2023-07115.pdf

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 offer in your area which are plans offered by [insert list of MA organizations here]. Please contact Medicare.gov, 1800MEDICARE, or your local State Health Insurance Program to get information on all of your options. The second disclaimer, proposed for those TPMOs that sell for all MA organizations or Part D sponsors in a service area, would read, We offer the following plans in your area [insert list of MA organizations]. You can always contact Medicare.gov, 1800 MEDICARE, or your local State Health Insurance Program (SHIP) for help with plan choices. We received comments on this proposal and respond to them as follows: Comment: We received a number of comments regarding the addition of SHIP to the TPMO disclaimer. Most of these comments supported this addition. Response: We thank the commenters who supported the addition of SHIP to the TPMO disclaimer. We continue to believe that beneficiaries should be notified of the availability of their local SHIP as a resource for assistance. Comment: Some of the commenters opposed adding SHIPs to the TPMO disclaimer. The comments focused on SHIPs having limited budgets, SHIPs not being trained as well as agents, and beneficiaries enrolling through SHIPs can be harmful. One commenter stated that they had to clean up information provided by SHIPs, SHIPs dont face the same level of repercussions as agents, and stated that they did not want to give their business to SHIPs. Response: We appreciate the comments. We understand budget constraints may limit the constraints of some SHIPs. However, adding SHIPs to the disclaimer ensures that beneficiaries are notified about another neutral party to whom they can direct questions and receive guidance regarding their health care choices. As for SHIP counselor knowledge, we trust that counselors are ensuring they have up to date information. SHIPs receive a significant amount of training and are subject to monitoring by the HHS Administration for Community Living (ACL) to ensure that they have access to information prepared or reviewed by CMS. Furthermore, ACL requires SHIPs to attend federal training sessions and to provide extensive training to staff who provide information, assistance and counseling to beneficiaries; ACL, both directly and through its technical assistance consultant contractor, reviews training materials used by the SHIPs. Therefore, we believe SHIPs, as well as 1800-Medicare, are important sources for beneficiaries to receive unbiased information regarding all of their choices. Comment: CMS received numerous comments regarding the requirement of TPMOs to mention all of the organizations they represent in the TPMO disclaimer that is required to be read within the first minute of a call. Many of these commenters supported this requirement. Response: We thank the commenters for supporting this proposal. Comment: CMS received a number of comments opposing the proposal to require plan names be included within the TPMO disclaimer. Commenters stated the disclaimer would be long, given the average number of plans offered was 39 in Contract Year 2022, while one county had 82 plans offered. Reading so many plan names would likely confuse, distract, or result in the beneficiary failing to pay attention to the agent. A few commenters suggested that TPMOs may decrease the number of plans they sell for in order to meet the disclaimer requirement, resulting in less choices for beneficiaries, especially smaller plans since TMPOs would most likely contract only with larger organizations. Commenters also stated that adding to the disclaimer would result in their inability to read the disclaimer in its entirety within the first minute of the call. Response: We appreciate the comments and understand the effects of listing all plan names in the disclaimer. Including this information in the disclaimer is intended to ensure the beneficiary is aware of the individuals options and understands the scope of plans represented by a TPMO (including an agent). Because CMSs review of audio recordings during our surveillance activities identified that beneficiaries are generally told of one only plan, even if the agent represents multiple plans, we are concerned that beneficiaries do not have the information available to knowingly select the best plan option for them. Our goal is for the beneficiary to know and understand that the individual has choices. The full scope of potential plan options outlined in the comments reinforces our belief that beneficiaries should be notified of what is available. However, we agree that providing extensive information or reading a long list to a beneficiary is not likely to achieve the goals we have for the proposed amendments to the disclaimer about other plan options. Therefore, we are not finalizing a requirement for TPMOs to list all of the sponsoring organizations (or MA and Part D plans) represented by the TPMO; instead we are finalizing revisions to the disclaimer required by  422.2267(e)(41) and 423.2267(e)(41) that require the TPMO to identify only the number of organizations and the total number of products available to the beneficiary where they reside. For example, if TPMO A represents ten organizations, three of which have a service area that includes beneficiary Bs residence and those three organizations have a total of eight products (HMO, DSNP, PPO, etc.) available, the TPMO will be required to tell the beneficiary that information as part of the standardized disclaimer that we are finalizing. Comment: A couple of commenters suggested CMS review more data prior to making changes to the disclaimer. One commenter suggested holding a focus group with beneficiaries to gather information on their experiences with TPMOs while another suggested CMS review complaint data to determine if CMS previous changes have had any impact. Response: CMS appreciates these comments. We have and will continue to monitor complaints for trends and will consider focus groups to assist with marketing concerns. As discussed in the proposed rule, we developed our proposal based on our review of hundreds of sales, marketing, and enrollment audio calls over the past year. CMS found over 80% of the calls only discussed one plan option from one MA organization. In the calls that we reviewed, agents rarely informed the beneficiary that there were multiple plans available where the beneficiary resided. We believe that this information is adequate to conclude that a requirement for TPMOs to provide additional information is appropriate. Comment: One commenter who opposed adding the names to the disclaimer suggested a slight modification to the existing disclaimer. This commenter stated that the correct terminology for TPMOs would be represents rather than sells for plan. Response: We appreciate that comment and will modify the language for clarity purposes. After consideration of the comments received and for the reasons outlined in the proposed rule and this final rule, we are finalizing the first disclaimer as proposed by adding the addition of VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00134 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222253 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations SHIP to the disclaimer. We are also modifying the current disclaimer. If a TPMO does not sell for all MA organizations and/or Part D sponsors in the service area the disclaimer consists of the statement: We do not offer every plan available in your area. Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. Please contact Medicare.gov, 1800MEDICARE, or your local State Health Insurance Program (SHIP) to get information on all of your options. If the TPMO sells for all MA organizations and/or Part D sponsors in the service area the disclaimer consists of the statement: Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. You can always contact Medicare.gov, 1800MEDICARE, or your local State Health Insurance Program (SHIP) for help with plan choices. 18. Comprehensive Medication Review and Safe Disposal We proposed a technical change to  423.2267(e) to add new paragraphs (e)(43) and (e)(44), to include the comprehensive medication review (CMR) written summary which, in accordance with  423.153(d)(1)(vii)(B) and (D), Part D sponsors must provide to all MTM program enrollees who receive a CMR, as well as the safe disposal information that, in accordance with  423.153(d)(1)(vii)(E), Part D sponsors must provide to all plan enrollees targeted for MTM. We received no comments on this proposed technical change and, for the reasons outlined in the proposed rule, we are finalizing the addition of new paragraphs  423.2267(e)(43) and (e)(44) as proposed. 19. Requiring MA Organizations and Part D Sponsors Have a Monitoring and Oversight Plan and Report Agent Non- Compliance to CMS Based on our review of beneficiary complaints and audio calls between agents and beneficiaries, we are concerned about the level of oversight that MA organizations and Part D sponsors maintain over their contracted agents and brokers. In our review of complaints and our discussions with MA organizations and Part D sponsors, we have determined that MA organizations and Part D sponsors appear to be reactive instead of proactive in addressing inappropriate agent and broker behavior. CMS has received complaints through 1800 MEDICARE as well as other CMS staff. Once a complaint is received, the complaint is shared with the applicable MA organization or Part D sponsor to review, investigate, and take appropriate action. However, this method of oversight is reactive, and requires organizations and sponsors to respond to issues that CMS is already aware of. As a result, we are concerned that inappropriate behavior by agents and brokers is not being sufficiently curtailed and corrected by MA organizations and Part D sponsors. In  422.2272 and 423.2272, we proposed requiring sponsoring organizations have an agent and broker monitoring and oversight plan that ensures agents and brokers are adhering to CMS requirements and that the MA organization or Part D sponsor is actively monitoring and reporting those agents and brokers to CMS who are not compliant with CMS requirements. We believe a thorough oversight and monitoring plan will assist in identifying and stopping poor performing agents and brokers more quickly, whether they are independent, captive, or employed agents or brokers. To that end, CMS requires MA organizations and Part D sponsors to oversee the agents and brokers with whom they contract ( 422.2274(c) and 423.2274(c)). At a minimum, a proper oversight program would include the review of internal grievances and 1 800MEDICARE complaints, reviewing a random samplings of past audio sales/ marketing/enrollment calls, listening to sales/marketing/enrollment calls in real- time, secretly shopping in-person education and sales events, and secretly shopping web-based education and sales events. These types of activities would improve the plans overall marketing and sales activities. MA organizations and Part D sponsors should be able to identify areas where agents and brokers have not been adequately trained, agents and brokers who may not fully understand the product offerings they sell, and agents and brokers who improperly market to beneficiaries. MA organizations and Part D sponsors can then quickly act, with such activities as tailored training or disciplinary measures, based on the specific issues for each agent or broker. We also proposed that MA organizations and Part D sponsors be required to report specific agent or broker non- compliance to CMS. Such oversight and monitoring plans would assist plans and sponsors in gauging the scope of marketing issues, and help plans and sponsors in developing methods to stop inappropriate agent and broker activity. Therefore, we proposed to add a new paragraph (e) to  422.2272 and 423.2272 to read, Establish and implement an oversight plan that monitors agent and broker activities, identifies non-compliance with CMS requirements, and reports non- compliance to CMS. Comment: CMS received many comments regarding the proposal to require an oversight plan that monitors agents and brokers, identifies non- compliance, and reports non- compliance to CMS. Almost all of the commenters supported this proposal. However, a number of commenters did request clarification on what non- compliance needs to be reported to CMS. Suggestions included egregious issues and repeated issues. Response: CMS appreciates the support. We agree that additional information on what non-compliance needs to be reported is warranted. We are not expecting organizations to report minor, insignificant issues such as failing to go over one element in a required list of 18 elements. However, if an agent continually fails to address a significant number of elements, especially after being notified of issues, or the agents conduct could have beneficiary impact (for example, potential beneficiary harm), the regulation we proposed and are finalizing requires plans to report that particular