2023-07115.pdf

the plan, about which the benefits are being advertised. Another example would be a local television commercial airing in a specific market, but that may be picked up in an adjacent market. For example, Baltimore television channels can be seen in parts of the Washington, DC market and vice versa. An MA organization advertising benefits available through plans with service areas that encompass Baltimore on a Baltimore television station would result in unavoidable marketing for those beneficiaries in the Washington, DC market who are able to access Baltimore stations. The exception we are finalizing for unavoidable marketing does not apply for any national marketing, so new paragraph (b)(8) includes an exception only for marketing in local media that covers the service area(s) for the benefits. Since the advertised benefits must be available in the area in which the marketing is occurring, the unless unavoidable standard in our regulation is only applicable to advertising that is occurring in a limited area. National advertisements cannot be tailored to only market benefits available to specific service areas, especially since Medicare Advantage is not available in every county in the United States and its territories. Comment: Some of the commenters supported the proposal, but also requested that we permit the marketing of benefits if a certain percentage of plans in that marketed area offered the benefits. For example, if 70 percent or more of the plans offered dental, vision, and hearing the marketing could state most plans offer . . .. If 50 percent to 70 percent offered vision, dental, and hearing the marketing piece could say many plans offer . . .. Response: We appreciate the commenters suggestions. However, we believe limiting the scope of the regulation as suggested will result in marketing that misleads or has the potential to mislead beneficiaries or marketing that does not provide sufficient information to be useful for a beneficiary. Benefits can vary greatly by service area, individual plan, and by type and value of the benefits offered. A company, especially a TPMO, that advertises that most plans offer dental, vision, and hearing is providing very little specific information relevant to the beneficiary and what plans are available in the beneficiarys service area and the actual benefits offered. There may be no plans in a beneficiarys service area that offer hearing benefits, making this marketing inaccurate for this beneficiary, even though hearing is available in 80 percent of the plans the TPMO offers. In addition, even if vision, dental, and hearing benefits were all available, it is important to provide the value of these benefits that are available to the beneficiaries that are exposed to these advertisements and marketing, so that the beneficiaries have the information that is useful in making an informed decision about their health care. For example, the vision benefit advertised nationally in a generic way could be $50 per year and the dental benefit may only include cleanings. We have seen vague ads, which we believe are leading or at least have significant potential to lead beneficiaries to believe the benefit available in their area is a more valuable benefit, covering dental covering fillings, root canals, and dentures, when the benefit is actually of lesser value. To make the advertising of benefits useful for beneficiaries to choose the best plan for their needs, organizations would need to provide a benefit amount associated with the benefits offered. For example, if a TPMO advertised that 85 percent of the plans represented by a TPMO may offer hearing benefits, the plans offering hearing benefits may be limited to one geographic region, while plans in other regions do not offer hearing. Another concern is advertising that plans may have hearing benefits up to $3,000. In this case there may only be one plan that offers more than $1,000 in hearing benefits, while all of the other plans offer $1,000 or less in hearing benefits. To permit the advertising of up to a certain amount, even if it states the beneficiary may be eligible could lead a beneficiary to believe the benefits available to them are far greater than the benefits actually available. Comment: CMS received a few comments opposing this proposal. A commenter stated that plans would have to create multiple materials to address different benefits for each specific area. The commenter noted this would be especially problematic for regional plans who have multiple products spanning across large areas. Response: CMS appreciates the comments. We disagree that plans will face significant issues in accurately marketing available benefits. Plans will not be required to create a new material for each area, but rather will just need to change the dollar amounts reflecting the benefits offered in the specific markets. If a plan has four markets and wants to advertise dental up to $4,000, the plan can use the exact same advertisement for all markets and simply switch out the dollar amount offered to reflect the appropriate amount for the dental benefit in each individual market. Protecting beneficiaries from misleading advertisements promoting benefits for which beneficiaries are ineligible far outweighs the perceived burden of organizations having to create marketing materials that specifically reflect the benefits offered by their plans in specific service areas. In addition, over the past year, CMS has seen a decrease in the number of advertisements promoting specific dollar amounts, especially with respect to the Part B premium buydown and has not received complaints from plans regarding the burden of producing advertisements that more accurately reflect the actual benefits being offered. CMS recognizes the majority of the advertisements discussed here are tailored to Part C benefits. However, we believe it is necessary to include this proposal in the Part D regulations as well to account for the instances where a Part D plan does or may advertise benefits that are not available in a particular service area. After review of the comments received and for the reasons outlined in the proposed rule and our responses to the comments, we are finalizing new paragraph (b)(8) in  422.2263 and 423.2263 as proposed. 5. Prohibits Marketing Unless the Names of MA Organizations or Part D Sponsors Being Advertised Are Clearly Displayed We proposed a new paragraph (9) at  422.2263(b) and 423.2263(b) to prohibit marketing unless the names of the MA organizations or Part D sponsors that offer the benefits being advertised VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222241 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations are clearly identified. In cases where the MA organization or Part D sponsor uses a specific marketing name, as identified in HPMS, that marketing name can be used in place of the MA organization or Part D sponsor name. CMS has seen an increase in the marketing of benefits, through television, websites, and mailers that mention additional benefits such as dental, vision, hearing, as well as low or zero-dollar premiums. These advertisements do not identify which product(s), plan(s), or specific plan(s) benefits are being advertised, but rather speak generically about those items and serve to generate sales leads and obtain beneficiary contact information. There are specific reasons for advertisements to contain the MA organizations and Part D sponsors names. We believe including the names in the advertisement will help the beneficiary understand that they are calling a plan, a plan representative (including an independent agent) and not Medicare or another non-profit, neutral agency such as a State Health Insurance Program (SHIP). Adding the names of specific organizations or sponsors provides the necessary information for a prospective enrollee to know if they reach out because of the advertisement they saw, they are contacting an individual connected to a particular MA or Part D plan. In addition, when an advertisement provides a name, a prospective enrollee can do additional research on the plan before reaching out to the plan, including reviewing their Star Ratings and complaint rates. The prospective enrollee could also discuss the plan with relatives or friends, whom they trust to help make health care decisions. All of these factors allow a prospective enrollee to make a more informed decision on whether they want to contact the particular plans agent to learn more. Not only does this proposed policy assist beneficiaries, it will also assist CMS and MA organizations and Part D sponsors to ensure the marketing reflects the appropriate MA organizations and Part D sponsors. CMS also proposed (and finalized in section III.I.1) to require, instead of permitting, TPMO developed marketing to be submitted into HPMS. Under both policies, the TPMO must ensure each MA organization or Part D sponsor on whose behalf the materials were created or will be used was reviewed. Under the revisions to  422.2261(a)(2) and 423.2261(a)(2), as proposed and finalized, once TPMO materials are submitted, each MA organization or Part D sponsor would decide whether they want the TPMO to use that particular marketing material on their behalf. Even though organizations have already reviewed the piece prior to the TPMO submission, we are providing an organization the ability to decide if they want the TPMO to use the piece. If an MA organization or Part D sponsor opts into the material, the TPMO may then use it on their behalf and market those organizations. If the MA organization or Part D sponsor opts out of the marketing material, then the TPMO would not have permission to market those specific organizations. In addition, we do permit TPMOs to add additional MA organizations and Part D sponsors to the HPMS submission. These added organizations also decide if they want to opt in or opt out of each specific marketing piece. All organizations are permitted to change their original opt in or opt out at any time. This may be necessary in case an organization stops contracting with a specific TPMO or the organization has just decided to limit marketing by the TPMO. By requiring MA organization and Part D sponsor names in marketing materials, both CMS and the organization would then be able to ensure that only those MA organizations and Part D sponsors who opted into the TPMO using the material are being advertised in that material. And CMS oversight and review of marketing materials would be more effective and efficient. If CMS determines a material is misleading, we will then be able to identify the organizations from the advertisement, compare them to the ones that opted in and address the issue with those organizations who opted into the TPMO material. This will allow CMS to quickly notify the MA organization or Part D sponsor of the issues, have the organization resolve the issues, and get the misleading materials out of circulation quickly. Therefore, we proposed a new paragraph (9) at  422.2263(b) and 423.2263(b) to prohibit MA organizations and Part D sponsors from marketing any products or plans, benefits, or costs, unless the MA organizations or Part D sponsors name or marketing name(s) (as listed in HPMS of the entities offering the referenced products or plans) are identified in the marketing material. By requiring the name of the organization, beneficiaries will have knowledge of who they are contacting. In addition, we proposed requirements regarding the display and identification in marketing materials of sponsoring organizations names. In reviewing television, print, and online marketing, CMS has noted that the disclaimers are often small, not displayed long enough, read too fast, or are difficult to find. We proposed including requirements in this new paragraph (9) to ensure the information is comprehensible and visible. We proposed adding that in print advertisements must display the MA organization, Part D sponsor, or marketing name in 12-point font and the MA organization, Part D sponsor, or marketing name may not be only be displayed in the disclaimer or fine print. We use the phrase fine print as it is generally defined to mean printed matter in small type or print displayed in an inconspicuous manner. For television, online, or social media-based advertisements, we proposed that these names must either be displayed during the entire advertisement in the same font size as displayed benefits and phone numbers, or be read within the advertisement at the same pace as advertised benefits or phone numbers. For radio or other advertisements that are voice-based only, we proposed that these names must be read at the same speed as the phone number. To implement these new requirements, we proposed new paragraphs (b)(9)(i), (ii), and (iii), respectively. (In the proposed rule, we mistakenly identified these as paragraphs (b)(9)(A), (B), and (C) but use the correct references here.) Comment: CMS received a number of comments supporting this proposal. Response: CMS thanks the commenters for their support. Comment: We received a few comments opposing this proposal. One commenter noted that there would be too much information on the advertisement. Response: CMS does not believe that a concern that the names of the plan or organization being marketed is too much information justifies not finalizing the proposal. Beneficiaries need to have certain information to make informed decisions. By having the names of organizations or plans being marketed available on the advertisements, beneficiaries will have necessary and appropriate information to decide whether they want to contact the organization, plan, or TPMO, based on the organizations the TPMO represents. Comment: Another commenter noted that advertisements would need to be pulled if a plan did not opt into the TPMO advertisement. Response: CMS has stressed that the marketing material should be reviewed by the applicable MA organizations and Part D sponsorsmeaning all of those for whom the marketing material(s) will be used and all those named in the VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222242 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations material(s)plans prior to submission into HPMS. The revisions to  422.2261(a)(2) and 423.2261(a)(2) are clear that prior review of the organization is necessary before the TPMO submits the materials. If a