42 C.F.R. § 411.108

Taking into account entitlement to Medicare

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(a) Examples of actions that constitute “taking into account”. Actions by GHPs or LGHPs that constitute taking into account that an individual is entitled to Medicare on the basis of ESRD, age, or disability (or eligible on the basis of ESRD) include, but are not limited to, the following:

(1) Failure to pay primary benefits as required by subparts F, G, and H of this part 411.

(2) Offering coverage that is secondary to Medicare to individuals entitled to Medicare.

(3) Terminating coverage because the individual has become entitled to Medicare, except as permitted under COBRA continuation coverage provisions (26 U.S.C. 4980B(f)(2)(B)(iv); 29 U.S.C. 1162.(2)(D); and 42 U.S.C. 300bb-2.(2)(D)).

(4) In the case of a LGHP, denying or terminating coverage because an individual is entitled to Medicare on the basis of disability without denying or terminating coverage for similarly situated individuals who are not entitled to Medicare on the basis of disability.

(5) Imposing limitations on benefits for a Medicare entitled individual that do not apply to others enrolled in the plan, such as providing less comprehensive health care coverage, excluding benefits, reducing benefits, charging higher deductibles or coinsurance, providing for lower annual or lifetime benefit limits, or more restrictive pre-existing illness limitations.

(6) Charging a Medicare entitled individual higher premiums.

(7) Requiring a Medicare entitled individual to wait longer for coverage to begin.

(8) Paying providers and suppliers less for services furnished to a Medicare beneficiary than for the same services furnished to an enrollee who is not entitled to Medicare.

(9) Providing misleading or incomplete information that would have the effect of inducing a Medicare entitled individual to reject the employer plan, thereby making Medicare the primary payer. An example of this would be informing the beneficiary of the right to accept or reject the employer plan but failing to inform the individual that, if he or she rejects the plan, the plan will not be permitted to provide or pay for secondary benefits.

(10) Including in its health insurance cards, claims forms, or brochures distributed to beneficiaries, providers, and suppliers, instructions to bill Medicare first for services furnished to Medicare beneficiaries without stipulating that such action may be taken only when Medicare is the primary payer.

(11) Refusing to enroll an individual for whom Medicare would be secondary payer, when enrollment is available to similarly situated individuals for whom Medicare would not be secondary payer.

(b) Permissible actions. (1) If a GHP or LGHP makes benefit distinctions among various categories of individuals (distinctions unrelated to the fact that the individual is disabled, based, for instance, on length of time employed, occupation, or marital status), the GHP or LGHP may make the same distinctions among the same categories of individuals entitled to Medicare whose plan coverage is based on current employment status. For example, if a GHP or LGHP does not offer coverage to employees who have worked less than one year and who are not entitled to Medicare on the basis of disability or age, the GHP or LGHP is not required to offer coverage to employees who have worked less than one year and who are entitled to Medicare on the basis of disability or age.

(2) A GHP or LGHP may pay benefits secondary to Medicare for an aged or disabled beneficiary who has current employment status if the plan coverage is COBRA continuation coverage because of reduced hours of work. Medicare is primary payer for this beneficiary because, although he or she has current employment status, the GHP coverage is by virtue of the COBRA law rather than by virtue of the current employment status.

(3) A GHP may terminate COBRA continuation coverage of an individual who becomes entitled to Medicare on the basis of ESRD, when permitted under the COBRA provisions.

[60 FR 45362, Aug. 31, 1995; 60 FR 53876, Oct. 18, 1995]

Notes of Decisions

Cited in 14 cases (2 in the last 5 years), 2009–2022 · leading case: Humana Medical Plan, Inc. v. Western Heritage Insurance Company

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Humana Medical Plan, Inc. v. Western Heritage Insurance Company (2016) ca11 · cites it 2× “”); 42 C.F.R. § 411.108 (f) (“The [MAO] will exercise the same rights to recover from a primary plan, entity, or individual that the Secretary exercises under the MSP regulations .”

DaVita, Inc. v. Marietta Mem. Hosp. (2020) ca6 · cites it 4× “”); 42 C.F.R. § 411.108 (a)(5) (“Actions by [group health plans] or [large group health plans] that constitute taking into account that an individual is entitled to Medicare on the basis of ESRD .”

Bio-Medical Applications of Tennessee, Inc. v. Central States Southeast & Southwest Areas Health & Welfare Fund (2011) ca6 · cites it 2× “Even if the statutory phrase "take into account" were ambiguous on the issue of the termination of coverage, a federal regulation interpreting the Act expressly forbids the termination of coverage due to Medicare entitlement.”

River City Fraternal Order of Police Lodge 614, Inc. v. Ky. Ret. Sys. (2019) kyed · cites it 3× “); 42 C.F.R. § 411.108 (a)(3) (establishing that one example of "taking into account" is "[t]erminating coverage because the individual has become entitled to Medicare").”

National Renal Alliance, LLC v. Blue Cross & Blue Shield of Georgia, Inc. (2009) gand · cites it 2× “161 (b)(2)(i)-(ii); 42 C.F.R. § 411.108 (a)(8)-(9). Id., ¶ 38 .”

BIO-MEDICAL APPLICATIONS OF GA. v. City of Dalton (2009) gand · cites it 3× “42 C.F.R. § 411.108 (a) states: (a) Examples of actions that constitute “taking into account”.”

Michigan Spine & Brain Surgeons, PLLC v. State Farm Mutual Automobile Insurance (2014) ca6 “See 42 C.F.R. § 411.108 . We observe that all eleven examples of what constitutes taking Medicare into account, as well as the examples of what does not constitute taking Medicare into account, are examples of action taken by group health plans.”

Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc. (2022) scotus “See 42 CFR §§411.108 (a)(3), (5)−(6). As already discussed, the Marietta Plan’s terms, includ- ing its terms of coverage for outpatient dialysis, are uniform for all individuals.”

McCaffrey v. Village of Hoffman Estates (2021) illappct “§ 1395y(b) (2018); 42 C.F.R. 411.108(c) (2018). ¶ 23 According to plaintiffs, because Paul received health insurance benefits under the Benefits Act by virtue of his “current employment status” with defendant even after receiving a disability pension, Medicare was only a…”

Bio-Medial Applications of Tennessee, Inc. v. Central States, Southeast & Southwest Areas Health & Welfare Fund (2009) tned · cites it 3× “that an individual is entitled to Medicare on the basis of ESRD----” 42 C.F.R. § 411.108 (a). Among the examples is “[tjerminating coverage because the individual has become entitled to Medicare, except as permitted under COBRA continuation coverage provisions.”

Gardi v. United Healthcare Services, Inc. (2020) flsd “42 C.F.R. § 411.108 Accordingly, because Medicare was the primary payer due to Plaintiff’s COBRA election, he does not have a cause of action against either of the Defendants.”

Star Dialysis, LLC v. WinCo Foods Employee Benefit Plan (2019) idd “” 42 C.F.R. § 411.108 (a). While WinCo may have reduced the dollar amount of its payments to dialysis providers, and, according to the Complaint, effectively eliminated favorable in-network coverage, the facts alleged in the Complaint do not establish WinCo failed to pay…”

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— 42 C.F.R. § 411.108(c) — 1 case

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