Biden administration finalizes rule to target ‘misleading’ Medicare Advantage ads


U.S. health officials have issued a final rule that not only makes some changes to Medicare — including expanding access to behavioral health care and clarifying criteria guidelines — it cracks down on “misleading” ads.

On Wednesday, the U.S. Department of Health and Human Services, through the Centers for Medicare and Medicaid Services, finalized the rule that, among other things, prohibits ads that do not mention a specific plan name and use Medicare logos or language in a way that which may mislead and confuse subscribers into believing that the advertisements are coming from the government.

The measures are the latest in the Biden administration’s efforts to rein in Medicare Advantage plans, which are gaining in popularity. About half of Medicare enrollees are enrolled in these plans, which are run by insurers that contract with the federal government.

According to CMS, the “proliferation of certain television ads” promoting enrollment in Medicare Advantage plans — which are offered by Medicare-approved private companies — is concerning.

“Today, we are announcing a rule that will crack down on misleading marketing schemes by health insurance companies that offer Medicare Advantage plans, those that offer Part D prescription drug plans, and their downstream entities. Among other provisions, the rule would prohibit overly general advertisements for the Medicare Advantage program, which often tend to confuse and mislead those eligible to apply for some of these insurance plans,” HHS Secretary Xavier Becerra said Wednesday.

Overall, about 65 million Americans are in the Medicare program, according to Becerra.

“Any marketing that doesn’t specifically name a health plan that misrepresents what the plan can offer in those ads is something that will now be prohibited,” he said. “That will be important because the confusion that often occurs and the changes that some enrollees often make to their detriment in getting health care are things that we want to try to avoid.”

Last year, the Senate Finance Committee released a report that highlighted the increase in such deceptive marketing practices targeting seniors with Medicare Advantage plans and recommended that CMS take action to reduce the prevalence of such marketing tactics.

“We have heard from many seniors and people with disabilities about misleading and confusing advertising for Medicare Advantage and Part D plans. Today’s final rule includes changes to protect people researching Medicare Advantage and Part D coverage from confusing and potentially misleading marketing practices ,” Dr. Meena Seshamani, CMS deputy administrator and director of the Center for Medicare and Medicaid Services, said Wednesday. “We are finalizing 21 marketing regulations to protect beneficiaries.”

In addition to marketing requirements, the final rule clarifies criteria guidelines to ensure that people with Medicare Advantage get access to the same “medically necessary” care they would get with traditional Medicare.

The rule also expands the list of populations to which Medicare Advantage organizations must provide “culturally competent” services, such as people with limited English proficiency or those in the LGBTQ community. In addition, the rule requires that prior authorization approval for care remain in effect for as long as “medically necessary” to avoid interruptions in care for beneficiaries.

“We’re also finalizing new minimum wait time standards for behavioral health,” Seshamani said, as well as a requirement that most types of Medicare Advantage plans include behavioral health services.

The American Hospital Association said in a statement Wednesday that it welcomes the increased attention to Advantage plans.

“Hospitals and health systems have raised the alarm that beneficiaries enrolled in some Medicare Advantage plans routinely experience inappropriate delays and denials of coverage for medically necessary care,” said Ashley Thompson, the group’s senior vice president for public policy analysis and development. “This rule will go a long way toward protecting patients and ensuring timely access to care, as well as reducing an inappropriate administrative burden on an already strained health care workforce.”

Protecting and strengthening Medicare is one of the administration’s top priorities, CMS Administrator Chiquita Brooks-LaSure said in a media release Wednesday. “With this final rule, CMS is introducing new safeguards that make it easier for people with Medicare to access the benefits and services to which they are entitled, while strengthening the Medicare Advantage and Part D programs.”

On Friday, CMS issued controversial final payment policies for 2024 that seek to curb overbilling by Medicare Advantage plans. The changes include updating the risk adjustment model to better ensure payments are consistent with patients’ medical conditions and that insurers aren’t adding diagnoses to inflate their billing.

Insurers vehemently protested the proposed rule, prompting CMS to phase in the changes over three years instead of one.

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