2023-07115.pdf

potential that the data has changed. Based on this, we proposed to modify paragraphs  422.2262(a)(1)(ii) and 423.2262(a)(1)(ii) to prohibit the use of superlatives, unless sources of documentation and/or data supportive of the superlative is also referenced in the material, and to provide that such supportive documentation and/or data must reflect data, reports, studies, or other documentation that has been published in either the current contract year or the prior contract year. Comment: CMS received numerous comments supporting the requirement to use current year or previous year data. Response: CMS thanks those supporting our proposal. Requiring that a superlative statement be based on data about current or recent circumstances will ensure that beneficiaries can make decisions informed by accurate information that best reflects the plan options at the time the beneficiary is choosing among MA and Part D plans. Comment: One commenter noted that the proposed regulation text stated published documentation. This commenter recommended replacing published documentation with documentation that is applicable, stating that published documentation could be based on significantly older data. Response: We thank that commenter for identifying the potential issue and providing a recommended solution. We agree that more precise language is necessary. It may be possible for a study published in 2023 to be based on data from 2018 and using that information would not be consistent with our goals and intent for this rule. Ensuring that superlative statements, which lack nuance, are supported by current and relevant data is at the heart of our goal for the proposed revision to  422.2262(a)(1)(ii) and 423.2262(a)(1)(ii). We are finalizing the proposed change with modifications from our proposal, including using the phrase that applies to instead of has been published. Information applying to the current or prior contract year means information that is about, from or based on the current or prior contract year. Comment: One commenter partially supported the proposal, stating that their support was contingent on permitting citations to be used as the documentation. Response: As proposed, the amendments to paragraphs (a)(1)(ii) required sources of documentation or data supportive when using superlatives. CMS considers footnotes explaining the basis, noting the source (with enough information for a beneficiary to locate), or providing the actual comparison sufficient documentation. Therefore, a citation referring the reader to the actual documentation, with a link to the documentation, to be a source of documentation, would be acceptable. Comment: CMS received one comment opposing the two-year limit on using data for the superlative. The commenter stated that plans may want to advertise a long-standing positive performance. Response: CMS understands the concerns and agrees with the commenter that advertisements describing long-standing positive performance should not be prohibited by the two-year data requirement. It was not our intent to prohibit advertising an organizations long-standing positive performance, but rather to ensure that the performance advertised is about the current or previous contract year. If an organization has maintained the high performance for the current and previous contract year, as well as years prior, CMS will permit the advertising of the past two years worth of data. For example, if an organizations contract has received five Stars (CMS Star ratings) for the past five consecutive years, the organization may advertise that they have received five Stars since X date. However, if the organization received a four Star rating in the previous contract year, the organization would not be able to advertise that they VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222239 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations 129https://www.cms.gov/Medicare/Health-Plans/ ManagedCareMarketing/Downloads/2016- Medicare-Marketing-Guidelines-Updated.pdf. 130CMS has retained the recordings of these calls. The calls include sensitive information, and as such, we believe it would be inappropriate and illegal to include them as part of this public record. received a five Star rating since X date or in Y years out of the past five years. After consideration of the comments we received and for the reasons outlined in the proposed rule and our responses to the comments, we are finalizing the proposal with two minor modifications. First, we are finalizing the regulatory revision using language that more clearly requires supporting documentation or data to be about, from or based on the current or prior contract year, instead of requiring the data to have been published in the current or prior year. Second, we are finalizing an additional paragraph to both  422.2262(a)(1)(ii)(A) and 423.2262(a)(1)(ii)(A) to clarify that the inclusion of older data (that is data that is not about, from or based on the current or prior contract year) in the documentation and data included in the communication or marketing material to support the superlative. 4. Prohibition on Advertising Benefits Not Available in a Service Area In  422.2263(b) and 423.2263(b), we proposed adding a new (8) which prohibits organizations from advertising benefits not available in a service area, unless doing so is unavoidable in a local market. This prohibition is codifying our previous guidance outlined in section 30.1 of the 2016 Medicare Marketing Guidelines (MMG),129 providing that marketing activities should be limited to a plans service area unless doing so was unavoidable, such as advertising in a local newspaper that may be distributed outside a service area. In cases where marketing outside a service area was unavoidable, CMSs guidance provided that the plans service area be disclosed. Over the past few years, CMS has seen a significant increase in national marketing which promotes benefits such as dental, vision, and money back on a beneficiarys Social Security check. While many of these benefits are available to a large number of beneficiaries, they are not available in all service areas, or to all Medicare beneficiaries in the amounts often advertised. For example, in 2021 there were national advertisements that claimed a beneficiary could get up to $144 back on their Social Security check, which would be accomplished through a reduction in the beneficiarys Medicare Part B premium. A premium reduction of this magnitude would have covered most of the standard 2021 Part B premium of $148.50. However, during CYs 2021 and 2022, the only states or territories that had plans with a reduction of $140 or more were California, Florida, and Puerto Rico. Further, the plans offering the $140 or more premium reduction were not available in all counties in those locations. Since beneficiaries in more than 60 percent of states only had access to plans that offer a Part B premium reduction of $99.00 or less in CY 2022, advertising on a national or even a regional level that a beneficiary can get up toor even close tothe full amount is potentially misleading. And although MA plans in over 30 percent of states and territories offered a Part B premium reduction of $100 or more in CY 2022, those plans were not available in all counties in those locations. These national advertisements publicize that a beneficiary can get up to a certain dollar amount (for example, $144) even if there are no plans available in the state or location where the advertisement runs that offer any dollar amount close to $144. CMS believes that if a plan offering up to the top dollar amount is advertised as available for enrollment, then such a plan should be available to beneficiaries who are receiving or exposed to the advertisement where they reside. A beneficiary calling, based on an advertisement touting up to $144 back, would expect that plans would be available that provide a reasonable Part B premium reduction. However, the actual reduction available for many beneficiaries in various locations may be minimal, anywhere from $1 to $25, significantly below the up to advertised amount; or in other cases, there may not even be a Part B premium reduction in that particular service area. We believe this practice is a misleading tactic to entice beneficiaries to call the number and potentially enroll or switch them into another plan, regardless of whether the plan offers any Part B premium reduction or a reduction of the scope that is advertised, resulting in a plan choice that may not be well-suited to meet the beneficiarys health care needs. A similar issue exists for other MA benefits such as dental, vision, and hearing, as well as Part D benefits, non- formulary medications, and over-the- counter medications. In the past, national advertisements have promoted plans with high dollar amounts for certain benefits, for example, a $2,500 dental benefit on a national level. While many beneficiaries have access to MA plans with some level of additional dental, vision, and hearing benefits, CMS believes advertising that high dollar amount is misleading when some markets may not have access to a plan with any dental benefit, while others may only have access to a plan with limited dental benefits (for example, $500). Based on CMS marketing surveillance of recorded calls,130CMS has learned that once the beneficiary places a call to the advertised number, the agent often markets an MA or MA PD plan that offers a premium reduction at a much lower level than the advertised dollar value or that does not provide a Part B premium reduction at all, or a plan with more limited dental, hearing, or vision than was advertised. Once the agent or broker has the beneficiary on the line, the beneficiary is put in a position of trying to end the call or listening to an agent sell a plan in which he or she was not interested, potentially resulting in the individual enrolling in a plan that does not offer the advertised benefits. Because of the initial call, which was based on unavailable benefits, the beneficiary may end up enrolling in a plan that does not best meet the individuals health care needs. In this situation, the beneficiary may have benefited by staying in the individuals existing plan, and may have stayed in that plan, if not for the advertisement urging the beneficiary to call to get the money they deserve. When a plan advertises benefits that are not available to beneficiaries in the service area where the advertisement airs, that type of marketing is misleading. Therefore, we proposed a new paragraph (8) at  422.2263(b) and 423.2263(b) that provides that MA organizations and Part D sponsors may not engage in marketing that advertises benefits that are not available to beneficiaries in the service area where the marketing appears, unless unavoidable in a local market. Comment: CMS received numerous comments supporting this proposal. Response: We thank the commenters for their support. Comment: Some commenters requested clarification on what unavoidable means in the context of this proposed new rule. Response: CMS thanks the commenters for requesting clarification on the term unavoidable. As proposed and finalized,  422.2263(b)(8) and 423.2263(b)(8) permits advertising benefits that are not available to all potential Medicare beneficiaries viewing the advertisement if it is VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222240 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations unavoidable in the local market. We discuss examples here of permissible exceptions and will provide examples and additional assistance in our Medicare Communication and Marketing Guidelines. One example of unavoidable marketing would be a newspaper advertisement in a metropolitan area which is distributed to beneficiaries that live within the metropolitan area, but the beneficiaries do not live within the service area of the plan for which the particular benefits are being marketed. For example, an MA organization advertises dental benefits up to $3,000 in a Washington, DC newspaper. This benefit is only applicable to the plans being sold by the MA organization in Washington, DC. However, the local distribution of this newspaper encompasses Washington, DC, parts of Maryland, and parts of Virginia. In this case, the marketing of benefits that are not available to the full scope is unavoidable since the normal distribution of the local newspaper is greater than the service area of 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