42 U.S.C. § 1395w–22 — Benefits and beneficiary protections

(a) Basic benefits

(1) Requirement.

(A) In general. Except for the rule in section 1395w–28(b)(3) for MSA plans and paragraph (6) for MA regional plans, every Medicare+Choice plan^* must provide its enrolled members the benefits available under the original Medicare fee-for-service program option. The plan must use providers and other persons that meet the applicable requirements of this subchapter and part A of subchapter XI. For plan years before 2006, the plan must also provide the additional benefits required by section 1395w–24(f)(1)(A).

(B) Meaning of “benefits under the original Medicare fee-for-service program option.”

(i) In general. For this part, this quoted term means, subject to subsection (m), the items and services for which parts A and B provide benefits to people entitled to part A and enrolled in part B. It does not include hospice care^* or coverage for acquiring organs for kidney transplants, including coverage under section 1395rr(d). Cost-sharing^* must be the amount required under parts A and B, or, subject to clause (iii), an actuarially equivalent amount determined under this part.

(ii) Special rule for regional plans. For an MA regional plan^*, when an actuarially equivalent cost-sharing level is calculated for these benefits, the calculation may count, for purposes of section 1395w–27a(b)(2), only expenses described in subparagraph (A) of that section.

(iii) Limit on changing cost-sharing for certain benefits. Subject to clause (v), cost-sharing for the services in clause (iv) may not be higher than the cost-sharing required for those services under parts A and B.

(iv) Services covered by this limit. They are: (I) chemotherapy administration^*; (II) renal dialysis services, as defined in section 1395rr(b)(14)(B); (III) skilled nursing care; (IV) a clinical diagnostic laboratory test given during any part of the emergency period defined in section 1320b–5(g)(1)(B) that begins on or after March 18, 2020, when the test detects SARS–CoV–2 or diagnoses the virus that causes COVID–19, and the administration of that test; (V) specified COVID–19 testing-related services described in section 1395l(cc)(1) for which payment would be made under a specified outpatient payment provision described in section 1395l(cc)(2); (VI) a COVID–19 vaccine and its administration described in section 1395x(s)(10)(A); (VII) a drug^* or biological product that is a selected drug referred to in section 1320f–1(c); and (VIII) other services the Secretary^* considers appropriate, including services the Secretary determines need especially predictable and transparent costs for beneficiaries.

(v) Exception. For a service in clause (iv), other than subclauses (IV), (V), and (VI), if parts A and B require no cost-sharing for that service, the plan may require cost-sharing under clause (i).

(vi) No prior authorization for certain COVID–19 testing. During any part of the emergency period described in subclause (IV) or (V) that begins on or after March 18, 2020, an MA plan may not impose prior authorization or another utilization-management requirement on coverage of a product or service described in that subclause.

(2) When the requirement is satisfied.

(A) In general. A Medicare+Choice plan, other than an MSA plan^*, offered by a Medicare+Choice organization^* satisfies paragraph (1)(A) for items and services furnished by a provider or other person^* without a contract with the organization if the plan pays enough that the payment plus any plan cost-sharing is at least the total dollar amount that parts A and B would otherwise authorize for those items and services, including any balance billing that those parts permit.

(B) Related provisions. Limits on balance billing a Medicare+Choice organization for noncontract providers appear in subsection (k) and section 1395cc(a)(1)(O). The limit on the actuarial value of an enrollee’s liability for covered benefits appears in section 1395w–24(e).

(C) One coverage determination for an area. If different parts of the area served by a Medicare+Choice plan use more than one local coverage determination, the organization may choose the determination that the Secretary identifies as most beneficial to Medicare+Choice enrollees in one part of the area and apply it to every enrollee in the plan.

(3) Supplemental benefits.

(A) Included benefits needing Secretary approval. Subject to subparagraph (D), a Medicare+Choice organization may provide approved supplemental health care benefits to people enrolled under this part, except people enrolled under an MSA plan, without giving them a choice to decline that coverage. The Secretary must approve the benefits unless the Secretary decides that including them would substantially discourage Medicare+Choice-eligible people from enrolling with the organization.

(B) Benefits chosen by enrollees.

(i) In general. Subject to clause (ii), the organization may offer supplemental health care benefits that an enrollee may choose to have covered.

(ii) MSA plans. An organization may not use an MSA plan to offer supplemental benefits that cover the deductible described in section 1395w–28(b)(2)(B). Health benefits described in section 1395ss(u)(2)(B) are not treated as covering that deductible for this rule.

(C) Private fee-for-service plans. This paragraph does not stop a Medicare+Choice private fee-for-service plan^* from offering supplemental benefits that pay some or all balance-billing amounts allowed consistently with subsection (k), or that cover additional services the plan finds medically necessary. Those benefits may reduce cost-sharing below the actuarial value specified in section 1395w–24(e)(4)(B).

(D) Benefits for chronically ill enrollees.

(i) In general. For plan year 2020 and later, in addition to other supplemental benefits under this paragraph, an MA plan, including a specialized MA plan for special-needs individuals as defined in section 1395w–28(b)(6), may provide the benefits in clause (ii) to a chronically ill enrollee as defined in clause (iii).

(ii) Benefits described.

(I) In general. These are supplemental benefits that can reasonably be expected to improve or maintain the chronically ill enrollee’s health or overall ability to function. They do not have to be mainly health-related benefits.

(II) Waiver of uniformity. For supplemental benefits provided under this subparagraph to a chronically ill enrollee, the Secretary may waive this part’s uniformity requirements when the Secretary considers that appropriate.

(iii) Meaning of “chronically ill enrollee.” This quoted term means an MA-plan enrollee whom the Secretary determines: (I) has one or more comorbid and medically complex chronic conditions that threaten life or substantially limit overall health or function; (II) faces a high risk of hospitalization^* or other harmful health outcomes; and (III) needs intensive coordination of care.

(4) Organization as secondary payer. When payment under this subchapter is secondary under section 1395y(b)(2), a Medicare+Choice organization may charge, or authorize the service provider to charge, under the charges allowed by the law, plan, or policy described in that section: (A) the insurance carrier, employer, or other entity that must pay for the services under that law, plan, or policy; or (B) the individual, to the extent that the individual has been paid under that law, plan, or policy for the services.

(5) National coverage decisions and legislative benefit changes. Suppose a national coverage determination or a legislative change to benefits required under this part is made between the date of one announcement under section 1395w–23(b) and the date of the next announcement. If the Secretary projects that it will significantly change the organization’s cost of providing the affected benefits, and that cost change was not included in the annual capitation-rate calculation announced at the beginning of that period, then, unless another law requires otherwise: (A) the decision or change does not apply to contracts under this part until the first contract year beginning after that period ends; and (B) if it adds benefits or adds circumstances in which benefits are covered, section 1395w–21(i)(1) does not apply to payment for those added benefits or circumstances until that first contract year. The projection must be based on an analysis by the Chief Actuary of the Centers for Medicare & Medicaid Services of the actuarial costs of the decision or change.

(6) Regional-plan benefits. An MA regional plan must include the benefits described in section 1395w–27a(b)(1) and (2).

(7) Cost-sharing for certain dual-eligible people and qualified Medicare beneficiaries. For a full-benefit dual-eligible individual, as defined in section 1396u–5(c)(6), or a qualified Medicare beneficiary, as defined in section 1396d(p)(1), who is enrolled in the specialized Medicare Advantage plan for special-needs individuals described in section 1395w–28(b)(6)(B)(ii), the plan may not charge more cost-sharing than subchapter XIX would allow if the person were not enrolled in that plan.

(b) Antidiscrimination.

(1) Beneficiaries. A Medicare Advantage organization may not deny, limit, or condition coverage or benefits under this part for a person allowed to enroll based on a health-status factor described in section 2702(a)(1) of the Public Health Service Act. The Secretary may not approve an organization’s plan if the Secretary decides that its design and benefits are likely to substantially discourage certain MA-eligible people from enrolling with the organization.

(2) Providers. A Medicare+Choice organization may not discriminate in participation, payment, or indemnification against a provider who acts within the scope of the provider’s license or certification under State^* law solely because of that license or certification. This does not stop a plan from including only the providers needed to meet enrollees’ needs or from using measures that maintain quality and control costs consistently with the plan’s responsibilities.

(c) Disclosure requirements.

(1) Detailed plan description. At enrollment and at least once a year afterward, a Medicare+Choice organization must give each enrollee a clear, accurate, standardized description of the plan. It must include: (A) the service area; (B) benefits, including the information described in section 1395w–21(d)(3)(A), coverage exclusions, and, for an MSA plan, a comparison with benefits under other Medicare+Choice plans; (C) the number, types, and locations of providers, any out-of-network coverage, any point-of-service option and its supplemental premium, and, for a specified MA plan in plan year 2028 and later, the provider-directory information required by paragraph (3)(B); (D) out-of-area coverage; (E) emergency-service coverage, including proper use of emergency services and 911 or its local equivalent, what counts as an emergency, how to obtain emergency services, and the locations of emergency departments and other settings where plan physicians and hospitals provide emergency and post-stabilization care; (F) available supplemental benefits, including whether they are optional, what they cover, and the monthly supplemental beneficiary premium; (G) prior-authorization and other review rules that could result in nonpayment; (H) all grievance and appeal rights and procedures; and (I) a description of the quality-improvement program under subsection (e).

(2) Information on request. When a Medicare+Choice-eligible person asks, the organization must provide: (A) the general coverage and comparative-plan information made available under section 1395w–21(d)(2)(A)(i) and (ii); (B) information about procedures used to control service use and spending; (C) the number of grievances, redeterminations, and appeals and their overall outcomes; and (D) a general summary of how participating physicians are paid.

(3) Accurate provider directories.

(A) In general. For plan year 2028 and later, every MA organization offering a specified MA plan must, for each such plan: (i) keep an accurate provider directory on a publicly available website, containing the information in subparagraph (B); (ii) verify each listed provider’s information at least every 90 days and update it when needed, except that the Secretary may set a less frequent schedule for a hospital or other appropriate facility, but never less often than once every 12 months; (iii) mark information that the organization cannot verify as possibly out of date; and (iv) remove a provider within 5 business days after determining that the provider no longer participates in the plan’s network.

(B) Directory information. The directory must contain information an enrollee may need to obtain covered benefits from a provider that has an agreement with the plan, such as the provider’s name, specialty, contact information, main office or facility addresses, whether the provider accepts new patients, disability accommodations, cultural and language capabilities, and telehealth capabilities.

(C) Meaning of “specified MA plan.” This quoted term means (i) a network-based plan as defined in subsection (d)(5)(C), or (ii) a Medicare Advantage private fee-for-service plan as defined in section 1395w–28(b)(2) that meets subsection (d)(4)’s access standards, entirely or partly by entering into contracts or agreements under subparagraph (B) of that subsection.

(d) Access to services.

(1) In general. A Medicare+Choice organization may choose the providers who furnish a plan’s benefits if: (A) it makes the benefits available and accessible to each person who chooses the plan within the service area promptly enough and in a way that keeps care continuous; (B) when medically necessary, it makes the benefits available and accessible 24 hours a day, 7 days a week; (C) the plan pays for covered services furnished outside the organization when: (i) they were not emergency services, but were medically necessary and immediately needed because of an unforeseen illness, injury, or condition, and it was not reasonable in the circumstances to obtain them through the organization; (ii) they were renal dialysis services received outside the organization because the person was temporarily outside the service area; (iii) they were maintenance care or post-stabilization care covered by the guidelines under paragraph (2); or (iv) in plan year 2028 and later, for a specified MA plan, they were furnished by a provider outside the network but listed in the plan directory when the appointment was made, as described in paragraph (7)(A); (D) it gives access to appropriate providers, including credentialed specialists, for medically necessary treatment^* and services; and (E) it covers emergency services without regard to prior authorization or the emergency provider’s contract with the organization.

(2) Guidelines for coordinating post-stabilization care. A Medicare+Choice plan must follow guidelines the Secretary prescribes to promote efficient and timely coordination of appropriate maintenance and post-stabilization care after the enrollee has been found stable under section 1395dd.

(3) Meaning of “emergency services.”

(A) In general. For an enrollee, this quoted term means covered inpatient and outpatient services that (i) are furnished by a provider qualified under this subchapter to furnish them and (ii) are needed to evaluate or stabilize an emergency medical condition described in subparagraph (B).

(B) Emergency medical condition based on a prudent layperson. This quoted term means a condition with acute symptoms of enough severity, including severe pain, that a prudent layperson with average health and medical knowledge could reasonably expect that failing to get immediate medical attention would: (i) put the person’s health, or a pregnant woman’s health or unborn child’s health, in serious danger; (ii) seriously harm bodily functions; or (iii) seriously impair an organ or body part.

(4) Access in private fee-for-service plans. In addition to other requirements, a Medicare+Choice private fee-for-service plan’s organization must show the Secretary that enough health care professionals and providers, with a sufficient range of types, are willing to provide services under the plan’s terms. Subject to paragraphs (5) and (6), the Secretary must find this requirement met for a provider category if either: (A) the plan’s payment rates for covered services from that category are at least the rates provided under part A, part B, or both; or (B) the plan has contracts or agreements, other than deemed contracts under subsection (j)(6), with enough providers in that category and enough types of providers to meet paragraph (1)(A) through (E), or uses both methods. This rule does not restrict the people from whom enrollees may obtain covered benefits. However, if the plan meets the entire requirement for a category through subparagraph (B), it may charge a higher copayment for providers in that category who lack such contracts or agreements.

(5) Certain nonemployer private fee-for-service plans must use provider contracts.

(A) In general. For plan year 2011 and later, a Medicare Advantage private fee-for-service plan that is not described in section 1395w–27(i)(1) or (2) and operates in a network area must meet paragraph (4)’s access standards in that area only through written contracts under paragraph (4)(B). It may not meet them, in whole or part, by setting rates that satisfy paragraph (4)(A).

(B) Network area. For a plan year, this quoted term means an area that the Secretary identifies in the announcement of proposed payment rates for the previous year under section 1395w–23(b)(1)(B) as having at least two network-based plans with enrollment under this part on the first day of the year in which the announcement is made.

(C) Network-based plan.

(i) In general. This quoted term means (I) a Medicare Advantage coordinated-care plan described in section 1395w–21(a)(2)(A)(i), except as provided in clause (ii); (II) a network-based MSA plan; or (III) a reasonable-cost reimbursement plan under section 1395mm.

(ii) Non-network regional PPOs excluded. The term does not include an MA regional plan that meets access-adequacy standards in the area mainly through the authority of 42 CFR 422.112(a)(1)(ii), rather than through written contracts.

(6) All employer private fee-for-service plans must use provider contracts. For plan year 2011 and later, a Medicare Advantage private fee-for-service plan described in section 1395w–27(i)(1) or (2) must meet paragraph (4)’s access standards only through written contracts under paragraph (4)(B), and not through rate-setting under paragraph (4)(A).

(7) Cost-sharing when directory information is wrong.

(A) In general. For plan year 2028 and later, if an enrollee in a specified MA plan receives an item or service from an out-of-network provider who was listed in the plan directory when the appointment was made, and the item or service would otherwise be covered if provided in-network, the organization must ensure that the enrollee pays no more than the lesser of: (i) the cost-sharing that would apply if the provider were in-network; or (ii) the cost-sharing that would otherwise apply without this paragraph.

(B) Notice. For plan year 2028 and later, each MA organization offering a specified MA plan must: (i) notify enrollees about these protections, to the extent practicable no later than the first day of the annual coordinated election period for the year; (ii) put information about the protections in each specified plan’s provider directory; and (iii) include notice of the protections in the first explanation of benefits issued during the plan year.

(e) Quality-improvement program.

(1) In general. Every MA organization must maintain an ongoing quality-improvement program to improve the quality of care provided to enrollees in each plan it offers.

(2) Chronic-care improvement programs. As part of that program, every MA organization must have a chronic-care improvement program. The program must have a method for monitoring and identifying enrollees with multiple or sufficiently severe chronic conditions that meet the organization’s participation criteria.

(3) Data.

(A) Collection, analysis, and reporting.

(i) In general. Subject to subparagraph (B) and the special rules in clauses (ii) and (iii), each MA organization must collect, analyze, and report data that measures health outcomes and other quality measures. For MA private fee-for-service and MSA plans, these requirements may not be greater than the requirements for MA local preferred-provider-organization plans, except that for plan year 2010 the limitation in clause (iii) does not apply and the requirements apply only to administrative claims data.

(ii) Special-needs plans. In addition to the data required by clause (i), and despite subparagraph (B)’s limits, an organization offering a specialized MA plan for special-needs individuals must collect, analyze, and report plan-level data measuring health outcomes and other quality measures related to subsection (f)(2) through (5). The data may be based on claims data.

(iii) Local PPOs and regional plans. Clause (i) applies to local MA preferred-provider-organization plans and MA regional plans only for services furnished by providers, physicians, practitioners, and suppliers that have contracts with the organization to furnish services under those plans.

(iv) Meaning of “preferred provider organization plan.” This quoted term means an MA plan that (I) has a provider network whose members agreed by contract to specified reimbursement for covered benefits; (II) pays for all covered benefits whether or not they are provided in that network; and (III) is offered by an organization not licensed or organized under State law as a health maintenance organization.

(B) Limits.

(i) Types of data. For consumer choice and program administration, the Secretary may not collect quality, outcome, and beneficiary-satisfaction data other than the types the Secretary collected as of November 1, 2003.

(ii) Changes in data types. Subject to clause (iii), the Secretary may change the types of data required under subparagraph (A) only after giving Congress a report explaining the reasons, prepared in consultation with MA organizations and private accrediting bodies.

(iii) Construction. This paragraph does not restrict the Secretary’s ability to perform the duties under section 1395w–21(d)(4)(D).

(4) Accreditation.

(A) In general. The Secretary must treat a Medicare+Choice organization as meeting all requirements in a particular clause of subparagraph (B) if a private accrediting organization has accredited and periodically reaccredited it under a process that the Secretary has found ensures that the accreditor applies and enforces standards meeting or exceeding the standards established under section 1395w–26 for that clause.

(B) Requirements covered. The clauses are: (i) paragraphs (1) through (3) of this subsection; (ii) subsection (b); (iii) subsection (d); (iv) subsection (h); (v) subsection (i); (vi) subsection (j); and (vii) the requirements in section 1395w–104(j), to the extent they apply under section 1395w–131(c).

(C) Timely application decisions. Within 210 days after receiving a private accrediting organization’s application, and using section 1395bb(a)(2)’s criteria, the Secretary must decide whether the accreditor’s process meets the requirements for each requested clause of subparagraph (B). The Secretary may not deny the application merely because it seeks approval for one clause or for more than one clause.

(D) Construction. This paragraph does not limit the Secretary’s authority under section 1395w–27, including the authority under subsection (c)(2) of that section to terminate contracts with Medicare+Choice organizations.

(f) Grievance mechanism. Each Medicare+Choice organization must provide meaningful procedures to hear and resolve grievances between the organization, including an entity or person through which it provides health care, and its Medicare+Choice enrollees.

(g) Coverage determinations, reconsiderations, and appeals.

(1) Organization determinations.

(A) In general. The organization must have a procedure for deciding whether an enrollee is entitled to receive a health service under this section and how much, if anything, the enrollee must pay. Subject to paragraph (3), the procedure must make decisions promptly.

(B) Explanation. A decision that denies coverage in whole or part must be written in understandable language. It must state why coverage was denied and explain the reconsideration and appeal processes.

(2) Reconsiderations.

(A) In general. At the enrollee’s request, the organization must reconsider a denial under paragraph (1)(B). It must do so within the time set by the Secretary and, subject to paragraph (3), no later than 60 days after receiving the request.

(B) Physician^* review. If the denial was based on lack of medical necessity, the reconsideration must be made by a physician with suitable expertise in the relevant field, and that physician may not have participated in the initial decision.

(3) Expedited decisions and reconsiderations.

(A) Requests.

(i) Enrollee requests. An enrollee may request an expedited organization decision or reconsideration orally or in writing.

(ii) Physician requests. A physician, whether or not affiliated with the organization, may also make either request orally or in writing.

(B) Organization procedures.

(i) In general. The organization must maintain procedures to speed up a decision or reconsideration when, at an enrollee’s request, it determines that using the normal time could seriously endanger the enrollee’s life or health or the enrollee’s ability to regain maximum function.

(ii) Physician requests. If a physician’s request says that the normal time could have that serious effect, the organization must expedite the decision or reconsideration.

(iii) Timely response. In cases under clauses (i) and (ii), the organization must notify the enrollee and, when appropriate, the physician of the decision or reconsideration within the Secretary’s time limit. It may not take more than 72 hours after receiving the request, or the information needed to decide, unless the Secretary permits a longer time for specified cases.

(4) Independent review. The Secretary must contract with an independent outside entity to timely review and resolve reconsiderations that uphold a complete or partial denial. Section 1395ff(c)(5) applies to those contracted entities.

(5) Appeals. An enrollee who is dissatisfied because the enrollee did not receive a health service the enrollee believes was covered, at no greater charge than the enrollee believes was required, may receive a hearing before the Secretary if at least $100 is in dispute. The hearing is available to the same extent as under section 405(b), and the Secretary must make the organization a party. If at least $1,000 is in dispute, the individual or organization may, after notifying the other party, seek judicial review of the Secretary’s final decision under section 405(g). Both may be parties to that review. In applying sections 405(b), 405(g), and 405(l) under this paragraph, references to the Social Security Commissioner or Administration mean the Secretary or the Department of Health and Human Services. The rule in section 1395ff(b)(1)(E)(iii) applies to the dollar amounts in the first two sentences in the same way it applies to the amount in section 1395ff(b)(1)(E)(i).

(h) Confidentiality and accuracy of enrollee records. When a Medicare+Choice organization keeps medical records or other health information about enrollees, it must establish procedures: (1) to protect the privacy of individually identifiable enrollee information; (2) to keep the records and information accurate and current; and (3) to give enrollees timely access to them.

(i) Advance directives. Each Medicare+Choice organization must meet section 1395cc(f)’s requirement to maintain written policies and procedures concerning advance directives.

(j) Provider participation rules.

(1) Procedures. If an organization offers plan benefits through agreements with physicians, it must establish reasonable procedures for physicians’ participation under those agreements. The procedures must include: (A) notice of participation rules; (B) written notice to a physician of an adverse participation decision; and (C) an internal appeal process for such a decision, including the physician’s opportunity to present information and views.

(2) Consultation on medical policies. The organization must consult physicians who have participation agreements with it about its medical policies, quality procedures, and medical-management procedures.

(3) No interference with provider advice.

(A) In general. Subject to subparagraphs (B) and (C), a Medicare+Choice organization may not prohibit or restrict a covered health care professional from advising the professional’s patient who is enrolled in the organization’s plan about the patient’s health, medical care^*, or treatment for a condition or disease. This applies whether or not the plan covers that care or treatment, as long as the professional acts within the lawful scope of practice.

(B) Conscience protection. Subparagraph (A) does not require a plan to provide, pay for, or cover counseling or referral services if the organization offering it: (i) objects to the service on moral or religious grounds; and (ii) before or during enrollment gives prospective enrollees, and within 90 days after a policy change gives enrollees, information about its policy on the service in the form and manner it considers appropriate.

(C) Construction. Subparagraph (B) does not affect disclosure duties under State law or the Employee Retirement Income Security Act of 1974.

(D) Meaning of “health care professional.” For this paragraph, this quoted term means a physician as defined in section 1395x(r), or another health care professional whose services the Medicare+Choice plan covers. It includes a podiatrist, optometrist, chiropractor, psychologist, dentist, physician assistant, physical or occupational therapist or therapy assistant, speech-language pathologist, audiologist, registered or licensed practical nurse (including a nurse practitioner^*, clinical nurse specialist^*, certified registered nurse anesthetist^*, or certified nurse-midwife), licensed certified social worker, registered respiratory therapist, and certified respiratory therapy technician.

(4) Physician incentive plans.

(A) In general. An organization may not operate a physician incentive plan unless it gives the Secretary satisfactory assurances that: (i) the plan makes no direct or indirect specific payment to a physician or physician group to induce the physician or group to reduce or limit medically necessary services for a particular enrollee; and (ii) if the plan puts a physician or group at substantial financial risk, as the Secretary determines, for services that the physician or group does not provide, the organization gives adequate and appropriate stop-loss protection based on standards developed by the Secretary. Those standards must consider the number of physicians placed at substantial risk in the group or plan and the number of organization enrollees who receive services from them.

(B) Meaning of “physician incentive plan.” This quoted term means any payment arrangement between a Medicare+Choice organization and a physician or physician group that may directly or indirectly reduce or limit services for people enrolled under this part.

(5) No provider indemnification. An organization may not directly or indirectly require a health care professional, provider of services, other health care entity, or group of them to indemnify the organization against liability from a civil action for damage caused to an enrollee by the organization’s denial of medically necessary care.

(6) Private fee-for-service plans. For applying this part, including subsection (k)(1), and section 1395cc(a)(1)(O), a hospital or other provider, physician or other professional, or other health care entity is treated as having an agreement or contract with the organization for a person enrolled in its private fee-for-service plan if: (A) the provider, professional, or entity furnishes the enrollee services covered by the plan; and (B) before furnishing them, it has been told that the person is enrolled and either (i) has been told the plan’s payment terms or (ii) has a reasonable opportunity to obtain those terms in a way reasonably designed to produce informed agreement. This deemed agreement applies only when there is no explicit agreement between the provider or entity and the organization.

(7) Electronic prescribing by MA plans.

(A) In general. An MA–PD plan may make a separate or different payment to a participating physician who prescribes covered part D drugs through an electronic prescription drug program meeting section 1395w–104(e)’s standards.

(B) Factors. The payment may reflect the physician’s cost of implementing the program. It may also be increased for a participating physician who significantly improves: (i) compliance with the formulary; (ii) use of lower-cost, therapeutically equivalent alternatives; (iii) reduction of harmful drug interactions; or (iv) prescription-filing efficiency through lower administrative costs.

(C) Structure. The additional or increased payments may use the same structure as medication-therapy-management fees under section 1395w–104(c)(2)(E).

(k) Services from certain providers.

(1) In general. Except under paragraph (2), a physician or other entity, other than a provider of services, that has no contract setting payment amounts with a Medicare+Choice organization described in section 1395w–21(a)(2)(A), or with an MSA-plan organization, must accept as full payment for covered services furnished to the enrollee the amount it could collect if the person were not enrolled under this part. Any penalty or other legal rule that applies to such payment for a person entitled to these subchapter benefits but not enrolled with a Medicare+Choice organization also applies to an enrolled person.

(2) Private fee-for-service plans.

(A) Balance-billing limits for contract providers.

(i) In general. For a private fee-for-service enrollee, a physician, provider of services, or other entity with a contract establishing a payment rate, including a contract deemed under subsection (j)(6), must accept as full payment for covered services no more than 115 percent of that payment rate. This total includes deductibles, coinsurance, copayments, and balance billing otherwise allowed under the plan.

(ii) Enforcement procedures. The organization offering the plan must establish procedures similar to those in section 1395w–4(g)(1)(A) to enforce that limit.

(iii) Sanction. If the organization does not establish and enforce those procedures, it is subject to intermediate sanctions under section 1395w–27(g).

(B) Noncontract providers. The minimum payment rate for noncontract providers is addressed in subsection (a)(2). Limits on an enrollee’s liability for covered services from those providers are addressed in paragraph (1) and section 1395cc(a)(1)(O).

(C) Beneficiary-liability information.

(i) In general. An organization offering a private fee-for-service plan must ensure that an enrollee who receives services for which payment is sought under the plan gets an appropriate explanation of benefits, consistent with explanations under parts A and B and, when applicable, Medicare supplemental policies. It must clearly state the enrollee’s liability, including permitted balance billing.

(ii) Advance notice. In its payment terms for inpatient hospital services^* and other services the Secretary identifies as potentially involving substantial balance billing under subparagraph (A), the organization must require a hospital to give the enrollee, before providing the services and if the hospital will impose that balance billing: (I) notice that balance billing is allowed for the services; and (II) a good-faith estimate of the likely balance-billing amount, if any, based on the enrollee’s presenting condition.

(l) Return to home skilled-nursing facilities for covered post-hospital extended care.

(1) Ensuring return to the home SNF.

(A) In general. When covering post-hospital extended care services^*, a Medicare+Choice plan must allow coverage through a home skilled nursing facility^* if: (i) the enrollee chooses that facility; and (ii) the facility has a contract with the organization for those services, or agrees to accept substantially similar payment under the same terms that apply to similarly situated contracted skilled nursing facilities through which the enrollee would otherwise receive the services.

(B) Payment. The organization must pay the home skilled nursing facility consistently with that contract or agreement.

(2) No less favorable coverage. Coverage under paragraph (1), including the services covered, cost-sharing, and other coverage criteria, may not be less favorable than coverage for a skilled nursing facility whose post-hospital extended care services^* the plan otherwise covers.

(3) Construction. This subsection does not: (A) require coverage through a skilled nursing facility that is not otherwise qualified under part A to provide benefits to Medicare beneficiaries who are not enrolled in a Medicare+Choice plan; or (B) stop a skilled nursing facility from refusing to accept an enrollee, or from setting conditions for acceptance, for post-hospital extended care services.

(4) Definitions.

(A) “Home skilled nursing facility.” For an enrollee entitled to post-hospital extended care under a Medicare+Choice plan, this quoted term means any of: (i) the skilled nursing facility where the enrollee lived when admitted to the hospital before receiving the post-hospital services; (ii) a skilled nursing facility providing the services through a continuing care retirement community that housed the enrollee at that admission; or (iii) the skilled nursing facility where the enrollee’s spouse lives when the enrollee is discharged from that hospital.

(B) “Continuing care retirement community.” For an enrollee in a Medicare+Choice plan, this quoted term means an arrangement in which an organization provides or arranges housing and health-related services under an agreement effective for the enrollee’s life or for a specified period.

(m) Additional telehealth benefits.

(1) MA-plan option. For plan year 2020 and later, subject to paragraph (3), an MA plan may provide additional telehealth benefits, as defined in paragraph (2), to people enrolled under this part.

(2) Meaning of “additional telehealth benefits.”

(A) In general. For this subsection and section 1395w–24: (i) this quoted term means services for which part B provides benefits, including services for which section 1395m(m) does not pay because its payment conditions are not met, and that have been identified for the year as clinically appropriate to provide through electronic information and telecommunications technology when the physician or practitioner providing the service is not in the same place as the enrollee; and (ii) it does not include capital or infrastructure costs and investments related to the benefits.

(B) Public comment. By November 30, 2018, the Secretary must seek comments about: (i) which items and services should count as additional telehealth benefits, including remote patient monitoring, secure messaging, store-and-forward technology, and other communication that is not face-to-face; and (ii) requirements for providing those benefits, such as training and coordination.

(3) Requirements. The Secretary must set requirements for providing additional telehealth benefits, including: (A) physician or practitioner qualifications other than licensure and other requirements such as particular training; (B) factors needed to coordinate these benefits with other items and services, including in-person services; and (C) other areas the Secretary determines.

(4) Enrollee choice. If an MA plan offers a service as an additional telehealth benefit, it must also make the service available through an in-person visit. An enrollee may choose between the in-person visit and the additional telehealth benefit.

(5) Treatment under MA. For this subsection and section 1395w–24, additional telehealth benefits provided by a plan are treated as benefits under the original Medicare fee-for-service program option.

(6) Construction. This subsection does not change subsection (a)(1)’s requirement that MA plans provide items and services, other than hospice care, for which parts A and B provide benefits, including benefits available under section 1395m(m).

(n) Information about safely disposing of certain prescription drugs.

(1) In general. If a person enrolled in an MA or MA–PD plan receives an in-home health-risk assessment on or after January 1, 2021, the plan must ensure that the assessment includes information meeting paragraph (2)’s criteria about safely disposing of controlled-substance prescription drugs. The information must include suitable drug take-back programs and information about disposal at home.

(2) Criteria. Through rulemaking, the Secretary must establish appropriate criteria for information given to a person so that it sufficiently teaches the person how to safely dispose of controlled-substance prescription drugs.