March 7, 2022
Submitted electronically to www.regulations.gov
Honorable Chiquita Brooks-LaSure
Centers for Medicare & Medicaid Services
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201
Dear Administrator Brooks-LaSure:
Re: File Code CMS-4192-P, 87 Federal Register 1842 (January 12, 2022)
The Center for Medicare Advocacy (the Center) is a national, non-profit law organization that works to ensure access to Medicare, health equity, and quality healthcare. The organization provides education, legal assistance, research and analysis on behalf of older people and people with disabilities, particularly those with long-term conditions. The Center’s policy positions are based on its experience assisting thousands of individuals and their families with Medicare coverage and appeal issues. Additionally, the Center provides individual legal representation and, when necessary, challenges patterns and practices that inappropriately deny access to Medicare and necessary care. We appreciate the opportunity to submit these comments to the above-referenced rule.
These comments are also submitted on behalf of California Health Advocates (CHA). Founded in 1997, California Health Advocates is the leading Medicare advocacy and education non-profit in California. CHA is dedicated to providing quality Medicare, Medicare Supplement, and long-term care insurance information, training, and education. CHA supports the local Health Insurance Counseling and Advocacy Programs (HICAP) with training, materials and technical assistance. HICAP is California’s State Health Insurance Assistance Program (SHIP).
- General Comments
We wholeheartedly support several of CMS’ stated goals of the proposed rule, namely to “strengthen consumer protections to ensure MA and Part D beneficiaries have accurate and accessible information about their health plan choices and benefits” and to “strengthen CMS oversight of MA and Part D plans” (p. 1842). On the one hand, this proposed rule signals a renewed dedication to providing oversight of MA and Part D plans – a welcome development given the trend of regulatory rollback in recent years. There are a number of provisions in the proposed rule that will considerably help consumers, and which the Center support.
On the other hand, this proposed rule falls short of providing needed consumer protections and industry oversight, and, at best, reflects a bare minimum of effort to reimpose critical oversight. Even those who serve the insurance industry have called these proposals “modest in scope” and note that “[i]n the main, CMS is reversing some policies adopted in the prior Administration”.
Necessary regulatory oversight has been neglected for so long, that bolder action is now required. We are disappointed that CMS is not taking a more assertive stance with respect to reining in MA overpayment and instituting stronger oversight, particularly as MedPAC projects that half of all eligible Medicare beneficiaries could be in MA plans as soon as next year.
Below, in section II., we provide comments to provisions of the proposed rule, including expressing support for several provisions, and outlining where more is needed. In section III., we outline unaddressed issues surrounding consumer protections and industry oversight that we urge CMS to urgently confront.
- Comments to Provisions of the Proposed Rule
II. Provisions of the Proposed Rule
A. Improving Experiences for Dually Eligible Individuals (p. 1849)
The Center for Medicare Advocacy would like to take this opportunity to thank CMS for proposing several changes to dual eligible special needs plans (D-SNPs) that aim to improve integration of Medicare and Medicaid programs for those enrolled in the plans.
As CMS is aware, states like California are moving toward aligning Medicaid plans with Medicare Advantage plans offered by the same companies or surrogate companies in an effort to foster integration and better coordination of services, including risk assessments discussed below.
Standardizing Housing Stability, Food Insecurity, and Transportation Questions in the Enrollee Health Risk Assessments (§ 422.101)
The Center supports the proposed requirement that all SNPs include one or more standardized questions on the topics of housing stability, food security, and access to transportation as part of their Health Risk Assessments.
We support this inclusion as a means of highlighting how social determinants of health can directly influence an individual’s physical, psychosocial, and functional status. It is essential that plans utilize this information to connect beneficiaries with organizations and services (i.e. community-based social services, disability, and aging organization) that can assist in addressing the issues that are exposed by the assessments.
We support standardizing these assessments as this will provide data for both SNPs and CMS. The increased data collection would be particularly useful if it is comprehensive and includes intersectional data, across multiple demographic areas, including age, functional limitations, race and others.
We support this proposal, as the answers to these questions in the assessments will allow the plans to develop care plans that more accurately represents the reality for the individual, and better connect the individuals with specific services and benefits, make referrals to a community partner to assist in meeting the unmet needs. This reflects the understanding that health care needs do not exist in a vacuum and social determinants of health are a key component of overall health. We encourage CMS oversight to ensure that the results from these assessments are included in the individualized care plan.
Enrollee Participation in Plan Governance (§ 422.107)
While we strongly support the proposal to require D-SNP plan sponsors to have consumer advisory councils, we urge CMS to adopt stronger requirements. We recommend having more frequent meetings, and suggest CMS require at least two meetings annually. We also believe that plan sponsors must have more than one advisory council for larger states. Plan sponsors must also be required to include people with disabilities on the councils and provide accommodations and language access services for members who are limited English proficient. We also recommend requiring plan accountability and transparency regarding recommendations the advisory council makes. We also strongly urge CMS to issue additional sub-regulatory guidance concerning its expectations of plans. Recognizing that developing robust advisory committees is challenging, we also urge CMS to provide technical assistance to plans.
Definition of Applicable Integrated Plan Subject to Unified Appeals and Grievances Procedures (§ 422.561)
We support the CMS proposal to revise the definition of an applicable integrated plan. This change will lead to an increase in D–SNPs that are required to have unified Medicare and Medicaid grievance and appeals processes. We agree with CMS that the unified process is easier to navigate for beneficiaries, improves coordination of coverage, and would extend the protection of continuation of benefits pending appeal.
Ombuds Program for Dually Eligible Individuals
We would like to take this opportunity to encourage CMS to add a provision establishing an ombuds program for individuals dually eligible for Medicare and Medicaid. Ombuds programs are critical for supporting dually eligible individuals to navigate their coverage, including for D-SNPs and integrated models. In coordination with state SHIP programs, ombuds can both assist individuals and also identify and advocate to address systemic issues.
One of the major successes of the Financial Alignment Initiative (FAI) was the use of an ombuds program to assist individuals in navigating Medicare Medicaid Plans (MMPs). Ombuds programs had multiple successes in identifying systemic issues. In our experience, we saw that they were often able to resolve issues that otherwise might have required lengthy appeals. The relationships that ombuds were able to build with state agencies, CMS, and plans brought value to all parties and significantly helped to improve program operation. The value of an ombuds program for beneficiaries in D-SNPs would be the same or greater.
We recognize that state Medicaid programs have ombuds, but it is important that there be ombuds staff who are specifically dedicated to the complex issues that people dually eligible for Medicare and Medicaid face and well-versed in benefits and rights in both programs. The FAI provided dedicated funding for ombuds and we believe it was money well spent. We urge CMS to require and fund ombuds programs for duals.
12. Attainment of the Maximum Out-of-Pocket (MOOP) Limit (§§ 422.100 and 422.101) (p. 1883)
We strongly support the CMS proposal to count accrual of all cost-sharing, regardless of whether it is paid by the beneficiary, Medicaid, other secondary insurance or is unpaid towards the MOOP. We agree with CMS that the current policy “results in increased State payments of Medicare cost-sharing and disadvantages providers serving dually eligible individuals in MA plans.” This change could improve access to care for Qualified Medicare Beneficiaries (QMB) who currently have trouble seeing Medicare providers in lesser-of states if providers are concerned that they will receive the lower payment rate between Medicaid and Medicare in those states. In fact, a 2015 CMS report examining the impact of lesser-of policies on access to care for QMBs, supported this assertion. “However, federal statute allows states to limit reimbursement by paying the “lesser-of” Medicaid or Medicare rates, and most do. As a result, the existing financing mechanism often means the provider must forgo the cost-sharing amounts. By law, providers may not attempt to collect any cost-sharing from QMB enrollees. An unintended consequence of this policy may be that providers limit their patient pool to non-QMB enrollees, thereby having the effect of reduced access to routine health care among QMB enrollees.. . .reduced coverage of cost-sharing reduces access to care for QMB enrollees.” The CMS proposal to count all cost-sharing toward the MOOP would reduce the burden on states by limiting state Medicaid liabilities for Medicare costs and may serve to increase access to provider once beneficiaries reach their MOOP.
It would also standardize MA plan treatment of MOOP calculations by using plan-adjudicated claims data rather than the enrollee’s status as a dually eligible individual, thus treating dually eligible and Medicare-only beneficiaries similarly.
13 – Medicaid and Medicare Advantage Supplemental Benefits
CMS seeks comments on examples of potential coordination of Medicaid and MA supplemental benefits. We are concerned about several aspects of MA supplemental benefits as they intersect with Medicaid benefits: MA plans may be misleading consumers by advertising Medicaid benefits as MA supplemental benefits; enrollees may have difficulty understanding if or how their needed service is covered and, if so, by whom; where overlap exists, provider and plan confusion may delay or even prevent enrollees from accessing their benefits fully; and there are scant data about how many enrollees gain access to MA supplemental benefits, the value of those benefits, and the resultant outcomes or quality measures associated with that access. We urge very clear communication to enrollees about Medicaid benefits, supplemental benefits, and how the two work together. We also urge rigorous data collection and oversight of supplemental benefits to ensure that they are genuinely used as benefits and not merely marketing gimmicks.
B. Special Requirements During a Disaster or Emergency (§ 422.100(m)) (p. 1889)
CMS is proposing to revise and clarify timeframes and standards associated with disasters and emergencies. Current regulations have special requirements for MA plans during disasters or emergencies, including requirements for plans to cover services provided by non-contracted providers and to waive gatekeeper referral requirements. The proposal would require a MA plan to comply with the special requirements when there is a declaration of disaster or emergency (including a public health emergency) and disruption in access to health care.
CMS says that its “proposal is intended to be broad and to focus on actual access to and availability of services for enrollees in a service area affected by a disaster or emergency.” (p. 1890). We generally support this proposal, however we urge CMS to take more control over determining when there are disruptions in access to care triggering the special requirements under 422.100(m). On the one hand, CMS proposes that MA organizations would be initially responsible for evaluating whether there is a disruption of access to health care, but on the other hand indicates that CMS will closely monitor access during disasters or emergencies to ensure MA organizations are applying the requisite standards correctly.
Given our experience counseling MA enrollees during the current COVID PHE, we are concerned that even with a global pandemic that clearly constitutes an emergency, some plans were slow to acknowledge and comply with 422.100(m) requirements. We are concerned that plan sponsors might not be incentivized to voluntarily trigger new obligations that they must meet, including covering services provided by non-contracted providers. Giving plans discretion to determine when they would be bound by such requirements could unnecessarily delay compliance with the requirements, which could unnecessarily impede access to care during a disaster or emergency. Thus, since CMS plans to closely monitor access during disasters or emergencies, we urge the agency to declare when these requirements must be met, rather than give plan sponsors the discretion to determine when they should do so.
Further, we urge CMS to extend the application of special requirements beyond the proposed 30-day transition period after the disruption of access to health care ends, as well as the proposed 30-day period after the expiration of the declared disaster or emergency. If the disruption in access to care is significant enough, 30 days might not be enough time for plans’ contracted networks to ramp themselves up to accept a full patient load and/or deal with potential backlogs in pent up care needs. CMS acknowledges that “our experiences with declarations of disasters and emergencies have demonstrated that the 30-day timeframe for the special requirements in § 422.100(m)(1)(i) through (iv) may not be enough time to address concerns about enrollees being able to access benefits during disasters or emergencies, especially in cases where a disaster or emergency declaration has been renewed” (p. 1892). We urge CMS to heed these experiences, and extend the transition periods to 60-90 days, at the very least.
C. Amend MA Network Adequacy Rules by Requiring a Compliant Network at Application (§ 422.116) (p. 1893)
CMS proposes to require that applicants for new or expanded MA plans to demonstrate a sufficient network of contracted providers before such applications will be approved. CMS also proposes to allow a 10-percentage point credit toward the percentage of beneficiaries residing within published time and distance standards for new or expanding service area applicants. Once the coverage year starts, the 10-percentage point credit would no longer apply and plans would need to meet full compliance. We support this attempt to impose greater oversight of MA plan applicants.
We are very disappointed and troubled, though, that CMS is not proposing to reinstate and strengthen overall MA network adequacy requirements that were weakened in recent years. As the Center outlined in April 2020 comments to proposed rule CMS-4190-P, as well as in an analysis of the May 2020 final rule, CMS weakened network adequacy requirements by reducing the percentage of beneficiaries that must reside within the maximum time and distance standards in non-urban counties from 90 percent to 85 percent, along with an additional 10-percentage point credit when plans contract with telehealth providers in certain specialties, as well as an additional 10-percentage point credit for affected providers in states that have certificate of need laws or certain other restrictions. We also expressed concern that CMS removed dialysis providers from the types of providers subject to time and distance standards (vs. a mere attestation by the plan as to sufficiency of a network) at the same time that MA plans opened up to individuals with ESRD.
As the Center noted in our comments objecting to these rule changes, “If an MA plan sponsor cannot contract with an adequate number of providers within reasonable time and distance standards to the maximum number of enrollees it should not be allowed to offer a plan in the area. Offering an MA plan with too few providers, too far away, who are reasonably accessible to too few enrollees does not serve a rural population well […] Existing rules should not be diluted in order to enable more plans to meet such rules; network adequacy should not be graded on a curve.” For instance, we are told by HICAP (SHIP) counselors in California that in some rural or border counties, beneficiaries have to drive more than 60 miles or up to 2 hours to the nearest service provider. CMS must not allow that to suffice for an adequate network of providers for a plan. If a plan does not have enough providers to realistically serve enrollees in an area, then CMS should not permit the plan to operate in that area. The solution is not for CMS to lower requirements for the plans.
These network adequacy changes make it easier for plans to meet their minimum obligations, at the expense of beneficiaries, who the plans are supposed to serve. We urge CMS to reverse course and strengthen these basic requirements.
E. Past Performance (§§ 422.502, 422.504, 423.503, and 423.505) (p. 1896)
CMS proposes to limit MA plans’ ability to expand or enter into new contracts by reviewing additional elements concerning past performance. Current regulations permit CMS to deny applications from organizations under sanction or those failing CMS’ net worth requirements during the performance period. The proposed rule adds Star Ratings (2.5 or lower), bankruptcy or bankruptcy filings, and exceeding a CMS designated threshold for compliance actions.
We support both CMS’ effort to enhance oversight of expanded or new contracts, as well as the new proposed bases for denying such applications based on poor performance. While we agree with the principle that low performing plans should not be allowed to expand or enter into a new contract, we note that according to the Medicare Payment Advisory Commission (MedPAC), MA quality ratings are fundamentally flawed based, in part, on the way data is collected; yet plans still get bonus payments based on quality ratings, and consumers are encouraged to use the ratings to select plans. Further, poor performance appears to be both undercounted and under-punished; as CMS notes, “terminating contracts based on Star Ratings rarely occurs, with the last termination being prior to 2016” (p. 1898). We therefore encourage CMS to explore additional, alternative metrics to use in order to screen out bad actors, such as reviewing ownership and governance of plan sponsors, their affiliates and associate organizations, including past conduct relating to criminal and civil penalties, fraud and abuse allegations and other red flags.
We also note that using a proposed threshold of 13 compliance action points in order to deny applications may be too high, given that CMS’ own review of its compliance actions taken from 2017 through November 2021 found that “no more than three organizations, out of over three hundred organizations, scored 13 or more compliance action points in any one year” (p 1898). Given the plethora of plan sponsors and the growing challenges for beneficiaries of making informed decisions about coverage options, if anything, CMS should be more selective in its approval of new or expanding plans.
F. Marketing and Communications Requirements on MA and Part D Plans To Assist Their Enrollees (§§ 422.2260 and 423.2260, 422.2267, and 423.2267) (p. 1899)
In the preamble to the proposed rule, CMS notes that it “has seen an increase in beneficiary complaints associated with and has received feedback from beneficiary advocates and stakeholders concerned about the marketing practices of third-party marketing organizations (TPMOs) who sell multiple MA and Part D products. In 2020, we received a total of 15,497 complaints related to marketing. In 2021, excluding December, the total was 39,617” (pp. 1844-5).
During reviews of sales and enrollment call recordings between TPMO staff and beneficiaries, CMS reports that “[m]any of these calls demonstrate that beneficiaries are confused by these TPMOs, including confusion regarding who they are speaking to, what plans the TPMOs represent, and that the beneficiary may be unaware that they are enrolling into a new plan during these phone conversations” (pp. 1900-01).
CMS’ findings are consistent with the Center’s experience, along with that of SHIP and Senior Medicare Patrol (SMP) programs with whom we communicate. Similarly, in comments to this propose rule, the National Association of Insurance Commissioners (NAIC) reports that it
and state regulators have heard many stories in which beneficiaries have enrolled in or been enrolled in plans with narrow networks that didn’t include their current providers, had pharmacy benefits with higher costs, imposed higher copayments than expected, didn’t have the benefits they had seen advertised, or that were completely inappropriate for their particular needs and not what they thought they were buying. These sales often involve agents/brokerages or TPMOs that represent only some of the options available to Medicare beneficiaries.
Partly in response to this increase in reported complaints about plan marketing, CMS is proposing several changes to its marketing and communications requirements. While we generally support these changes, in a broader context, the proposals fall well short of what is needed in order to “protect Medicare beneficiaries by ensuring they receive accurate and accessible information about Medicare coverage,” which CMS states as its goal.
As discussed further below, in 2019, CMS made substantive changes to its Medicare Communications & Marketing Guidelines (MCMG), including rescinding important consumer protections from the final 2020 marketing guidelines, without any public comment, resulting in watered down standards. Among the most significant changes was blurring the lines between marketing and educational events by those selling MA and Part D products. Aside from the proposed change to multi-language inserts and previous movement towards restricting the marketing of so-called D-SNP look alike plans – both of which we strongly support –– CMS has not proposed to reinstate any of the other protections. As discussed below, CMS must not only reinstate these protections, it must employ much more robust oversight of plan sponsors, and those who sell their plans, in order to promote accurate information and truly informed choice among beneficiaries.
1. Required Materials and Content
In the January 2021 final rule, CMS inadvertently left out the disclaimer for Part D sponsors with limited access to preferred cost sharing pharmacies. We support the proposal to codify this disclaimer.
2. Website Requirements
In the January 2021 final rule, CMS inadvertently failed to include the requirement that plans post instructions about how to appoint a representative and include a link to a downloadable version of the CMS Appointment of Representative Form, as well as enrollment instructions and forms. We support the proposal to codify these requirements.
3. Multi-Language Insert
We strongly objected to the 2019 revisions to the Medicare Communications and Marketing Guidelines that included removal of several required disclaimers in certain plan materials. Further, in the waning days of the Trump Administration, the federal government eliminated protections for Limited English Proficient (LEP) individuals in health care by rolling back regulations that were put in place as part of Section 1557 of the Affordable Care Act. The protections were intended to target health disparities by requiring health plans and other entities to inform patients both of their right to interpretation, and their right to legally challenge discrimination based on language ability. But, in 2020, the Trump Administration issued a rule that eliminated these language access protections (as well as many others affecting LGBTQ people, immigrants, and women). In response, the Center joined Justice in Aging and pro bono firm Stinson LLP in filing litigation on February 5, 2021 on behalf of two community-based organizations that provide social services to LEP older adults. Chinatown Service Center v. Cochran, No. 1:21-cv-00331 (D.D.C.). As CMS is aware, this case is stayed while HHS revises the current 1557 rule.
In this proposed Part C & D rule, CMS plans to reinstate the inclusion of a multi-language insert in specified materials to inform beneficiaries of the availability of free language and translation services. We strongly support this proposal.
4. Third-Party Marketing Organizations
CMS proposes to strengthen oversight of third-party marketing organizations (TPMOs) by MA plans to detect and prevent the use of deceptive marketing tactics to enroll beneficiaries in MA and Part D plans. We strongly support this goal, however, as discussed further below, CMS’ proposed actions fall well short of “protect[ing] Medicare beneficiaries from bad actors in this space and [ensuring] that Medicare health and drug plans are appropriately overseeing and maintaining responsibility for the entities that conduct marketing and, potentially, enrollment activities on their behalf” (p. 1901).
Recognizing that the insurance industry and those who profit from the marketing and sale of Medicare plans are likely to object to even some of these bare minimum improvements of regulatory oversight, we offer our tepid support for the proposals outlined in the rule, including those that articulate plan sponsor responsibility for the activity of TPMOs, and the nominal disclaimers in the hope that CMS will at the very least implement these proposals.
The balance of our comments focus on how CMS can, and must, go much farther if it wishes to provide meaningful oversight in this area.
CMS proposes to require a TPMO to put the following standard disclaimer in a prominent place: “We do not offer every plan available in your area. Any information we provide is limited to those plans we do offer in your area. Please contact Medicare.gov or 1-800-MEDICARE to get information on all of your options.”
We do not offer all the plans that may be available to you in your area, nor do we provide any information on those plans. You can contact your State Health Insurance and Assistance Program (SHIP) at [800 phone number and website address, including state-specific name for SHIP, if applicable] for help and objective information and assistance about all of your options as a Medicare beneficiary. You can also contact Medicare.gov or 1-800-MEDICARE for more information about plans that are available to you in your area.
At a minimum, any language involving enrollment for Medicare coverage should require a referral to the state SHIP. CMS funds these programs and they are the obvious Medicare experts in each state, and are a trusted resource for beneficiaries to get personalized assistance and verify the information they are receiving from third party marketers, brokers or agents.
In order for beneficiaries to understand the limitations of any solicitation of coverage, such disclosure should be required of every insurance agent, brokerage firm, website, decision-tool software (including those using artificial intelligence) and other means of plan comparison that does not offer each and every MA and Part D plan in a given service area. Disclosures should have defined borders and separate colored text in larger font to call attention to the disclosure information.
We also support CMS’ proposal to “require that plans ensure that TPMOs conducting lead generating activities must inform the beneficiary that his or her information will be provided to a licensed agent for future contact, or that the beneficiary is being transferred to a licensed agent who can enroll him or her into a new plan.” (p. 1901). If such disclosure is not provided, we urge CMS to treat any contact from an agent to be considered an unauthorized, unsolicited contact.
Additional Oversight Needed
In the proposed rule, CMS references their Oct 8, 2021 HPMS memo to plans encouraging “best practices” relating to TPMOs. We are puzzled as to why CMS does not mandate – rather than encourage – the minimal steps outlined in the memo, as follows:
- Utilizing outbound phone calls to beneficiaries, as opposed to letters, when complying with 42 CFR §422.2272(b) to establish and maintain a system for confirming that enrolled beneficiaries have, in fact, enrolled in the MA plan, and understand the rules applicable under the plan.
- Reviewing rapid disenrollments to identify trends associated with “bad players.” In addition to recouping agent/broker compensation for rapid disenrollments as required under 42 CFR §422.2274(d)(5)(ii)(A), recouping any administrative payments paid to an FDR where rapid disenrollment occurs.
- Reviewing actual marketing and enrollment calls between beneficiaries and call centers/agents to ensure compliance with the communications and marketing requirements under 42 CFR Subpart V.
- Requiring FDRs to identify the origin of the enrollment lead (e.g., call in based on TV ad, response to mailing).
- Recording the entire sales call in additional to all telephonic enrollments, as described under Section 40.1.3 (Enrollment via Telephone) of Chapter 2 – Medicare Advantage Enrollment and Disenrollment of the Managed Care Manual.
- Requiring FDRs to disclose all contracted third-party relationships.
CMS should provide further oversight and adjustment of brokerage rates/commissions. A recent blog post on the Commonwealth Fund’s website by Riaz Ali entitled “Agent Commissions in Medicare and the Impact on Beneficiary Choice” (Oct. 12, 2021) notes that “[d]iffering commission rates could force agents to choose between their earning potential and helping beneficiaries choose coverage that meets their needs”. The post notes that CMS has set the maximum national commission for initial enrollment in MA plans in 2022 at $573 per beneficiary in most parts of the country (in California, however, the maximum is $715); for Part D plans, “the maximum national commission for first-time enrollment is $87 and does not vary by region.” When factoring in commissions for Medigap plans, which are subject to fewer enrollment rights for beneficiaries than MA or Part D plans which are available annually, the post notes that between 2016 and 2020, there has been an increase in MA commissions further incentivizing agents to encourage MA enrollment.
In addition, agents and brokerage firms should be required to sign an attestation that whatever product is sold is appropriate for that beneficiary. Such an attestation would ensure that duals are not enrolled in products that are inappropriate for their needs or situation. Such an attestation is currently required for the sale of a Medigap and that consumer protection should also apply to the sale of MA plans.
In general, CMS should impose stronger standards for enforcement, discipline and punishment relating to misconduct surrounding the sale of Medicare products. It is not clear to us what structure currently exists for enforcement of existing standards: how complaints against agents, brokers, or TPMO’s are received and processed, what enforcement process exists, or what actions if any are taken by a MA plan or by CMS as the result of a complaint.
It is unclear what role if any a state regulator plays in the receipt, processing, or enforcement involving a complaint against an agent or broker. It appears that CMS relies upon complaints registered with 1-800-Medicare, or in rare instances when a complaint is received through an MOU with a state where that process exists. Current regulations contain requirements related to state licensing and license revocation, agent training and compensation but do not address an administrative process for receiving complaints, investigating complaints, and resolving complaints against agents, brokers, or TPMO’s. There is a role for state regulators that seems to be absent from current regulations and is not addressed in the proposed regulation.
We suggest that tightening oversight of MA plans and their downstream marketing and sales entities should include a clear administrative process for complaints, and that process should include coordination with state regulators.
CMS Must Reinstate and Strengthen Consumer Protections – Starting with Firm Distinction Between Marketing and Sales Events
In 2019, CMS made substantive changes to its Medicare Communications & Marketing Guidelines (MCMG), including rescinding important consumer protections from the final 2020 marketing guidelines, without any public comment, resulting in watered down standards. These changes were codified in a final rule issued in January 2021 (CMS-4190-F2), in the final days of the Trump Administration. Substantively, the revised guidelines weakened the distinction between “marketing” events, which are designed to steer or attempt to steer potential enrollees, or the retention of current enrollees, toward a plan or limited set of plans; and “educational” events, which are designed to inform beneficiaries about MA, Part D or other Medicare programs. As noted in an August 2019 joint letter by the Center, Justice in Aging, Medicare Rights Center and the National Council on Aging, these changes appear to directly conflict with current law – specifically, the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) – by allowing educational events (which have fewer restrictions and no reporting requirements to CMS) to immediately turn into marketing events. As Center wrote in our comments to the proposed rule:
The distinction between educational and marketing events was created, in part, so that beneficiaries would not be pressured to enroll in an MA or Part D plan during an educational event. While the distant time and location requirements separating these two types of events might in-convenience an agent/broker who wishes to sell a product to a prospect who appears interested immediately following an educational event, this changes the tenor and dynamic of educational events. Presumably individuals show up for educational events because they are advertised as such; if they were interested in engaging in a possible sale they have opportunities to do so, whether it is through an advertised marketing session, through an individual agent/broker, or directly through a plan. If agents/brokers can immediately make a sale after an educational event, it turns such events that were designed to be without pressure into a hunting opportunity for agents/brokers or plan representatives. The previous requirements mandating that any marketing events occur distant in both time and place allowed a cooling off period for beneficiaries between an event where they came to learn and one in which they are being pressured to buy something. Now that this distinction is blurred, the same disclosures and reporting requirements that apply to marketing events should apply to educational events.
At the same time, procedurally, for purposes of public notice and comment, CMS departed from its longstanding practice of releasing an updated, final version for the coming year and instead issued a memo to plans that lists changes from the 2019 guidance and tells plans that for 2020, they should rely on the 2019 guidance as amended by the memo.
In the preamble to the January 2021 final rule that codified these changes, CMS stated that by codifying sub-regulatory guidance, it “did not propose to substantively change much of the policy” (86 FR 5981). CMS states: “To be clear, the policies we proposed to codify are not new; they are in the MCMG and were developed over time in concurrence with stakeholder feedback to implement and administer the current regulations” (86 FR 5981-2). We disagree with this interpretation. CMS deliberately avoided discussing many substantive changes that were made to the MCMG in 2019 by observing that a given issue “predates this rulemaking” (without regard to whether there was a meaningful notice and comment period prior to this rulemaking), thus sidestepping both explanation and accountability.
With respect to the specific changes concerning marketing vs. educational events, in the preamble to the final rule, CMS noted that “a commenter expressed concern” that the proposed rule would “allow agents or brokers to set up marketing appointments directly following educational events.” Instead of addressing our allegation that this change could violate MIPPA, CMS dodged the issue by stating that “[t]he policy decision to allow marketing and educational events to occur in a close physical and time proximity predates this rulemaking, as reflected in CMS’s August 6, 2019 Medicare Communications and Marketing Guidelines Update Memorandum […]” (86 FR 5989). The only rationale for this change CMS offers is that it:
made this change because it can be burdensome for beneficiaries to travel to events. If the beneficiary attends an educational event and wants to hear more plan specific information via a sales event, we believe it should be allowed to happen around the same time, rather than requiring the beneficiary to return on a different day or to a different venue. We, however, share the concern regarding the meeting type switching without the beneficiary being aware. As such, we are further strengthening the language proposed at §§ 422.2264(c)(2)(i) and 423.2264(c)(2)(i), to require that a beneficiary be made aware of a change from educational event to marketing event and given the opportunity to leave prior to the event beginning. In addition, if a beneficiary is attending a personal marketing appointment with a plan representative, the representative would need to have the beneficiary complete a scope of appointment (SOA) form prior to any discussion […]” (86 FR 5989).
It stresses credulity to assert that this change was made to cater to beneficiaries, rather that the Medicare Advantage and Part D industry. At the very least, CMS agreed with our comment about the inadequacy of the language in the proposed rule with respect to requiring “the agent/broker to provide an opportunity for the beneficiary to determine if they want to continue to a marketing event directly following an educational event. The commenter stated this was too vague, resulting in the agent/broker determining if the beneficiary has given consent.” (86 FR 5988). In the preamble, CMS states:
We agree with this concern in part and have strengthened the language at §§ 422.2264(c)(2)(i) and 423.2264(c)(2)(i) that requires agents and brokers make the beneficiary aware of a change in meeting type from educational to marketing and to provide the opportunity for beneficiaries to leave prior to the start of the marketing event. With this change from the proposed rule, we do not believe that the regulation text is vague or requires the agent, broker or other plan representative to guess whether a beneficiary wishes to remain for the marketing event. We also note that agents and brokers, as downstream entities of plans, must abide by the requirements in Subpart V of this rule, including §§ 422.2262(a)(1)(iii) and 423.2262(a)(1)(iii), which prohibits them from engaging in activities that could mislead or confuse Medicare beneficiaries (86 FR 5988-9).
Unfortunately, CMS did not much improve the final language at §422.2264(c)(2)(i), which states: “If a marketing event directly follows an educational event, the beneficiary must be made aware of the change and given the opportunity to leave prior to the marketing event beginning” (p. 6107).
This still-vague requirement remains susceptible to manipulation by agents, brokers and other plan representatives. Absent a strict disclaimer or other required language that must be read or provided to attendees that clearly describes the scope and purpose of an educational event vs. a marketing event, this regulatory requirement is essentially useless. One need not employ much imagination to see how such transitions will be described by marketers as merely “shifting gears”, “getting into more detail”, etc., and how attendees will be reminded that they are “free to leave” at any time.
In short, CMS has both failed beneficiaries by codifying this change, and failed to explain how such change does not violate either the letter or the spirit of the law meant to protect consumers. At the very least, CMS is obligated to provide clearly articulated rationale for why these changes don’t violate the MIPPA provision cited above. A better solution would be to reverse these changes altogether.
G. Proposed Regulatory Changes to Medicare Medical Loss Ratio Reporting Requirements and Release of Part C Medical Loss Ratio Data (§§ 422.2460, 422.2490, and 423.2460) (p. 1902)
CMS is proposing to reinstate the detailed medical loss ratio (MLR) reporting requirements that were in effect for contract years 2014 to 2017 and is also “proposing the collection of additional details regarding plan expenditures so we can better assess the accuracy of MLR submissions, the value of services being provided to enrollees under MA and Part D plans, and the impacts of recent rule changes that removed limitations on certain expenditures that count toward the 85 percent MLR requirement” (p. 1845). Additional information collected would foster greater transparency regarding the amounts used to provide supplemental benefits (e.g., dental, vision, hearing, transportation, meals) by requiring MA and Part D plans to expand reporting of information on the percent of plan revenue spent on patient care and quality improvement activities. We support these proposed changes.
We do note, though, that the authors of a recent Health Affairs post assessing the debate surrounding MA overpayments “share the skepticism raised in the peer-reviewed literature about the efficacy of MLRs as a constraint on plan profitability; tactics that can undermine the ability of MLRs to constrain MA plan profits include reclassifying administrative expenses as health care costs, which can occur when MA plans are tightly integrated with providers.” Particularly since both Congress and CMS are taking little action to rein in MA overpayments, we urge CMS not to rely solely on the MLR as a means of addressing wasteful payments and controlling MA profits.
H. Pharmacy Price Concessions in the Negotiated Price (§ 423.100) (p. 1909)
CMS is proposing to require Part D plans to apply all price concessions they receive from network pharmacies at the point of sale, which could reduce beneficiary cost-sharing. While not a solution to the widespread problem of high prescription drug costs in our country broadly, and for Medicare beneficiaries specifically, we support this proposal. When pharmacy DIR fees are applied post point‐of‐sale, they are not reflected in the negotiated price at the pharmacy counter, which causes many patients to pay more out‐of‐pocket for their drugs than they should. The reforms proposed by CMS, which would require pharmacy price concessions be assessed at the point‐of‐sale, are estimated to reduce beneficiaries’ out‐of‐pocket expenses by $21.3 billion over 10 years.
To help ensure that people obtain maximum savings, CMS should ensure that the savings apply throughout all phases of the Part D program, including the coverage gap. It is unclear why CMS has proposed to exempt the coverage gap from these changes and urge CMS to apply these savings across the benefit.
Finally, while we appreciate these changes, we urge CMS to go further and continue to address the unaffordability of prescription drugs by ensuring that beneficiaries are charged based on the negotiated price, including the price reflecting manufacturer rebates. People who rely on high-cost medications should benefit from all negotiated price concessions at the point of sale.
III. Requests for Information
A. Request for Information: Prior Authorization for Hospital Transfers to Post-Acute Care Settings During a Public Health Emergency (p. 1918)
We thank CMS for its attention to the burdens posed on patients and the providers who serve them by the overuse of prior authorization (PA) in the Medicare Advantage program. Particularly in the post-acute care and rehabilitation benefit, PA is frequently required before the approval of services to protect the health and function of individuals with disabilities and chronic conditions. Unfortunately, patients often find that PA serves as significant barrier to accessing care, delaying or denying medically necessary services that are unlikely to be over-utilized and are often routinely approved after initial denials.
Especially for individuals with disabilities and chronic conditions, delays in accessing post-acute care services can result in significantly worse long-term outcomes. However, many MA plans seem to rely on initial denials of prior authorization as a method to delay care, even for services that are eventually expected to be approved. In fact, a report by the Department of Health and Human Services Office of Inspector General (OIG) found that after appeals by beneficiaries and providers, MA plans overturned their own denials 75% of the time. This results in an inequitable access to care between traditional Medicare beneficiaries and those subject to PA in Medicare Advantage, which disproportionately harms the patients with the most significant medical needs represented by many of the organizations below.
We urge CMS to address these widespread problems with the use of prior authorization to protect patient access to care – not exclusively during the PHE, but after the end of the emergency declaration as well. We encourage CMS to conduct more oversight of the services subject to prior authorization across plans and the impacts delays and denials have on beneficiaries. Individuals with disabilities, chronic conditions, and other beneficiaries in the MA programs must be able to access the care they need in a timely fashion, including all services that are covered under traditional Medicare.
- Unaddressed Issues
For many years, the Center for Medicare Advocacy has pushed for legislative and administrative efforts to address the growing inequities between Medicare Advantage (MA) and traditional Medicare that favor MA, and thus the growing privatization of the Medicare program. These inequities include payment/spending, coverage of services, enrollment opportunities, and education/promotion of MA over other coverage options.
As discussed in our September 2021 CMA Special Report concerning the 2022 Medicare & You handbook, we appreciate the steps that the current administration has taken to reverse the bias in favor of MA plans in recent additions, and we outlined where further work is necessary. As noted in the introduction above, we also recognize that the proposed 2023 Part C and D rule is a welcome departure from recent de-regulatory efforts and hands-off oversight of the MA program, and strongly support many of the provisions proposed.
Through this propose rule, however, CMS does not make every effort within their authority to address the imbalance between MA and traditional Medicare, nor does it impose the greater level of oversight of private Medicare plans that is required to ensure both adequate consumer protections and safeguarding of program spending.
In December 2020, the Center issued a Transition Memorandum for the incoming administration outlining a range of proposed administrative actions that would improve access to coverage and quality of care for all people who rely on Medicare. This included a number of MA and Part D related proposals. Many of these suggestions, which were developed in response to our and others’ experience assisting Medicare beneficiaries, remain unaddressed in this proposed rule. In addition to issues of payment equity between traditional Medicare and Medicare Advantage, we urge CMS to take further action in these areas (addressed in the Transition Memo), including the following:
- Oversight of MA Coverage and Care Denials, including restricting rampant use of prior authorization (PA) (the proposed rule only contains a request for information concerning PA for hospital transfers to post-acute care settings during a public health emergency – we assert that the problems created by PA are much more widespread and must be addressed more broadly)
- Revising MA flexibilities re: uniformity standards, meaningful differences that make it more difficult for beneficiaries to make informed decisions
- MA network adequacy – as noted above, the proposal re: tighter restrictions for new entrants is welcome, but the overall thresholds were weakened in recent years
- No new rights for beneficiaries re: Special Enrollment Periods (e.g. for mid-year provider terminations by plans)
- No rescission of allowance of MA plans to apply step-therapy to Part B drugs
- No reinstating of reporting requirements re: appeals
- No expansion of services that limit cost-sharing to traditional Medicare levels
- Marketing Communications Guidelines – while the proposed changes noted above are both welcome and necessary, CMS should reverse the significant changes to the guidelines that have weakened protections in recent years, and add new requirements; for example, as noted above, CMS should:
- Rescind rules weakening marketing v. educational events (as discussed above)
- Impose requirements re: MA descriptions of supplemental benefits for the chronically-ill (SSBCI)
As a whole, this proposed rule is an important step in the right direction with respect to imposing greater oversight of Medicare Advantage plans. More is needed, however, in order to adequately protect plan enrollees and the Medicare program. Thank you for the opportunity to submit these comments. For additional information, please contact David Lipschutz, Associate Director, at DLipschutz@medicareadvocacy.org, or Kata Kertesz, Policy Attorney at KKertesz@medicareadvocacy.org, both at (202)293-5760.
David Lipschutz Kata Kertesz
Associate Director/Senior Policy Attorney Policy Attorney
Licensed in CA and CT Licensed in MD and DC
 Manatt “CMS Proposes Changes to Medicare Advantage and Part D Programs” (Jan. 25, 2022), available at: https://www.manatt.com/insights/newsletters/health-highlights/cms-proposes-changes-to-medicare-advantage-and-par.
 See Center’s comments to proposed rule (April 6, 2020), available at: https://medicareadvocacy.org/wp-content/uploads/2020/04/CMA-CD-Comments-2020.pdf; also see CMA Alert “Final Rule for Medicare Parts C and D Includes Weakened Standards for Medicare Advantage Networks” (May 28, 2020), available at: https://medicareadvocacy.org/final-rule-for-medicare-parts-c-and-d-includes-weakened-standards-for-medicare-advantage-networks/.
 See, e.g., MedPAC Report to Congress (March 2021): https://www.medpac.gov/document/march-2021-report-to-the-congress-medicare-payment-policy/.
 National Association of Insurance Commissioners (NAIC) letter to CMS (March 4, 2022), available at Senior Issues (B) Task Force (SITF) webpage under the Documents tab at:https://content.naic.org/cmte_b_senior_issues.htm.
 See, e.g., joint letter by the Center for Medicare Advocacy, Justice in Aging, Medicare Rights Center, and the National Council on Aging (August 2019), available here: https://medicareadvocacy.org/advocates-issue-joint-letter-raising-alarms-about-new-medicare-plan-finder-and-revisions-to-ma-and-part-d-marketing-guidelines/.
 See, e.g., discussion in CMA Alert “Final 2022 Rule for Medicare Parts C and D Released By Trump Administration” (Feb. 4, 2021), available at: https://medicareadvocacy.org/part-c-and-d-rule-analysis/.
 Commonwealth Fund, “Agent Commissions in Medicare and the Impact on Beneficiary Choice” by Riaz Ali (Oct. 12, 2021) available at: https://www.commonwealthfund.org/blog/2021/agent-commissions-medicare-and-impact-beneficiary-choice.
 Joint letter by the Center for Medicare Advocacy, Justice in Aging, Medicare Rights Center, and the National Council on Aging (August 2019), available here: https://medicareadvocacy.org/advocates-issue-joint-letter-raising-alarms-about-new-medicare-plan-finder-and-revisions-to-ma-and-part-d-marketing-guidelines/.
Center’s comments to proposed rule (April 6, 2020), available at: https://medicareadvocacy.org/wp-content/uploads/2020/04/CMA-CD-Comments-2020.pdf; also see CMA Alert “Final 2022 Rule for Medicare Parts C and D Released By Trump Administration” (Feb. 4, 2021) – in particular, see IV. ADDENDUM: Codifying Requirements for Medicare Communications and Marketing: https://medicareadvocacy.org/part-c-and-d-rule-analysis/.
 CMS-4190-F2, 86 Fed Reg 5864 (January 19, 2021).
 “The Debate On Overpayment In Medicare Advantage: Pulling It Together”, Health Affairs Forefront, February 24, 2022. DOI: 10.1377/forefront.20220223.736815; available at: https://www.healthaffairs.org/do/10.1377/forefront.20220223.736815.
Department of Health and Human Services (DHHS) Office of Inspector General (OIG) report “Medicare Advantage Appeal Outcomes and Audit Findings Raise Concerns About Service and Payment Denials” (September 2018) (OEI-09-16-00410), available at: https://oig.hhs.gov/oei/reports/oei-09-16-00410.pdf.
 CMA Special Report: “MEDICARE & YOU 2022 – An Important First Step Towards Reversing Bias in Favor of Medicare Advantage” (September 20, 2021), available at:https://medicareadvocacy.org/wp-content/uploads/2021/09/Medicare-You-2022.pdf?emci=144750ab-161a-ec11-981f-501ac57ba3ed&emdi=ea000000-0000-0000-0000-000000000001&ceid=%7b%7bContactsEmailID%7d%7d.
 Center for Medicare Advocacy, Transition Memorandum for Biden Administration Department of Health & Human Services (HHS) (December 2020), available at: https://medicareadvocacy.org/transition-memo-2020/.