---
kind: "section"
citation: "42 C.F.R. § 423.859"
title: "42"
number: "423.859"
heading: "Assuring access to a choice of coverage."
url: "https://uscodex.org/cfr/42/423.859"
---

# §423.859. Assuring access to a choice of coverage.

- (a) **Choice of at least 2 qualifying plans in each area.** Each Part D eligible individual must have available a choice of enrollment in at least 2 qualifying plans (as defined in [§ 423.855](/cfr/42/423.855.md)) in the area in which the individual resides. This requirement is not satisfied if only one entity offers all the qualifying plans in the area. At least 1 of the 2 qualifying plans must be a prescription drug plan.
- (b) **Fallback service area—**
  - (1) **For coverage year.** Before the start of each coverage year CMS determines if Part D eligible individuals residing in a PDP region have access to a choice of enrollment in a minimum of 2 qualifying plans, as described in [paragraph (a)](#a) of this section. If CMS determines that Part D eligible individuals in a PDP region, or some portion of the region, do not have available a choice of enrollment in a minimum of two qualified plans, CMS designates the region or portion of a region as a fallback service area. Each Part D eligible individual in a fallback service area is given the opportunity to enroll in a fallback prescription drug plan.
  - (2) **For mid-year changes.** If a contract with a qualifying plan is terminated in the middle of a contract year (as provided for in [§ 423.508](/cfr/42/423.508.md), [§ 423.509](/cfr/42/423.509.md), or [§ 423.510](/cfr/42/423.510.md)), CMS determines if Part D eligible individuals residing in the affected PDP region still have access to a choice of enrollment in a minimum of 2 qualifying plans, as described in [paragraph (a)](#a) of this section. If CMS determines that Part D eligible individuals in a PDP region, or some portion of the region, no longer have available a choice of enrollment in a minimum of two qualifying plans, CMS designates the region or portion of a region as a fallback service area.
- (c) **Access to coverage in the territories.** CMS may waive or modify the requirements of this part if—
  - (1) CMS determines that waiver or modification is necessary to secure access to qualified prescription drug coverage for Part D eligible individuals residing in a State other than the 50 States or the District of Columbia; or
  - (2) An entity seeking to become a prescription drug plan in an area such as a territory, other than the 50 States or the District of Columbia requests waiver or modification of any Part D requirement in order to provide qualified prescription drug coverage.

## Notes

### Authority

Authority: 42 U.S.C. 1302, 1306, 1395w-101 through 1395w-152, and 1395hh.

### Source

Source: 70 FR 4525, Jan. 28, 2005, unless otherwise noted.