Hearing on Medicare Advantage Annual Enrollment: Cracking Down on Deceptive Practices and Improving Senior Experiences

Statement of

Mary Beth Donahue, President & CEO
Better Medicare Alliance

Hearing on Medicare Advantage Annual Enrollment:
Cracking Down on Deceptive Practices and Improving Senior Experiences
Senate Finance Committee
October 18, 2023

Better Medicare Alliance, on behalf of our Alliance and the 31 million beneficiaries enrolled in Medicare Advantage, is pleased to submit the following statement for the record related to the October 18, 2023 Senate Finance Committee Hearing titled Medicare Advantage Annual Enrollment: Cracking Down on Deceptive Practices and Improving Senior Experiences.

Better Medicare Alliance (BMA) is a community of over 200 Ally organizations and more than 1 million grassroots beneficiary advocates who value Medicare Advantage and the affordable, high-quality, coordinated care it provides to over 31 million beneficiaries. Together, our diverse Alliance of community organizations, providers, aging service organizations, health plans, and beneficiaries share a deep commitment to ensuring Medicare Advantage is a high-quality, cost-effective option for current and future Medicare beneficiaries.

Seniors and individuals with disabilities eligible for Medicare actively choose and trust the value-driven, affordable, quality, and innovative health care available in Medicare Advantage. Through value-based payment design and care coordination and management that results in improved health outcomes, extra benefits, and lower costs for beneficiaries and the federal government, Medicare Advantage addresses the needs of today’s beneficiaries. With growing and high consumer satisfaction, Medicare Advantage is building the future of Medicare.

Over the past five months, BMA has engaged its Allies through a series of roundtable conversations to discuss recommendations for policymakers to further maintain and modernize the Medicare Advantage program. One of the overarching recommendations is to establish marketing guidance that supports beneficiaries in making informed choices. Recognizing Congress, and in particular this Committee’s commitment to ensuring beneficiaries receive complete, accurate, and unbiased information about their health care choices, and the recent actions taken by the Centers for Medicare and Medicaid Services (CMS) in the CY 2024 Medicare Advantage Final Rule (Final Rule), BMA puts forth these recommendations as additional measures to further enable beneficiaries to make informed choices.

CMS responded to an increase in beneficiary complaints about marketing practices conducted by private sector agents, brokers, or third-party marketing organizations (TPMOs). In the CY 2024 Final Rule, CMS finalized restrictions to ensure that beneficiaries are not misled by inaccurate marketing materials. The rule includes provisions to (1) limit the use of the Medicare name, logo, and products or information in health plan marketing materials, (2) increase CMS’s authority to review marketing materials, develop marketing standards, and prohibit certain marketing activities, (3) prohibit marketing potential savings to enrollees in certain circumstances, and (4) prohibit marketing events from occurring within 12 hours of an educational event. The Final Rule also includes provisions for TPMOs, such as requiring that they disclose the number of health plans they represent in an area, BMA has supported such steps to ensure transparency and accountability within Medicare Advantage.i Congress has also responded to complaints surrounding marketing practices. In 2022, this Committee released a report on misleading marketing practices and potential policy recommendations to address Medicare Advantage marketing.ii

Below are additional policies that will further support beneficiaries in making informed health care choices including:

• Enhance enforcement of misleading marketing practices. CMS’s Medicare Communications and Marketing Guidelines states “plans are responsible for ensuring compliance with applicable federal laws and regulations, including CMS’s marketing and communications regulations.”iii According to a 2022 Senate Finance Committee inquiry on deceptive marketing practices in Medicare Advantage, between 2017 to 2022, only one enforcement decision was related to deceptive marketing practices. CMS should increase consequences for health plans and their marketing partners that engage in misleading marketing practices.iv CMS should consider levying the following enforcement actions, if warranted, on health plans to ensure compliance with its marketing and communication regulations: (1) monetary penalties, (2) suspension of enrollment, (3) immediate suspension of enrollment, (4) immediate suspension of enrollment and marketing, and (5) termination.
• Enhance oversight of companies engaging in misleading marketing practices. CMS should consider increasing funding to organizations that help monitor and report on marketing practices. State Health Insurance Assistance Programs (SHIPs), the Senior Medicare Patrol program (SMP), and Departments of Insurance are independent organizations that provide free, objective information on plan selection and benefits to all Medicare beneficiaries.v The Senate Finance Committee’s 2022 inquiry identified these organizations as valuable partners in identifying local and national companies who are engaging in misleading or deceiving practices.vi
• Establish a code of conduct and/or best practices for TPMOs with continued oversight from health plans and CMS. While CMS prohibits various marketing practices for health plans (e.g., reference to statistical data), it does not offer a set of guidelines for TPMOs.vii
• Prohibit TPMOs from distributing beneficiary contact information. TPMOs are currently permitted to collect personal beneficiary data and sell this information to other TPMOs. When beneficiaries place a call or click on a web-link related to an advertisement for a Medicare Advantage plan, they are often unaware they are providing consent for their contact information to be shared with other TPMOs for future marketing activities. CMS proposed to prohibit such activity in the CY 2024 Medicare Advantage and Part D Proposed Rule, but the agency did not finalize the policy.viii However, CMS noted that it may address this provision in a future final rule.

In conclusion, BMA appreciates your interest and work on this important topic and share your commitment to strengthening the program and better informing beneficiaries of their Medicare choices. We welcome the opportunity to discuss these important issues with the Committee working in partnership with our Allies and partners. We appreciate being able to continue working together and ensuring that all Medicare Advantage beneficiaries have the tools and resources necessary to attain optimal health and wellbeing.

Sincerely,
Mary Beth Donahue
President & CEO
Better Medicare Alliance

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i CMS. CY 2024 Part C & D Rule. April 2023. Available here
ii Senate Finance Committee. Deceptive Marketing Practices Flourish in Medicare Advantage. Available here
iii CMS. Medicare Communications and Marketing Guidelines (MCMG). Available here.
iv United States Senate Committee on Finance. Wyden Reports Deceptive Marketing Practices in Medicare Advantage that Harm Seniors. Available here.
v CMS. CMS/AOA DATA REPORTING GUIDANCE: JOINT SHIP/SMP PROGRAMS. Available here.
vi Senate Finance Committee. Deceptive Marketing Practices Flourish in Medicare Advantage. Available here.
vii CMS. Chapter 3 – Medicare Marketing Guidelines. Available here.
viii CMS. Contract Year 2024 Policy and Technical Changes to the Medicare Advantage and Medicare Prescription Drug Benefit Programs Proposed Rule (CMS-4201-P). Available here.