In a previous , my colleagues Judith Waltz and Alexandra Shalom summarized the takeaways associated to well being fairness and utilization administration provisions from the Facilities for Medicare and Medicaid Providers (CMS) Ultimate Rule that amended rules for Medicare Benefit (MA or Half C), Medicare Price Plan, the Medicare Prescription Drug Profit (Half D) packages, and Applications of All-Inclusive Take care of the Aged (PACE).  The Ultimate Rule was revealed on April 12, 2023.  This text focuses on the modifications to the Medicare Benefit (MA) and Half D packages advertising guidelines at 42 C.F.R. elements 422 and 423, that are relevant for all contract 12 months 2024 advertising and communications starting September 30, 2023¹:

1. Previous to the Ultimate Rule, solely MA organizations and Half D sponsors submitted advertising supplies to the CMS Well being Plan Administration System (HPMS), which is CMS’ system of file for advertising supplies. The Ultimate Rule requires supplies to be submitted to HPMS by a Third Occasion Advertising and marketing Group (TPMO) for a number of organizations or plans with prior approval by every MA group or Half D sponsor on whose behalf the supplies have been created or can be used (42 C.F.R. §§ 422.2261(a)(2); 423.2261(a)(2));
2. MAOs and Half D sponsors should now notify enrollees yearly, in writing, of the power to choose out of cellphone calls relating to MA and Half D plan enterprise (42 C.F.R. §§ 422.2264(b); 423.2261(b));
3. Brokers should clarify the impact of an enrollee’s enrollment selection on their present protection each time the enrollee makes an enrollment determination based mostly on modifications to the pre-enrollment guidelines (PECL) (42 C.F.R. §§ 422.2267(e)(4)(viii); 423.22677(e)(4)(viii));
4. CMS’ required questions and subjects relating to beneficiary wants in a well being plan selection should be totally mentioned previous to enrollment. Subjects embody info relating to main care suppliers and specialists, pharmacies (i.e., whether or not these pharmacies are in-network), prescription drug protection and prices, prices of well being care companies, premiums, advantages, and particular well being care wants (42 C.F.R. §§ 422.2274(c)(12); 423.2274(c)(12));
5. The rules simplify plan comparisons by requiring the Abstract of Advantages to record the medical advantages on the highest half of the primary web page and in a particular order (42 C.F.R. §§ 422.2267(e)(5)(A)(1)-(10));
6. The Ultimate Rule limits the time {that a} gross sales agent can name a possible enrollee to not more than 12 months following the date that the enrollee first requested for info (42 C.F.R. §§, 422.2264(b); 423.2264(b));
7. In a single narrowing of the present rules, CMS restricted the requirement to file calls between TPMOs and beneficiaries to advertising (gross sales) and enrollment calls, however clarified the recording requirement to incorporate the audio portion of digital connections resembling video conferencing and different digital telepresence strategies (42 C.F.R. §§ 422.2274(g)(2)(ii); 423.2274(g)(2)(ii));
8. CMS now prohibits a advertising occasion from occurring inside 12 hours of an academic occasion on the identical location (42 C.F.R. §§ 422.2264(c)(2)(i); 423.2264(c)(2)(i));
9. The Ultimate Rule clarified that the prohibition on door-to-door contact and not using a prior appointment nonetheless applies after assortment of a enterprise reply card or scope of appointment (SOA) (42 C.F.R. §§ 422.2264(a)(2)(i)(A); 423.2264(a)(2)(i)(A));
10. CMS prohibited advertising of advantages in a service space the place these advantages aren’t accessible, except unavoidable due to use of native or regional media that covers the service space(s) (42 C.F.R. §§ 422.2263(b); 423.2263(b));
11. Additional, CMS prohibited the advertising of details about potential financial savings which might be based mostly on a comparability of typical bills borne by uninsured people, unpaid prices of dually eligible beneficiaries, or different unrealized prices of a Medicare beneficiary (42 C.F.R. §§ 422.2262(a)(1)(ii); 423.2262(a)(1)(ii));
12. The Ultimate Rule requires TPMOs to record or point out the entire MA organizations or Half D sponsors that they characterize on advertising supplies (42 C.F.R. §§ 422.2263(b); 423.2263(b));
13. With a watch to compliance, CMS now requires MA organizations and Half D sponsors to have an oversight plan that displays agent/dealer actions and stories agent/dealer non-compliance to CMS (42 C.F.R. §§ 422.2272(e); 423.2272(e));
14. The Ultimate Rule modified the TPMO disclaimer to state the variety of organizations represented by the TPMO in addition to the variety of plans (42 C.F.R. §§, 422.2267(e)(41); 423.2267(e)(41));
15. CMS modified the TPMO disclaimer so as to add State Well being Insurance coverage Applications (SHIPs) as an possibility for beneficiaries to acquire assist (and decide all plan choices in a area) along with Medicare.gov and 1-800-MEDICARE (42 C.F.R. §§ 422.2267(e)(41); 423.2267(e)(41));
16. The Ultimate Rule prohibited the gathering of SOA playing cards at academic occasions (42 C.F.R. §§ 422.2264(c)(1)(ii); 423.2264(c)(1)(ii));
17. CMS positioned discrete limits round using the Medicare identify, emblem, and Medicare card, noting within the preamble:“If CMS determines that the Medicare identify, CMS emblem or official merchandise just like the Medicare card have been utilized in a deceptive method by an [first tier, downstream and related entity (FDR)], CMS would deal with the problem with the MA group or Half D sponsor on whose behalf the FDR was working and maintain the sponsoring group accountable for all deceptive info.”(42 C.F.R. §§ 422.2262(a)(1); 432.2262(a)(1));
18. The Ultimate Rule prohibits using superlatives (for instance, phrases like “greatest” or “most”) in advertising except the fabric gives documentation to help the assertion, and the documentation relies on knowledge from the present or prior 12 months (42 C.F.R. §§ 422.2262(a)(1)(ii); 432.2262(a)(1)(ii)); and
19. CMS now requires 48 hours between an SOA and an agent assembly with a beneficiary, with exceptions for beneficiary-initiated walk-ins and the tip of a sound enrollment interval (42 C.F.R. §§ 422.2264(c)(3)(i); 423.2264(c)(3)(0).²

CMS famous varied causes for the advertising modifications together with its audit of a whole lot of selling and enrollment calls and complaints to 1-800-MEDICARE.  In its assessment of selling and enrollment calls, CMS discovered that almost all of such calls (i.e., over 80%) solely mentioned one plan possibility from one MA group—brokers hardly ever, if ever, knowledgeable the beneficiary that there have been a number of plans accessible of their service space.³ This led CMS so as to add “SHIP” to the TPMO disclaimer and to require TPMOs to reveal the names of all entities the TPMO represents.  CMS additionally famous that in over 80% of the calls, brokers and brokers didn’t ask pertinent questions to assist a beneficiary enroll in a plan that greatest meets the person wants (which is statutorily required underneath Social Safety Act 1851(j)(2)(D))⁴—e.g., whether or not there was a specialist {that a} beneficiary sees or wished to see and whether or not that specialist was within the plan’s community, whether or not the beneficiary would like decrease copays and the next premium or vice versa, or whether or not the beneficiary needed dental and listening to advantages.⁵ This discovering led CMS to require sure questions and subjects to be totally mentioned previous to enrollment—info relating to main care suppliers and specialists, pharmacies, and so forth.  With regard to the record of required parts to be lined previous to enrollment, CMS famous that it’s going to present extra detailed questions and areas to be lined in sub-regulatory steering.⁶

Within the complaints to 1-800-MEDICARE, CMS famous that brokers failed to tell the beneficiary that the person’s docs weren’t within the MA plan’s community, inaccurately informed beneficiaries that there can be no price, or that their present protection can be affected by enrolling into a brand new MA or Half D plan.⁷ These complaints drove modifications to the PECL.

A number of of the modifications revisited prior advertising guidelines.  For instance, the prohibition to promoting advantages not accessible within the service space was beforehand codified in part 30.1 of the 2016 Medicare Advertising and marketing Pointers.⁸ Giving the beneficiaries ample time to consider their choices was a key think about altering some necessities relating again to older advertising steering.  Previous to 2018, CMS sub-regulatory steering prohibited holding advertising occasions following an academic occasion, distributing SOA playing cards at academic occasions ,and organising future particular person advertising appointments at such occasions.⁹ In its pre-2018 advertising steering, CMS interpreted the usual of requiring an settlement prematurely between an SOA and an agent assembly with a beneficiary to imply 48 hours previous to the appointment when practicable.  CMS reverted to the 48-hour rule, and due to the subjective interpretation of “when practicable,” CMS didn’t embody that “when practicable” caveat to the 48-hour rule, moderately setting sure particular exceptions (beneficiary-initiated walk-ins and the tip of a sound enrollment interval).

Within the Ultimate Rule, CMS famous a number of occasions the MA and Half D plans’ accountability for TPMOs’ actions,¹⁰ and famous its concern with the beforehand reactive nature of plans addressing inappropriate agent and dealer conduct, when it needs to be extra proactive.  In a brand new provision, CMS now particularly requires plans to have a monitoring and oversight plan and to report agent non-compliance to CMS.  To help with figuring out and stopping poor performing brokers and brokers extra shortly, whether or not they’re unbiased, captive, or employed brokers or brokers, at a minimal, CMS acknowledged {that a} correct oversight program will embody:

• the assessment of inner grievances and 1-800-MEDICARE complaints,
• reviewing a random sampling of previous audio gross sales/advertising/enrollment calls,
• listening to gross sales/advertising/enrollment calls in real-time,
• secretly purchasing in-person training and gross sales occasions, and
• secretly purchasing web-based training and gross sales occasions.”¹¹

Additional, as with different necessities, CMS acknowledged that it’s going to present further info in its Medicare Communications and Advertising and marketing Pointers (MCMG), together with examples sooner or later.¹²

CMS acknowledged that the revised advertising necessities will lead to extra work/burden.  In its tightening of the rule associated to advertising of advantages in service areas the place these advantages can be found, CMS acknowledged:  “Defending beneficiaries from deceptive ads selling advantages for which beneficiaries are ineligible far outweighs the perceived burden of organizations having to create advertising supplies that particularly replicate the advantages supplied by their plans in particular service areas.”¹³

Conclusion

The April 14, 2023 Ultimate Rule impacts the advertising and gross sales panorama for not solely MA Plans and Half D sponsors, but additionally TPMOs and FDRs.  The MCMG will present further element to flesh out these necessities, however the preamble language to the Ultimate Rule is useful in understanding CMS’ intent.