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Submitted by Center for Medicare Advocacy
April 26, 2018

The Center provided the following comments to the Centers for Medicare & Medicaid Services (CMS) in response to an April 12, 2018  Request for Input on the 2019 Medicare Communications and Marketing Guidelines.

  1. Section: Other – Miscellaneous

Concern about Process.  As a consumer organization seeking to provide input to revisions to the Medicare Marketing Guidelines (MMG), we are disappointed that this process allows us such limited scope and opportunity for comments.  While we recognize that CMS is under time constraints, in part, due to the issuance of CMS 4182-F, the breadth of these changes warrant careful consideration of how they will be implemented, including the impact on the MMG.  Rather than providing draft language for revisions to the MMG about which comments can be more thoughtfully tailored, CMS is instead flagging a few issues that it is proposing changes on and soliciting a broader call for comments, and allowing two weeks to provide input.  CMS asks for comments on ideas rather than the actual draft MMG, and does so through a restrictive, short web form that only contemplates comments from plan sponsors.  

The absence of clear draft language means that we are unable to comment directly on substantive issues that may appear in the finalized update. Rules surrounding marketing to and communicating with beneficiaries depend greatly on the details and specific permissions and prohibitions. Small changes to language can be quite significant in terms of beneficiaries’ understanding.

In addition, the lack of draft language makes identifying the exact location of changes difficult. The online form provided for commenting expects commenters to assign comments to particular sections of the MMG, yet the list provided by CMS does not identify the precise sections that are being modified. This requires commenters to guess exactly what changes are being made where, which can cause misunderstanding and/or misdirected attention to unrelated subject matter.

The missing draft language also requires commenters to guess regarding other changes CMS may consider more minor and not warranting a bullet in the short list. This means that commenters are forced to make assumptions about unmentioned changes, either to assume they are not being made or to assume they are.  In short, CMS offers a truncated and incomplete process for public comment on updates to the MMG.

  1. Section: Other – Miscellaneous

Call for Maintaining or Strengthening Consumer Protections

According to the memo soliciting comments on the MMG, the proposed changes include changes to the “General Marketing Requirements (current MMG sections 40.3 – 40.5) that enhance plans’ ability to market competitively and foster fair comparisons, while making sure beneficiaries have clear and reliable information with which to base their choices. This could include eliminating or revising current requirements and/or restrictions.”

While there is no detail as to what changes will be made, we object to any changes that may loosen or remove consumer protections. These protections allow people who are joining or already enrolled in Medicare to be free from harmful, misleading, or coercive advertising that will induce them into decisions that do not best suit their personal circumstances.  Many of these rules were implemented in response to marketing abuses surrounding the roll-out of the Part D prescription drug benefit and the significant expansion of private plan enrollment through the Medicare Advantage program. 

The significant new changes to MA benefits pursuant to CMS 4182-F, including elimination of meaningful difference requirements, benefit uniformity flexibility and expansion of supplemental benefits, as discussed elsewhere in these comments, will make 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.  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.  This requires firm oversight from CMS, not a relaxation of standards and restrictions.

  1. Section: Miscellaneous

CMS’ Proposed Changes.  Based upon our experience providing direct assistance to Medicare beneficiaries and those who support them, we object to several of the proposals to remove restrictions on methods of contact and allow for marketing of gifts as part of the advertising process. 

The decision to choose a particular plan is a complicated one, made only more complicated by CMS’ recent expansion of plan flexibilities that should not depend on the enrollment of friends or swayed by biased educational events in name only. Instead, people must carefully consider their own health needs and the real benefit structure offered by various plans.  Loosening these marketing requirements make it harder for beneficiaries to form independent decisions based on their own interests. 

Specifically, we object to the following proposed changes as outlined in the Request for Input:

  • Removing the restriction on requesting email addresses when asking for referrals from enrollees.
    • Comment: this will result in unwanted emails by prospective plan enrollees who have not agreed to be contacted; similar to phone calls or house visits, electronic communication with and from plans should be something that beneficiaries themselves must opt into, rather than allowing a referrer to provide their address.
  • Allowing Plans/Part D Sponsors to announce that a nominal gift may be offered to enrollees for a referral when soliciting leads.
    • Comment: plans and other marketers should not be able to encourage enrollees to offer up their friends and relatives, regardless of interest, by announcing that gifts are on offer; this will lead to an increase in unwanted, unsolicited contacts. 
  • Updating the font size rule to only apply to required documents.
    • Comment: Marketing materials of any type should be in a font that is readable; providing information in smaller font sizes has no purpose other than to decrease the likelihood that the information will be read.
  • Permitting agents to disseminate contact information at educational events.
    • Comment: Educational events do not require the same CMS oversight specifically because they are not marketing/sales events; allowing dissemination of agent contact info blurs the line between education and sales events and increases the risk that enrollment pitches will be presented or characterized as educational events
  1. Section: Miscellaneous

Communicating About New MA Benefit Flexibilities.  The significant changes to MA benefits pursuant to CMS 4182-F, including elimination of meaningful difference requirements, benefit uniformity flexibility and expansion of supplemental benefits, will make 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.  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 the rule, 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.  

In the final rule, CMS notes 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 changes to MA benefits pursuant to CMS 4182-F 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).  We recognize that under current plan options, Special Needs Plans for Chronically Ill individuals (C-SNPs) can be targeted to individuals with certain health conditions.  When marketing such plans, such targeted conditions are made apparent in order to adequately describe the availability of and coverage offered by such plans.  The marketing of C-SNPs, eligibility for which are premised on an individual having the specific condition(s) targeted by a given plan, is entirely different and distinguishable from the variations in options and benefits that can be offered by standard MA plans starting in 2019, where benefits will not be uniformly available to all enrollees, and plan enrollment is not restricted by health status/condition. 

These new 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 – Miscellaneous

Flexibilities related to Star Ratings.  Star Ratings serve multiple purposes, dictating payments, plan renewals, enrollment periods and more.  But one primary purpose is to accurately and understandably communicate plan quality to consumers making plan selection choices. CMS’ marketing rules should not allow plans to manipulatively describe their star ratings to obscure or confuse this simple comparative tool.  We also encourage CMS to include language in the revised MMG which prevents plan sponsors from marketing plans as having received 4 or 5 stars for previous years (e.g., “4 of the last 5 years”) or from marketing sub category, rather than overall, scores. As CMS reviews the MMG sections on star ratings, we strongly urge CMS to retain important consumer protections set forth by these guidelines, and engage with a diverse set of stakeholders on any proposed revisions.

CMS also plans to address the impact of contract consolidations through averaging star ratings for consolidated contracts. We support this policy change.   

  1. Section 30 – Plan/Part D Sponsor Responsibilities

Section 30.5.  Currently translation for marketing documents is required for languages spoken by five percent or more of the population in the plan service area. We ask that CMS adopt regulations which provide that translation requirements are triggered if a non-English language is spoken either by a percentage or by an absolute number of people in the service area. We further propose that, for purposes of counting absolute numbers, the service area be determined by combining all service areas served by the plan sponsor. These changes would address two major anomalies created by the current regulations. First, though PDPs in states like New York or California with large populations may serve tens of thousands of LEP individuals speaking a non-English language, the five percent threshold is not triggered because the population base against which the threshold is calculated is so large. Second, the current threshold does not take into account the reality that both the PDP market and the MA market are dominated by large national plan sponsors. These plans easily serve many thousands of speakers of Chinese, Vietnamese, Korean and other common languages yet may have no obligation to translate model documents in these languages. By any balancing of equities, the burden on plans is minimal compared to the benefits of access and transparency for plan members.

Section 30.8. We appreciate that plans must verify enrollments with beneficiaries who are enrolled in a plan through a broker or agent. The current verification process, however, does not adequately ensure that beneficiaries are enrolled into the plan they requested and understand the rules applicable to that plan. In California, over fifty dual eligible beneficiaries were enrolled into a health plan that they did not wish to enroll in. Had plans been reviewing enrollment trends, this influx of enrollments would have raised a flag. Accordingly, plans should be required to track enrollment activity that is suggestive of possible marketing violations. For example, a large number of enrollments effectuated within a certain time period or within a certain region should require plans to more closely examine these enrollments.

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