Editorial Note on Part 422
Editorial Note: Nomenclature changes to part 422 appear at 70 FR 4741, Jan. 28, 2005.

§ 422.60 Election process. ( a ) *Acceptance of enrollees: General rule.* ( 1 ) Except for the limitations on enrollment in an MA MSA plan provided by § 422.62(d)(1) and except as specified in paragraphs (a)(2) and (3) of this section, each MA organization must accept without restriction (except for an MA RFB plan as provided by § 422.57) individuals who are eligible to elect an MA plan that the MA organization offers and who elect an MA plan during initial coverage election periods under § 422.62(a)(1), annual election periods under § 422.62(a)(2), and under the circumstances described in § 422.62(b)(1) through (b)(4).
( 2 ) MA organizations must accept elections during the open enrollment periods specified in § 422.62(a)(3) and (4) if their MA plans are open to new enrollees.
( 3 ) Dual eligible special needs plans must limit enrollments to those individuals who meet the eligibility requirements established in the state Medicaid agency contract, as specified at § 422.52(b)(2).
( b ) *Capacity to accept new enrollees.* ( 1 ) MA organizations may submit information on enrollment capacity of plans.
( 2 ) If CMS determines that an MA plan offered by an MA organization has a capacity limit, and the number of MA eligible individuals who elect to enroll in that plan exceeds the limit, the MA organization offering the plan may limit enrollment in the plan under this part, but only if it provides priority in acceptance as follows: ( i ) First, for individuals who elected the plan prior to the CMS determination that capacity has been exceeded, elections will be processed in chronological order by date of receipt of their election forms.
( ii ) Then for other individuals in a manner that does not discriminate on the basis of any factor related to health as described in § 422.110.
( 3 ) CMS considers enrollment limit requests for an MA plan service area, or a portion of the plan service area, only if the health and safety of beneficiaries is at risk, such as if the provider network is not available to serve the enrollees in all or a portion of the service area.
( c ) *Election forms and other election mechanisms.* ( 1 ) The election must comply with CMS instructions regarding content and format and be approved by CMS as described in § 422.2262. The election must be completed by the MA eligible individual (or the individual who will soon become eligible to elect an MA plan) and include authorization for disclosure and exchange of necessary information between the U.S. Department of Health and Human Services and its designees and the MA organization. Persons who assist beneficiaries in completing forms must sign the form, or through other approved mechanisms, indicate their relationship to the beneficiary.
( 2 ) The MA organization must file and retain election forms for the period specified in CMS instructions.
( d ) *When an election is considered to have been made.* An election in an MA plan is considered to have been made on the date the completed election is received by the MA organization.
( e ) *Handling of elections.* The MA organization must have an effective system for receiving, controlling, and processing elections. The system must meet the following conditions and requirements: ( 1 ) Each election is dated as of the day it is received in a manner acceptable to CMS.
( 2 ) Elections are processed in chronological order, by date of receipt.
( 3 ) The MA organization gives the beneficiary prompt notice of acceptance or denial in a format specified by CMS.
( 4 ) If the MA plan is enrolled to capacity, it explains the procedures that will be followed when vacancies occur.
( 5 ) Upon receipt of the election, or for an individual who was accepted for future enrollment from the date a vacancy occurs, the MA organization transmits, within the timeframes specified by CMS, the information necessary for CMS to add the beneficiary to its records as an enrollee of the MA organization.
( f ) *Exception for employer group health plans.* ( 1 ) In cases in which an MA organization has both a Medicare contract and a contract with an employer group health plan, and in which the MA organization arranges for the employer to process elections for Medicare-entitled group members who wish to enroll under the Medicare contract, the effective date of the election may be retroactive. Consistent with § 422.308(f)(2), payment adjustments based on a retroactive effective date may be made for up to a 90-day period.
( 2 ) In order to obtain the effective date described in paragraph (f)(1) of this section, the beneficiary must certify that, at the time of enrollment in the MA organization, he or she received the disclosure statement specified in § 422.111.
( 3 ) Upon receipt of the election from the employer, the MA organization must submit the enrollment within timeframes specified by CMS.
( g ) *Passive enrollment by CMS* — ( 1 ) *Circumstances in which CMS may implement passive enrollment.* CMS may implement passive enrollment procedures in any of the following situations: ( i ) Immediate terminations as provided in § 422.510(b)(2)(i)(B).
( ii ) CMS determines that remaining enrolled in a plan poses potential harm to the members.
( iii ) CMS determines, after consulting with the State Medicaid agency that contracts with the dual eligible special needs plan that is described in paragraph (g)(2)(i) of this section and meets the requirements of paragraph (g)(2) of this section, that the passive enrollment will promote integrated care and continuity of care for a full-benefit dual eligible beneficiary (as defined in § 423.772 of this chapter and entitled to Medicare Part A and enrolled in Part B under title XVIII) who is currently enrolled in an integrated dual eligible special needs plan.
( 2 ) *MA plans that may receive passive enrollments.* CMS may implement passive enrollment described in paragraph (g)(1)(iii) of this section only into MA-PD plans that meet all the following requirements: ( i ) Operate as a fully integrated dual eligible special needs plan or highly integrated dual eligible special needs plan.
( ii ) Have substantially similar provider and facility networks and Medicare- and Medicaid-covered benefits as the plan (or plans) from which the beneficiaries are passively enrolled.
( iii ) Have an overall quality rating from the most recently issued ratings, under the rating system described in §§ 422.160 through 422.166, of at least 3 stars or is a low enrollment contract or new MA plan as defined in § 422.252.
( iv ) Not have any prohibition on new enrollment imposed by CMS.
( v ) Have limits on premiums and cost-sharing appropriate to full-benefit dual eligible beneficiaries.
( vi ) Have the operational capacity to passively enroll beneficiaries and agree to receive the enrollments.
( 3 ) *Passive enrollment procedures.* Individuals will be considered to have elected the plan selected by CMS unless they— ( i ) Decline the plan selected by CMS, in a form and manner determined by CMS, or
( ii ) Request enrollment in another plan.
( 4 ) *Beneficiary notification.* The MA organization that receives the passive enrollment must provide to the enrollee: ( i ) In the case of a passive enrollment described in paragraphs (g)(1)(i) and (ii) of this section, a notice that describes the costs and benefits of the plan and the process for accessing care under the plan and clearly explains the beneficiary's ability to decline the enrollment or choose another plan. This notice must be provided to all potential passively-enrolled enrollees, in a form and manner determined by CMS, prior to the enrollment effective date (or as soon as possible after the effective date if prior notice is not practical).
( ii ) In the case of a passive enrollment described in paragraph (g)(1)(iii) of this section, two notices that describe the costs and benefits of the plan and the process for accessing care under the plan and clearly explain the beneficiary's ability to decline the enrollment or choose another plan. ( A ) The first notice described in paragraph (g)(4)(ii) of this section must be provided, in a form and manner determined by CMS, no fewer than 60 calendar days prior to the enrollment effective date.
( B ) The second notice described in paragraph (g)(4)(ii) of this section must be provided, in a form and manner determined by CMS, no fewer than 30 days prior to the enrollment effective date.
( 5 ) *Special election period.* In the case of a passive enrollment described in this paragraph, individuals will be provided with a special enrollment period described in at § 423.38(c)(10) of this chapter.
( h ) *Notification of reinstatement based on beneficiary cancellation of new enrollment.* When an individual is disenrolled from an MA plan due to the election of a new plan, the MA organization must reinstate the individual's enrollment in that plan if the individual cancels the election in the new plan within timeframes established by CMS. The MA organization offering the plan from which the individual was disenrolled must send the member notification of the reinstatement within 10 calendar days of receiving confirmation of the individual's reinstatement.
( i ) *Authorized representatives.* As used in this subpart, an authorized representative is an individual who is the legal representative or otherwise legally able to act on behalf of an enrollee, as the law of the State in which the beneficiary resides may allow, in order to execute an enrollment or disenrollment request. ( 1 ) The authorized representative would constitute the “beneficiary” or the “enrollee” for the purpose of making an election.
( 2 ) Authorized representatives may include court-appointed legal guardians, persons having durable power of attorney for health care decisions, or individuals authorized to make health care decisions under state surrogate consent laws, provided they have the authority to act for the beneficiary in this capacity.
[63 FR 35071, June 26, 1998; 63 FR 52612, Oct. 1, 1998, as amended at 63 FR 54526, Oct. 9, 1998; 64 FR 7980, Feb. 17, 1999; 65 FR 40316, June 29, 2000; 70 FR 4716, Jan. 28, 2005; 70 FR 52026, Sept. 1, 2005; 74 FR 1541, Jan. 12, 2009; 77 FR 22166, Apr. 12, 2012; 83 FR 16722, Apr. 16, 2018; 84 FR 15828, Apr. 16, 2019; 89 FR 30814, Apr. 23, 2024]