CMS released a proposed rule on Wednesday that would revise regulations governing Medicare Advantage and Medicare Part D. The proposed rule touches on a few core areas, including new regulations that would directly impact agents and brokers.

The proposed rule released this week would codify policy affecting agents and brokers that CMS believes would prevent “predatory marketing.” These proposals include a ban on sales presentations that immediately follow an educational event, a ban on agent distribution and collection of Scope of Appointment and Business Reply Cards at educational events, and rules banning agents conducting a sales and/or enrollment meeting with a beneficiary within 48 hours after a beneficiary’s consent. The proposed regulation also includes a requirement that plans report to CMS any agents who fail to adhere to CMS requirements, and work with state Departments of Insurance on these issues.

Some proposed requirements build off those already implemented in the Medicare Marketing Rule, which went into effect on October 1. As our Medicare agent members are well aware, that final rule outlined several new marketing requirements for third-party marketing organizations (TPMOs). This rule was aimed at call centers that air misleading advertisements during the AEP; individual agents, however, were lumped into these requirements as well. The proposed rule issued Wednesday would require agents to disclose to beneficiaries all the plans that the agent sells as well as require agents to inform beneficiaries that they “can obtain complete Medicare options/information from 1-800-MEDICARE, SHIPs or Medicare.gov.”

The proposed rule would also require agents to “ask a standardized list of questions that address a beneficiary’s healthcare needs, current providers and prescriptions” prior to enrolling a beneficiary into a plan. Additionally, the agency is proposing requiring agents to provide a pre-enrollment checklist to prospective enrollees, which would include the effect on current coverage if the beneficiary changes plans. For telephonic enrollments, agents would be required to thoroughly review the pre-enrollment checklist with prospective enrollees prior to completing enrollments.

The agency is also proposing new bans on use of “Medicare language or logos in advertisements that mislead Medicare enrollees into believing these advertisements are from the government.” The proposed rule would also prohibit “ads that do not mention a specific plan name as well as ads that use words and imagery, such as the Medicare name or logo, that may confuse beneficiaries in a way that is misleading, confusing or misrepresents the plan.” These are misleading marketing tactics frequently utilized by call centers exhorting Medicare beneficiaries to call now to take advantage of “additional benefits they may be entitled to.”

NAHU will be submitting extensive comments on this and all other sections of the proposed rule. We have been extremely vocal regarding the unintended consequences the previous Medicare Marketing Rule will have on beneficiaries, and we continue to be concerned that further regulatory actions will lead to a decrease of agents and brokers working in the Medicare market that would leave beneficiaries without the assistance of licensed and certified professionals to aid them with enrollment. For more information on NAHU’s past comments and the implementation of the Medicare Marketing Rule, click here.

Outside of requirements related to agents and marketing, the proposed rule includes provisions aimed at advancing health equity, such as clarifications to already existing requirements regarding “cultural competency.” The agency is also proposing that MA organizations develop procedures to offer digital health education to enrollees, as studies show that low digital health literally impedes telehealth access and worsens care gaps.

The proposed rule also touches upon mental health network adequacy, recommending requirements for MA organizations to add clinical psychologists, licensed clinical social workers and prescribers of medication for opioid use disorder as specialty types and make these specialty types eligible for an existing 10 percentage point telehealth credit, amend general access to services standards to explicitly include behavioral health services, and codify standards for appointment wait times for both primary care and behavioral health services. The proposed rule would also clarify that behavioral health services to evaluate and stabilize an emergency medical condition are not subject to prior authorization and require that MA organizations notify enrollees when the enrollee’s behavioral health or primary care provider(s) are dropped midyear from networks.

If finalized as written, the rule would also require MA organizations to establish care-coordination programs, including coordination of community, social and behavioral health services to help move toward parity between behavioral health and physical health services and “advance whole-person care.”

Moving on to provisions relevant to Part D, the proposed rule would create greater formulary flexibility for certain biologics and authorized generic drugs. Current regulations allow Part D sponsors to immediately remove a brand-name drug from their formulary and substitute its newly released generic equivalent. Part D sponsors meeting these requirements can provide notice of specific changes, including direct notice to affected beneficiaries, after they take place. In addition to this, the proposed rule released this week would permit Part D sponsors to immediately substitute “a new interchangeable biological product for its corresponding reference product,” a new “unbranded biological product for its corresponding brand-name biological product” and a new authorized generic for its corresponding brand-name equivalent.

In addition to all of this, the proposed rule implements certain sections of the Consolidated Appropriations Act of 2021 (CAA) and Inflation Reduction Act of 2022 (IRA). This most notably includes expansion of eligibility for the Medicare low-income subsidy (LIS) program to 150 percent of the Federal Poverty Level beginning January 1, 2024.