evekhm/cms_iom_500 huggingface dataset:
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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
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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
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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
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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
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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 type of non-compliance. We will provide additional information in our Medicare Communications and Marketing Guidelines, including examples in the future. Comment: We received a few comments opposing the oversight and reporting requirement. One commenter stated that TPMOs already have a robust oversight plan. Response: We appreciate and are pleased that the commenter believes TPMOs have robust oversight plans. However, a TPMO having an oversight plan does not replace an MA organization or Part D sponsor having an oversight plan that ensures that the MA organization or Part D sponsor effectively manages TPMO performance and ensures compliance by TPMOs with Part 422 and Part 423 requirements. In many cases, organizations also have their own agents and brokers and may contract with independent agents and brokers, as well as contracting with TPMOs. As CMS holds organizations responsible for the activities of their contracted TPMOs, the organizations need to properly oversee all of its agents and brokers, even if the TPMO or agent has their own oversight plan. Comment: One commenter stated that the oversight plan is already required as part of their organizations compliance plan maintained under the Part 422 or VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222254 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations Part 423 regulations. A few commenters stated that this proposal would cause additional burden on plans, especially small and medium sized plans. Response: We only received one comment stating that this proposal is already incorporated into an MA organization or Part D sponsors existing compliance plan. For those organizations who have put an agent and broker oversight plan in their compliance plan, this proposal should not have a significant effect. These organizations, however, will still
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is already incorporated into an MA organization or Part D sponsors existing compliance plan. For those organizations who have put an agent and broker oversight plan in their compliance plan, this proposal should not have a significant effect. These organizations, however, will still need to provide the plan to CMS, upon request, and will also need to report any non-compliance to CMS. For MA organizations and part D sponsors that have not already established an oversight plan of this type for monitoring and ensuring compliance by their TPMOs, we believe that this is an important step toward achieving compliance by TPMOs with CMS requirements. Organizations are required to ensure all first tier, downstream, and related entities adhere to all statutory and regulatory requirements. In order to ensure compliance, plans should be monitoring and overseeing agents and brokers. This proposal is requiring actions that plans should already be taking. For organizations that do not have an oversight plan in place there will be additional work; however, CMS believes that work is necessary in order to protect beneficiaries from inappropriate marketing by non- compliant agents and brokers. After consideration of the comments received and for the reasons outlined in the proposed rule and this final rule, we are finalizing as proposed. 20. CMS List of Required Elements Prior to Enrollment CMS proposed to adopt, at a new paragraph (c)(12) of  422.2274 and 423.2274, additional standards for agents and brokers in their marketing of MA and Part D plans to beneficiaries to require that sponsoring organizations ensure that agents and brokers discuss specific topics and information with beneficiaries prior to enrollment. We believe that adopting these standards is consistent with and achieves a similar goal as the statutory requirement in section 1851(j)(2)(D) of the Act that compensation to agents and brokers create incentives for agents and brokers to enroll beneficiaries in the plan that best meets their health care needs. The provisions in section 1851(h)(4)(D) and (j)(2) regarding the marketing of MA plans apply as well to the marketing of Part D plans per section 1860D4(l) of the Act. For an agent or broker to ensure the beneficiary is in a plan that best meets their needs, the agent or broker needs to obtain enough information to determine the health care needs of the beneficiary. If the agent or broker
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For an agent or broker to ensure the beneficiary is in a plan that best meets their needs, the agent or broker needs to obtain enough information to determine the health care needs of the beneficiary. If the agent or broker fails to have sufficient information to ensure that he or she is enrolling the beneficiary in a plan that best meets the beneficiarys health care needs, yet is still compensated for enrolling the beneficiary in a plan, we believe that section 1851(j)(2)(D) of the Act is undermined. CMS is concerned that agents and brokers too often fail to adequately determine the kind of health plan a beneficiary wishes to enroll in, such as a plan that offers a lower premium and higher copays, one that has specific providers in their network, or one that provides coverage for a certain durable medical equipment. Therefore, in  422.2274(c) and 423.2274(c), we proposed that all agents and brokers (employed, captive, and independent agents) go through a CMS- developed list of items that must be discussed during the marketing and sale of an MA plan or Part D plan. CMS has listened to hundreds of marketing and enrollment audio calls. In the majority of these calls (over 80 percent), agents and brokers failed to ask pertinent questions to help a beneficiary enroll in a plan that best meets the individuals needs. CMS listened to calls where the agent or broker only asked about primary care providers and/or prescription drugs. There were also calls that CMS listened to where the agent or broker only discussed extra benefits such as dental and vision. During many of the calls CMS reviewed, the agent or broker failed to ask important questions, such as whether there was a specialist that the beneficiary wished to see (or currently sees) and whether that specialist was in the plans network, whether the beneficiary would prefer lower copays and a higher premium or vice versa, which hospitals the beneficiary preferred, or whether the beneficiary wanted dental and hearing benefits. Some calls were under twenty (20) minutes in length. This short time period led CMS to question whether an agent or broker could have realistically obtained the necessary information from the beneficiary in order to adequately determine their needs
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hearing benefits. Some calls were under twenty (20) minutes in length. This short time period led CMS to question whether an agent or broker could have realistically obtained the necessary information from the beneficiary in order to adequately determine their needs and wants, review available options, and complete the enrollment. To properly assist a beneficiary in choosing a Medicare health and/or drug plan, the agent or broker must have sufficient information about the beneficiarys needs and goals. We do not believe a beneficiary can be enrolled in a plan that best meets the individuals needs when, for example, an agent or broker fails to ask the beneficiary about their current providers or medications, including specialists and preferred hospitals or other facilities. To ensure a beneficiarys needs are reviewed, CMS proposed to add a new (12) to  422.2274(c) and 423.2274(c), requiring an MA organization or Part D sponsor ensure that the agents/brokers marketing call goes over each CMS required question or topic, including information regarding primary care providers and specialists (that is, whether or not the beneficiarys current providers are in the plans network), prescription drug coverage and costs (including whether or not the beneficiarys current prescriptions are covered), costs of health care services, premiums, benefits, and specific health care needs. We explained in the proposed rule that CMS would provide in sub-regulatory guidance more detailed questions and areas to be covered based on these general topics. If agents and brokers are required to ask beneficiaries certain questions, or cover certain topics, prior to beginning the enrollment process, we expect that beneficiaries will be more knowledgeable about the plans that are available to them and whether those plans fit their needs; this would, in turn, better enable beneficiaries to make an informed choice about their Medicare benefits and how to receive them. We did not propose that agents or brokers would be required to read standardized questions or statements regarding the topics discussed here. Rather, we proposed to require that certain required topics are addressed, prior to the enrollment, specifically topics about providers and whether a beneficiarys current or preferred providers or pharmacies are in-network, costs and premiums for prescription drug coverage and health care coverage, benefits,
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topics are addressed, prior to the enrollment, specifically topics about providers and whether a beneficiarys current or preferred providers or pharmacies are in-network, costs and premiums for prescription drug coverage and health care coverage, benefits, and the beneficiarys specific health care needs and current medications. Comment: We received numerous comments supporting this proposal. Response: We thank the commenters for their support. Comment: We received two comments opposing this provision. These commenters stated that agents are already required to go over the Pre- Enrollment Checklist. Response: We appreciate the comments, but the Pre-Enrollment Checklist does not contain the level of detail required to ensure an agent receives all of the information necessary to assist a beneficiary in making a decision that is best for their health care needs. Therefore, we continue to believe VerDate Sep<11>2014 21:20 Apr 11, 2023 Jkt 259001 PO 00000 Frm 00136 Fmt 4701 Sfmt 4700 E:\FR\FM\12APR2.SGM 12APR2ddrumheller on DSK120RN23PROD with RULES222255 Federal Register / Vol. 88, No. 70 / Wednesday, April 12, 2023 / Rules and Regulations that requiring questions from the agent or broker to the beneficiary and a discussion of specific topics is appropriate. After consideration of the comments received and for the reasons outlined in the proposed rule and this final rule, we are finalizing the addition of a new paragraph (c)(12) to  422.2274 and 423.2274. 21. Limit TPMO Call Recording to Sales, Marketing, and Enrollment Currently,  422.2274(g)(2)(ii) and 423.2274(g)(2)(ii) require TPMOs to record all calls with beneficiaries. This requirement helps ensure that TPMOs, including agents and brokers, are appropriately marketing to beneficiaries by ensuring adequate records are available for oversight and monitoring. This requirement for recording all calls with beneficiaries was proposed in a January 2022 proposed rule, and finalized in the May 2022 final rule (CMS 4192F). The requirement to record all calls was pre-dated by CMSs requirement to record enrollment calls. As indicated in
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a January 2022 proposed rule, and finalized in the May 2022 final rule (CMS 4192F). The requirement to record all calls was pre-dated by CMSs requirement to record enrollment calls. As indicated in  1851(c)(2)(A) of the Social Security Act, a person with Medicare enrolls in an MA plan or Part D plan by filing an appropriate election form with the organization. CMS has established models for this election form, providing different formats depending on the type of MA or Part D plan as well as the format of the election itself (paper, electronic, telephonic, etc.). The telephonic model includes language establishing the enrollees agreement to abide by the rules of the plan into which they are enrolling as well as recording this agreement. That recording (that is, the physical recording of the telephone conversation) is the record of the enrollees request to enroll. As such, CMS has required recording of telephonic enrollment since the incipience of the telephonic enrollment process as a requirement of the encompassing enrollment process. This requirement is reflected in  422.60(c)(2) which states that an MA plan must file and retain elections forms for the period specified in CMSs instructions and  422.504(e) requires MA plans to provide access to enrollment and disenrollment records for the current contract period and 10 prior periods. Similar requirements apply to Part D sponsors at  423.136 and 423.505(e). As previously stated, CMSs experience in reviewing beneficiary complaints and listening to recorded calls between agents and brokers and beneficiaries revealed many instances where agents and brokers failed to provide enough information, and, most concerning, provided inaccurate information about plan benefits. In some cases, the agents and brokers led beneficiaries to believe the beneficiaries were calling Medicare rather than an insurance agent. We received few pertinent comments to this proposal in the January 2022 proposed rule prior to the requirement being finalized at  422.2274(g)(2)(ii) and 423.2274(g)(2)(ii). However, following the May 2022 final rule, CMS heard from trade organizations and plans, as well as individual agents, regarding the obligation