Medicare Benefit and Half D Last Rule Impacts Advertising and marketing and Gross sales Panorama for Not Solely MA Plans and PD Sponsors, but additionally TPMOs and FDRs


In a previous article, 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) Last Rule that amended rules for Medicare Benefit (MA or Half C), Medicare Value Plan, the Medicare Prescription Drug Profit (Half D) packages, and Packages of All-Inclusive Take care of the Aged (PACE).  The Last 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. components 422 and 423, that are relevant for all contract yr 2024 advertising and communications starting September 30, 20231:

  1. Previous to the Last 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 report for advertising supplies. The Last 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 flexibility to choose out of telephone 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 resolution primarily based 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 matters relating to beneficiary wants in a well being plan selection have to be absolutely mentioned previous to enrollment. Subjects embody data relating to major 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 providers, 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 listing 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 Last 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 data (42 C.F.R. §§, 422.2264(b); 423.2264(b));
  7. In a single narrowing of the present rules, CMS restricted the requirement to report 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 akin to 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 Last Rule clarified that the prohibition on door-to-door contact with no 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 will not be out there, 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 can be primarily based 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 Last Rule requires TPMOs to listing or point out the entire MA organizations or Half D sponsors that they symbolize 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 Last 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 Packages (SHIPs) as an possibility for beneficiaries to acquire assist (and decide all plan choices in a area) along with and 1-800-MEDICARE (42 C.F.R. §§ 422.2267(e)(41); 423.2267(e)(41));
  16. The Last 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 title, brand, and Medicare card, noting within the preamble:“If CMS determines that the Medicare title, CMS brand 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 tackle the difficulty with the MA group or Half D sponsor on whose behalf the FDR was working and maintain the sponsoring group accountable for all deceptive data.”(42 C.F.R. §§ 422.2262(a)(1); 432.2262(a)(1));
  18. The Last Rule prohibits using superlatives (for instance, phrases like “finest” or “most”) in advertising except the fabric offers documentation to help the assertion, and the documentation is predicated on information from the present or prior yr (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 top of a legitimate enrollment interval (42 C.F.R. §§ 422.2264(c)(3)(i); 423.2264(c)(3)(0).2

CMS famous numerous causes for the advertising modifications together with its audit of lots of of promoting and enrollment calls and complaints to 1-800-MEDICARE.  In its evaluate of promoting 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 not often, if ever, knowledgeable the beneficiary that there have been a number of plans out there 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 finest meets the person wants (which is statutorily required beneath 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 favor decrease copays and a better premium or vice versa, or whether or not the beneficiary wished dental and listening to advantages.5 This discovering led CMS to require sure questions and matters to be absolutely mentioned previous to enrollment—data relating to major care suppliers and specialists, pharmacies, and so on.  With regard to the listing of required parts to be lined previous to enrollment, CMS famous that it’ll present extra detailed questions and areas to be lined in sub-regulatory steerage.6

Within the complaints to 1-800-MEDICARE, CMS famous that brokers failed to tell the beneficiary that the person’s medical doctors weren’t within the MA plan’s community, inaccurately instructed 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 out there within the service space was beforehand codified in part 30.1 of the 2016 Medicare Advertising and marketing Tips.8 Giving the beneficiaries enough time to consider their choices was a key think about altering some necessities relating again to older advertising steerage.  Previous to 2018, CMS sub-regulatory steerage 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 steerage, CMS interpreted the usual of requiring an settlement upfront 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, reasonably setting sure particular exceptions (beneficiary-initiated walk-ins and the top of a legitimate enrollment interval).

Within the Last Rule, CMS famous a number of instances 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 habits, when it must 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 evaluate of inside 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 procuring in-person training and gross sales occasions, and
  • secretly procuring web-based training and gross sales occasions.”11

Additional, as with different necessities, CMS acknowledged that it’ll present extra data in its Medicare Communications and Advertising and marketing Tips (MCMG), together with examples sooner or later.12

CMS acknowledged that the revised advertising necessities will end in 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 commercials selling advantages for which beneficiaries are ineligible far outweighs the perceived burden of organizations having to create advertising supplies that particularly mirror the advantages supplied by their plans in particular service areas.”13


The April 14, 2023 Last 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 extra element to flesh out these necessities, however the preamble language to the Last Rule is useful in understanding CMS’ intent.

1 88 Fed. Reg. 22120, 22120 (Last Rule, Apr. 12, 2023).

2 CMS famous that it’s not addressing its proposal to ban TPMOs from distributing beneficiary contact data on this Last Rule and should tackle it in a future Last Rule.

10 CMS particularly famous sections 422.2274(g)(1) and 423.2274(g)(1).

11 88 Fed. Reg. at 22253.


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