2023-07115.pdf

owned a smartphone. This number has increased to 61% in 2021, an increase of almost 25% in four years.131 Comment: Several commenters stated that in-person conversations are the most effective way to share information, that beneficiaries prefer in-person meetings and in person meetings result in fewer disenrollments, fewer complaints, and higher customer satisfaction. Response: CMS agrees that in-person meetings can be effective for explaining and discussing information about a beneficiarys health needs and various options for Medicare coverage. In addition, we agree that beneficiaries may prefer in person meetings. The changes proposed and being finalized here about when and where a marketing event can take place in relation to an educational event do not prohibit in- person meetings. This revision will prohibit marketing events from being held in the same location within 12 hours of an educational event. We actually strongly support agents meeting with beneficiaries, believing that more information, better communication, and a better understanding may occur in person. We believe if the beneficiary prefers an in-person interaction, he or she will choose to attend the marketing event or will meet with an agent one-on- one. Comment: Lastly, it was noted that beneficiaries should be able to make their own decisions on when to attend events. Response: We agree that beneficiaries should be in control of when and how they meet or engage with MA organizations, Part D sponsors or agents who are trying to market to the beneficiary and sell a particular coverage option (or options) to a beneficiary. We disagree that this provision prohibits beneficiaries from making their own decisions on when to attend events. This provision is not prohibiting attendance at events, rather it is prohibiting when events can occur. If a beneficiary wants to attend both an educational event and a marketing event, they are welcome to attend both. After considering the comments, and for the reasons outlined in the proposed rule and the final rule, we are finalizing these provisions as proposed. 11. Requiring 48 Hours Between the Scope of Appointment (SOA) and a Meeting With a Beneficiary Sections 1851(j)(2)(A) and 1860D 4(l)(2) of the Act require an advance agreement with a prospective enrollee on the scope of the marketing appointment, which must be documented. Our regulations at  422.2264(c)(3)(i) and 423.2264(c)(3)(i) reiterate this requirement, designating this requirement as a Scope of Appointment (SOA). Both the statute and the current regulations require an advance agreement between the beneficiary and the agent. Previously, we interpreted this standard of agreement in advance in our marketing (MCMG) guidance as meaning as 48 hours prior the appointment when practicable. We proposed codifying our previous marketing (MCMG) guidance by prohibiting personal marketing appointments from taking place until after 48 hours have passed since the time the SOA was completed by the beneficiary. However, we did not propose to include when practicable in the proposed regulation because we believe the phrase when practicable nullifies the purpose of the 48-hour timeframe, given the many reasons that might be cited for why waiting the full 48 hours is not practicable, such as the beneficiary living an hour away, the beneficiary wanting to discuss the products immediately following the signing of the SOA, the beneficiary may believe that they are being pressured by the agent to discuss the product immediately, or the beneficiary needs to arrange to have the person that helps them with health care decisions available at the meeting. The reasons for why a meeting must occur within the 48-hour timeframe are numerous and subjective, meaning what is practicable for one person may not be practicable for another, thus we are concerned about our ability to enforce the regulation if we include when practicable in requiring advance agreement at least 48 hours before the meeting. In addition, given todays technology and the fact that we permit SOAs to be completed via telephone, electronically, or in paper form, obtaining a SOA 48 hours prior to the appointment should not present a significant burden for either beneficiaries or the plan representatives and agents that engage in these meetings. Therefore, we proposed to add At least 48 hours before the word Prior to  422.2264(c)(3)(i) and 423.2264(c)(3)(i) to read, At least 48 hours prior to the personal marketing appointment beginning, the MA plan (or agent or broker, as applicable) must agree upon and record the Scope of Appointment with the beneficiary(ies). Comment: We received a significant number of comments on our proposal to require 48 hours between an SOA and a meeting with a beneficiary. About twenty percent of the comments supported this proposal. Response: We appreciate the support; however, based on the reasons discussed this section of this rule, we are modifying the proposal as described in this section. Comment: We received a substantial number of comments opposing our proposal. Some of the commenters stated that that the 48-hour waiting period will have no real positive effect on beneficiaries as there is no need for a waiting period when one takes the substantial step to request a detailed discussion of programs and benefits at a certain time and place, it is detrimental to beneficiaries, and beneficiaries are not required to wait 48 hours for such things as purchasing a car. A commenter stated that CMS lacks authority to require a specific period of time between the SOA agreement and the meeting with a beneficiary because section 1851 of the Act only requires an advance agreement, not agreement a specific time period in advance. Response: We appreciate these comments. We disagree that the Secretary, in promulgating rules and requirements under Section 1851 of the Act, does not have the authority to interpret and define what timeframe may be applied to an advanced agreement. The 48-hour timeframe was a longstanding rule before 2018, both in Subpart V of Part 422 and the MCMG. This proposal was, in effect, a restoration of that requirement. We also disagree that the rule is detrimental for the majority of beneficiaries. We also do not agree that the timeframe will have no real effect. Giving beneficiaries time to consider their options and whether they wish to meet with an agent is often beneficial, providing beneficiaries, especially vulnerable beneficiaries, time to speak with caregivers and others who they may rely upon for help or advice, or just provide the beneficiary additional time to consider their options. CMS, under its delegated authority from the Secretary, is authorized to set limitations and standards for the marketing by plans. Section 1851(h) of the Act requires compliance by plans with fair marketing standards adopted by the Secretary, which must include that plans engage in activities described in section 1851(j)(2) in accordance with the limitations established under that subsection. Section 1851(j)(2)(A) of the Act requires that the Secretary establish certain limitations on marketing activating with respect to at least . . . [the] scope of any VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222248 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations appointment [for marketing a plan] (emphasis added) and the limitations adopted require an advance agreement. The proposal to amend  422.2264(c)(3)(i) and 423.2263(c)(3)(i) to establish how far in advance a SOA must be set is within the scope of CMSs authority as the statute sets forth minimum requirements and authorizes additional limitations as well as standards to implement and interpret the specific limitations set forth in subsection (j)(2)(A). Comment: We received a significant number of comments noting that beneficiaries that contact an agent at the end of the Annual Enrollment Period (AEP) may miss their opportunity to enroll because of the required 48-hour timeframe. A number of commenters were also concerned about the impact of our proposed policy on beneficiaries who may face transportation barriers, or those that travel long distances to meet with an agent. Based on the previously stated reasons, some of these commenters opposed the provision and some requested exceptions. A commenter pointed out that the reasons listed by CMS in the proposed rule for having a meeting sooner than 48 hours after the SOA is set indicated how the 48-hour requirement, especially with no exceptions, would interfere with the real-world planning beneficiaries need to do. Response: We agree with the commenters that for beneficiaries who travel long distances or who have transportation issues, and those that are nearing the end of a valid election period, a shorter period between when the SOA is set and the personal marketing meeting occurs may be appropriate to ensure beneficiaries get the assistance they need. Our proposal was meant to provide an opportunity for beneficiaries to consider their options, but not to inhibit enrollment by beneficiaries who choose to enroll through a particular agent. We did not intend, nor do we want, a beneficiary to miss the opportunity to enroll in a plan because of a required 48-hour waiting period. Based on comments, we are convinced that a categorical prohibition on having a personal meeting less than 48 hours after the SOA is set is too strict and that exceptions are necessary. Therefore, we are finalizing the revisions to  422.2264(c)(3)(i) ad 423.2264(c)(3)(i) with modifications from our proposal to provide two exceptions to the 48-hour requirement. The first exception is for beneficiaries who are approaching the end of a valid enrollment period. This could be the end of the AEP, the OEP, an SEP or the ICEP. For these beneficiaries, we will not apply the 48-hour rule if the SOA is completed during the last four days of the election period. For example, the AEP ends on December 7th of each year so if an SOA is completed on or after December 3rd, the personal marketing appointment can occur during the period between December 3rd and December 7th. If an election period ends on the 31st of the month, the SOA must have been completed no earlier than the 27th of that month. The other exception we will be for walk-ins. Beneficiaries who walk into an agents office, a kiosk, a plans office or any other walk in will not be subject to the 48-hour rule. This exception will assist beneficiaries who have transportation issues and those that have traveled long distances to see an agent. Because this exception is tied to an unscheduled in-person meeting initiated by a beneficiary, we are finalizing an additional change to use the phrase personal marketing appointment or meeting in paragraph (c)(3)(i) of  422.2264 and 423.2264. After review of the comments and for the reasons outlined in the proposed rule and our responses to comments, we are revising  422.2264(c)(3)(i) and 423.2264(c)(3)(i), including the addition of new paragraphs (c)(3)(i)(A) and (B), to require that a plan (or agent or broker, as applicable) agrees upon and records a Scope of Appointment with a beneficiary at least 48 hours prior to a personal marketing appointment or meeting, except in two situations: (A) When a beneficiary requests an appointment within four days of the end of a valid election period, including the AEP, OEP, SEP, ICEP or the month, based on eligibility; and (B) When a beneficiary initiates an in-person meeting. 12. Limiting Scope of Appointments (SOAs) and Business Reply Cards (BRCs) to a Six-Month Timeframe Regulations at  422.2264(c)(3)(iii) and 423.2264(c)(3)(iii) prohibit an MA organization/Part D sponsor, including their agents and brokers and other first tier and downstream entities, from marketing a health care product during a personal marketing appointment beyond the scope agreed upon by the beneficiary. Sections  422.2274(g)(1) and 423.2274(g)(1) require that MA organizations/Part D sponsors ensure TPMOs (which includes agents and brokers) acting on their behalf adhere to any requirements that apply to the plan itself. Therefore, the requirement for noting the scope of a personal marketing appointment (SOA) is applicable to TPMOs. Currently, CMS requires permission by the beneficiary to be granted and completed in the SOA, concerning the products that will be discussed, prior to the marketing discussion. The existing regulations do not stipulate a timeframe in which the beneficiary may be contacted after an SOA is completed or an expiration date after which the SOA is invalid. CMS also is aware that MA organizations, Part D sponsors and TPMOs encourage beneficiaries to fill out business reply cards (BRC) or similar mechanisms so the MA organization/Part D sponsor or TPMO has permission to contact the beneficiary at a later date. BRCs are different from SOAs in that the SOA must list all the products to be discussed at the appointment on the document, while many times the BRC is simply a process for obtaining contact information for a beneficiary (that is, name, phone number, address, email). While SOAs are required by statute to identify the types of products that will be discussed, BRCs are not required to specify the products expected to be discussed. Because BRCs like SOAs, often are open-ended and without expiration, they allow an MA organization, Part D sponsor or TPMO to contact a beneficiary at any point in the future. For example, a beneficiary could fill out a BRC in October of one year and be contacted by the MA organization/ Part D sponsor or TPMO 24 months later, well beyond the timeframe a beneficiary might reasonably expect to be contacted about their plan choices when they first filled out the card. CMS proposed to modify the current regulations at