2023-07115.pdf

We appreciate the support for this proposal, as we believe providing an annual, written notice will empower enrollees to make the decisions that are right for them about the extent to which their MA or Part D plan contacts them for plan business. We appreciate the concern about ensuring that plans may continue to contact current enrollees regarding their existing plan and current coverage but this proposal, which we are finalizing, does not prohibit calls and other contact about the enrollees current plan. Per  422.2264(b) and 423.2264(b), plan business includes discussion about other Medicare products (not the enrollees current plan) or about other types of insurance or lines of business (for example automotive or home insurance). Plans and agents would still be permitted to call members regarding their current plan. Comment: We received a few comments opposing this provision. A commenter stated that the opt-out notice was unnecessary and unwanted by beneficiaries because of the overall amount of communications they already receive regarding their plan, including the ability to opt-out of calls regarding plan business. Response: CMS believes the opt-out communication is necessary for beneficiaries. As noted in the proposed rule, beneficiaries may decide at a later date that they do not wish to receive calls regarding plan business. This opt- out provision provides member with a yearly notice, reminding them of their ability to opt out. Comment: Another commenter opposed the provision because opting out would prohibit an agent from contacting a beneficiary about another plan that may be better for the member. Response: Requiring an opt-out on a yearly basis does not, in itself, preclude an agent from contacting a beneficiary regarding plan business. Agents are still permitted to reach out through email, direct mail, events, or other general marketing. The agent is precluded from reaching out only if the beneficiary notifies the agent that they no longer wish to be contacted regarding plan business. Based on the numerous comments supporting this proposal, we are finalizing as proposed. 9. Prohibiting the Distribution of Scope of Appointment (SOA) and Business Reply Card (BRC) Forms at Educational Events Our regulations at  422.2264(c) and 423.2264(c) describe what marketing activities are permitted at sales and educational events, as well as any conduct that is prohibited at these events. Currently, MA organizations and Part D sponsors, including the agents and brokers with which they contract, may not market specific MA/Part D plans or benefits at educational events. However, CMS currently permits MA organizations and Part D sponsors participating in educational events to set up future personal marketing appointments and to collect beneficiary contact information, including Business Reply Cards (BRCs), or Scope of Appointment forms (SOA) at educational events. Our regulations also permit marketing events to immediately follow an educational event, provided the beneficiary is made aware of the change in events and is given an opportunity to leave prior to the beginning of the marketing event. In 2018, prior to the implementation of  422.2264(c) and 423.2264(c), our sub-regulatory guidance prohibited many of these activities, such as holding marketing events following an VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222244 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations educational event, distributing SOA cards, and setting up future individual marketing appointments. In the January 2021 final rule, CMS codified, in large part, this sub-regulatory guidance. Since that time, CMS has expanded its review of plan marketing activities and related information. We have reviewed complaints through 1800MEDICARE about confusing and misleading marketing tactics received and have heard from industry groups concerned about the changes in our policy regarding educational events. Since the 2021 final rule, complaints about plan marketing activity have increased and included allegations of unsolicited contact to prospective enrollees. We believe that some of these complaints may be attributed to the collection (and later use) of beneficiary contact information, such as BRCs, or SOA cards at educational events. We proposed, in  422.2264(c) and 423.2264(c), to reinstate the prohibition on accepting SOA cards or the collection of beneficiary contact information at educational events. Section 1851(j)(1) of the Act prohibits sales and marketing to take place at educational events. Such events are meant to provide information on the basics of Medicare, including information about coverage options through Traditional Medicare, Medigap plans, as well as Part C and Part D. These events are aimed at informing beneficiaries on what Medicare covers and the different options beneficiaries have when they are Medicare-eligible, or are looking at the options should they wish to change the way they receive their Medicare benefits. In other words, these events are meant to provide generic, factual, non-biased information about different coverage options, rather than information designed to persuade beneficiaries to enroll in a particular type of plan (for example, MAPD or Medigap), or in a plan offered by a specific organization. Although the collection of beneficiary information through SOAs or BRCs was has been permitted at educational events, we now believe that agents should be permitted to receive contact information at educational events, if the beneficiary chooses to provide their information. As discussed in our May 2022 final rule, the number of marketing complaints received by CMS has increased significantly over the past few years. Specifically, a significant portion of these complaints involve unsolicited contact. A likely contributor to these unsolicited contacts is a beneficiary not realizing the contact form they have completed at an educational event gives an agent permission to contact the beneficiary in the future. CMS has also heard from advocacy groups requesting that CMS reinstitute the beneficiary protections from our previous sub- regulatory guidance that were not included in the January 2021 final rule, including limits on distributing SOA and BRCs at educational events. Beneficiaries attend educational events to learn about Medicare, unlike a sales event where a beneficiary has decided that they want to look further into a particular plan (or sponsoring organization) in which to enroll. Collecting contact information at educational events may unduly pressure a beneficiary into providing their personal information. Agents passing out SOA or BRC cards, possibly watching beneficiaries until they fill these forms out, and then collecting them may put a beneficiary in an uncomfortable position of having to decide whether the individual wants to oblige the agent by completing the form, or draw attention to the individual by declining to complete them. This especially may be the case if the beneficiary believes they should provide this information in exchange for attending the educational event, which could include the provision of a meal and helpful question and answer opportunities. We believe the beneficiary needs to be in charge of and in control of whether or not they want to be contacted, by whom, and in what form. Therefore, to ensure such decisions remain with the beneficiary, we proposed amending the regulations that list the activities that are permissible to include in educational events ( 422.2264(c)(1)(ii) and 423.2264(c)(1)(ii)) by removing the paragraphs that authorize obtaining beneficiary contact information, including Scope of Appointment forms. The current regulations at  422.2264(c)(1)(ii)(C) and 423.2264(c)(1)(ii)(C) also permit agents to set up future personal marketing appointments at educational events. Similar to SOAs and contact information, we believe that beneficiaries should be in charge of with whom they speak, when they meet with an agent, and what products they want to discuss with that agent. In the case of educational events, the beneficiary generally attends the event to learn about Medicare, not to facilitate a marketing meeting where the beneficiary is encouraged to enroll in a plan. Once an agent speaks with a beneficiary at an educational event, the beneficiary may believe they are being pressured into setting up a marketing appointment. The on the spot request at an educational event for the beneficiary to schedule a future meeting does not provide the beneficiary enough time to consider whether they want someone to come to their home and market a plan to them for the purpose of enrollment. We believe that an educational event should be solely for education and not for lead generation or future marketing opportunities for agents. Therefore, we also proposed removing  422.2264(c)(1)(ii)(C) and 423.2264(c)(1)(ii)(C), which currently permit organizations and agents to set up future marketing appointments at educational events. Comment: We received a substantial number of comments supporting the proposal to prohibit the collection of SOAs and BRCs at educational events. Response: CMS thanks the commenters for their support. Comment: We also received a substantial number of comments opposing this proposal. Some commenters stated that not being able to collect SOAs and BRCs at educational events will result in agents not holding these events at all, and that such a result is a detriment to beneficiaries. Response: We appreciate the comments. However, we disagree that the prohibition of collecting SOAs and BRCs will cause agents to no longer hold educational events. We note that prior to 2018, CMS prohibited the collection of SOAs and BRCs at educational events and these events still took place. We also note that many educational events are held by individuals and entities other than agents or plans. Educational events are regularly sponsored by individuals and groups that are not affiliated with any specific MA organization or Part D sponsor, such as events and forums sponsored by State Health Insurance Assistance programs and other local and community-based groups. Comment: A few comments stated that this proposal will place an undue burden on beneficiaries since the beneficiary will have to reach out to the agent instead of the agent contacting the beneficiary through the SOA or BRC collected at these events. One of these commenters stated that beneficiaries go to educational events to meet with agents. Response: Thank you for your comments. However, CMS disagrees that it will place an undue burden on beneficiaries to reach out to an agent after an educational event, rather than the agent reaching out to the beneficiary. If a beneficiary takes the time to travel to an educational event, it should not be burdensome for the beneficiary to later contact the agent after attending the event. As for the VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222245 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations statement that beneficiaries go to the educational event to meet with agents, CMS also disagrees that this is the only or primary purpose for beneficiaries to attend these events. If a beneficiarys goal is to meet with an agent, he or she can simply call an agent and set up an appointment without going to an educational event. We believe beneficiaries are going to educational events to learn about all parts of Medicare, not just to meet with agents. However, we do not want to unnecessarily burden beneficiaries. Our proposal is to ensure the beneficiary is making the decision to reach out to an agent. Given the comments, we are modifying this proposal to permit BRCs to be made available and received by agents at educational events but are still prohibiting the collection of SOAs at educational events. Comment: One commenter stated that this will create challenges in connecting with beneficiaries. Response: As stated previously, we believe the choice to reach out and potentially meet with an agent should be up to the beneficiary. The proposal, which we are finalizing with some modifications, to prohibit scheduling or setting up personal future marketing appointments and obtaining beneficiary contact information, including SOA forms, will require agents to wait until a beneficiary reaches out to them, which may present challenges for the agent. This change is aimed at protecting and giving the choice to the beneficiary, not at easing the path for agents to more readily reach out to beneficiaries, who may not wish to receive such outreach. After reviewing the comments and for the reasons outlined in the proposed rule and responses to comments, CMS is finalizing the proposed policies with changes that we believe are in the best interest of the program and of beneficiaries. First, we are finalizing changes to  422.2264(c)(1)(ii) and 423.2264(c)(1)(ii) to prohibit the collection of SOAs and prohibit agents from setting up future marketing appointments at educational events. This is accomplished by removing paragraph (c)(1)(ii)(C) from both regulations as proposed and redesignating current paragraph (c)(1)(ii)(D) (permitting the distribution of business cards) as paragraph (c)(1)(ii)(C). Second, we are redesignating current paragraph (c)(1)(ii)(E) as paragraph (c)(1)(ii)(D) and revising it to permit organizations (and their agents) to make available and receive beneficiary contact information, including Business Reply Cards, but not including Scope of Appointment forms. The permission for using BRCs at educational events is similar to how CMS allows plan materials to be located in common areas of a providers office and we intend to interpret and apply the new regulation that way. 10. Prohibiting Sales Events To Directly Follow Educational Events CMS is also concerned about marketing events directly following an educational event. Educational events are meant to provide information on how Medicare works, including material on the options of Original Medicare, Medigap plans, Part C, and Part D, and are not meant to persuade beneficiaries to enroll in a plan. Beneficiaries attending an educational event directly followed by a marketing event may believe that they are being pressured, at the conclusion of the educational event, into staying for the marketing event. For example, an agent may hold an educational event providing free meals and desserts, and