Reed Smith Client Alerts

The Centers for Medicare & Medicaid Services (CMS) have issued a proposed rule to amend Medicare Advantage (MA) and Part D regulations for calendar year 2023. Significantly, the rule proposes changes to marketing and communications requirements, maximum out-of-pocket (MOOP) amounts, network adequacy requirements in MA plan applications, and drug pricing for Part D plans.
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Marketing and communications requirements

CMS proposes three measures related to the marketing practices of third-party marketing organizations (TPMOs). First, it proposes a broad definition of TPMOs as organizations, including first tier, downstream, or related entity (FDRs) that are compensated to perform lead generation, marketing, sales, and enrollment-related functions as a part of the chain of enrollment. Second, the rule would require TPMOs to use a disclaimer and disclose to beneficiaries that their contact information will be provided to an agent or broker. Third, it would require plans that do business with TPMOs, whether directly or through an FDR, to ensure the TPMO adheres to any requirements that apply to the plan or to the TPMO, including the disclaimer and transparency requirements addressed above. These proposed rules are intended to address CMS’s concern with the increased and potentially misleading marketing practices of TPMOs, which have purportedly caused a recent spike in consumer complaints.

In addition, the proposed rule would require MA and Part D plans to create a multi-language insert that would inform the reader, in the top 15 languages used in the United States, that interpreter services are available for free. The insert would need to be included in any CMS-required material under 42 C.F.R. sections 422.2267(e) and 423.2267(e) (evidence of coverage, summary of benefits, etc.).