As Medicare Enrollment Period Draws to a Close, MA Steering Continues – Advocates & Members of Congress Write Letters of Concern to CMSPosted in Article
As we approach the final week of the Medicare Annual Coordinated Election Period (ACEP), individuals continue to make decisions about how they want to access their Medicare benefits in 2019. Consumer advocates are concerned, however, that the information put out by the Medicare program about coverage options is incomplete and continues to promote one option over another.
As discussed below, the Center for Medicare Advocacy and the Medicare Rights Center recently wrote to the Centers for Medicare & Medicaid Services (CMS) expressing ongoing concerns about education and outreach materials for the current ACEP which together act to promote Medicare Advantage (MA) over traditional Medicare.
The Medicare statute obligates the Secretary of Health and Human Services, and, by extension, CMS, to provide and promote accurate information about the Medicare program. For example, 42 U.S. Code §1395w-21(d)(1) states: “The Secretary shall provide for activities under this subsection to broadly disseminate information to Medicare beneficiaries (and prospective Medicare beneficiaries) on the coverage options provided under this section in order to promote an active, informed selection among such options. [Emphasis added.]
In the Fall of 2017, beneficiary advocates began to raise concerns with CMS that, contrary to prior iterations, its outreach and enrollment materials encouraged beneficiaries to choose a private Medicare plan over traditional Medicare instead of more objectively presenting enrollment options. For example, In November 2017, the Leadership Council of Aging Organizations wrote CMS, urging the agency “to take steps to correct misleading public outreach and education” and “take immediate corrective action to include and accurately portray the benefits and drawbacks of all coverage options in CMS materials, always including traditional Medicare as a beneficiary option.”
These concerns were renewed when CMS released a draft version of the 2019 Medicare & You handbook in Spring 2018. At the time, the Center for Medicare Advocacy, Justice in Aging and the Medicare Rights Center sent a letter to the CMS raising “strong objections to serious inaccuracies” in the draft 2019 Medicare & You Handbook, and urged CMS to rectify the errors prior to dissemination. These errors included: suggestions that MA is the less expensive alternative for beneficiaries; failure to highlight the clear distinction between traditional Medicare and MA: traditional Medicare provides access to all Medicare participating providers nationwide, while MA generally limits access to a set network of providers in a specific geographic area; and characterizing prior authorization requirements in MA plans, which are restrictions on access to services, as a benefit, rather than as what they are: mandatory hurdles for MA members not required for individuals in traditional Medicare.
In June 2018, Ranking Members Richard Neal and Frank Pallone, of the House Ways & Means and Energy & Commerce Committees, respectively, wrote a letter to CMS Administrator Seema Verma echoing many of the same concerns raised by our organizations.
To its credit, CMS did respond to many of these concerns raised regarding the handbook, including addressing some of the draft’s most serious inaccuracies and omissions in the final version. However, as discussed below, CMS continues to perpetuate the imbalance between promoting MA vs. traditional Medicare through online tools, emails, advertising campaigns, and other communications.
Recent Joint Letter to CMS with the Medicare Rights Center
On November 16, 2018, the Center for Medicare Advocacy (CMA) and the Medicare Rights Center (MRC) sent a joint letter to CMS expressing concerns with CMS’ education and outreach materials for the current Medicare ACEP, “which together seem to promote Medicare Advantage (MA) over traditional Medicare.”
Specifically, the letter highlighted new CMS online tools and an email campaign targeted towards beneficiaries. With respect to a suite of online tools launched in October 2018 aimed at assisting consumer decision-making, the letter stated that the Compare Coverage Options tool “may inappropriately and prematurely encourage individuals to enroll in MA — by making overly-broad suggestions to do so when more nuance is required, and by failing to present individuals with the full array of Medicare coverage options.” 
Similarly, the letter notes that “CMS’ current ACEP email campaign and other messaging to beneficiaries is improperly biased towards MA.” CMS has sent emails to beneficiaries and other stakeholders “with subject lines such as ‘Could Medicare Advantage be right for you?’ or ‘Get more benefits for your money’ start the body of text with ‘Check Out Medicare Advantage.’” As the letter notes, “[t]hese messages make no attempt to inform beneficiaries about their coverage options under traditional Medicare, potentially preventing them from making a fully-informed choice.” Likewise, “official advertisements from the Department of Health and Human Services promote MA, without mention that enrolling in traditional Medicare is also an option during the ACEP.”
Acknowledging that the 2018 ACEP is well underway, our organizations stated that “CMS can still act to achieve greater parity in its materials in the remaining weeks when many people make their enrollment decisions. Accordingly, we request that CMS act quickly to revise both its online web tools and the ACEP beneficiary outreach messages so they more equally and accurately reflect the availability of traditional Medicare coverage options.”
On November 19, 2018, almost the entire Connecticut delegation (Rep. DeLauro, Sen. Blumenthal, Sen. Murphy, Rep. Larson, Rep. Courtney and Rep. Esty – sent a letter to CMS “expressing our concern” that CMS “is inappropriately working to steer Medicare beneficiaries to Medicare Advantage plans.” Citing the “regular, targeted messages highlighting Medicare Advantage, but not Original Medicare, during the Open Enrollment Period.” The letter stated “[i]n order to correct his imbalance, we urge you to send targeted messaged regarding Original Medicare that will match the efforts made for Medicare Advantage.”
Center for Medicare Advocacy/National Committee to Preserve Social Security and Medicare “Fully Informed” Project
Out of concern about the objectivity of some of CMS’ enrollment and outreach materials, the Center for Medicare Advocacy and the National Committee to Preserve Social Security and Medicare have partnered to develop an education and outreach project to support Medicare beneficiaries and those who assist them enroll and re-enroll in Medicare. The Medicare Fully Informed Project provides a variety of unbiased, accurate and comprehensive information about the full range of Medicare coverage options, and includes an array of tools to assist in making the best individual enrollment choices.
Making informed decisions about how one wishes to access Medicare coverage is complicated, and has become more so following a number of recent policy changes, particularly concerning Medicare Advantage. The Medicare program has an obligation to present information in a balanced and neutral manner rather than unduly promoting one option over another. We urge CMS to correct this imbalance.
November 30, 2018 – D. Lipschutz
 See, e.g., Center Weekly Alert (October 25, 2017): http://www.medicareadvocacy.org/cma-alert-remember-you-can-choose-original-medicare-equitable-relief-this-weeks-sabotage-news/
 On November 9, 2017, the Leadership Council of Aging Organizations (LCAO), a member coalition of the nation’s non-profit organizations serving older Americans, sent a letter about this issue to CMS and committees of jurisdiction in Congress. The letter is available here: http://www.lcao.org/files/2017/11/LCAO-Open-Enrollment-Letter-to-CMS_11_2017.pdf.
 See Center Weekly Alert (May 31, 2018): http://www.medicareadvocacy.org/advocates-raise-concerns-about-comparisons-between-traditional-medicare-and-medicare-advantage-in-draft-2019-medicare-you-handbook/.
 See Center Weekly Alert (June 21, 2018): http://www.medicareadvocacy.org/tipping-the-scales-toward-medicare-advantage-at-the-expense-of-medicare/.
 Letter from Justice in Aging, Medicare Rights Center and Center for Medicare Advocacy to CMS Administrator Verma (October 1, 2018), available at: http://www.medicareadvocacy.org/wp-content/uploads/2018/10/2019-Medicare-and-You-Handbook-Ltr-to-SV.pdf.
 See, e.g., Center Weekly Alert (October 5, 2018), including analysis of new CMS online tools: http://www.medicareadvocacy.org/medicare-enrollment-updates/.
 See the text of the letter for analysis of specific answers to this online quiz.
 For example, as noted in a recent New England Journal of Medicine issue, “for some beneficiaries with high health care spending, traditional Medicare coupled with supplemental insurance has the potential to be a lower-cost alternative to Medicare Advantage”- “Medicare Advantage Checkup” by Patricia Neuman, Sc.D., and Gretchen A. Jacobson, Ph.D., New England Journal of Medicine (November 2018), available at: https://www.nejm.org/doi/pdf/10.1056/NEJMhpr1804089.
 See, e.g., HHS Video on YouTube: https://www.youtube.com/watch?v=HwIvi2eF21Q.
 For more information about this project, including materials, see http://www.medicareadvocacy.org/medicare-fully-informed-project/.
 See, e.g., Discussion section of the Center’s” Special Report: Recent Changes in Law, Regulations and Guidance Relating to Medicare Advantage and the Prescription Drug Benefit Program” (September 2018), available at: http://www.medicareadvocacy.org/wp-content/uploads/2018/09/Report.-Summary-2019-Call-letter-and-C-D-Rule-1.pdf.