently insured status requirements. If an individual is fully or currently insured for monthly benefits, he or she is insured for ESRD. In addition, we can use actual or deemed Medicare Qualified Government Employee (MQGE) quarters of coverage (QC), railroad earnings, military service credits, and HI Freeze QCs for insured status, if necessary.

If the claimant is not insured on his or her own earnings record, we can use the earnings record of a spouse or parent (if child is dependent on the parent) as the insured person.

References

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  HI 00801.201, R-HI Insured Status

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  HI 00801.233G.2., Deemed reentitlement to R-HI and new IEP for R-SMI

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  HI 00801.261, HI Freeze

The following are the relationship and dependency requirements specific to ESRD if the claimant is filing on the record of a spouse or parent.

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  If the claimant is the spouse of the insured person, the marriage can have occurred before or after ESRD onset.

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  If the claimant is the dependent child of the insured person, even if the relationship is established after ESRD onset, the child must have been dependent on the insured person prior to ESRD onset.

EXAMPLE: Ten-year-old Sally is living with her grandparents and they are providing more than 50% of her care. Her parents are not deceased or disabled but neither is insured. Sally develops ESRD. Her grandparents file for benefits but are denied because she is not considered a child for SSA purposes. They later adopt Sally and file again for benefits. Since dependency occurred prior to ESRD onset, she is allowed effective with the date of adoption.

Entitlement to R-HI begins with the earliest of the following:

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  the third month after the month a regular course of renal dialysis begins (this period of non-coverage is the “qualifying or waiting period”);

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  the first month a regular course of renal dialysis begins if the claimant begins self-dialysis training before the qualifying period ends;

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  the month of kidney transplant;

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  the month as an inpatient in a Medicare-approved facility for procedures preliminary to a transplant provided the transplant occurs within two months;

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  the second month prior to the month of kidney transplant if the inpatient procedures took place more than two months prior to the transplant; or

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  the first month a regular period of renal dialysis resumes if the beneficiary has had a previous period of R-HI entitlement.

Reference

HI 00801.215, Date of Entitlement-General Policy

Once a claimant is entitled to R-HI, he or she is also eligible for R-SMI, and we deem R-HI claimants to have enrolled in R-SMI in the first 3 months of their initial enrollment period (IEP). If not refused, R-SMI entitlement begins:

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  the first month of R-HI entitlement, or

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  either the month we processed enrollment or the month of filing, ONLY if there is a premium arrearage of 6 months or more, and the claimant prefers one of these dates to the first month of R-HI entitlement.

EXAMPLE: Age 23 claimant files for ESRD alleging disability at age 20. We find he met the ESRD requirements six months before filing. He meets the relationship and dependency rules but we are required to obtain a determination of disability. In this example, it takes two months to get a determination. This claimant has the option of electing R-SMI on the:

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  R-HI entitlement date six months prior to filing date,

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  filing date, or

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  date we process the claim.

NOTE: Special Enrollment Period (SEP) does not apply to ESRD entitlement.

References

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  HI 00801.251, SMI Enrollment

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  HI 00805.265, The Special Enrollment Period - Definition

If the claimant has GHP coverage based on his or her own, spouse’s, or parent’s work or retirement, it is usually in his or her best interest to delay filing because the GHP is primary for 30 months. It is important to explain the advantages and disadvantages of filing now or delaying filing.

Disadvantages of filing:

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  No special enrollment period (SEP) for R-SMI—claimant must either file when eligible and pay premiums, or file in the general enrollment period (GEP) and pay the premium surcharge later

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  Even if the claimant takes R-HI and delays R-SMI, a transplant would be covered but R-SMI pays immunosuppressive drug expenses

Advantages of filing:

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  The monthly SMI premium may be less than his or her co-pays with the GHP

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  He or she may already be close to the 30 month coordination period by the time of filing

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  The GHP may soon be ending

You can find more information on this subject in

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  HI 00801.247, Medicare as Secondary Payer of ESRD Benefits, and

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  HI 00801.248, Effect of Immunosuppressive Drug Coverage on Filing for R-HI and R-SMI