CMS' New Final Rule Addresses MA Plan Marketing Misconduct, Barriers to Care & Promotes Health Equity

With the extreme rise in Medicare Advantage (MA) plan marketing misconduct, and the ongoing mountain of prior authorizations and other barriers to care beneficiaries have long experienced in MA plans, the Centers for Medicare and Medicaid Services’ (CMS) new final rule announced in April is good news for all. The final rule will “strengthen Medicare Advantage and hold health insurance companies to higher standards for America’s seniors and people with disabilities by cracking down on misleading marketing schemes by Medicare Advantage plans, Part D plans and their downstream entities,” said CMS in their press release. It will also “remove barriers to care created by complex coverage criteria and utilization management; and expand access to behavioral health care.”

The final rule also has several provisions to increase health equity, such as adding seven populations that MA plans must serve in a culturally competent manner. These populations include those: (1) with limited English proficiency or reading skills; (2) of ethnic, cultural, racial, or religious minorities; (3) with disabilities; (4) who identify as lesbian, gay, bisexual, or other diverse sexual orientations; (5) who identify as transgender, nonbinary, and other diverse gender identities, or people who were born intersex; (6) who live in rural areas and other areas with high levels of deprivation; and (7) otherwise adversely affected by persistent poverty or inequality.

In addition, CMS is “requiring MA organizations to include providers’ cultural and linguistic capabilities in provider directories,” and to offer digital health education as a way to improve access to medically necessary covered telehealth benefits for beneficiaries with low digital health literacy, as stated in CMS’ recent fact sheet. The final rule also includes a new health equity index (HEI) to be included the Plan Star Ratings starting for the 2027 plan year.

The final rule implements a key provision of the Inflation Reduction Act as well that will improve access to affordable prescription drug coverage for an estimated 300,000 low-income individuals. This provision raises the income limit for qualifying for the full Part D low income subsidy to 150% of the federal poverty level, up from 135%, starting January 1, 2024. This means these 300,000 individuals will have no monthly premium and no annual deductible for their Part D plan, just minimal copayments.

Cracking Down on Misleading Marketing

CMS’ final rule includes stricter marketing guidelines for MA plans, Part D plans and their third party marketing entities as a way to protect consumers from enrolling in plans that don’t meet their needs based on misleading information. The new rule also addresses the increasing on-slot of television advertisements generically promoting enrollment in MA plans with no specific plan name and using imagery and Medicare’s logo in a way that is confusing to beneficiaries. As summarized in a recent news article, CMS’ new rules prohibit plans and agents that sell them from:

Advertising benefits to beneficiaries in a service area where those benefits are unavailable.
Using words like “best” or “most” in sales pitches unless the marketing material includes documentation to support the statement based on data from the current or prior year.
Using Medicare images, logos, or replications of a Medicare card in marketing materials or ads because an increasing number of beneficiaries are misled into believing they’re contacting Medicare or the federal government instead of an MA plan.
Proclaiming a plan’s potential savings based on a comparison with typical expenses that would be borne by an uninsured or a dually eligible beneficiary, which that individual would not be required to pay.
Holding a marketing event within 12 hours of a Medicare educational event at the same location.

Some additional requirements for MA and Part D plans and third party marketing agencies selling these plans are that they must:

List all of the MA plans or Part D sponsors that they represent in their marketing materials.
Explain the effect of an enrollee’s choice on their current coverage.
List medical benefits in a specific order at the top of a plan’s summary benefits to simplify plan comparisons.
Include a disclaimer that the beneficiary may want to consult with the federally-funded SHIP – State Health Insurance Assistance Program – for unbiased assistance. California’s SHIP is the Health Insurance Counseling and Advocacy Program (HICAP) available in every county.

Removing Unnecessary Barriers to Care

In response to beneficiary and advocate complaints of not being able to access timely care in MA and/or Part D plans due to cumbersome prior authorization and other utilization management requirements, CMS’ final rule includes important changes for access to care. For prior authorization, CMS clarifies that MA plans may not deny coverage for services that are covered by Original Medicare, though it may use some processes to determine medical necessity. As summarized in a recent article, CMS’ rules require plans to:

Cover the same services that Medicare covers for beneficiaries with traditional Medicare, including abiding by local and national coverage decisions.
Maintain approval of a service “for as long as medically necessary to avoid disruptions.”
Use prior authorization policies “only to confirm the presence of diagnoses or other medical criteria and/or ensure that an item or service is medically necessary based on standards specified in this rule.”
Provide a minimum 90-day transition period while an enrollee who is switching to a different plan is undergoing an active course of treatment.
Create utilization management committees to review prior authorization policies annually to make sure they are consistent with Medicare policies.

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