Medicare Part D Notification Requirements
Employers sponsoring a group health plan with prescription drug benefits are required to notify their Medicare-eligible participants and beneficiaries as to whether the drug coverage provided under the plan is “creditable” or “non-creditable.” This notification must be provided prior to October 15th each year. Also, following the plan’s annual renewal, the employer must notify the Centers for Medicare & Medicaid Services (“CMS”) of the creditable status of the drug plan. Employers should send these notices no later than October 15, 2022 if they haven’t done so already.
Below you will find information that summarizes these requirements in more detail.
What are the Notification Requirements About?
Medicare Part D, the Medicare prescription drug program, generally imposes a lifetime penalty for late enrollment if an individual delays enrolling in Part D after initial eligibility (for example, after reaching age 65), unless the individual continues to be covered by an employer’s group medical plan because of active employment or COBRA, and coverage under the plan is “creditable” (meaning equal to or better than coverage provided under a Part D standard plan).
Employers that provide prescription drug benefits are required to notify Medicare-eligible individuals annually as to whether the employer-provided benefit is creditable or non-creditable so that these individuals can decide whether or not to delay Part D enrollment. Also, the employer must annually notify CMS as to whether or not the employer plan is creditable.
Participant Notice
In order to assist employers in their compliance obligations, CMS has issued participant disclosure model notices for both credible and non-creditable coverage, which can be found at: https://www.cms.gov/Medicare/Prescription-DrugCoverage/CreditableCoverage/Model-Notice-Letters (notices last updated by CMS for use on or after April 1, 2011).
These model notices, when appropriately modified, will serve as a proper notice for purposes of this requirement. Spanish notices are also provided at the above link.
To Whom Should the Participant Notice Be Sent?
Notice should be sent to all Part D-eligible participants. This includes active employees, COBRA qualified beneficiaries, retirees, spouses, and other dependents of the employee covered by the plan. In many cases, the employer will not know whether an individual is Medicare eligible or not. Therefore, employers may wish to provide the notice to all plan participants (including COBRA qualified beneficiaries) to ensure compliance with the notification requirements. When Should the Participant Notice Be Sent? Participant disclosure notices should be sent at the following times:
• Prior to (but no more than 12 months before) October 15th each year (or next working day);
• Prior to (but no more than 12 months before) an individual’s Initial Enrollment Period for Part D (three months before the month of the person’s 65th birthday);
• Prior to (but no more than 12 months before) the effective date of coverage for any Medicare eligible individual under the plan;
• Whenever prescription drug coverage ends or changes so that it is no longer creditable, or it becomes creditable; and
• Upon a beneficiary’s request. If the disclosure notice is provided to all plan participants annually, CMS will consider the first two bullet points satisfied.
Many employers provide the notice in connection with the annual group plan enrollment period. In order to satisfy the third bullet point, employers should also provide the participant notice to new hires and newly eligible individuals under the group health plan.
How Should the Participant Notice Be Sent?
Entities have flexibility in the form and manner in which they provide notices to participants. The employer may provide a single disclosure notice to a participant and his or her family members covered under the plan. However, the employer is required to provide a separate disclosure notice if it is known that a spouse or dependent resides at an address different from the address where the participant’s materials were provided. Mail Mail is the recommended method of delivery, and the method CMS initially had in mind when issuing its guidance.
Electronic Delivery
The employer may provide the notice electronically to plan participants who have the ability to access the employer’s electronic information system on a daily basis as part of their work duties (consistent with the DOL electronic delivery requirements in 29 CFR § 2520.104b-1(c)). If this electronic method of disclosure is chosen, the plan sponsor must inform the plan participant that the participant is responsible for providing a copy of the electronic disclosure to their Medicare eligible dependents covered under the group health plan. In addition to having the disclosure notice sent electronically, the notice must be posted on the entity’s website, if applicable, with a link to the creditable coverage disclosure notice. Sending notices electronically will not always work for COBRA qualified beneficiaries who may not have access to the employer’s electronic information system on a daily basis. Mail is generally the recommended method of delivery in such instances.
Open Enrollment Materials
If an employer chooses to incorporate the Part D disclosure with other plan participant information, the disclosure must be prominent and conspicuous. This means that the disclosure portion of the document (or a reference to the section in the document being provided to the individual that contains the required statement) must be prominently referenced in at least 14-point font in a separate box, bolded or offset on the first page of the provided information. CMS provides sample language for referencing the creditable or non-creditable coverage status of the plan per the requirements:
Personalized Notices
A personalized notice is only provided upon request of the beneficiary. If an individual requests a copy of a disclosure notice, CMS recommends that entities provide a personalized notice reflecting the individual’s information. For more information on the participant disclosure requirement, visit: http://www.cms.gov/Medicare/Prescription-DrugCoverage/CreditableCoverage/downloads/Updated_Guidance_09_18_09.pdf
CMS Notification
When and How Should Notification Be Given to CMS?
Employers will also need to electronically notify CMS as to the creditable status of the group health plan prescription drug coverage. This notice must be provided by the following deadlines:
• Within 60 days after the beginning date of the plan year (March 1, 2023 for a 2023 calendar-year plan);
• Within 30 days after the termination of the prescription drug plan; and
• Within 30 days after any change in the creditable coverage status. Notice must be submitted electronically by completion of a form found at: https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/CCDisclosureForm.html Additional guidance on completing the form, including screenshots, is available at:
How is Creditable Coverage Determined?
Most insurance carriers and TPAs will disclose whether or not the prescription drug coverage under the plan is creditable for purposes of Medicare Part D. CMS’s guidance provides two ways to make this determination, actuarially or through a simplified determination.
Actuarial Determination Prescription drug coverage is creditable if the actuarial value of the coverage equals or exceeds the actuarial value of standard Medicare Part D prescription drug coverage. In general, this is determined by measuring whether the expected total of paid claims under the employer’s drug program is at least as much as what is expected under the standard Part D program.
This can be determined through an actuarial equivalency test, which generally requires the hiring of an actuary to perform.
Simplified Determination
Some plans will be permitted to use the simplified determination of creditable coverage status to annually determine whether coverage is creditable or not. A prescription drug plan is deemed to be credible if:
• It provides coverage for brand and generic prescriptions;
• It provides reasonable access to retail providers;
• The plan is designed to pay on average at least 60% of participants’ prescription drug expenses; and
• It satisfies at least one of the following:
• The prescription drug coverage has no annual benefit maximum benefit or a maximum annual benefit payable by the plan of at least $25,000;
• The prescription drug coverage has an actuarial expectation that the amount payable by the plan will be at least $2,000 annually per Medicare eligible individual; or
• For entities that have integrated health coverage, the integrated health plan has no more than a $250 deductible per year, has no annual benefit maximum or a maximum annual benefit payable by the plan of at least $25,000, and has no less than a $1,000,000 lifetime combined benefit maximum.
An integrated plan is any plan of benefits where the prescription drug benefit is combined with other coverage offered by the entity (i.e., medical, dental, vision, etc.) and the plan has all of the following plan provisions:
• a combined plan year deductible for all benefits under the plan,
• a combined annual benefit maximum for all benefits under the plan, and/or
• a combined lifetime benefit maximum for all benefits under the plan