2023-07115.pdf

products that will be discussed, prior to the marketing discussion. The existing regulations do not stipulate a timeframe in which the beneficiary may be contacted after an SOA is completed or an expiration date after which the SOA is invalid. CMS also is aware that MA organizations, Part D sponsors and TPMOs encourage beneficiaries to fill out business reply cards (BRC) or similar mechanisms so the MA organization/Part D sponsor or TPMO has permission to contact the beneficiary at a later date. BRCs are different from SOAs in that the SOA must list all the products to be discussed at the appointment on the document, while many times the BRC is simply a process for obtaining contact information for a beneficiary (that is, name, phone number, address, email). While SOAs are required by statute to identify the types of products that will be discussed, BRCs are not required to specify the products expected to be discussed. Because BRCs like SOAs, often are open-ended and without expiration, they allow an MA organization, Part D sponsor or TPMO to contact a beneficiary at any point in the future. For example, a beneficiary could fill out a BRC in October of one year and be contacted by the MA organization/ Part D sponsor or TPMO 24 months later, well beyond the timeframe a beneficiary might reasonably expect to be contacted about their plan choices when they first filled out the card. CMS proposed to modify the current regulations at  422.2264(c)(3)(iii)(A), 422.2264(c)(3)(iii)(B), 423.2264(c)(3)(iii)(A) and 423.2264(c)(3)(iii)(B) to limit the time period when the SOAs and BRCs are valid in  422.2264(c)(3)(iii)(A) and 423.2264(c)(3)(iii)(A), and the SOAs in  422.2264(c)(3)(iii)(B) and 423.2264(c)(3)(iii)(B), to six months from the beneficiarys signature date or the beneficiarys request for more information. A beneficiarys permission to allow contact by an MA organization/ Part D sponsor or a TPMO is not, and should not be, open-ended. Beneficiaries who request information regarding MA organizations/Part D sponsors are requesting information at that present time. Since the purpose of the SOA or BRC is for beneficiaries to discuss plan products applicable for the present or following contract year, having the SOA or BRC expire after 6 months satisfies that purpose, and would prevent agents from using it in perpetuity and thus avoiding the statutory and regulatory prohibitions on VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222249 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations unsolicited contact and cold calling. If a beneficiary wants the agent tied to the SOA or BRC to continue contacting them beyond 6 months, the agent may secure and document that permission through a new SOA, BRC, or similar mechanism. Comment: We received numerous comments about limiting how long a Scope of Appointment, Business Reply Card, or other contact mechanism remains valid. Almost all of the commenters supported limiting the duration for which an SOA or BRC may be used to contact a beneficiary. However, many commented that the length of time should be expanded to either nine or 12 months to account for the next Annual Enrollment Period. Response: We appreciate all of the supportive comments and have considered extending the six-month timeframe to either nine or 12 months, and the timing of when SOA, BRC, or other cards could be received and how that receipt date would affect the ability of an agent to reach out to beneficiaries. After that review, we determined that a 12-month timeframe is the appropriate timeframe for the validity of these documents. For example, a beneficiary in original Medicare might miss the individuals chance to enroll in an MA plan during the AEP and might begin to consider enrolling in an MA plan in January. Or the beneficiary might decide against enrolling in one of the plans available during an AEP, but wish to re- evaluate that decision in the next AEP. This beneficiary might fill out an BRC in January and be contacted by an agent, but under our proposed policy, this individual would not be able to be contacted by the agent again, when the next AEP begins in October, because 10 months would have transpired between the time he or she filled out the BRC and the start of the AEP. In addition, using a 12-month limit will facilitate a beneficiary giving permission annually to be reminded about the next AEP and the opportunity to evaluate (or reevaluate) MA and Part D plan options. Comment: A few commenters opposed limiting how long a SOA, BRC, or other contact card remained valid. These commenters generally did not provide a rationale for their opposition. Response: CMS continues to believe that SOAs, BRCs, and other contact cards should not be open-ended and adopting a time limit on how long these materials may be used to contact a beneficiary is necessary and appropriate to protect beneficiaries from unwanted or unsolicited contact in the future. We believe that a 12-month limit reflects when a reasonable person would consent to or expect to be contacted, especially given how for most beneficiaries, the AEP is when enrollment decisions are made. After considering the comments, and for the reasons outlined in the final rule, we are modifying the proposal to extend the timeframe from six months to 12 months. 13. Searchable Provider Directory In accordance with  422.2265(b)(4), MA organizations are required to have a searchable provider directory on their website. The current regulations do not identify the elements by which the provider directory can be searched, leaving that up to each organization. We proposed to modify  422.2265(b)(4) by requiring the organizations provider directory be searchable by every element, such as name, location, and specialty, required in CMS model provider directory. We believe this proposal is necessary to assist beneficiaries in finding particular providers. For example, if an organization only provides a beneficiary with the ability to search by location, the beneficiary would have significant difficulties finding a particular specialty or a particular provider. In section III.A.3. of this final rule, we are adding a new requirement to  422.111(b)(3)(i) to require that provider directories include providers cultural and linguistic capabilities. The amendment to  422.2265(b)(4) will require the organizations provider directory be searchable by this new element. By requiring website provider directories be searchable by every element, our proposal would ensure that a beneficiary would be able to locate specific provider specialties, as well as providers by names, addresses, or other elements the organization has listed in the online provider directory. Comment: We received a few comments that supported this proposed change. Most of those comments that discussed this change specifically also commented on the need for improved accuracy of provider directory information overall. Response: We appreciate the support for this proposed change, which we continue to believe will assist beneficiaries. While provider directory accuracy is outside the scope of this proposed change, CMS remains committed to working towards greater accuracy in provider directories. Comment: One commenter opposed this proposed change, but only for the element of languages spoken. The commenter stated that this change would add to the burden providers already face in communicating changes in their information reflected in a provider directory. The commenter recommended that CMS delay implementation of this requirement until a national provider information data system is made available. Response: We do not agree that the addition of this element places significant additional burden on providers as it will require the providers to spend a minimal amount of time to communicate the new contents specified in this rule to each MA organization with which the provider contracts. Providers are already required to provide information to MA organizations and Part D sponsors, under their contracts with the plans. This proposal does not require the provider to provide more information, rather it is to require MA organizations and Part D sponsors to make the provider directory searchable by all elements. This proposal to require the MA plans website include a provider directory that is searchable by every data element required in the model provider directory will primarily require MA organizations to build or revise their existing website software to enable searches by more fields. After considering the comments, and for the reasons outlined in the proposed rule and the final rule, we are finalizing this provision as proposed. 14. Effect on Current Coverage Added to the Pre-Enrollment Checklist (PECL) and Review of PECL CMS proposed to modify the pre- enrollment checklist (PECL) requirements at  422.2267(e)(4) and 423.2267(e)(4). First, we proposed to add new paragraphs at  422.2267(e)(4)(viii) and 423.2267(e)(4)(viii), to add Effect on current coverage to the list of references currently provided within  422.2267(e)(4)(i)(vii) and 423.2267(e)(4)(i)(vii). Second, we proposed to update  422.2267(e)(4) and 423.2267(e)(4) to require that plans review the PECL with the prospective enrollee during telephonic enrollments. The PECL contains important information prospective enrollees need to know prior to enrolling in an MA or Part D plan. It ensures beneficiaries understand important documents and what information is in such documents, such as the Evidence of Coverage, which provides all costs, benefits, and plan coverage. The PECL also includes information designed to help beneficiaries, such as a reminder to make sure their doctors, pharmacies, and prescriptions are either in the plans network or covered in their formulary. Finally, the existing PECL reminds beneficiaries of certain plan rules, VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222250 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations formularies, and that out-of-network services are not covered except for emergency and urgently needed care, and that benefits and costs may change on January 1 of each year. In  422.2267(e)(4)(viii) and 423.2267(e)(4)(viii), we proposed to add Effect on current coverage to the list of information that must be referenced as part of the PECL. During most of 2021 and all of 2022, CMS engaged in an in- depth review of 1800MEDICARE complaints. Our reviews revealed numerous beneficiary complaints that they were not aware their current coverage, such as an existing MA plan, a Medigap plan, or their Tri-care plan, would end once they enrolled in an MA plan. Thus, CMS proposed to add effect on current coverage to the list of information that plans must provide to prospective enrollees in the PECL, as we believe it will provide additional education to beneficiaries on the implications of choosing an MA or Part D plan and ensure beneficiaries are fully aware that this selection will cause their existing coverage to end. In  422.2267(e)(4) and 423.2267(e)(4), we also proposed that the PECL be reviewed with the prospective enrollee during telephonic enrollments as well as provided when hard-copy enrollment forms are provided. As previously discussed, the PECL provides information necessary for beneficiaries to understand the details of the plan for which they are enrolling. Although the PECL must be provided with an enrollment form, CMS review of telephonic enrollments revealed that the neither the PECL nor its substance was being conveyed to beneficiaries during most telephonic enrollments. Specifically, complaints received by 1800MEDICARE included beneficiaries who called 1800 MEDICARE to inform the Agency via the toll-free line that agents failed to inform the beneficiary that the individuals doctors were not in the MA plans network, were inaccurately told that there would be no 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