2023-07115.pdf

from setting up future marketing appointments at educational events. This is accomplished by removing paragraph (c)(1)(ii)(C) from both regulations as proposed and redesignating current paragraph (c)(1)(ii)(D) (permitting the distribution of business cards) as paragraph (c)(1)(ii)(C). Second, we are redesignating current paragraph (c)(1)(ii)(E) as paragraph (c)(1)(ii)(D) and revising it to permit organizations (and their agents) to make available and receive beneficiary contact information, including Business Reply Cards, but not including Scope of Appointment forms. The permission for using BRCs at educational events is similar to how CMS allows plan materials to be located in common areas of a providers office and we intend to interpret and apply the new regulation that way. 10. Prohibiting Sales Events To Directly Follow Educational Events CMS is also concerned about marketing events directly following an educational event. Educational events are meant to provide information on how Medicare works, including material on the options of Original Medicare, Medigap plans, Part C, and Part D, and are not meant to persuade beneficiaries to enroll in a plan. Beneficiaries attending an educational event directly followed by a marketing event may believe that they are being pressured, at the conclusion of the educational event, into staying for the marketing event. For example, an agent may hold an educational event providing free meals and desserts, and then directly follow that educational event with a marketing event. Beneficiaries may believe that they are being pressured into staying for the marketing event because of the free meal they received at the preceding educational event. Although our current regulations require there be an opportunity for a beneficiary to leave the educational event prior to the start of the marketing event, we do not regulate how much time must elapse between an educational and a marketing event, nor do we prescribe what the agent can or cannot say at the educational event about the marketing event that will follow. Beneficiaries may believe that there is an obligation to stay for a variety of reasons, including not having enough time to gather their belongings or feeling awkward leaving when others are staying. The belief of an obligation may add pressure for a beneficiary to stay and possibly enroll in an MA or Part D plan, even though they only came to the event to be educated about Medicare and the options available to them. Furthermore, attending a marketing event right after an educational event may raise the risk of beneficiaries being confused that the benefits of an MA or Part D plan in general are actually unique to the specific plan options that are being marketed. For example, a factual and impartial statement like, It is important to consider your out-of-pocket costs and which drugs you take when deciding on your enrollment options in the educational event could be followed up in the marketing event that uses the same phrasing and terms in describing a specific plans benefits. The beneficiary might conflate these issues if the educational and marketing meetings are held so close in time. For example, the beneficiary may believe that the plan being touted at the marketing event is the best, or even only plan available, taking into account the individuals costs and drug needs. In the past, CMS permitted marketing events to immediately follow educational events because at the time we were concerned if these events were separated by time and location, beneficiaries might have to travel to separate educational and marketing events at different times, and potentially different locations. Over the past few years, CMS has witnessed a significant increase in the use of technology replacing the need for individuals to physically travel to locations to attend educational or marketing events and receive information. The COVID19 pandemic resulted in fewer face-to-face communications and more technology- based marketing, such as Zoom calls and live education events on the internet and has lessened travel to physical locations. The use of technology may have in these instances provided more options for some beneficiaries to be educated about Medicare. We note that because of the policy to require MA organizations to evaluate the need for and provide digital literacy education to their enrollees addressed elsewhere in this rule, we expect digital literacy among enrollees to improve as well. As a result, we believe that the need for sales events to immediately follow educational events because of travel considerations has become less critical. By separating educational events from marketing events, beneficiaries are afforded the time to consider all their questions and options before making any decisions about their health care and without any pressure to decide on the spot with the agent present. By mandating a specific time between an educational event and a marketing event, CMS believes it is allowing beneficiaries needed time to carefully consider their health care coverage options and whether or not they want to reach out to the agent and learn more about the particular plan(s) the agent is selling. CMS believes this proposal to separate marketing from educational events will alleviate the pressure a beneficiary may believe that they are being pressured to stay for a marketing event after an educational event, and will protect beneficiaries from potential undue pressures to enroll in a plan that does not best meet their health care needs. Based on this, we proposed to prohibit marketing events from taking place within 12 hours of an educational event in the same location. We proposed VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222246 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations changes to  422.2264(c)(2)(i) and 423.2264(c)(2)(i) to read, Marketing events are prohibited from taking place within 12 (twelve) hours of an educational event, in the same location. The same location is defined as the entire building or adjacent buildings. We believe a 12-hour window is important to ensure beneficiaries are not pressured into attending a marketing event. This will usually give beneficiaries until the next calendar day, providing sufficient time to consider the impartial and factual information provided at the educational event. We are concerned that a short window, such as 1015 minutes, will not provide beneficiaries with enough time to finish conversations, pack their belongings, and leave the facility prior to the marketing event starting. If a beneficiary is unable to leave during the break, we are concerned that the beneficiary may be guided to the sales event or pressured into attending by being told the event wont last long or that there will be no pressure to join, or will otherwise believe that is an obligation to go to the sales event. CMS believes the best way to protect beneficiaries from being pressured into attendance would be for the sales event to be at a different time, with a sufficient amount of time between the two events. We also believe it is necessary to limit this new requirement to when the marketing event is in the same location as the educational event. This ensures that an agent or broker can hold a marketing event the same day as an educational event, provided the marketing event is in a different location. If an agent wishes to have a sales event three miles from an educational event, we do not want to limit the ability of the agent or broker to do so. Therefore, we proposed to revise paragraph (c)(2)(1)(1) of  422.2264 and 423.2264 to prohibit marketing events from taking place within 12 hours of an educational event, at the same location. Comment: We received numerous comments supporting the proposal to clearly separate educational events from marketing events. Some of these commenters specifically addressed the need for prospective enrollees to clearly recognize the different purposes of each event, and a time gap or venue change, along with the accompanying lack of pressure to immediately attend a marketing event, would help with that goal. A few commenters reiterated that educational events should only be for education and not for lead generation. Response: We appreciate the support and agree that educational events should only be educational in nature and not for lead generation purposes. Comment: Approximately half of the comments we received opposed this provision. We received a number of comments stating that agents are not hurting seniors, comments that this proposal will result in friction for beneficiaries, comments that this requirement will not add any additional protection, comments that the proposal will degrade the consumer experience, and comments that the proposed solution is both heavy handed and unworkable. Response: We acknowledge that some commenters generally oppose this proposal. However, these commenters did not provide CMS with evidence indicating that reduction in marketing event attendance will likely occur if this proposal is implemented, or occurred when our prior guidance in place before 2018 prohibited marketing events from directly following educational events. With the increase of online events and other tools for TPMOs to inform and market plans to prospective enrollees, we believe that those prospective enrollees that attend in-person sessions will be sufficiently motivated to either leave a completed BRC with agents at educational events, or move to another venue or return to a marketing event in the same location soon thereafter. Comment: A few commenters stated that educational events would not be held, resulting in beneficiaries being less informed overall and increasing the likelihood of a beneficiary enrolling in a plan that does not meet their help care needs. Response: We appreciate the concern about the decrease in educational events. However, we disagree that beneficiaries will not receive sufficient detail on their options. Plans and agents can incorporate sufficient information about Traditional Medicare, Parts C and D, as well as Medigap options during their marketing presentations. CMS does not prohibit educational information being presented at marketing events but marketing events are (or should be) accurately identified as marketing, so that beneficiaries can make informed decisions about whether to attend and to understand the goal of such events from the presenters: to sell the beneficiary something. Educational events must remain as advertised and as permitted by  422.2264 and 422.2263; they must be designed to generally inform beneficiaries about Medicare, including Medicare Advantage, Prescription Drug programs, or any other Medicare program. The goals of the marketing and communications regulations are undermined when there is not a clear distinction between an educational event and a marketing event, particularly when they are held in the same location on the same day. Section 1851(j)(1)(D) of the Act directs that sales and marketing are prohibited from occurring at educational events; ensuring that these different types of events remain separate is part of CMSs responsibilities and obligations under the Medicare statute. Comment: Several commenters opposed this provision stating that transportation issues, especially for dually eligible beneficiaries, make this challenging. These commenters suggested that dually eligible individuals frequently lack access to transportation, making it critical to have access to information and resources in just one interaction. Some expressed health equity concerns based on those with transportation issues having to go to separate locations to attend an educational event and a marketing event. Response: We appreciate the concern regarding transportation, especially for beneficiaries that are low-income, have disabilities, or are part of underserved communities. The revisions to  422.2264(c)(2)(i) and 423.2264(c)(2)(i), as proposed and finalized here, do not prohibit educational events or prohibit marketing events from including educational content and materials. This final rule establishes parameters to clearly separate educational events and marketing events to ensure that beneficiaries are not pressured into attending a marketing/sales event which directly follows an educational event. Commenters are concerned about vulnerable populations and CMS is concerned also. Protecting dually eligible individuals and other vulnerable groups is exactly why we are requiring a break between an educational event and a marketing event. We want to ensure beneficiaries are ready to make a health care decision, rather than being pressured into a decision. If a beneficiary attends an educational event, requests to hear more about specific products, but has no transportation to a sales event, CMS believes the agent will reach out and meet with the beneficiary or provide the beneficiary with the agents contact information to set up another meeting. We do not believe a beneficiarys transportation issues will prevent an agent from finding a way to connect with the beneficiary, either telephonically or in person. The number of people ages 65+ who own a smartphone has increased dramatically over the past few years. In 2018, 46% VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00128 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222247 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations 131https://www.statista.com/statistics/489255/ percentage-of-us-smartphone-owners-by-age-group/. of those 65+ 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