Rescinded 1981

SSR 75-1: Section 1837(h) (42 U.S.C. 1395p)—Supplementary Medical Insurance Benefits—Initial Enrollment Period—Waiver of Enrollment Period Requirements

20 CFR Part 405.226

SSR 75-1

Where an individual under age 65, upon filing application for monthly insurance benefits under title II of Social Security Act, was informed by the Social Security Administration representative that application for enrollment in Supplementary Medical Insurance program would be mailed as soon as she became eligible to enroll, but through inadvertence or error the Social Security Administration failed to mail the enrollment form timely, held, claimant deemed to have filed a timely enrollment request in the first month of the initial enrollment period, pursuant to section 1837(h)[*] of Social Security Act, added by Social Security Amendments of 1972, P.L. 92-603.

W, born June 2, 1906, filed application for retirement insurance benefits in December 1970. She elected to receive reduced benefits effective January 1971, prior to her attainment of age 65. Since W filed her application for retirement benefits in December 1970, more than 3 months prior to age 65, she was not then eligible to enroll in the SMI program. In September 1971 she filed application for enrollment in the Supplementary Medical Insurance program (SMI) under part B of title XVIII, Social Security Act, and was advised that her enrollment began in December 1971. W protested this determination and insisted that the effective date of her enrollment should be June 1971, the month she attained age 65 and became entitled to hospital insurance, and the first month for which she could have by timely enrollment become entitled to SMI. W based this contention on assurances given by the Administration's representative at the time she filed her application for monthly benefits that the Social Security Administration would mail to her an enrollment form as soon as she became eligible to enroll, and that she would qualify for SMI beginning June 1971 upon prompt completion and return of the form. The form was not received by W until September 1971, and was then promptly executed and returned to the Social Security Administration. Meanwhile, she had undergone surgery in July 1971, and incurred medical expenses which would not be covered on the basis of a coverage period beginning after July 1971.

The general issue in this case is whether the claimant's SMI coverage may be found to have commenced prior to December 1, 1971. The specific issue is whether the claimant filed or may be deemed to have filed a timely application for enrollment in the Supplementary Medical Insurance program which would permit an effective coverage date prior to December 1, 1971.

Section 1836 of the Social Security Act, as amended, provides, as pertinent here, that an individual may enroll for Supplementary Medical Insurance if he has attained age 65 and is entitled to hospital insurance benefits.

Section 1837 of the Act, as pertinent here, provides that a request for enrollment in the Supplementary Medical Insurance program will be effective only if filed within certain enrollment periods specified in that section. Subsection (d) provides in effect that for an individual otherwise eligible (as in W's case) the initial enrollment period is a seven month period beginning three months before the month he attains 65 and ending three months after such month.

Section 1838 of the Act, as pertinent here, sets forth coverage periods which may be established for those who have properly enrolled in the Supplementary Medical Insurance program. This section provides that for individuals who enroll during the first three months of their initial enrollment period, the coverage period shall begin with the month of attainment of age 65. For those who enroll in the month they attain age 65, the coverage period begins with the following month. For those enrolling in the month after the month of attainment of age 65, the coverage period begins for the second month following the month of enrollment. For those individuals who enroll in the second or third month following the month of attainment of age 65, the coverage period begins with the third month following the month of enrollment.

Section 1837(h) of the Social Security Act was added to section 1837 by section 259(a) of the Social Security Amendments of 1972 (P.L. 92-603), enacted on October 30, 1972. Section 1937(h) is retroactive to July 1, 1966, and provides that in any case where the Secretary finds that an individual's enrollment or nonenrollment in the Supplementary Medical Insurance program is unintentional, inadvertent, or erroneous and is the result of the error, misrepresentation, or inaction of an officer, employee or agent of the Federal Government or its instrumentalities, the Secretary may take such action (including the designation for such individual of a specific initial or subsequent enrollment period, with a coverage period determined on the basis thereof, and with appropriate adjustment of premiums) as may be necessary to correct or eliminate the effects of such error, misrepresentations, or inaction.

It appears from the facts set forth above that due to some delay or error, the Social Security Administration failed to mail the enrollee timely the enrollment card as she had been told would be done. It cannot reasonably be expected that W or her husband would be familiar with the technical requirements of enrollment during certain enrollment periods and with the provisions concerning the effective dates of coverage periods based on enrollment dates. She did enroll in September 1971 promptly upon receiving the enrollment form.

The present situation is illustrative of the hardships and inequities intended to be corrected by the provisions of section 1837(h) of the Act. W's failure to enroll during the three month period preceding June 1971 was, in the words of section 1837(h) "unintentional, inadvertent, or erroneous" and it is clear that it was the result of the error or inaction of an officer or employee of the Federal Government. This provision of the Social Security Amendments of 1972, became effective as of July 1, 1966, and is applicable to this case.

Under section 1837(f) and (g) of the Act (enacted into law as section 206 of the Social Security Amendments of 1972), effective for persons who became entitled to hospital insurance after June 1973, such a problem would not arise today: An individual is deemed to have enrolled for SMI in the first 3 months of his initial enrollment period if he files an application in or prior to such first 3 months which establishes his entitlement to hospital insurance. Since section 1837(h) may be applied retroactively to the inception of the program in July 1966, it enables the Social Security Administration to provide relief for cases which arose before the "automatic enrollment" provisions of section 1837(f) became effective.

Accordingly, it is held that W's application for enrollment in the Supplementary Medical Insurance program is deemed to have been filed during the three month period preceding her attainment of age 65 in June 1971, with a coverage period effective June 1, 1971.


[*] Section 1837(h) provides: In any case where the Secretary finds that an individual's enrollment or nonenrollment in the insurance program established by this part or Part A pursuant to section 1818 is unintentional, inadvertent, or erroneous and is the result of the error, misrepresentation, or inaction of an officer, employee, or agent of the Federal Government, or its instrumentalities, the Secretary may take such action (including the designation for such individual of a special initial or subsequent enrollment period, with a coverage period determined on the basis thereof and with appropriate adjustments of premiums) as may be necessary to correct or eliminate the effects of such error, misrepresentation, or inaction. (Ed.)