CMS Proposes Rule To Tighten Medicare Advantage Marketing

In an effort to crack down on predatory Medicare Advantage marketing practices, the Centers for Medicare and Medicaid Services has issued a proposed rule it says will improve marketplace competition and limit plans’ payments to brokers.

CMS said the rule will prevent plans from engaging in anticompetitive steering of prospective enrollees based on excessive compensation to agents and brokers.

The proposed rule will also purportedly improve access to behavioral healthcare by adding a new facility type that includes several behavioral health provider types to Medicare Advantage network adequacy requirements. CMS is also proposing policies to increase the utilization and appropriateness of supplemental benefits to ensure taxpayer dollars provide meaningful benefits to enrollees.

Additionally, the proposed rule would seek to improve transparency on the effects of prior authorization on underserved communities, and proposes more flexibility for Part D plans to more quickly substitute lower-cost biosimilar biological products for their reference products.


It’s not the first time that CMS has taken steps to address potentially predatory MA marketing, with the agency banning misleading television ads late last year.

Since many people on Medicare rely on agents and brokers to navigate their choices, CMS said it’s concerned that some Medicare Advantage plans are compensating agents and brokers in a way that may circumvent existing payment rules, inappropriately steer individuals to enroll in plans that don’t best meet their needs, and lead to further consolidation in the MA market.

To further protect people with Medicare through stronger marketing policies and to promote a competitive marketplace in Medicare Advantage, CMS is proposing adding guardrails to plan compensation for agents and brokers, including standardization.

CMS also proposes to strengthen and improve access to behavioral healthcare by adding a new facility type, which includes marriage and family therapists, mental health counselors, addiction medicine clinicians, opioid treatment providers, and others, to CMS’ Medicare Advantage network adequacy requirements. This proposed addition builds on changes finalized last year to strengthen these requirements, and would ensure people with Medicare Advantage can access mental health and substance use disorder treatment.

Also in the proposed rule, CMS proposes requiring Medicare Advantage plans to send a mid-year personalized notification to their enrollees of the unused supplemental benefits available to them, in a bid to encourage higher utilization. Currently, CMS said, 99% of Medicare Advantage plans offer at least one supplemental benefit, and over time those benefits have become broader in scope and variety, with more rebate dollars directed toward these benefits; the agency said it wants to ensure these offerings are effectively reaching enrollees and actually meeting their needs, and not just used for attracting enrollees.

Further, CMS is proposing additional requirements designed to help ensure that benefits offered as special supplemental benefits for the chronically ill (SSBCI) are backed by evidence. CMS is also proposing new marketing and transparency guardrails around these benefits.

The administration added it’s concerned that certain prior authorization policies may disproportionately inhibit access to needed care for underserved enrollees. To provide additional safeguards, CMS is proposing to require that Medicare Advantage plans include an expert in health equity on their utilization management committees, and that the committees conduct an annual health equity analysis of the plans’ prior authorization policies and procedures.

This analysis would examine the impact of prior authorization on enrollees with one or more risk factors including eligibility for Part D low-income subsidies, dual eligibility for Medicare and Medicaid, or having a disability, compared to enrollees without these risk factors. These analyses would have to be posted publicly to improve transparency into the effects of prior authorization on underserved populations, CMS said.

To further promote health equity, CMS is also proposing to streamline enrollment options for individuals with both Medicare and Medicaid, ostensibly providing more opportunities for integrated care.

To support competition in the prescription drug marketplace, CMS is also proposing to provide more flexibility to substitute biosimilar biological products other than interchangeable biological products for their reference products in order to give people with Medicare more timely access to lower-cost biosimilar drugs. The proposal would permit Part D plans to treat such substitutions as maintenance changes so that the substitutions apply to all enrollees, not only those who begin the therapy after the effective date of the change, following a 30-day notice.

There will be a 60-day comment period for the notice of proposed rulemaking, and comments must be submitted at one of the addresses provided in the Federal Register no later than January 5, 2024.


The proposed rule has already spurred a reaction from the Association for Community Affiliated Plans. ACAP CEO Margaret A. Murray said the organization is “especially pleased that CMS has signaled an openness to improving the way dual-eligible special needs plans, or D-SNPs, are displayed in the Medicare Plan Finder. These plans, which are specifically designed to coordinate benefits for people eligible for both Medicare and Medicaid, can make all the difference for people who can benefit from their design.”

Murray said that as consumers choose their MA plans during open enrollment, it’s important they have as much clear, easy-to-understand information as possible.

“We believe that this is doubly important for people dually eligible for Medicare and Medicaid as they have two sets of benefits to navigate, so we have clear ideas about how Plan Finder can be improved to help dually eligible beneficiaries understand their options,” she said. “We’re grateful to CMS for the opportunity to review and comment on these regulations and look forward to providing further comment in due course.”


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