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On April 5, 2023, the Centers for Medicare & Medicaid Services (CMS) issued long-awaited rules pertaining to, among other matters, the marketing of Medicare Advantage (MA) plans. YourMedicare and its partners had been anticipating these changes and have activated a task force to study the newly published rules in detail and clarify their implications for our affiliated agents’ businesses.

The FAQ is the culmination of that effort. Here you will find answers to a number of questions we have received since April 5, as well as clarification on the new rules our team is proactively providing.

Please bookmark this page for future reference. As new information and interpretations become available, we will add those to this page.

Date: May 10, 2023

To: Medicare Advantage Organizations, Medicare Advantage-Prescription Drug Plans, Prescription Drug Plan Sponsors, and Section 1876 Cost Plans

From: Kathryn A. Coleman, Director

Subject: Definition of Marketing

📑 Download the official announcement

In order to ensure Medicare beneficiaries are making enrollment decisions based on up-to-date and accurate information, the Centers for Medicare & Medicaid Services (CMS) is issuing this memo to clarify the definition of marketing for Medicare Advantage-Prescription Drug Plans, stand-alone Prescription Drug Plans, 1876 Cost Plans, and Third-Party Marketing Organizations (TPMOs).

Regulations at 42 CFR §§ 422.2260 and 423.2260 define marketing as communication materials and activities which meet specific intent and content standards.

• The intent component of the definition of “marketing” is met when any material or activity is intended to draw a beneficiary's attention to plan or plans, influence a beneficiary's decision-making process when selecting a plan, or influence a beneficiary's decision to stay enrolled in a plan (that is, retention-based marketing).
  
  
• The content component of the definition of “marketing” is met when any material or activity includes or addresses plan benefits, benefits structure, premiums, or cost sharing; measuring or ranking standards; or rewards and incentives.

To date, CMS has permitted the mentioning of widely available benefits (i.e., vision, dental, premium reduction, and hearing) in materials or activities without those materials or activities being considered marketing subject to the marketing regulations. We did not believe the general descriptions were made with sufficient intent to draw attention to a particular plan or subset of plans. This interpretation was predicated on the assumption that a beneficiary would be unlikely to make an enrollment decision based on widely offered benefits advertised without information on the associated costs for enrollees. CMS monitors both organization and TPMO marketing by reviewing marketing and communication materials and activities, reviewing complaints received through 1-800-Medicare, and listening to marketing and enrollment calls.

Due primarily to the recent proliferation of TPMO advertising, we have found, however, through our surveillance, reviews, and discussions with interested parties that many beneficiaries do inquire and some enroll based on the original advertisement of these types of benefits. Beneficiaries have contacted agents, made calls to 1-800 numbers, and responded to flyers asking about the dental, vision, hearing, and cost-savings being marketed. Therefore, we are expanding our interpretation of the regulatory definition of “marketing” to include content that mentions any type of benefit covered by the plan and is intended to draw a beneficiary's attention to plan or plans, influence a beneficiary's decision-making process when selecting a plan, or influence a beneficiary's decision to stay enrolled in a plan (that is, retention-based marketing) and thus subject to review.

As stated above, marketing requires both intent and content. Content that beneficiaries can receive benefits such as dental, vision, cost-savings, and/or hearing services is sufficient information about plan benefits, benefits structure or cost sharing to meet the content standard in the definition of marketing in §§ 422.2260 and 423.2260. Further, the use of these statements in advertisements and activities directed to Medicare beneficiaries clearly meets the intent standard. Therefore, beginning July 10, 2023, any material or activity that is distributed via any means (e.g., mailing, television, social media, etc.) that mentions any benefit will be considered marketing and must be submitted into HPMS. This clarification, along with the new marketing safeguards codified in the Contract Year 2024 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care for the Elderly final rule (CMS-4201-F), will help ensure that beneficiaries have accurate information when shopping for Medicare coverage and are protected from potentially misleading marketing activities.

Questions may be sent to marketing@cms.hhs.gov. Please copy your Marketing Reviewer.

On Wednesday, April 5, the Centers for Medicare & Medicaid Services (CMS) issued long-awaited rules pertaining to, among other matters, the marketing of Medicare Advantage (MA) plans. These rules were developed with the intention of protecting Medicare beneficiaries from misleading or deceptive advertising practices. Our leadership quickly activated a task force to study the newly published rules in detail and clarify their implications for our agents' businesses.

The new rules go into effect on June 5 and will be applicable on Sept. 30 for coverage beginning January 1, 2024. This means that they will impact activities that will take place during this year’s Medicare Annual Enrollment Period (AEP), which begins on Oct. 15.

While the new CMS rules are applicable on Sept. 30, there are steps agents and agencies can start right now.

• Audit lead generation and marketing materials and evaluate against the newly issued CMS regulations. Lead generation and marketing materials include:
  • Internet ads
  • Direct mail pieces
  • Call scripts
  • Web pages
  • Emails
    
• Identify marketing materials, including materials that mention plan benefits, premiums, and cost-savings; and evaluate.
• Be cautious where the Medicare logo is used on any advertising or in a misleading manner when used for MA or PDP marketing.

PSM anticipates rolling out insight and guidance over the coming weeks. While these efforts are underway, please continue to adhere to current compliance guidelines and submit any marketing materials developed over the normal course of business through your usual approval processes.

Should you have questions related to the CMS announcement, please email them to info@psmbrokerage.com. 

According to recently released data from the Centers for Medicare & Medicaid Services (CMS), Medicare Advantage now provides Medicare coverage for just over half of eligible beneficiaries. In January 2023, 30.19 million of the 59.82 million people with both Medicare Part A and Part B were enrolled in a private plan.

Medicare Advantage, the private plan alternative to traditional Medicare, covers Medicare Part A and B benefits (and typically Part D benefits), often for no additional premium (other than the Part B premium). Insurance companies contract with the Medicare program and receive payments for providing these services.

Enrollment in Medicare Advantage has increased dramatically in recent years. In 2007, less than one in five (19%) eligible Medicare beneficiaries were enrolled in a private plan. The growth in enrollment is due to a number of factors, including the attraction of extra benefits offered by most plans, such as vision, hearing, and dental services, and the potential for lower out-of-pocket spending, particularly compared to traditional Medicare without supplemental coverage.

Read the full article here.

Source: https://www.kff.org/policy-watch/half-of-all-eligible-medicare-beneficiaries-are-now-enrolled-in-private-medicare-advantage-plans/ 

Background

On April 5, 2023, the Centers for Medicare & Medicaid Services (CMS) issued a final rule that revises the Medicare Advantage (MA or Part C), Medicare Prescription Drug Benefit (Part D), Medicare Cost Plan, and Programs of All-Inclusive Care for the Elderly (PACE) regulations to implement changes related to Star Ratings, marketing and communications, health equity, provider directories, coverage criteria, prior authorization, network adequacy, and other programmatic areas. This final rule also codifies regulations implementing section 118 of Division CC of the Consolidated Appropriations Act, 2021, and section 11404 of the Inflation Reduction Act, and includes provisions to codify existing sub-regulatory guidance in the Part C, Part D, and PACE programs. 

In this final rule, CMS is not addressing comments received on the provisions of the proposed rule that we are not finalizing at this time. Rather, the agency will address them at a later time, such as in possible future rulemaking, as appropriate.

This fact sheet discusses the major provisions of the final rule. The final rule can be downloaded here: https://www.federalregister.gov/public-inspection/current.

Enhancements to Medicare Advantage and Medicare Part D

Ensuring Timely Access to Care: Utilization Management Requirements

CMS has received numerous inquiries regarding the use of prior authorization by Medicare Advantage plans and the effect on beneficiary access to care. In the rule, CMS finalizes impactful changes to address these concerns and to advance timely access to medically necessary care for enrollees.

The final rule clarifies clinical criteria guidelines to ensure people with MA receive access to the same medically necessary care they would receive in Traditional Medicare. This aligns with recent Office of Inspector General (OIG) recommendations. Specifically, CMS clarifies rules related to acceptable coverage criteria for basic benefits by requiring that MA plans must comply with national coverage determinations (NCD), local coverage determinations (LCD), and general coverage and benefit conditions included in Traditional Medicare regulations. CMS is also finalizing that when coverage criteria are not fully established, MA organizations may create internal coverage criteria based on current evidence in widely used treatment guidelines or clinical literature made publicly available to CMS, enrollees, and providers. In the final rule, CMS more clearly defines when applicable Medicare coverage criteria are not fully established by explicitly stating the circumstances under which MA plans may apply internal coverage criteria when making medical necessity decisions. CMS believes that permitting the use of publicly accessible internal coverage criteria in limited circumstances is necessary to promote transparent, and evidence-based clinical decisions by MA plans that are consistent with Traditional Medicare.

The final rule also streamlines prior authorization requirements, including adding continuity of care requirements and reducing disruptions for beneficiaries. CMS’ final rule requires that coordinated care plan prior authorization policies may only be used to confirm the presence of diagnoses or other medical criteria and/or ensure that an item or service is medically necessary. Second, this final rule requires coordinated care plans to provide a minimum 90-day transition period when an enrollee currently undergoing treatment switches to a new MA plan, during which the new MA plan may not require prior authorization for the active course of treatment. Third, to ensure prior authorization is being used appropriately, CMS is requiring all MA plans establish a Utilization Management Committee to review policies annually and ensure consistency with Traditional Medicare’s national and local coverage decisions and guidelines. Finally, to address concerns that the proposed rule did not sufficiently define the expected duration of “course of treatment,” the final rule requires that approval of a prior authorization request for a course of treatment must be valid for as long as medically reasonable and necessary to avoid disruptions in care in accordance with applicable coverage criteria, the patient’s medical history, and the treating provider’s recommendation.

Together, these changes will help ensure enrollees have consistent access to medically- necessary care while also maintaining medical management tools that emphasize the important role MA plans play in coordinating medically-necessary care.

Protecting Beneficiaries: Marketing Requirements

The final rule also takes critical steps to protect people with Medicare from confusing and potentially misleading marketing while also ensuring they have accurate and necessary information to make coverage choices that best meet their needs. The proliferation of certain television advertisements generically promoting enrollment in MA plans has been a specific topic of concern. To address these concerns, CMS is prohibiting ads that do not mention a specific plan name as well as ads that use words and imagery that may confuse beneficiaries or use language or Medicare logos in a way that is misleading, confusing, or misrepresents the plan. In the rule, CMS also reinstates important protections that prevent predatory behavior and finalized changes that strengthen the role of plans in monitoring agent and broker activity. CMS is also finalizing requirements to further protect Medicare beneficiaries by ensuring they receive accurate information about Medicare coverage and are aware of how to access accurate information from other available sources.

CMS is finalizing 21 of the 22 provisions we proposed, with 17 of the 21 provisions being finalized as proposed. The four provisions CMS is finalizing but modifying include: permitting agents to make Business Reply Cards available at educational events; requiring an agent to tell prospective enrollees how many plans are available from the  organization for whom the agent sells; extending the length of time agents are able to re-contact beneficiaries to discuss plan options to twelve months; and allowing an agent to meet with a beneficiary without waiting the full 48-hour cooling off period when the timeframe runs up against the end of an election period, or a beneficiary faces transportation or access challenges, or the beneficiary voluntarily walks into an agent’s office. CMS will continue to explore including the provision that is not being finalized in this rule in possible future rulemaking.

Strengthening Quality: Star Ratings Program

CMS continues improvements to the Star Ratings program by finalizing new methodological enhancements to further drive quality improvement for all enrollees. In this rule, CMS finalizes a health equity index (HEI) reward, beginning with the 2027 Star Ratings, to further encourage MA and Part D plans to improve care for enrollees with certain social risk factors. CMS also reduces the weight of patient experience/complaints and access measures to further align with other CMS quality programs and the current CMS Quality Strategy. In addition, CMS includes an additional rule for the removal of Star Ratings measures and removes the 60 percent rule that is part of the adjustment for extreme and uncontrollable circumstances. The changes will further drive quality improvement and health equity in MA and Part D.

Advancing Health Equity

CMS is committed to advancing health equity for all, including those who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.[1] CMS is clarifying current rules, expanding the example list of populations that MA organizations must provide services in a culturally competent manner. These include people: (1) with limited English proficiency or reading skills; (2) of ethnic, cultural, racial, or religious minorities; (3) with disabilities; (4) who identify as lesbian, gay, bisexual, or other diverse sexual orientations; (5) who identify as transgender, nonbinary, and other diverse gender identities, or people who were born intersex; (6) who live in rural areas and other areas with high levels of deprivation; and (7) otherwise adversely affected by persistent poverty or inequality.

Studies demonstrate low digital health literacy, especially among populations experiencing health disparities, continues to impede telehealth access and worsen care gaps particularly among older adults. CMS is finalizing requirements for MA organizations to develop and maintain procedures to offer digital health education to enrollees to improve access to medically necessary covered telehealth benefits. In addition, CMS is enhancing current best practices by requiring MA organizations to include providers’ cultural and linguistic capabilities in provider directories. This change will improve the quality and usability of provider directories, particularly for non-English speakers, limited English proficient individuals, and enrollees who use American Sign Language. Finally, CMS is requiring that MA organizations’ quality improvement programs include efforts to reduce disparities.  

Improving Access to Behavioral Health

CMS recognizes the importance of building strong MA behavioral health networks that improve timely access to services. CMS is finalizing policies strengthening network adequacy requirements and reaffirming MA organizations’ responsibilities to provide behavioral health services. Specifically, CMS will: (1) add Clinical Psychologists and Licensed Clinical Social Workers as specialty types for which we set network standards, and make these types eligible for the 10-percentage point telehealth credit; (2) amend general access to services standards to include explicitly behavioral health services; (3) codify standards for appointment wait times for primary care and behavioral health services; (4) clarify that emergency behavioral health services must not be subject to prior authorization; (5) require that MA organizations notify enrollees when the enrollee’s behavioral health or primary care provider(s) are dropped midyear from networks; and (6) require MA organizations to establish care coordination programs, including coordination of community, social, and behavioral health services to help move towards parity between behavioral health and physical health services and advance whole-person care.

Implementation of Certain Provisions of the Consolidated Appropriations Act, 2021 and the Inflation Reduction Act of 2022

The final rule also makes changes to the Part C and D programs stemming from the Inflation Reduction Act (IRA) of 2022 and the Consolidated Appropriations Act (CAA), 2021.

Making Permanent: Limited Income Newly Eligible Transition (LI NET) Program

LI NET currently operates as a demonstration program that provides immediate and retroactive Part D coverage for eligible low-income beneficiaries who do not yet have prescription drug coverage. In this final rule, CMS is making the LI NET program a permanent part of Medicare Part D, as required by section 118 of the CAA.

Enhancing Financial Stability: Expanding Low-Income Subsidies Under Part D

CMS is finalizing regulations to expand eligibility for the full low-income subsidy (LIS) benefit (also known as “Extra Help”) to individuals with incomes up to 150% of the federal poverty level who meet eligibility criteria. Beginning January 1, 2024, this change will provide the full low-income subsidy to those who currently qualify for the partial subsidy. This implements section 11404 of the IRA and will improve access to affordable prescription drug coverage for approximately 300,000 low-income individuals with Medicare. 

Implementation of Certain Provisions of the Bipartisan Budget Act of 2018 and the Consolidated Appropriations Act, 2021

Finally, the rule finalizes several changes stemming from federal laws related to the Part C and D programs—including the Inflation Reduction Act (IRA) of 2022, the Consolidated Appropriations Act (CAA) of 2021, and the Bipartisan Budget Act (BBA) of 2018.

Source: https://www.cms.gov/newsroom/fact-sheets/2024-medicare-advantage-and-part-d-final-rule-cms-4201-f 

As the 2023 Medicare Open Enrollment season winds to a close, and beneficiaries and enrollees finalize their decisions, nearly half, 48.7%, of people eligible for Medicare have decided on Medicare Advantage plans, up from 46.1% in March of 2022. Based on the Centers for Medicare & Medicaid Services (CMS) enrollment data for March 1, 2023, total Medicare Advantage (MA), including Medicare Advantage with Prescription Drug Plan (MA-PD) membership, stood at 31,753,301 with a net gain of 2,276,490 members from March 1, 2022. Medicare stand-alone prescription drug plans (PDPs) covered 22,533,411 members as of March 1, 2023, a net decrease of 910,978 from the previous year. Surprisingly, nearly 80 percent of MA enrollees selected one of 10 insurers, out of the 294 offering plans in 2023. This brief assesses Medicare Advantage and PDP performance, market share and market penetration by state as of March 1, 2023.

Medicare Advantage (MA) Membership

Medicare Advantage (MA) market penetration remains strong; however, there is still abundant opportunity for growth with 48.7% of the nearly 65.2 million people eligible for Medicare enrolled in a MA plan. According to CMS Medicare Advantage enrollment reports aggregated by Mark Farrah Associates (MFA) in Medicare Business Online™, total Medicare Advantage plan enrollment, as of March 1, 2023, increased 9.8% from March 2022. The top ten companies, each with more than 300,000 members in this segment, collectively provided coverage for nearly 80% of the market. Most leading MA companies realized year-over-year growth with an overall net gain of 8.2%.

MA Leading Plan Performance

There are 294 insurers covering the MA marketplace in the United States, however nearly 80 percent of MA enrollees selected one of only 10 insurers.  As of March 2023, UnitedHealth continues to dominate in this highly competitive segment. With over 9 million enrolled, UnitedHealth commands 28.5% of the MA market. Humana ranks second with nearly 18% market share and over 5.6 million lives. CVS maintains the third position, enrolling approximately 3.37 million, and Elevance Health (formerly Anthem) follows, with over 2 million lives. Together the top three insurers cover 56.9% of the MA market.

Source: https://www.markfarrah.com/mfa-briefs/nearly-80-percent-of-medicare-advantage-enrollees-covered-by-10-insurers/ 

Today, we'll be discussing the expectation of agents during telephonic enrollments. Although what we'll discuss mainly pertains to agents working in call centers, this information is certainly beneficial for all agents if you have a few minutes to spare. Recently, a carrier conducted an audit and found that most agents missed five key elements during telephonic enrollments. It's crucial for agents to be aware of CMS and Carrier expectations when conducting these enrollments, not only to protect the client, but also to safeguard themselves from corrective action.

Summary of Benefits 

First, it's critical that agents review the Summary of Benefits before completing the enrollment process. This document contains important information about the plan and must be completed by agents in accordance with the approved script requirement. Agents must also ensure they accurately answer any additional questions asked by the applicant or their legal representative, and provide accurate information on plan details described in the SOB. This includes details such as benefits, costs, and coverage limitations. By doing so, agents can provide the applicant with a clear and comprehensive understanding of the plan, which ultimately leads to a successful enrollment process.

Required Disclosures

During telephonic enrollments, agents must read all required and relevant disclosures. as outlined in CMS approved scripts, for the specific plan that the applicant is interested in. Agents should collect agreement and understanding from the applicant regarding these disclosures to confirm that everyone is on the same page and that the applicant fully comprehends what they are signing up for. These disclosures may be presented in various formats such as pop-up boxes or required statements and must be presented to the applicant clearly and concisely to ensure transparency and compliance with CMS and Carrier expectations. 

Complete the Application

When completing the caller's application, the agent must ensure they accurately enter the applicant's contact information, payment options, language preference, and alternate format election.

Additionally, the agent must:

•    Provide the name of the plan that the applicant is enrolling in. 
•    Advise the applicant of the plan's effective date. 
•    Confirm with the applicant that they are ready to complete the enrollment process. 

Call Closing

It's important to provide a compliant call closing to wrap up the call. To do so, you must provide the caller with the carrier name and customer service phone number so they know who to contact for support in the future. Additionally, it's important to provide the TTY number for the benefit of those with hearing impairments. Finally, make sure to provide an application confirmation number for the caller's records, so they have a way to reference their enrollment in the future. 

Accessing MARx 

Before accessing MARX, the agent must obtain and document the beneficiary's permission. The agent should explain that they may collect information related to the beneficiary's current enrollment status, dates of Medicare Part A and B entitlement, eligibility information, and incarceration, if applicable. The beneficiary must be informed about the purpose of accessing this system and be given an opportunity to decline or approve the request. Lastly, the agent must document the beneficiary's response for future reference.

Updated Medicare Advantage and Part D policies ensure the overall Medicare program remains strong and stable for the 65 million beneficiaries today and future generations to come, payments to private insurance companies are accurate, and taxpayer dollars are well spent.

The U.S. Department of Health and Human Services (HHS), through the Centers for Medicare & Medicaid Services (CMS), released the Calendar Year (CY) 2024 Medicare Advantage (MA) and Part D Rate Announcement that finalized payment policies for these programs. The final policies in the Rate Announcement improve payment accuracy and ensure taxpayer dollars are well spent. CMS will phase-in certain updates, and on average, CMS anticipates a payment increase for MA plans of 3.32% from 2023 to 2024, which is approximately a $13.8 billion increase in MA payments for next year.

Additional proposed policies to strengthen the MA managed care program that will hold health insurance companies to higher standards by:

• cracking down on abusive and confusing marketing schemes;
• addressing problematic prior authorization practices that prevent timely access to needed care;
• making it easier to access vital behavioral health care; and
• raising the bar on quality and driving toward more equitable care.

Taken together, these actions will make the overall Medicare program stronger.

Read the full article here.