I 

111TH CONGRESS 

2D SESSION H. R. 5844 

To amend title XVIII of the Social Security Act to provide all Medicare 

beneficiaries with the right to guaranteed issue of a Medicare supplemental policy and annual open change-in-enrollment periods, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 22, 2010 

Mr. ROTHMAN of New Jersey introduced the following bill; which was referred 

to the Committee on Ways and Means, and in addition to the Committee 

on Energy and Commerce, for a period to be subsequently determined by 

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend title XVIII of the Social Security Act to provide 

all Medicare beneficiaries with the right to guaranteed 

issue of a Medicare supplemental policy and annual open 

change-in-enrollment periods, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fairness in Medigap 

5 Options Act of 2010’’. 


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1 SEC. 2. GUARANTEED ISSUE OF MEDIGAP POLICIES TO ALL 

2 MEDICARE BENEFICIARIES. 

3 (a) IN GENERAL.—Section 1882(s) of the Social Se4 curity Act (42 U.S.C. 1395ss(s)) is amended— 

5 (1) in paragraph (2)(A), by striking ‘‘65 years 

6 of age or older and is enrolled for benefits under 

7 part B’’ and inserting ‘‘entitled to, or enrolled for, 

8 benefits under part A and enrolled for benefits 

9 under part B’’; 

10 (2) in paragraph (2)(D), by striking ‘‘who is 65 

11 years of age or older as of the date of issuance and’’; 

12 and 

13 (3) in paragraph (3)(B)(vi), by striking ‘‘at age 

14 65’’. 

15 (b) PHASE-IN AUTHORITY.— 

16 (1) IN GENERAL.—Subject to paragraph (2), 

17 the Secretary of Health and Human Services may 

18 phase in the implementation of the amendments 

19 made under subsection (a) in such manner as the 

20 Secretary determines appropriate to minimize any 

21 adverse impact on individuals enrolled under a Medi22 care supplemental policy prior to the effective date 

23 of this Act. 

24 (2) LIMIT.—The phase-in period under para25 graph (1) shall not exceed 5 years. 

26 (c) SEPARATE PREMIUM CLASS.— 


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1 (1) IN GENERAL.—Subject to paragraph (2), 

2 any individuals enrolled under a Medicare supple3 mental policy pursuant to the amendments made 

4 under subsection (a) shall be classified by the issuer 

5 as part of a separate premium class. 

6 (2) LIMIT.—The provision in paragraph (1) 

7 shall apply to individuals that enroll under a Medi8 care supplemental policy prior to January 1, 2015. 

9 (d) ADDITIONAL ENROLLMENT PERIOD FOR CER10 TAIN INDIVIDUALS.— 

11 (1) ONE-TIME ENROLLMENT PERIOD.— 

12 (A) IN GENERAL.—In the case of an indi13 vidual described in paragraph (2), the Secretary 

14 shall establish a one-time enrollment period 

15 during which such an individual may enroll in 

16 any Medicare supplemental policy of the indi17 vidual’s choosing. 

18 (B) PERIOD.—The enrollment period es19 tablished under subparagraph (A) shall begin 

20 on the date on which the phase-in period under 

21 subsection (b) is completed and end 6 months 

22 after such date. 

23 (2) INDIVIDUAL DESCRIBED.—An individual de24 scribed in this paragraph is an individual who— 


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1 (A) is entitled to hospital insurance bene2 fits under part A of title XVIII of the Social 

3 Security Act under section 226(b) or section 

4 226A of such Act (42 U.S.C. 426(b); 426–1); 

5 (B) is enrolled for benefits under part B of 

6 title XVIII of such Act (42 U.S.C. 1395j et 

7 seq.); and 

8 (C) would not, but for the provisions of 

9 and amendments made by this section, be eligi10 ble for the guaranteed issue of a Medicare sup11 plemental policy under section 1882(s)(2) of 

12 such Act (42 U.S.C. 1395ss(s)(2)). 

13 (3) OUTREACH PLAN.—The Secretary shall de14 velop an outreach plan to notify individuals de15 scribed in paragraph (2) of the one-time enrollment 

16 period established under paragraph (1). 

17 SEC. 3. GUARANTEED ISSUE OF MEDIGAP POLICIES FOR 

18 MEDICARE ADVANTAGE AND MEDICAID EN19 ROLLEES. 

20 (a) IN GENERAL.—Section 1882(s)(3) of the Social 

21 Security Act (42 U.S.C. 1395ss(s)(3)), as amended by sec22 tion 2, is amended— 

23 (1) in subparagraph (B), by adding at the end 

24 the following new clauses: 


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1 ‘‘(vii) The individual was enrolled in a Medicare 

2 Advantage plan under part C for not less than 12 

3 months and subsequently disenrolled from such plan 

4 and elects to receive benefits under this title through 

5 the original Medicare fee-for-service program under 

6 parts A and B. 

7 ‘‘(viii) The individual— 

8 ‘‘(I) is entitled to, or enrolled for, benefits 

9 under part A and enrolled for benefits under 

10 part B; 

11 ‘‘(II) was eligible for medical assistance 

12 under a State plan or waiver under title XIX 

13 and was enrolled in such plan or waiver; and 

14 ‘‘(III) subsequently lost eligibility for such 

15 medical assistance.’’; 

16 (2) by striking subparagraph (C)(iii) and in17 serting the following: 

18 ‘‘(iii) Subject to subsection (v)(1), for purposes of an 

19 individual described in clause (vi), (vii), or (viii) of sub20 paragraph (B), a Medicare supplemental policy described 

21 in this subparagraph shall include any Medicare supple22 mental policy.’’; and 

23 (3) in subparagraph (E)— 

24 (A) in clause (iv), by striking ‘‘and’’ at the 

25 end; 


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1 (B) in clause (v), by striking the period at 

2 the end and inserting a semicolon; and 

3 (C) by adding at the end the following new 

4 clauses: 

5 ‘‘(vi) in the case of an individual described in 

6 subparagraph (B)(vii), the annual, coordinated elec7 tion period (as defined in section 1851(e)(3)(B)) or 

8 a continuous open enrollment period (as defined in 

9 section 1851(e)(2)) during which the individual 

10 disenrolls from a Medicare Advantage plan under 

11 part C; and 

12 ‘‘(vii) in the case of an individual described in 

13 subparagraph (B)(viii), the period beginning on the 

14 date that the individual receives a notice of cessation 

15 of such individual’s eligibility for medical assistance 

16 under the State plan or waiver under title XIX and 

17 ending on the date that is 123 days after the indi18 vidual receives such notice.’’. 

19 (b) EFFECTIVE DATE.—The amendments made by 

20 subsection (a) shall apply to Medicare supplemental poli21 cies effective on or after January 1, 2011. 


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1 SEC. 4. ENROLLMENT OF INDIVIDUALS WITH END STAGE 

2 RENAL DISEASE IN MEDICARE ADVANTAGE. 

3 (a) IN GENERAL.—Section 1851(a) of the Social Se4 curity Act (42 U.S.C. 1395w–21(a)) is amended by strik5 ing paragraph (3) and inserting the following: 

6 ‘‘(3) MEDICARE+CHOICE ELIGIBLE INDI7 VIDUAL.—In this title, the term ‘Medicare+Choice 

8 eligible individual’ means an individual who is enti9 tled to benefits under part A and enrolled under 

10 part B.’’. 

11 (b) CONFORMING AMENDMENTS.— 

12 (1) Section 1852(b) of the Social Security Act 

13 (42 U.S.C. 1395w–22(b)) is amended by striking 

14 paragraph (1) and inserting the following: 

15 ‘‘(1) BENEFICIARIES.—A Medicare Advantage 

16 organization may not deny, limit, or condition the 

17 coverage or provision of benefits under this part, for 

18 individuals permitted to be enrolled with the organi19 zation under this part, based on any health status20 related factor described in section 2705(a)(1) of the 

21 Public Health Service Act (as amended by section 

22 1201(4) of the Patient Protection and Affordable 

23 Care Act). The Secretary shall not approve a plan 

24 of an organization if the Secretary determines that 

25 the design of the plan and its benefits are likely to 


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1 substantially discourage enrollment by certain MA 

2 eligible individuals with the organization.’’. 

3 (2) Section 1859(b)(6)(B) of such Act (42 

4 U.S.C. 1395w–28(b)(6)(B)) is amended in the sec5 ond sentence by striking ‘‘may waive application of 

6 section 1851(a)(3)(B) in the case of an individual 

7 described in clause (i), (ii), or (iii) of this subpara8 graph and’’. 

9 (c) EFFECTIVE DATE.—The amendments made by 

10 this section shall apply to plan years beginning on or after 

11 January 1, 2011. 

12 SEC. 5. PROVIDING FOR ANNUAL GUARANTEED-ISSUE 

13 CHANGES IN ENROLLMENT UNDER MEDIGAP 

14 POLICIES. 

15 Section 1882(s) of the Social Security Act (42 U.S.C. 

16 1395ss(s)) is amended— 

17 (1) by redesignating paragraph (4) as para18 graph (5); and 

19 (2) by inserting after paragraph (3) the fol20 lowing new paragraph: 

21 ‘‘(4)(A) The Secretary shall specify an annual period 

22 (with the first such period occurring during 2011) during 

23 which individuals enrolled in a Medicare supplemental pol24 icy with a particular benefit package may change to an25 other such policy if such other policy is offered by a difVerDate Mar 15 2010 00:32 Jul 27, 2010 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5844.IH H5844

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1 ferent issuer and available for issuance to new enrollees 

2 by such issuer and if such other policy has the same ben3 efit package or a benefit package with lesser benefits (as 

4 determined by the Secretary). Such annual period shall, 

5 to the extent feasible, coincide with annual open enroll6 ment periods under parts C and D. A change in enroll7 ment during such a period in a year shall become effective 

8 as of the first day of the following year. 

9 ‘‘(B) In the case of an individual who seeks to change 

10 enrollment to a Medicare supplemental policy issued by 

11 a different issuer during an annual period pursuant to 

12 subparagraph (A), subject to subparagraph (C), the issuer 

13 of such policy— 

14 ‘‘(i) may not deny or condition the issuance or 

15 effectiveness of the policy a Medicare supplemental 

16 policy described in subparagraph (A); 

17 ‘‘(ii) may not discriminate in the pricing of 

18 such policy, because of health status, claims experi19 ence, receipt of health care, or medical condition; 

20 and 

21 ‘‘(iii) may not impose an exclusion of benefits 

22 based on a preexisting condition under such policy. 

23 ‘‘(C) In the case of a change of enrollment under this 

24 paragraph and in order to prevent adverse selection under 

25 this paragraph from disrupting the orderly marketing of 


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1 Medicare supplemental policies, the Secretary may permit 

2 the new issuer of the Medicare supplemental policy to 

3 apply such limited pre-existing conditions and such pre4 mium rating rules as may be appropriate.’’. 

Æ 


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