CMS Pub. 100-05, ch. 2, § 80.3

A GHP may not take into account that an individual is eligible for or entitled to

Medicare benefits on the basis of ESRD during a coordination period described

earlier in this chapter. The following are examples of potential taking into account

the Medicare eligibility or entitlement of ESRD patients:

• The plan does not cover routine maintenance dialysis services or kidney

transplants;

• The plan excludes benefits, makes itself secondary to government benefits, or

charges a higher premium for individuals with ESRD;

• The plan imposes limitations on benefits for persons with ESRD which are not

applicable to others, e.g., a higher deductible or coinsurance, a longer waiting

period or a lower annual or lifetime benefit limit.

Section 1862(b)(1)(C)(ii) of the Act provides that GHPs may not differentiate in the

benefits they provide between individuals who do not have ESRD and other individuals

covered under the plan on the basis of the existence of ESRD, the need for renal dialysis,

or in any other manner. Actions that constitute differentiation in plan benefits (and that

may also constitute "taking into account" Medicare eligibility or entitlement) include, but

are not limited to, the following:

• Terminating coverage of individuals with ESRD for reasons that would not be a

basis for terminating individuals who do not have ESRD;

• Imposing benefit limitations (such as less comprehensive health plan coverage,

reductions in benefits, exclusion of benefits, a higher deductible or coinsurance,

a longer waiting period, a lower annual or lifetime benefit limit, or more

restrictive preexisting illness limitations) on persons who have ESRD but not on

others enrolled in the plan;

• Charging individuals with ESRD higher premiums;

• Paying providers/suppliers less for services furnished to individuals who have

ESRD than for the same services furnished to those who do not have ESRD, such

as paying 80 percent of the Medicare rate for renal dialysis on behalf of a plan

enrollee who has ESRD and the usual, reasonable, and customary charge for renal

dialysis on behalf of an enrollee who does not have ESRD; and

• Failing to cover routine maintenance dialysis or kidney transplants when a plan

covers other dialysis services or other organ transplants.

A plan is not prohibited from limited covered utilization of a particular service as long as

the limitation applies uniformly to all plan enrollees. For instance, if a plan limits its

coverage of renal dialysis sessions to 30 per year for all plan enrollees, the plan would

not be differentiating in the benefits it provides between plan enrollees who have ESRD

and those who do not.