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Comments to Medicare Marketing Guidelines (MMG)

Submitted by Center for Medicare Advocacy

April 4, 2019

The following comments were submitted to CMS online via 2020 MCMG feedback tool:

Submitted by David Lipschutz, Senior Policy Attorney, Center for Medicare Advocacy –


  1. Section: Miscellaneous

Communicating About New MA Benefit Flexibilities

We are disappointed that the draft 2020 Communications & Marketing Guidelines still provides no guidance concerning how new Medicare Advantage (MA) benefit flexibilities should be described and marketed by plans and their representatives, including agents and brokers.  While the model Evidence of Coverage (EOC) documents do include some language describing these new, targeted benefits and cost-sharing reductions, a much broader approach is required by CMS in order to maximize consistency in how these benefits are described, minimize confusion among those shopping for plans, and limit the chances that  those marketing plans can mislead beneficiaries.  In furtherance of this goal, we re-submit suggestions from our earlier comments to the marketing guidelines, further outlined below.

The significant changes to MA benefits pursuant to statute and regulations, including elimination of meaningful difference requirements, benefit uniformity flexibility and expansion of supplemental benefits, have made choosing MA plans significantly more complex. Among other things, rather than having uniform benefits available to all enrollees in a given plan, MA plan sponsors will have the option of targeting certain extra benefits and/or reduced cost-sharing for certain services to enrollees with certain health conditions.  Special Supplemental Benefits for the Chronically Ill (SSBCI), which will be available in 2020, will exacerbate such confusion. It is critical to ensure that information about these changes, and resulting plan-specific benefits, are presented in a manner that is neither unduly confusing nor deters individuals based upon their health conditions or other factors. 

In various rules and guidance documents, CMS states that “supplemental benefits do not include items or services solely to induce enrollment.”  The agency must provide adequate marketing guidelines and oversight to this effect.  As discussed further below, we urge CMS to:

  • Develop a standardized template for describing additional benefits based on health condition (to be used across the board by plans in EOCs, marketing materials, and in Plan Finder descriptions) – discussed here.
  • Prohibit those marketing plans from engaging/soliciting information about an individual’s health condition(s) – discussed in the next comment.

Develop a standardized templet for communicating new flexibilities.  CMS should develop a template using standardized language relating to new benefits that will be available only to individuals with targeted health conditions that plans should be required to use across all formats (including Plan Finder descriptions, Evidences of Coverage and marketing materials).  Instead of a basic plan benefit package, that is available uniformly to all enrollees in a given plan, the new flexibilities, including supplemental benefits, will be specifically tailored to particular health conditions.  In other words, they will not be available to all enrollees, rather they will only be available to those eligible enrollees identified by the plan using “medical criteria that are objective and measurable” with diagnoses that are either made or confirmed by the plan.  

CMS has noted that information about such benefits, including qualifying criteria, will be communicated to enrollees via Plan Finder and in plan EOCs.  Due to the potential confusion surrounding such benefits, and their lack of availability to all enrollees, CMS should foster consumer choice by establishing a standardized templet that uses easy-to-understand standardized language/descriptions explaining the scope of the benefits, that can be tailored by each plan to describe what could be covered based on what health condition(s).  It must be made clear that such benefits are not available to everyone, and that diagnoses must be confirmed by the plan.  Requiring all plans to use such a template to describe these potential additional benefits in all of their materials (from Plan Finder data, to EOCs, to marketing materials) could go a long way towards assisting consumer understanding of such benefits, and could make comparison between plans easier.

  1. Section – Miscellaneous

Marketing New MA Benefit Flexibilities.  As noted in our previous comment, the significant recent changes to MA benefits will make choosing MA plans significantly more complex. In order to foster consumer choice and minimize confusion, we urge CMS to:

  • Develop a standardized template for describing additional benefits based on health condition (to be used across the board by plans in EOCs, marketing materials, and in Plan Finder descriptions) – discussed in the previous comment.
  • Prohibit those marketing plans from engaging/soliciting information about an individual’s health condition(s) – discussed here.

Prohibit those marketing plans from engaging/soliciting information about an individual’s health condition(s).  These new MA benefit flexibilities, including additional benefits and/or reduced cost-sharing for individuals with certain conditions, as chosen by individual plans, is extremely ripe for confusion, misunderstanding, and susceptibility to be misled, intentional or otherwise.  CMS must act to minimize confusion and potential misconduct relating to the sale and marketing of such benefits.

We assert that anyone marketing MA plans – including first-tier, downstream and related entities – should be prohibited from asking prospective enrollees about their health condition(s).  For various reasons, an individual’s health condition should not drive marketing conversations or materials; among other things, such disclosures can lead to risk selection, or inappropriate steering either to or away from a given plan.  Further, an individual’s health condition(s)/status is a sensitive topic for many consumers, and they should not be made to believe that they need to or should disclose their health status.  Under such conditions, people may easily be either led to believe that a particular plan is the best for them based upon what extra benefits might be available for them, or particularly ill-suited for them because it does not offer anything extra for people with their particular condition(s).  

Since these extra benefits are contingent upon a plan’s diagnosis (or confirmation) of conditions for which the extra benefits are tailored, an agent/broker or other representative marketing the plan is in no position to make clinical judgements, proclamations about health conditions, or promises or inducements based on such information.

Using the template described in the comment above, along with a prohibition on discussing an individual’s health condition, will make it much more likely that prospective enrollees will better understand the limitations of the new benefits.   If allowed to discuss such benefits, marketers must be required to stay on script – only use the language from the template materials that (hopefully) clearly describes the limitations of such benefits, including the requisite diagnoses confirmed by the plan.

In short, there must be restrictions on how new benefits available by health status/condition are discussed and marketed to individuals.  Because such benefits will not be uniformly available to all enrollees, marketing of such benefits should be extremely limited.  

  1. Section 20 – We recognize that regulations have redefined how communications and marketing documents are classified for purposes of CMS review.  As noted in our comments to last year’s draft MCMG, we disagree, though, with CMS’ assertion that documents which may impact an enrollment decision, but are not intended to do so, don’t qualify as marketing documents. If a beneficiary uses a plan-issued document to make enrollment choices, the sponsor’s intent is irrelevant.  Plan- and agent/broker-issued content should be subject to stringent oversight by CMS to ensure accuracy and readability.

    In its description of which documents are considered marketing or communication materials, CMS indicates that among others, the formulary, pharmacy directory, provider directory, low income subsidy (LIS) premium subsidy and rider, mid-year change notification to enrollees, and the Part D transition letter are all communications documents. We believe these are all documents which may not have the intent of impacting enrollment, but indeed can have a strong impact on enrollment decisions, and thus deserve classification as marketing materials. For example, a beneficiary may use the formulary and directories to understand if their drugs, doctors, and pharmacies are covered and make a change in plan enrollment accordingly. At a minimum, CMS should consider establishing a separate pre-release review process for these documents, given their importance for beneficiaries.

    In cases where CMS identifies inaccuracies or misleading information through a post-release review, we strongly urge CMS to allow affected beneficiaries to have a special enrollment period, in order to mitigate consequences of decisions based on inaccurate or misleading information.

  2. Section 30.3.  We appreciate the clarification that template and model documents must include translation of variable data and the specific example of appeal letters.  For interpreter services in call centers, we urge CMS to work with plans to develop scripts that affirmatively offer interpreter services and require use of the script whenever a call center representative perceives that language issues are impeding communication with a caller or learns that the caller is a family member or friend calling on behalf of a beneficiary who has limited English proficiency.  We are concerned by the low uptake in interpreter services at call centers relative to the large numbers of LEP beneficiaries and believe that plans should do more to make beneficiaries aware of these services and comfortable using them.
  3. Section 30.6. We reiterate our strong objection to permitting unsolicited email communication with prospective enrollees who do not have other relationships with the plan sponsor.   Emails are only slightly less intrusive than phone calls, and beneficiaries already often receive a high volume off unsolicited mailing from plan sponsors. 
  4. Section 30.7. We appreciate the changes in this section to protect dual eligible individuals from misleading or targeted marketing.  Further, we urge CMS to consider providing, either in this section or elsewhere in the guidance, additional substantive marketing requirements with respect to dual eligible beneficiaries. Of particular concern is the marketing of supplemental benefits.  As noted by Justice in Aging, advocates report that many dual eligible individuals are misled, either deliberately or inadvertently, about supplemental benefits that duplicate or partially overlap with their Medicaid benefits. Specifically, we ask that CMS require brokers and agents to learn whether a beneficiary is a dually eligible individual and, if so, to explain how the supplemental benefits work with Medicaid coverage. 
  5. Section 40.2.  As noted in comments to section 30.6, we continue to be concerned about allowing unsolicited emails, which are only slightly less intrusive than telephone calls.  Since we assume that CMS does not provide email addresses of beneficiaries to plans, this encourages buying email lists. It will be difficult if not impossible for CMS to monitor whether emails (and the email lists that plans purchase) are targeted to particular subgroups of beneficiaries in violation of CMS’ anti-discrimination requirements.  Further, it is cheap and easy for plans to barrage beneficiaries with emails, a practice that does not aid informed choice.  Further, individuals may confuse marketing emails with important communications from CMS or from a plan they are actually enrolled in and could inadvertently unsubscribe from emails they actually need because of the overwhelming amount of perceived “junk.”
  6. Section 70.1.3.  We support the proposed requirement that MA plans post a link to their provider directory on the plan’s landing page. As the draft 2020 Call Letter notes, though, “there has been a lack of improvement in the accuracy of provider directories over the past three years.”  Directory inaccuracies can present significant challenges for enrollees—up to and including a potential lack of access to care and significant out of pocket costs. As such, we encourage the agency to be vigilant in its continued inquiries, oversight, and policymaking on this issue.  As we noted in comments to the draft Call Letter, we urge CMS to focus its attention on the undue burden that inaccurate, hard-to-access, and non-searchable provider directories place on beneficiaries. We urge CMS to consider ways to adequately incentivize plans and providers to provide accurate and up-to-date directories—perhaps by establishing special enrollment periods or indemnification for beneficiaries who relied on an inaccurate directory.

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