2023-07115.pdf

costs, or were inappropriately told that their existing coverage would not be affected by enrolling into a new MA or Part D plan. During CMS review of telephonic enrollment audio recordings between beneficiaries and agents, it was clear that some beneficiaries were confused when they were told that their current coverage would be ending. It also was clear that some were misled by the agent and were told that their existing benefits would not change, and others were never informed by the agent that enrollment into an MA or Part D plan would cancel the beneficiarys current coverage. There also were cases where the agent failed to go over the beneficiarys current providers or Part D drugs. In addition, few, if any, of the calls with agents we reviewed included explanations that all of the benefits and cost sharing for the plan could be found in the plans Evidence of Coverage. By requiring the PECL to be reviewed with prospective enrollees as part of telephonic enrollments, we intend to ensure that beneficiaries are better informed about the details surrounding the plan for which they are enrolling. Under this proposal, MA organizations and Part D sponsors would decide whether they would require their contracted agents and brokers to read the PECL in its entirety or to require that each item contained on the PECL be discussed. It is CMSs expectation that the agent ensures the beneficiary understands the items in the PECL. Agents may confirm this understanding by receiving an affirmative answer to whether the prospective enrollee understands the information provided, as well as asking the prospective enrollee if she or he has any questions. CMS believes that an actual review of the PECL elements with prospective enrollees will decrease inaccurate information and misunderstandings, resulting in fewer 1800MEDICARE complaints and higher beneficiary satisfaction. Therefore, CMS proposed to add the reference to Effect on current coverage to  422.2267(e)(4)(viii) and 423.2267(e)(4)(viii) and requiring, in  422.2267(e)(4) and 423.2267(e)(4), that the PECL be reviewed with the prospective enrollee during telephonic enrollments. Comment: We received many comments supporting the addition of effect on current coverage to the PECL and the requirement that agents/brokers discuss the effect on current coverage with the prospective enrollee on telephonic enrollments. Response: We appreciate the support for this proposed change. Comment: Some commenters suggested that CMS provide model language to the PECL to be used when confirming effect on current coverage with potential enrollees. Response: CMS will add language to the PECL that can be used as a basis for the conversation with potential enrollees regarding the effect of an enrollment choice on the potential enrollees current coverage. Please note that the PECL is a standardized material that plans must use as issued by CMS (except for filling in designated blanks) and that the model language added to the PECL could be customized so long as the new regulatory requirement that the contents of the PECL be reviewed with the potential enrollee is met. After considering the comments, and for the reasons outlined in the proposed rule and the final rule, we are finalizing these provisions as proposed. 15. Summary of Benefits (SB) Medical Benefits CMS also proposed a change to  422.2267(e)(5)(ii)(A) to require that the Summary of Benefits (SB) list medical benefits on the top half of the first page and in the order currently listed in  422.2267(e)(5)(ii)(A)(1) through 422.2267(e)(5)(ii)(A)(10). Currently,  422.2267(c)(2) states that model materials, like the SB, must follow CMS order of content when specified. This existing regulation permits CMS to specify the order of content presented in MA required model materials. CMS has already specified the order of information on medical benefits in the SB instructions, mirroring the regulatory list of medical benefits provided at  422.2267(e)(5)(ii)(A)(1) through (10). By requiring all plans to list certain benefits in the same location and in a specified order, beneficiaries will be able to more easily compare benefits across different plans and in a more standardized way. The ability for beneficiaries to review and compare benefits across different MA plans will assist beneficiaries in making a more informed health care choice. Comment: CMS received a number of comments regarding this proposal. All, but one of the commenters supported this proposal. Response: We thank the commenters for their support. Codifying this specific requirement will provide it with more strength, clarity and transparency versus only including it in instructions to the SB model document. Furthermore, we believe it is important to ensure that the substance of the SB begins with the medical benefits contained in  422.2267(e)(5)(ii)(A)(1) through (10). Comment: One commenter did not support the proposal, stating that their organization often provides a cover page or other information prior to listing the benefits. Response: We appreciate that comment, and want to further clarify the changes to  422.2267(e)(5)(ii)(A) that we proposed and are finalizing. As revised in this rule,  422.2267(e)(5)(ii)(A) requires that the information on medical benefits be listed in the top half of the first page of the SB and be in the same order as the information is listed in paragraphs (e)(5)(ii)(A)(1) through (10). This means that the benefits listed in this regulation must be the first set of benefits listed in VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222251 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations an MA plans SB document. Cover pages and other information, provided these do not include benefits, may be above the required medical benefits chart. CMS will provide additional information in our MCMG and/or our SB model material to clarify this. After considering the comments, and for the reasons outlined in the proposed rule and the final rule, we are finalizing this provision as proposed. 16. Non-Renewal Notice We proposed a change to 42 CFR 422.2267(e)(10) and 423.2267(e)(13), which provides that the non-renewal notice is a model communications material through which plans must provide the information required under  422.506 and 423.507, respectively. Per  422.2267(c) and 423.2267(c), model materials and content are those required materials and content created by CMS as an example of how to convey information to beneficiaries. CMS provides model materials in the form of an example document and/or a list of required content. Modifications to model materials, including the non- renewal notice, can be made at the MA organizations/Part D sponsors discretion within certain limits outlined in  422.2267(c) and 423.2267(c). Although our regulations list the non- renewal notice as a model notice, we have always implemented it as a standardized notice; plans are not permitted to make any changes to standardized materials, except where noted. To ensure accuracy and consistency, we proposed to update  422.2267(e)(10) and 423.2267(e)(13) to specify that the non-renewal notice is a standardized communications material so that it is clear these materials must be used without modification except where noted in the standardized material. This is necessary to ensure that the vital information contained in the non-renewal notice about a beneficiarys alternative health care options and the timing for the beneficiary to make an enrollment decision is conveyed in a way that CMS has determined is accurate and understandable. Beneficiaries receiving the non-renewal notice are provided a Special Enrollment Period (SEP) (as per  422.62(b)(1)) with deadlines to make new health plan choices. This notice provides beneficiaries with information about the SEP, as well as information regarding other plans that may be available to them. As a model notice, currently, MA organizations/Part D sponsors can place information about SEPs and other plan options anywhere in the document. As a result, MA organizations/Part D sponsors have the ability to highlight their own plan options, instead of providing equal prominence to all health plan options including those offered by competitor organizations. Our proposal would eliminate that possibility. Comment: We had general support from commenters for this provision, but no specific comments regarding this provision. Response: We thank the commenters for their general support. We are finalizing this provision as proposed. 17. Adding SHIP to the Third Party Marketing Organization (TPMO) TPMO Disclaimer and Disclosing the Names of All Entities the TPMO Represents In the May 2022 final rule, CMS implemented a Third Party Marketing Organization (TPMO) disclaimer at  422.2267(e)(41) and 423.2267(e)(41). The required disclaimer states, We do not offer every plan available in your area. Any information we provide is limited to those plans we do offer in your area. Please contact Medicare.gov or 1800MEDICARE to get information on all of your options. We currently require TPMOs that represent more than one MA or Part D plan in a given service area, but do not represent all plans, to verbally convey the disclaimer within the first minute of a sales call, electronically convey the disclaimer when communicating with a beneficiary via email or online chat, or prominently display the disclaimer on their website, and to include the disclaimer on all marketing materials. We proposed to modify this disclaimer to add State Health Insurance Programs (SHIPs) as a source of information for beneficiaries. We also proposed an additional disclaimer requirement, which would require all TPMOs to list names of the MA organizations or Part D sponsors with which they contract in the applicable service area. Although TPMOs may contract with one or more MA organizations and Part D sponsors, they do not necessarily contract with all available options in a service area. When a beneficiary contacts a TPMO that does not contract with all MA organizations or Part D sponsors in a particular service area, the beneficiary may not know that the TPMO does not sell or represent all of the available options. To ensure beneficiaries in this situation are aware that other enrollment options exist, the disclaimers at  422.2267(e)(41) and 423.2267(e)(41) currently require TPMOs to notify the beneficiary that a complete list of available plans can be obtained from 1800MEDICARE or Medicare.gov. We proposed to add that TPMOs also notify beneficiaries that they may contact their local SHIP for more information on available options because SHIPs are a resource to obtain unbiased information on all available health and drug plan options. We believe adding SHIPs to this disclaimer provides beneficiaries with another important and unbiased resource for assistance. In addition, CMS proposed that TPMOs disclose the names of the MA organizations or Part D sponsors with which they contract when speaking with a beneficiary. This ensures that beneficiaries are aware of all of their choices when communicating with a TPMO. In CMSs review of hundreds of sales, marketing, and enrollment audio calls, CMS found over 80 percent of the calls only discussed one plan option from one MA organization. The audio reviews CMS conducted also showed that agents rarely, if ever, informed the beneficiary that there were multiple plans available in the service area. Although the agent may have researched other plans on behalf of the beneficiary they were assisting, the agent rarely communicated information about those plan options to the beneficiary, and thus the beneficiary may not have known about their other options to make an informed decision about the plan that best meets their needs. CMS proposed to revise the existing TPMO disclaimer at  422.2267(e)(41) and 423.2267(e)(41) to require TPMOs that do not contract with every available MA organization or Part D sponsor in a service area to include a list of the MA organizations or Part D sponsors with which they do contract in the beneficiarys service area. In addition, because the existing TPMO disclaimer at  422.2267(e)(41) and 423.2267(e)(41) does not apply to TPMOs that contract with every MA organization or Part D sponsor in a given service area, CMS also proposed to revise  422.2267(e)(41) and 423.2267(e)(41) to include a new disclaimer for TPMOs that do contract with every MA organization or Part D sponsor in the service area. This new disclaimer would need to be provided within the first minute of the call, the same as what is required for TPMOs that do not contract with MA organization or Part D sponsor in a service area. As with the existing TPMO disclaimer, this new disclaimer would need to be electronically conveyed when communicating with a beneficiary through email, online chat, or other electronic means, prominently displayed on the TPMOs website, and included in any TPMO marketing VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222252 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations materials, including print materials and television advertising. The first disclaimer, proposed for TPMOs that do not sell for all MA organizations or Part D sponsors in a service area, would read, We do not offer every plan available in your area. Any information we provide is limited to those plans we do