CMS Proposed Rule Tamps Down On MA Predatory Marketing

The Centers for Medicare and Medicaid Services proposed a new rule Monday that aims to ensure fair competition among Medicare Advantage plans by preventing excessive compensation to agents and brokers, among other things.

“Agents and brokers play an important role in guiding people with Medicare to the option that is tuned in to their medical needs. Our proposals on how plans compensate agents and brokers seek to support a competitive marketplace that best serves people with Medicare,” said Dr. Meena Seshamani, CMS deputy administrator and director of the Center for Medicare, in a statement.

Those enrolling in Medicare often use agents and brokers to help them select a health plan. However, brokers and agents aren’t always directing beneficiaries to the plan that’s best for them, according to CMS.

“Financial incentives to agents and brokers, more readily paid by large plans, can result in beneficiaries being steered to some Medicare Advantage plans over others based on excessive broker and agent compensation and other bonus arrangements — rather than recommending plans based on the prospective enrollee’s best interests,” CMS said in a fact sheet.

To combat this problem, CMS proposed setting a flat amount — $632 — that MA plans can pay agents and brokers when they help enroll a person into any MA plan. This cap would remove any “variability in payments” to agents and brokers.

In addition, the proposed rule would forbid contract terms between MA organizations and marketing intermediaries, like field marketing organizations, that allow for volume-based bonuses for enrollment into particular plans. A field marketing organization is a company that connects independent insurance agents with insurance carriers.

These changes would build on previous steps CMS has taken on marketing practices for MA plans, such as banning misleading TV ads.

In addition to targeting marketing practices, CMS proposed changes to improve behavioral healthcare access. The agency proposed adding a new facility type called “Outpatient Behavioral Health” to its Medicare Advantage network adequacy requirements. This would mean that MA plans would have to offer marriage and family therapists, mental health counselors, addiction medicine clinicians and opioid treatment providers.

The proposed rule also aims to improve prior authorization, which can have a “disproportionate impact on underserved populations and may delay or deny access to certain services,” CMS said. It proposed requiring MA plans to have a member on their utilization management committee who is an expert in health equity. The committee would also have to perform an annual health equity analysis on their prior authorization practices and make the analysis publicly available on their website.

Another area CMS is targeting in its proposed rule is supplemental benefits. Medicare Advantage plans would be required to send beneficiaries a personalized notification mid-year that would inform them about their unused supplemental benefits and encourage them to use them.

One advocacy organization for MA came out in support of the proposed rule.

“Better Medicare Alliance supports increased transparency, accountability, and access for Medicare Advantage beneficiaries. That’s why we recently released Medicare Advantage policy recommendations aimed at improving prior authorization, supplemental benefits, marketing, and more,” said Mary Beth Donahue, president and CEO of the Better Medicare Alliance, in a statement. “As we review the proposed rule, we are encouraged by CMS’ efforts to address these vital issues while preserving seniors’ choice and access to high quality, affordable care.”

CMS said there will be a 60-day comment period for the proposed rule, and that comments must be submitted by January 5.

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