2023-07115.pdf

MA organizations and Part D sponsors be required to report specific agent or broker non- compliance to CMS. Such oversight and monitoring plans would assist plans and sponsors in gauging the scope of marketing issues, and help plans and sponsors in developing methods to stop inappropriate agent and broker activity. Therefore, we proposed to add a new paragraph (e) to  422.2272 and 423.2272 to read, Establish and implement an oversight plan that monitors agent and broker activities, identifies non-compliance with CMS requirements, and reports non- compliance to CMS. Comment: CMS received many comments regarding the proposal to require an oversight plan that monitors agents and brokers, identifies non- compliance, and reports non- compliance to CMS. Almost all of the commenters supported this proposal. However, a number of commenters did request clarification on what non- compliance needs to be reported to CMS. Suggestions included egregious issues and repeated issues. Response: CMS appreciates the support. We agree that additional information on what non-compliance needs to be reported is warranted. We are not expecting organizations to report minor, insignificant issues such as failing to go over one element in a required list of 18 elements. However, if an agent continually fails to address a significant number of elements, especially after being notified of issues, or the agents conduct could have beneficiary impact (for example, potential beneficiary harm), the regulation we proposed and are finalizing requires plans to report that particular type of non-compliance. We will provide additional information in our Medicare Communications and Marketing Guidelines, including examples in the future. Comment: We received a few comments opposing the oversight and reporting requirement. One commenter stated that TPMOs already have a robust oversight plan. Response: We appreciate and are pleased that the commenter believes TPMOs have robust oversight plans. However, a TPMO having an oversight plan does not replace an MA organization or Part D sponsor having an oversight plan that ensures that the MA organization or Part D sponsor effectively manages TPMO performance and ensures compliance by TPMOs with Part 422 and Part 423 requirements. In many cases, organizations also have their own agents and brokers and may contract with independent agents and brokers, as well as contracting with TPMOs. As CMS holds organizations responsible for the activities of their contracted TPMOs, the organizations need to properly oversee all of its agents and brokers, even if the TPMO or agent has their own oversight plan. Comment: One commenter stated that the oversight plan is already required as part of their organizations compliance plan maintained under the Part 422 or VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222254 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations Part 423 regulations. A few commenters stated that this proposal would cause additional burden on plans, especially small and medium sized plans. Response: We only received one comment stating that this proposal is already incorporated into an MA organization or Part D sponsors existing compliance plan. For those organizations who have put an agent and broker oversight plan in their compliance plan, this proposal should not have a significant effect. These organizations, however, will still need to provide the plan to CMS, upon request, and will also need to report any non-compliance to CMS. For MA organizations and part D sponsors that have not already established an oversight plan of this type for monitoring and ensuring compliance by their TPMOs, we believe that this is an important step toward achieving compliance by TPMOs with CMS requirements. Organizations are required to ensure all first tier, downstream, and related entities adhere to all statutory and regulatory requirements. In order to ensure compliance, plans should be monitoring and overseeing agents and brokers. This proposal is requiring actions that plans should already be taking. For organizations that do not have an oversight plan in place there will be additional work; however, CMS believes that work is necessary in order to protect beneficiaries from inappropriate marketing by non- compliant agents and brokers. After consideration of the comments received and for the reasons outlined in the proposed rule and this final rule, we are finalizing as proposed. 20. CMS List of Required Elements Prior to Enrollment CMS proposed to adopt, at a new paragraph (c)(12) of  422.2274 and 423.2274, additional standards for agents and brokers in their marketing of MA and Part D plans to beneficiaries to require that sponsoring organizations ensure that agents and brokers discuss specific topics and information with beneficiaries prior to enrollment. We believe that adopting these standards is consistent with and achieves a similar goal as the statutory requirement in section 1851(j)(2)(D) of the Act that compensation to agents and brokers create incentives for agents and brokers to enroll beneficiaries in the plan that best meets their health care needs. The provisions in section 1851(h)(4)(D) and (j)(2) regarding the marketing of MA plans apply as well to the marketing of Part D plans per section 1860D4(l) of the Act. For an agent or broker to ensure the beneficiary is in a plan that best meets their needs, the agent or broker needs to obtain enough information to determine the health care needs of the beneficiary. If the agent or broker fails to have sufficient information to ensure that he or she is enrolling the beneficiary in a plan that best meets the beneficiarys health care needs, yet is still compensated for enrolling the beneficiary in a plan, we believe that section 1851(j)(2)(D) of the Act is undermined. CMS is concerned that agents and brokers too often fail to adequately determine the kind of health plan a beneficiary wishes to enroll in, such as a plan that offers a lower premium and higher copays, one that has specific providers in their network, or one that provides coverage for a certain durable medical equipment. Therefore, in  422.2274(c) and 423.2274(c), we proposed that all agents and brokers (employed, captive, and independent agents) go through a CMS- developed list of items that must be discussed during the marketing and sale of an MA plan or Part D plan. CMS has listened to hundreds of marketing and enrollment audio calls. In the majority of these calls (over 80 percent), agents and brokers failed to ask pertinent questions to help a beneficiary enroll in a plan that best meets the individuals needs. CMS listened to calls where the agent or broker only asked about primary care providers and/or prescription drugs. There were also calls that CMS listened to where the agent or broker only discussed extra benefits such as dental and vision. During many of the calls CMS reviewed, the agent or broker failed to ask important questions, such as whether there was a specialist that the beneficiary wished to see (or currently sees) and whether that specialist was in the plans network, whether the beneficiary would prefer lower copays and a higher premium or vice versa, which hospitals the beneficiary preferred, or whether the beneficiary wanted dental and hearing benefits. Some calls were under twenty (20) minutes in length. This short time period led CMS to question whether an agent or broker could have realistically obtained the necessary information from the beneficiary in order to adequately determine their needs and wants, review available options, and complete the enrollment. To properly assist a beneficiary in choosing a Medicare health and/or drug plan, the agent or broker must have sufficient information about the beneficiarys needs and goals. We do not believe a beneficiary can be enrolled in a plan that best meets the individuals needs when, for example, an agent or broker fails to ask the beneficiary about their current providers or medications, including specialists and preferred hospitals or other facilities. To ensure a beneficiarys needs are reviewed, CMS proposed to add a new (12) to  422.2274(c) and 423.2274(c), requiring an MA organization or Part D sponsor ensure that the agents/brokers marketing call goes over each CMS required question or topic, including information regarding primary care providers and specialists (that is, whether or not the beneficiarys current providers are in the plans network), prescription drug coverage and costs (including whether or not the beneficiarys current prescriptions are covered), costs of health care services, premiums, benefits, and specific health care needs. We explained in the proposed rule that CMS would provide in sub-regulatory guidance more detailed questions and areas to be covered based on these general topics. If agents and brokers are required to ask beneficiaries certain questions, or cover certain topics, prior to beginning the enrollment process, we expect that beneficiaries will be more knowledgeable about the plans that are available to them and whether those plans fit their needs; this would, in turn, better enable beneficiaries to make an informed choice about their Medicare benefits and how to receive them. We did not propose that agents or brokers would be required to read standardized questions or statements regarding the topics discussed here. Rather, we proposed to require that certain required topics are addressed, prior to the enrollment, specifically topics about providers and whether a beneficiarys current or preferred providers or pharmacies are in-network, costs and premiums for prescription drug coverage and health care coverage, benefits, and the beneficiarys specific health care needs and current medications. Comment: We received numerous comments supporting this proposal. Response: We thank the commenters for their support. Comment: We received two comments opposing this provision. These commenters stated that agents are already required to go over the Pre- Enrollment Checklist. Response: We appreciate the comments, but the Pre-Enrollment Checklist does not contain the level of detail required to ensure an agent receives all of the information necessary to assist a beneficiary in making a decision that is best for their health care needs. Therefore, we continue to believe VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00136 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222255 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations that requiring questions from the agent or broker to the beneficiary and a discussion of specific topics is appropriate. After consideration of the comments received and for the reasons outlined in the proposed rule and this final rule, we are finalizing the addition of a new paragraph (c)(12) to  422.2274 and 423.2274. 21. Limit TPMO Call Recording to Sales, Marketing, and Enrollment Currently,  422.2274(g)(2)(ii) and 423.2274(g)(2)(ii) require TPMOs to record all calls with beneficiaries. This requirement helps ensure that TPMOs, including agents and brokers, are appropriately marketing to beneficiaries by ensuring adequate records are available for oversight and monitoring. This requirement for recording all calls with beneficiaries was proposed in a January 2022 proposed rule, and finalized in the May 2022 final rule (CMS 4192F). The requirement to record all calls was pre-dated by CMSs requirement to record enrollment calls. As indicated in  1851(c)(2)(A) of the Social Security Act, a person with Medicare enrolls in an MA plan or Part D plan by filing an appropriate election form with the organization. CMS has established models for this election form, providing different formats depending on the type of MA or Part D plan as well as the format of the election itself (paper, electronic, telephonic, etc.). The telephonic model includes language establishing the enrollees agreement to abide by the rules of the plan into which they are enrolling as well as recording this agreement. That recording (that is, the physical recording of the telephone conversation) is the record of the enrollees request to enroll. As such, CMS has required recording of telephonic enrollment since the incipience of the telephonic enrollment process as a requirement of the encompassing enrollment process. This requirement is reflected in  422.60(c)(2) which states that an MA plan must file and retain elections forms for the period specified in CMSs instructions and  422.504(e) requires MA plans to provide access to enrollment and disenrollment records for the current contract period and 10 prior periods. Similar requirements apply to Part D sponsors at  423.136 and 423.505(e). As previously stated, CMSs experience in reviewing beneficiary complaints and listening to recorded calls between agents and brokers and beneficiaries revealed many instances where agents and brokers failed to provide enough information, and, most concerning, provided inaccurate information about plan benefits. In some cases, the agents and brokers led beneficiaries to believe the beneficiaries were calling Medicare rather than an insurance agent. We received few pertinent comments to this proposal in the January 2022 proposed rule prior to the requirement being finalized at  422.2274(g)(2)(ii) and 423.2274(g)(2)(ii). However, following the May 2022 final rule, CMS heard from trade organizations and plans, as well as individual agents, regarding the obligation to record all calls. Many of these post-final rule questions and comments centered around whether smaller agent companies had to record conversations. Some of the comments received after the final rule requested clarification on whether all calls really needed to be recorded. In the December 2022 proposed rule, CMS did not propose to change the requirement that TPMOs, including agents and brokers, regardless of their size, must record calls. However, we proposed to limit calls that must be recorded from all calls to only those calls regarding sales, marketing, and enrollment by amending  422.2274(g)(2)(ii) and 423.2274(g)(2)(ii). We explained in the proposed rule a concern that current requirement is too broad because calls placed to merely set up an in-person meeting, or to confirm a beneficiary received a plan welcome packet, or calls to provide a beneficiary the opportunity to ask non-marketing questions, such as when the plan will