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Can I get a Special Enrollment Period and change Medicare plans if I was provided false or misleading information during the Medicare Part D enrollment process?


Yes.  The Centers for Medicare & Medicaid Services (CMS) provides a Special Enrollment Period (SEP) in exceptional circumstance if you were provided false or incorrect or misleading information during your Medicare plan enrollment.  In general, you can ask Medicare for this Special Enrollment Period if you were provided false information from a federal employee, the Medicare.gov Plan Finder, a plan representative, a SHIP counselor, an agent, or a broker.

However, this SEP is not automatically granted, but instead, is available from a Medicare representative only in "exceptional circumstances" based on the facts surrounding your enrollment - in other words, this SEP is granted on a case-by-case basis.

Where does Medicare information reference this SEP?

In general, the Medicare Part D and Medicare Advantage plan Manuals refer to Special Enrollment Periods granted when the enrollment (or failure to enroll) is based on false or misleading information.  For example, when referencing Retroactive Enrollment, CMS noted:
"In other limited cases, CMS may determine that an individual is eligible for an [Special Enrollment Period] due to an extraordinary circumstance beyond his/her control (e.g. a fraudulent enrollment request or misleading marketing practices) and may also permit a retroactive enrollment in a [Medicare prescription drug plan or Medicare Advantage plan] as necessary to prevent a gap in coverage or liability for the late enrollment penalty."
False or misleading information from a federal employee.

More specifically, Medicare addresses the issue of misleading information provided by a federal employee in the Medicare Manual Section 30.3.7 – "SEP for Enrollment/Non-enrollment in Part D due to an Error by a Federal Employee", where CMS states:
"An individual whose enrollment or non-enrollment in Part D is erroneous due to an action, inaction or error by a Federal Employee is provided an SEP. This SEP permits enrollment in or disenrollment from a PDP on a case-by-case basis. This SEP begins the month the individual receives CMS approval of the SEP and continues for two additional months following this approval." [emphasis added]
False or misleading information from the Medicare.gov Plan Finder.

CMS also noted the possibility of an SEP granted to people who relied on an error that was found within the Medicare.gov Plan Finder data.  In the November 27, 2019 Blog, CMS discussed some of the recent enhancements and changes to the Medicare.gov Plan Finder and, in response to criticism about the accuracy of the Plan Finder data noted:
"Of course we want to ensure that beneficiaries are confident in their decisions and happy with the coverage they choose. We have protections such as Special Enrollment Periods in place if something happens to shake that confidence. As is the case every year, our call center representatives and staff caseworkers can help beneficiaries throughout the year if they believe they made the wrong plan choice because of inaccurate or misleading information. This process isn’t new, but this year we’re doubling down on ensuring that it’s a simple and painless experience for beneficiaries. Our staff is trained and ready to help any beneficiary who needs it. All they need to do is call 1-800 MEDICARE. Again, we’ve always had a Special Enrollment Period for people who think they made a wrong choice due to inaccurate information." [emphasis added]
False or misleading information from a Medicare plan representative or SHIP counselor.

The Medicare Manual includes a miscellaneous section of Special Enrollment Period for situations not specifically addressed in other Special Enrollment Periods - "SEPs for Exceptional Conditions".  In this section, Medicare deals with exceptional SEPs that are considered by Medicare representatives on an individual basis:
"CMS has the legal authority to establish SEPs when an individual or group of individuals meets exceptional conditions specified by CMS, including on a case-by-case basis."
As part of these SEPs granted for Exceptional Conditions, Medicare again addresses the issue of allowing people to change plans if they were induced to join the plan based on false information:
"CMS will establish a SEP, on a case by case basis, for individuals whom CMS determines have experienced exceptional circumstances related to enrollments into or disenrollments from [a Medicare] plan that are not otherwise captured in regulation. Consistent with current practice, CMS will consider granting an enrollment or disenrollment opportunity in situations such as the following: . . .
Situations in which a beneficiary provides a verbal or written allegation that his or her enrollment in a MA or Part D plan was based upon misleading or incorrect information provided by a plan representative or State Health Insurance Assistance Program (SHIP) counselor, including situations where a beneficiary states that he or she was enrolled into a plan without his or her knowledge or consent, and requests cancellation of the enrollment or disenrollment from the plan." [emphasis added]
How can I get this SEP?

Medicare beneficiaries should contact a Medicare representative (1-800-633-4227) with any questions and to learn whether Medicare will grant this SEP based on their specific situation or circumstances.

Important:  If you wish to use this SEP or any other exceptional SEP, please be sure to organize the details surrounding your enrollment so that you can clearly explain your situation to the Medicare representative or their supervisor.


References:

CMS Blog, "We’re Heading into the Last Week of Medicare Open Enrollment, Don’t Miss Out on Your Chance to Find Better Coverage"  https://www.cms.gov/blog/were-heading-last-week-medicare-open-enrollment-dont-miss-out-your-chance-find-better-coverage (published 11/27/2019, offline 12/15/2021 - but in archive)

Medicare Prescription Drug Benefit Manual, Chapter 3 - Eligibility, Enrollment and Disenrollment, p. 34, 121, Updated: August 19, 2011 (Revised: November 16, 2011, August 7, 2012, August 30, 2013, August 30, 2014, July 6, 2015, September 1, 2015, September 14, 2015, December 30, 2015, May 27, 2016, August 25, 2016, June 15, 2017, July 31, 2018 & August 12, 2020))

Medicare Managed Care Manual Chapter 2 - Medicare Advantage Enrollment and Disenrollment Updated: August 19, 2011 (Revised: November 16, 2011, August 7, 2012, August 30, 2013, August 14, 2014, July 6, 2015, September 1, 2015, September 14, 2015, December 30, 2015,May 27, 2016, August 25, 2016, June 15, 2017, July 31, 2018& August 12, 2020)


What is the background of this Special Enrollment Period?

In the wake of the June 15, 2007 CMS Press Release where a number of national Medicare Advantage Private Fee for Service (PFFS) voluntarily suspended Medicare Advantage plan marketing pending Centers for Medicare and Medicaid Services (CMS) review; CMS established a "new" Special Enrollment Period (SEP) allowing Medicare beneficiaries a re-enrollment or dis-enrollment opportunity outside of the Annual Election Period (AEP) or Medicare Open Enrollment Period (OEP).

The CMS memo dated July, 18, 2007, provides the SEP for Medicare beneficiaries who enrolled in a Medicare Advantage plan "based on misleading or incorrect information provided by [Medicare] plan employees, agents or brokers."

Once this exceptional SEP is approved, the Medicare beneficiary can decide to return to original Medicare Part A and Part B coverage, enroll in a stand-alone Medicare Part D Prescription Drug Plan (PDP) or enroll in another Medicare Advantage plan (MA, MAPD, or SNP).

The following is the complete text of the CMS memo regarding the Special Enrollment Period.

DATE: July 18, 2007
TO: All Medicare Advantage and Part D Organizations
FROM: Anthony J. Culotta, Director Medicare Enrollment and Appeals Group
SUBJECT: New Exceptional Circumstance Misleading Information

CMS has established a Special Election Period (SEP) to address situations where an individual has enrolled in a Medicare Advantage (MA) plan based on misleading or incorrect information provided by plan employees, agents or brokers. All interested individuals should be advised to call 1-800-MEDICARE to see if they qualify for this SEP. Customer service representatives at 1-800-MEDICARE and CMS regional office (RO) caseworkers will evaluate beneficiaries’ requests on a case-by-case basis to confirm that they qualify for this SEP.

Upon approval of the SEP, CMS will provide all qualified beneficiaries assistance in selecting new Medicare plan options, which may include another MA plan, a Part D plan, or Original Medicare. Please note that prospective enrollments input by 1-800-MEDICARE will be entered via the online enrollment center (OEC). In such cases, “1-800-Medicare Marketing Misrepresentation SEP" will be entered into the "For CMS Use Only" field. Thus, there will be no need for plans to verify eligibility for this SEP.

All requests for retroactive enrollment changes under this SEP will be handled and processed by the appropriate CMS RO caseworkers, who will discuss the possible ramifications of retroactive changes with affected beneficiaries. When requests for retroactive enrollments are warranted, the RO caseworkers will input the enrollments directly (without any involvement with the Integriguard process). For those transactions input by CMS staff, only CMS staff information (e.g., last name and region) will be entered into the "For CMS Use Only" field. Note that CMS has created a new subcategory in the complaint tracking module (CTM) in order to help identify, trend, and monitor these cases.

If you have any general questions about this SEP, please contact Lynn Orlosky at (410) 786-9064; questions about specific cases may be directed to your CMS account or plan manager.

DEPARTMENT OF HEALTH & HUMAN SERVICES
Centers for Medicare & Medicaid Services
7500 Security Boulevard
Baltimore, Maryland 21244-1850
CENTER FOR BENEFICIARY CHOICES





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