AOA decries misleading Medicare Advantage advertising

Medicare Advantage (MA) plans’ misleading advertising practices face scrutiny by federal regulators’ newly proposed marketing requirements, as the AOA casts support and accentuates plans’ often-inaccurate portrayal of eye health and vision benefits.

In a proposed rule issued on Dec. 14, 2022, the Centers for Medicare & Medicaid Services (CMS) solicited broad feedback on Contract Year 2024 Policy and Technical Changes to the Medicare Advantage (MA) and Medicare Prescription Drug Benefit Programs that included a range of proposals, including revising rules governing MA and Part D marketing and communications. Through more than 20 different regulation changes, the CMS seeks to address issues flagged by the AOA as well as a rise in beneficiary complaints—outlined in a recent U.S. Senate Finance Committee report—concerning misleading and deceptive advertising practices.

The CMS’ myriad proposals include:

• Requiring agents to explain the effect of an enrollee’s enrollment choice on their current coverage whenever the enrollee makes an enrollment decision.
• Simplifying plan comparisons by requiring medical benefits be in a specific order and listed at the top of a plan’s Summary of Benefits.
• Prohibiting marketing of benefits in a service area where those benefits are not available.
• Prohibiting marketing of information about savings available to potential enrollees that are based on a comparison of typical expenses borne by uninsured individuals, unpaid costs of dually eligible beneficiaries or other unrealized costs of a Medicare beneficiary.
• Requiring MA plans and Part D sponsors to have an oversight plan that monitors agent/broker activities and reports agent/broker noncompliance to CMS.
• Placing discrete limits around the use of the Medicare name, logo and Medicare card.
• Prohibiting the use of superlatives (e.g., words such as “best” or “most”) in marketing unless the material provides documentation to support the statement, and the documentation is for the current or prior year.

Subsequently, many of the CMS’ proposed rules in this area would strengthen regulations or impart new requirements of third-party marketing organizations that develop materials on behalf of MA plans and Part D sponsors, such as requiring a vetting process for such marketing materials and enhancing transparency.

Such requirements are necessary, advocates contend, as the number of Medicare beneficiary complaints over commercial MA plans more than doubled from 2020 to 2021 with the aforementioned congressional report finding “evidence that beneficiaries are being inundated with aggressive marketing tactics as well as false and misleading information.”

Toward that end, the AOA submitted comments on the proposed rule in early February that urged CMS to focus in on MA plans’ misleading marketing and further encouraged scrutiny of marketing supplemental benefits for eye care.

“We have been educating policy makers in Congress and within the CMS about how subcontracting benefits to vision plans and deceptive marketing tactics negatively impact patients,” said AOA President Ronald L. Benner, O.D., during the AOA Leaders Summit in February.

“The AOA has been fully engaged to ensure strong, enforceable policy changes are put into place and we see that CMS is squarely focused on taking the right actions when it comes to Medicare Advantage plans.”

AOA emphasizes inaccurate information of eye health, vision benefits

The CMS’ proposed changes reflect much of the feedback the AOA provided in August 2022 when the agency requested feedback on ways it might advance equity, access and quality in the MA program. At that time, the AOA noted concerns with MA plans’ misleading marketing practices in eye care and specifically called attention to plans’ proclivity to focus on supplemental benefits available without making clear that medical eye care covered under traditional Medicare is also a benefit for MA patients.

The AOA emphasized that MA plans should provide beneficiaries with more accurate information about how both supplemental benefits, such as regular eye exams, and medical eye care, such as glaucoma management, are covered. Additionally, the AOA noted it’s critical to ensure MA plans are accurate in their benefit descriptions included in advertisements—for instance, prohibiting the marketing of services that an MA plan does not cover, and requiring plans to explain how they restrict access to care by limiting provider networks, demanding doctors use only plan-owned labs or suppliers and by requiring additional hurdles to care, such as prior authorizations.

In support, the AOA provided an example of a UnitedHealthcare television advertisement for free eye exams and eyewear; however, the commercial’s fine print contradicts this message by saying that vision benefits vary by MA plan and are not available in all plans.

Moreover, the AOA noted how the use of subcontracted vision plans complicates beneficiaries’ ability to access care. Although MA plans provide supplemental coverage for annual preventive eye exams through a subcontracted vision plan, these benefits may include a relatively small glasses or contact lens allowance. So, too, subcontracted vision plans often do not share the same provider panel as the MA plan, meaning patients cannot always get the supplemental benefit from the Medicare doctor they already see for their medical eye care.

“To make matters worse, MA plan marketing misleads patients by overstating the scope of supplemental benefits—first by falsely suggesting that without supplemental benefits Medicare does not cover eye care, and second, by promising certain benefits as ‘free’ even though beneficiaries often have cost sharing,” the AOA letter reads.

The result is patient confusion and frustration that may inadvertently cause delayed medical eye care or deny the patient the full scope of care promised them under Medicare, the AOA asserts.

Such is the case, the AOA reiterated these concerns in public comments submitted to the CMS on Feb. 13 for the current proposed rule, noting there is an “urgent need” to address these issues as misleading advertisements continue to air today.

“We believe that patient confusion can be addressed through clearer advertisements and more accountability of Medicare Advantage plan insurance brokers,” the AOA wrote to CMS.

CMS addressing ongoing issues with MA plans

In January, the CMS issued a final rule to hold commercial MA plans accountable for accurate payments as studies illustrate how medical records don’t always support the diagnoses reported by MA plans, leading to billions of dollars in overpayments and increased Medicare costs. By updating its Risk Adjustment Data Validation (RADV) Program, the CMS intends to recover $4.7 billion from insurers between 2023 and 2032.

While legal challenges are sure to arise, the rule indicates that the CMS is working to address MA plan concerns. The AOA will work to ensure these new policies do not cause undue burdens on doctors, and should doctors have concerns with documentation requests or requirements, they may report those to the AOA.