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On August 27, 2019, the same day that the Centers for Medicare and Medicaid Services (CMS) debuted the updated Medicare Plan Finder (MPF) tool, four beneficiary advocacy organizations – the Center for Medicare Advocacy, Justice in Aging, Medicare Rights Center, and the National Council on Aging – sent a joint letter to CMS raising concerns about the roll-out of the new MPF and revisions to the 2020 Medicare Communications and Marketing Guidance (MCMG). The joint letter is available here, and an accompanying press release here.

The groups urged CMS to mitigate any adverse consequences by closely monitoring the roll out and functionality of the new MPF tool, providing enrollment relief as needed, and by rescinding the updated MCMG in its entirety. These concerns, and additional ones, are outlined below.

New Medicare Plan Finder

As discussed in a previous Weekly Alert, the General Accounting Office (GAO) recently issued a report highlighting some of the challenges with the current Medicare Plan Finder – the primary source Medicare beneficiaries use to compare coverage options. After a months-long process of gathering consumer and stakeholder input, on August 27, 2019, CMS publicly released the anticipated new version of the MPF, available here.

According to Modern Healthcare, CMS states that “the new tool largely addresses the concerns outlined” in the GAO report. Per a CMS press release accompanying this introduction, CMS Administrator Seema Verma is quoted as stating that “‘The redesigned Medicare Plan Finder is another example of how CMS is empowering beneficiaries with price and quality information to take advantage of lower rates and new benefits in Medicare Advantage and Part D.’” The press release notes that, among other things, individuals will be able to “Compare pricing between Original Medicare, Medicare prescription drug plans, Medicare Advantage plans, and Medicare Supplement Insurance (Medigap) policies.”

Medicare advocates and assisters are in the process of testing the new MPF in order to learn how to use it and troubleshoot any problems prior to the upcoming Annual Coordinated Election Period (ACEP), between October 15th and December 7th, during which Medicare beneficiaries can make coverage elections effective January 1st (this period is often referred to as the Open Enrollment period).

Based upon what had been shared with stakeholders prior to the roll-out of the new MPF, several concerns were already apparent. The joint letter, referenced above, notes these concerns:

[W]e find it troubling that the new MPF’s late August release may not give third-party assisters, like State Health Insurance Assistance Programs (SHIPs), adequate time to learn the new tool before Fall Open Enrollment begins. Coupled with recent legislative and regulatory changes set to take effect this year, the truncated MPF launch timeline is likely to generate demand for enrollment assistance that these chronically underfunded programs are unable to meet.

Further, CMS has confirmed that the current “legacy” version will not be available after the end of September. Thus, apparently due, in part, to issues relating to CMS’ current contract to administer the MPF, there will be no back-up available for this enrollment period. As noted in the joint letter, “We are disappointed that CMS failed to anticipate the potential need for more extended redundancy or back-up systems when launching a new site architecture that so many people rely on for critical coverage decisions.”

Even without a full assessment of the new MPF’s functionality and substantive content, it is clear that the manner in which it has been introduced will create challenges for SHIPs. For example, in a letter sent to CMS just prior to the introduction of the new MPF, California Health Advocates (CHA), a non-profit organization that supports the SHIP in California, known as Health Insurance and Advocacy Programs (HICAPs), raised concerns about privacy issues, changes in the way searches of information will be stored, extra time that will be required of SHIP counselors and the resulting impact on their ability to serve as many people as possible, among other issues.

The joint letter expands on these concerns:

As a result of the later-than-expected roll out, opportunities for valuable counselor learning and feedback have been lost. Pushing SHIP and other counselor training into the busy weeks between now and Fall Open Enrollment may also mean that difficult choices will have to be made regarding counselor education, such as whether to prioritize their proficiency with the tool or their understanding of substantive Medicare policy changes that will take effect in 2020 and dramatically impact beneficiary choices this fall.

As noted in the letter, the four organizations urged CMS to monitor the roll-out of the new MPF and, if complications arise, provide enrollment relief that may be needed to address beneficiaries who are negatively impacted.

Revised Marketing Guidelines

In addition to concerns about the new MPF, the joint letter objected to both the process for revising and content of the 2020 Medicare Communications and Marketing Guidelines (MCMG), a set of rules that govern the selling and promotion of Medicare Advantage and Medicare Prescription Drug plans.

Procedurally, CMS departed from its longstanding practice of releasing an updated, final version for the coming year and instead issued a memo to plans that lists changes from the 2019 guidance and tells plans that for 2020, they should rely on the 2019 guidance as amended by the memo. Of even greater concern, the final guidance veers significantly from the earlier 2020 draft. As noted in the joint letter,

“[i]nstead of adding some helpful clarifications and tightening of guidance that had appeared in the draft, the final product took a sharp U-turn. Not only were most of the additions that would have been protective of beneficiaries abandoned, important existing provisions were summarily dropped without warning or an opportunity to comment, and new provisions that either did not appear or were not flagged in the draft version were finalized, effectively disregarding the process for stakeholder input.”

Perhaps most alarmingly, the revised guidelines weaken the distinction between “marketing” events, which are designed to steer or attempt to steer potential enrollees, or the retention of current enrollees, toward a plan or limited set of plans; and “educational” events, which are designed to inform beneficiaries about MA, Part D or other Medicare programs. As noted in the letter, these changes appear to directly conflict with current law by allowing educational events (which have fewer restrictions and no reporting requirements to CMS) to immediately turn into marketing events.

These changes will be a boon for health plans and the contracted entities selling their products. As noted in an AIS Health article, these revisions “contain multiple flexibilities that were previously unavailable to plan sponsors” and, according to one industry consultant, “‘The deletions are more important than the insertions […] Probably the most important deletion concerns the prohibition on holding back-to-back educational and marketing events. This seems to open the door to piggybacking marketing sessions on educational events.’”

Similarly, a posting on the “Agent Survival Guide”, published by an insurance marketing firm, notes that the changes, among other things, mean that “the same permission to contact can be used across different election periods […] (CMS) has never allowed this practice before, so it opens the door to more extended permission to contact Medicare eligibles you’ve had prior relationship with.”  In addition, the combination of other changes “seems to suggest that agents are allowed to collect [Scope of Appointment forms] and take applications at the end of an educational event, which was previously prohibited. Therefore, if an agent feels it’s in his/her and their clients’ best interest to hold the two events back to back, they are permitted to do so.”

Other revisions to the MCMG highlighted in the letter include the removal of a short Non-English translation disclaimer previously required of plans alerting Spanish speakers of the availability of translations of certain important plan communications. Further, the revision failed to include provisions outlined in the draft 2020 version that would have limited the aggressive marketing of plans referred to as D-SNP look-alikes – a problem CMS has itself identified as a significant problem, yet abandoned in the guidelines.

Other revisions to the MCMG, not discussed in the joint letter, include the following, almost all of which seem designed to ease any burden on plans and downstream entities, with little to no benefit or protection for consumers. In some cases, the changes appear to actively weaken protections. Further rolling back of restrictions on plans include:

  • Elimination of the requirement that plan sponsors report to CMS “any co-branding relationships, including any changes in or newly formed co-branding relationships, prior to marketing them” in order to allow CMS to review “associated marketing materials” (some plans “co-brand” with providers, pharmacies and other entities);
  • Elimination of the requirement that “Plans/Part D sponsors may only advertise in their defined service area, unless unavoidable (e.g., advertising in media with a national audience or with an audience that includes some individuals outside of the service area, such as a Metropolitan Statistical Area that covers two regions). Plans/Part D sponsors must clearly disclose their service area in the marketing materials”;
  • Elimination of the requirement that plans must support any comparisons with other plans “by studies or statistical data” – but comparisons must still be factually based and “not misleading”;
  • Elimination of the requirement that plans use CMS standard icons when marketing a plan’s star rating: previously plans were “not permitted to create their own gold star icon or any other icon of distinction.” Under the revision, “Plans may create their own gold star icon (or any other icon of distinction) so long as the icon is not misleading or confusing to beneficiaries.” (Note: it is unclear how CMS will determine whether or not plan-chosen icons – rather than standardized CMS ones – will be misleading or confusing);
  • Elimination of restrictions regarding marketing of plan rewards and incentive programs (such programs provide rewards and/or incentives to enrollees in connection with participation in activities that focus on promoting improved health, preventing injuries and illness, and promoting efficient use of health care resources): marketing information from plans no longer must “Be provided in conjunction with information about plan benefits”, no longer must “Include information about all rewards and incentives programs offered by the MA Plan, and are not limited to a specific program, or a specific reward or incentive within a program.” (Note: this means plans can market such programs independently, without context of overall plan benefits to allow individuals to do cost-benefit analyses regarding whether such incentives are worth it; it is unclear if this can be used to target individuals based upon their health condition);
  • Elimination of certain restrictions applicable to provider-initiated activities (those conducted by a healthcare professional, including pharmacists, at the request of the patient or as a matter of a course of treatment, when meeting with the patient as part of the professional relationship between healthcare provider and patient): additional language has been added making it even more clear that such activities are not “marketing,” and therefore not subject to regulation by CMS; and
  • Elimination of requirement that certain disclaimers (in addition to the Non-English translation disclaimer discussed above) be included in plan materials, including the removal of a “benefits disclaimer” that previously required specific text on marketing pieces listing 10 benefits or more. Eliminated Text: “This information is not a complete description of benefits. Call [insert customer service phone number/TTY] for more information.”

Conclusion

While advocates and Medicare assisters continue to analyze the updated Medicare Plan Finder, as discussed above, it is apparent that there are already inherent flaws based in part on how the new tool has been rolled out. We hope that CMS will be responsive to problems that arise, particularly since no back-up system will be available.

Many of the features of the revised MPF were meant to help individuals compare coverage options, and should have some tangible benefit to consumers.  However, recent revisions to the Medicare Communications and Marketing Guidelines were made for the benefit of insurance plans and those that sell their products. As legislative and policy changes continue to favor Medicare Advantage over traditional Medicare, and CMS continues to promote enrollment in MA plans, the Medicare program is in growing danger of losing sight over whom it is meant to serve – people with Medicare rather than those who profit from it.

August 29, 2019 – D. Lipschutz

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