CMS Pub. 100-05, ch. 2, § 80.5

A plan is not prohibited from limiting 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.

If a GHP or LGHP makes benefit distinctions between various categories of individuals

(distinctions unrelated to the fact that an individual is entitled to Medicare but based, for

instance, on length of time employed, occupation, or marital status), the GHP or LGHP

plan may make the same distinctions between 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.

• A GHP or LGHP may pay benefits secondary to Medicare for an aged or disabled

beneficiary who has current employment status if the employer employs fewer than 20 or

100 employees, respectively.

• 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/she has current employment status, the GHP or

LGHP coverage is by reason of the COBRA law rather than by virtue of current

employment status.

• 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. The only exception in the COBRA law (see 29 U.S.C.1162(2)(D)(ii))

prohibits GHPs from terminating COBRA coverage for retirees and dependents who are

entitled to Medicare when the employee retired before the employer effectively

terminated the regular plan coverage by filing for bankruptcy.