2023-07115.pdf

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 TPMO provides the marketing material to organizations and updates the material appropriately based on comments, the TPMOs material should be opted-in by the organizations, eliminating the need for the piece to be pulled. After review of the comments received and for the reasons outlined in the proposed rule and our responses to the comments, we are finalizing as proposed with minor modifications to paragraphs (9)(ii) and (iii) to require the marketing names to be read or displayed at the same pace or in the same font as the phone number or contact information included in the advertisement. 6. Prohibit the Marketing of Savings Not Realized We proposed to add a new paragraph (10) to  422.2263(b) and 423.2263(b) to address the marketing of savings for beneficiaries. As part of our marketing surveillance and reviews, CMS has seen advertisements touting that a beneficiary can save $9,000 or more on their prescription drugs, or over $7,000 in health care expenses, if they join a particular Part D plan or MA plan. In the example referring to savings for prescription drugs, advertisements included a small disclaimer stating that the savings figure is based on the usual and customary price that someone without prescription drug insurance would pay. In other examples, MA organizations, Part D sponsors, or TPMOs have marketed dual eligible special needs plans (DSNPs) that provide a savings of over $7,000. In this instance, the savings described in the advertisement refers to the Part B Medicare premium and cost sharing amounts that are covered by Medicaid for full-benefit dually eligible beneficiaries, or are the costs saved through a prescription drug savings program, in which the eligibility for the program is based on income. However, with both of these examples, most beneficiaries are not saving the advertised amount of money because they would never have incurred many of those out-of-pocket expenses. Specifically, a beneficiary who already has prescription drug coverage (such as a current Part D plan or other creditable prescription coverage from before the individual became eligible for Medicare) would not save $9,000 in out-of-pocket costs by switching to the advertised plan because they already had coverage for their drugs through a different plan. This advertised savings is only applicable if the beneficiary currently had no drug coverage, meaning they had to pay the retail cost for all of their drugs out-of-pocket. In the case of significant savings on Part C benefits, some of these advertised savings required dual eligibility, but only included information about this requirement in fine print stating that the individual may need to be income eligible or Medicare and Medicaid eligible in order to receive the advertised savings. However, since dually eligible beneficiaries already have Medicaid coverage or may already be enrolled in a DSNP, those individuals would not be saving the full $7,000, because they never paid the full $7,000 in their previous or current plan. Further, if the beneficiary is eligible for Medicaid to pay certain costs on the beneficiarys behalf (such as payment of Part B premiums) or is protected from paying cost sharing by  422.504(g)(1)(iii), the advertised savings are not specific to the advertised plan because the same savings would accrue if the individual enrolled in any available DSNP. We believe that these commercials and other types of advertising (for example, direct mailers) using these techniques and descriptions of savings are used to entice a beneficiary into calling a 1800 number to get information about or enroll in plan X, mistakenly believing that the beneficiary will save thousands of dollars by switching plans, switching from original Medicare, or enrolling into plan X as a new Medicare beneficiary. However, as identified in the previous examples, these savings are not actual savings since the beneficiary would not have incurred these costs in any case. To address these concerns, we proposed to add a new paragraph (b)(10) at  422.2263 and 423.2263 to prohibit MA organizations and Part D sponsors from including information about savings available to potential enrollees that are based on a comparison of typical expenses borne by uninsured individuals, unpaid costs of dually eligible beneficiaries, or other unrealized costs of a Medicare beneficiary. Comment: Many commenters supported this proposed change agreeing that the change would reduce the potential for misinformation. Response: We appreciate the support from these commenters. Comment: A commenter stated that CMS should not prohibit advertising savings associated with enrolling in Part D coverage. The commenter suggested that CMS instead require appropriate disclaimers where such savings are discussed. Response: The commenter may have misunderstood CMSs proposed change. CMS did not propose to prohibit all advertising of savings on Part D costs that would come from an enrollment change. Similarly, the proposal would not prohibit MA plans from marketing cost savings associated with a specific plans coverage of Part A, Part B or supplemental benefits. As proposed and finalized, the amendment to add new paragraph (b)(10) to  422.2263 and 423.2263 specifically prohibits advertising savings that are based on a comparison of typical expenses borne by uninsured individuals, unpaid costs of dually eligible beneficiaries, or other unrealized costs of a Medicare beneficiary. Advertisements based on comparisons to specific costs that a Medicare beneficiary would or could facesuch as accurate comparisons of plan copayments for specific services to original Medicare cost sharing for the same services, are permissible, subject to our marketing rules. CMS believes it is better to prohibit misleading language in advertising rather than requiring a disclaimer on the advertising indicating how the language is misleading. After review of the comments received, particularly the extensive support for the proposed change and for the reasons outlined in the proposed rule and our responses to the comments, CMS is finalizing the revision to add a new (10) to  422.2263(b) and 423.2263(b) as proposed. 7. Clarify Door to Door Solicitation We proposed adding a new paragraph (A) to  422.2264(a)(2)(i) and 423.2264(a)(2)(i) to add to the current prohibition of unsolicited door-to-door solicitation. Business Reply Cards (BRC) and other types of documents where the beneficiary requests additional information are intended to allow the agent to reach out to the beneficiary via telephone, email, or direct mail. We do not believe a beneficiary filling out a BRC indicates a beneficiarys intention to permit an agent to show up unannounced, at the individuals home, requesting to market MA or Part D plans to that beneficiary. CMS considers this activity to be unsolicited door-to-door solicitation. Therefore, we proposed adding a new (A) to  422.2264(a)(2)(i) and 423.2264(a)(2)(i) which provides that contacting a beneficiary at the individuals home is unsolicited door- to-door contact unless an appointment at the beneficiarys home at the applicable date and time was previously scheduled. VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222243 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations Comment: Many commenters supported this proposed change. There were no comments directly opposing this proposed change. Response: We appreciate the support for this proposed change. Upon reflection during the comment period, we believe that the regulation text would be clearer without the phrase considered to be, because our position is that the BRC is not an agreement to an unscheduled, in-person meeting initiated by an agent or other individual arriving at a beneficiarys home. Therefore, such contact is unsolicited. After considering the strong support for this proposed change and for the reasons outlined in the proposed rule and our response to comments, we are finalizing the changes to add a new paragraph (A) to  422.2264(a)(2)(i) and 423.2264(a)(2)(i) largely as proposed but without the phrase considered to be. 8. Requirement for an Annual Opt-Out for Plan Business Currently, regulations at  422.2264(b) and 423.2264(b) permit MA organizations and Part D sponsors to contact existing members, and to a limited extent, former members, to discuss plan business. In  422.2264(b) and 423.2264(b), we define plan business to include calling current members to discuss Medicare products. In addition, in  422.2264(b)(2) and 423.2264(b)(2), we currently require that MA organization and Part D sponsors provide beneficiaries an opportunity to opt out of being contacted concerning plan business. However, we have interpreted and implemented this regulation as requiring MA organizations and Part D sponsors to present enrollees with a one-time opt- out opportunity, regardless of how many subsequent contacts an enrollee receives. Therefore, we proposed to amend  422.2264(b)(2) and 423.2264(b)(2) to require each MA organization and Part D sponsor to provide the opt-out information to all its enrollees, regardless of plan intention to contact, at least annually in writing, instead of just one time. Over time, beneficiaries may realize that having plans contact them regarding marketing is not necessary. By only receiving only a one-time opportunity to opt-out of plan business contacts, a beneficiary may not realize that they have the option to opt out at any time. By requiring a written annual notification from plans that an enrollee may opt-out of plan business contacts, our proposed new requirement ensures beneficiaries are reminded that they may decide at any time to opt out of being contacted by their MA organization/Part D sponsor about plan business. Under the proposal, we defer to plans on how best to communicate this, so long as it is in writing, as we believe that plans are in the best position to develop appropriate language based on the plan business they conduct. In addition, we are not proposing the specific written format that plans must utilize when communicating this information during the year, nor specifying when the plan must provide this information during each contract year. MA organizations/Part D sponsors may provide this opt-out notification as a single letter, in a welcome packet, or another method of written communication. Under this proposal, as with the current regulation, the enrollees decision to opt out of contacts for purposes of plan business will remain in effect until an enrollee chooses to opt in. We solicited comments on whether CMS should expand the existing and proposed notice requirements in some way to ensure that MA organizations and Part D sponsors do not market their products in a way that could be equivalent to prohibited cold calling. Comment: We received numerous comments supporting this proposal. Many commenters stated that receiving calls about other lines of business is akin to unsolicited contact, and makes it harder for beneficiaries to distinguish between important plan information and marketing. A commenter was concerned if our change in requirements would prohibit organizations from contacting beneficiaries about their existing plan coverage. Response: 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