CMS Finalizes Policy Updates for Medicare Advantage Plans for Contract Year 2025

The Centers for Medicare & Medicaid Services (CMS) has issued a final rule governing Medicare Advantage (MA) and Part D (prescription drug) benefits for contract year 2025. ASHA commented on the proposed rule [PDF] supporting many of the policies finalized in this rule to ensure MA plan enrollees maintained access to audiology and speech-language pathology services by placing important guardrails on these plans.

New Guardrails for Plan Compensation to Agents and Brokers to Stop Anti-Competitive Steering

For several years, stakeholders have raised concerns regarding excessive compensation and other bonus arrangements offered by plans to agents and brokers of MA plans. These financial incentives can result in individuals being steered to some MA and Part D plans over others based on the agent or broker’s financial interests, rather than the prospective enrollee’s health care needs (as is legally required).

In response to these concerns, CMS is finalizing requirements that redefine “compensation” to set a clear, fixed amount that agents and brokers can be paid regardless of the plan in which the individual enrolls. This is to address loopholes that result in commissions above this amount that create anti-competitive and anti-consumer steering incentives.

The provisions of this final rule, which are applicable beginning with the upcoming Annual Enrollment Period, ensure that agent and broker compensation reflect only the legitimate activities required of agents and brokers. The rule accomplishes this by broadening the scope of the regulatory definition of “compensation” so that it is inclusive of all activities associated with the sales to/enrollment of an individual into a MA or Part D plan. In response to feedback from stakeholders, CMS is increasing the final national agent/broker fixed compensation amount for initial enrollments into an MA or Part D plan from $31 to $131.

The final rule also generally prohibits contract terms between MA organizations/Part D sponsors and middleman Third Party Marketing Organizations (TPMOs), such as field marketing organizations, which may directly or indirectly create an incentive to keep agents or brokers from objectively assessing and recommending the plan that is best suited to a potential enrollee’s needs.

Limiting the Distribution of Personal Beneficiary Data by Third-Party Marketing Organizations

Some TPMOs have been selling and reselling personal beneficiary data, which can undermine existing rules that prohibit cold calling people with Medicare and result in other aggressive marketing tactics for MA and Part D plans. To curtail this practice, in this final rule, CMS is codifying the requirement that personal beneficiary data collected by a TPMO for marketing or enrolling the individual into an MA or Part D plan may only be shared with another TPMO when prior express written consent is given by the individual.

Further, the TPMO must obtain this written consent through a transparent and prominently placed disclosure from the individual to share the information and be contacted for marketing or enrollment purposes, separately for each TPMO that receives the data (i.e., one-to-one consent). This rule is generally consistent with Federal Trade Commission and Federal Communications Commission regulations.

Mid-Year Enrollee Notification of Available Supplemental Benefits

MA plans can use rebate dollars from CMS to advertise a wide array of supplemental benefits. An increasing share of Medicare dollars is going toward MA plan rebates: roughly $337 billion over the last 10 years. In 2022, the median number was 23 supplemental benefits, and the most frequently offered benefits were vision, hearing, fitness, and dental. Some of these benefits also address unmet social determinants of health needs, such as food insecurity and inadequate access to transportation.

However, some plans have indicated that enrollee utilization of many supplemental benefits is low. In other words, plans are offering these benefits but are not paying for them because many enrollees do not use them – either because the enrollees forget about them or perhaps because utilization management makes accessing supplemental benefits challenging. CMS wants to ensure the large federal investment of taxpayer dollars in supplemental benefits is making its way to enrollees and is not primarily used to market rarely used benefits to individuals.

To accomplish CMS’s goal, the final rule requires MA plans to engage in outreach efforts so that enrollees are aware of the supplemental benefits available to them. CMS is requiring MA plans to issue a “Mid-Year Enrollee Notification of Unused Supplemental Benefits” annually between June 30 and July 31 of the plan year. This must be personalized for each enrollee and include a list of any supplemental benefits enrollees didn’t use during the first six months of the year. The notification will also include the scope of the benefit, cost-sharing, instructions on how to access the benefit, any network application information for each available benefit, and a customer service number to call if additional help is needed.

This provision may be of particular interest to ASHA members whose patients are enrolled in one of the many MA plans offering hearing aid supplemental benefits, as the mid-year notification of remaining benefits will help ensure patients access medically necessary hearing health services.

Annual Health Equity Analysis of Utilization Management Policies and Procedures

CMS states in the final rule that prior authorization policies and procedures may have a disproportionate impact on underserved populations and may delay or deny access to certain services. The final rule ensures that MA organizations analyze their utilization management (UM) policies and procedures from a health equity perspective.

CMS is updating the composition of and responsibilities for a plan’s UM committee to require that

1. at least one member of the UM committee has expertise in health equity
2. the UM committee conducts plan-level annual health equity analysis of prior authorization policies and procedures used by the MA plan
3. the results of the analysis be made publicly available on the plan’s website.

The goal of the health equity analysis is to create additional transparency and identify disproportionate impacts of UM policies and procedures on enrollees who receive the Part D low-income subsidy, who are dually eligible, or who have a disability.

Enhance Enrollees’ Rights to Appeal an MA Plan’s Decision to Terminate Coverage for Non-Hospital Provider Services

MA plan enrollees do not currently have the same access to Quality Improvement Organization (QIO) review of a fast-track appeal as Traditional Medicare beneficiaries. CMS is revising regulations to

1. require the QIO, instead of the MA plan, to review untimely fast-track appeals of a MA plan’s decision to terminate services in a skilled nursing facility, comprehensive outpatient rehabilitation facility, or home health agency
2. fully eliminate the provision requiring forfeiture of an enrollee’s right to appeal a termination of services from these providers when they leave the facility.

These changes will bring MA plan regulations in line with the parallel reviews available to individuals on Traditional Medicare and expand the rights of MA plan enrollees to access the fast-track appeals process.

What’s Next?

The provisions of this final rule aim to ensure greater oversight on MA plans and provide guardrails that limit payer behaviors that impede access to care. ASHA will monitor implementation of the policies of this final rule and will bring examples of any violations to the attention of CMS as necessary.

Questions?

See CMS’s fact sheet for more on the final rule. For questions, please contact ASHA’s health care policy team at reimbursement@asha.org.