Since 2013, the Centers for Medicare & Medicaid Services (CMS) has steadily shifted direct monitoring and oversight of sales and marketing from the agency to plans. The removal of the requirement to upload educational and marketing/sales events into the Health Plan Management System (HPMS) in the final 2018 Medicare Marketing Guidelines (MMG) is a recent example. However, CMS can still get a glimpse into a plan’s sales and marketing program through the Complaints Tracking Module (CTM) and Compliance Program Effectiveness (CPE) program audit tracers. Because sales and marketing non-compliance can potentially affect a plan’s Star Ratings and CMS program audit score, BluePeak recommends that plans tweak their events process, to enable them to provide documentation of compliance upon request by CMS, and utilize the Readiness Checklist and Agent/Broker Oversight Common Findings/Best Practices, with updates, to guide their continuing sales and marketing monitoring and oversight efforts.
CMS Shifts Sales and Marketing Monitoring and Oversight to Plans
In one of the biggest changes to MMG policy, plans are no longer required to upload educational and marketing/sales events into HPMS.
Having less to submit is certainly good news for plans, but when the CMS giveth and taketh away, there is usually a residual responsibility. As an example, in lieu of submitting events, “Plans/Part D Sponsors must keep accurate records of all marketing/sales and educational events, and CMS reserves the right to request event information at any time” (Section 70.4.1).
Changes in policy invariably bring changes to processes. How will plans document events? Under what circumstances might CMS request events documentation? Through research and reflection, BluePeak Advisors offers the following background, insight and recommendations to help plans find solutions.
History of Sales Oversight
CMS Program Audits
Some will remember when CMS reviewed agent/broker files as part of either a Regional Office review or a program audit. The Agent/Broker Oversight area of the CMS program audit contained five elements: Licensure, Appointment, Testing and Training, Outbound Enrollment Verification (OEV), and Complaints. In 2013, CMS dropped the number of audit elements for the Agent/Broker Oversight area down to one, OEV Calls. According to the 2013 Part C and D Annual Audit and Enforcement Report , the other Agent/Broker Oversight elements were removed from CMS program audit protocols due to few audit findings and extensive non-audit related oversight in these areas. By 2014, OEV was removed as a CMS program audit element.
Beginning in 2007, CMS began directly monitoring compliance with marketing requirements during the Annual Election Period (AEP) through the market surveillance program, which included: public event secret shopping, unreported marketing events and advertisement compliance reviews, and surveillance marketing allegation response team (SMART) activities. CMS’ methodology for selecting events to secret shop consisted of sampling events from those that plans were required to submit in HPMS, targeting those with higher concentrations of potentially affected beneficiaries and vulnerable populations, such as low-income and limited English proficiency.
Results from CMS’ monitoring activities were summarized in an Annual Election Period Marketing Surveillance Summary Report . The most recent report available on the CMS website is from 2014. Much like the 2013 Part C and D Annual Audit and Enforcement Report , the 2014 Annual Election Period Marketing Surveillance Summary Report notes marked improvement by plans in all areas, with only 8 Notices of Non-Compliance (NONCs) issued to plans and no deficiencies egregiousness enough to warrant higher levels of CMS enforcement action.
Shift from CMS to Plan Monitoring of Compliance
The release of the 2013 Medicare Marketing Guidelines and subsequent CMS 2013 Medicare Marketing Guidelines Training signaled a shift away from CMS directly monitoring compliance with marketing regulations and guidance to plans being responsible for ensuring and documenting their employees’, subcontractors’, downstream entities’ and/or delegated entities’ compliance with all applicable MMG requirements. The 2013 MMG was stripped of 70 pages and described by CMS as “less prescriptive.”
Plan responsibility for ensuring compliance with current CMS marketing regulations and guidance, included monitoring and overseeing the activities of employees and anyone to which the plan delegated some responsibility for implementation, including agents and brokers, third-party marketing organizations (TMOs), providers and Pharmacy Benefit Managers (PBMs). The main activities for which plans were responsible for monitoring and overseeing included marketing events, marketing materials, marketing material distribution, and calling and disseminating information. In order to provide adequate documentation of monitoring and oversight activities, plans were encouraged to have systems and processes in place for all aspects of their marketing program, to provide oversight of those systems and processes, and to have clearly defined policies and procedures.
Given plans’ improved compliance to marketing rules and regulations and the shift from CMS to plan oversight and monitoring of marketing activities, the removal of the requirement to upload events into HPMS is a natural progression. While CMS no longer audits Agent/Broker Oversight and appears to be moving away from some of its market surveillance activities, there are other ways non-compliance with sales and marketing rules and regulations can surface and impact plans.
Source and Impact of Sales and Marketing Non-Compliance
Where CMS had previously collected data on Agent Compensation Structure, Agent Training and Testing, and Sponsor Oversight of Agents, these measures are suspended from 2017 Part C Reporting. However, CMS can still get a glimpse into a plan’s sales and marketing program through CTMs and CPE program audit tracers.
Most marketing complaints are assigned to plans to review and close, according to the Updated Complaints Tracking Module (CTM) Standard Operating Procedures HPMS memo (February 24, 2017). However, marketing misrepresentations are designated as “CMS Lead and cannot be closed by plans. Plans are encouraged to review marketing misrepresentation complaints, which are allegations of inappropriate marketing by the plan, plan representatives or agents/brokers, as they would other marketing complaints, updating CTM notes as appropriate. CMS also makes marketing misrepresentations available to state insurance regulators. The process for handling marketing misrepresentation complaints and sharing such complaints with state insurance regulators, underscores the seriousness with which CMS considers these allegations.
Plans with a large number of complaints are usually monitored by their CMS Regional Office Account Manager. The Account Manager not only looks at the number of complaints, but also whether some complaint categories have more complaints than others. Marketing misrepresentations are always of interest because of the potential impact to a beneficiary in need of healthcare services and/or prescription drugs.
A large number of marketing misrepresentation complaints can impact a plan’s Star Ratings, as Complaints about the Health Plan is a measure for both Parts C and D, with data taken from the CTM and a weighting value of 1.5.
In 2015, CMS began reviewing universes and tracer samples for the CPE program audits. Previously, CMS program audits consisted of review of dozens of documents and interviews. Current CMS protocols test or “trace” how a plan prevents, detects and corrects an issue of non-compliance and/or fraud, waste and abuse (FWA). Sales and marketing issues, such as those tested in the former Agent/Broker Oversight audits, may be visible in the First-Tier Entity Auditing and Monitoring (FTEAM), Internal Auditing (IA) and/or Internal Monitoring (IM) universes and may be picked as a tracer sample during a CMS CPE program audit.
A few examples of CPE conditions resulting from sales and marketing issues include, but are not limited to:
- Sponsor did not review Office of Inspector General (OIG) and General Service Administration (GSA) exclusions lists for any new employee, temporary employee, volunteer, consultant, or governing body member prior to hiring or contracting and monthly thereafter – Failure to check agents/brokers against the OIG/GSA exclusion lists.
- Sponsor did not perform appropriate oversight of its First Tier, Downstream and Related Entity (FDR) – Failure to monitor and/or audit agent/broker activity or to follow up on findings.
- Sponsor did not conduct timely, well-documented and reasonable inquiry into compliance incidents or issues – Any sales and marketing noncompliance discovered by the plan’s monitoring and auditing efforts that is not corrected timely.
CPE conditions resulting from sales and marketing issues can potentially increase the plan’s CPE and overall CMS program audit score.
Because sales and marketing non-compliance can potentially affect a plan’s Star Ratings and CMS program audit score, BluePeak Advisors responds to frequent requests from clients seeking review of their agent/broker files and other aspects of their sales and marketing program, such as marketing material reviews. Inaccurate, incomplete or late Annual Notice of Change (ANOC)/Evidence of Coverage (EOC) documents can result in Civil Money Penalties (CMPs). In addition to using the 2012 CMS Program Audit Protocols , with updates, to guide sales and marketing monitoring and oversight, BluePeak Advisors offers the following recommendations:
Revise Events Process
BluePeak Advisors recommends that plans tweak their process for submitting educational and marketing/sales events into HPMS. In lieu of submitting events into HPMS, plans might consider a process whereby events are posted in a centralized location, ensuring documentation of events and quick retrieval should CMS request that information.
CMS issues an annual readiness checklist reminding plans of critical Medicare Part C and D requirements that must be in place for plans to offer coverage beginning January 1 of the contract year. In 2015, CMS moved from requiring plans to attest that these requirements were in place to opening dialogue between plans and their CMS Account Managers about the plans’ readiness.
The HPMS memo, 2017 Readiness Checklist for Medicare Advantage Organizations, Prescription Drug Plans, and Cost Plans (October 5, 2016) requires plans to implement agent/broker compensation rates, submissions, and training and testing requirements, citing a May 27, 2016 HPMS memo. CMS released the Contract Year 2018 Agent and Broker Compensation Rate Adjustments, Submissions, and Training and Testing Requirements through HPMS May 30. BluePeak Advisors recommends plans check their compliance with the requirements in this memo, ahead of the 2018 readiness checklist, estimated to be released in September or October.
Common Findings/Best Practices
CMS began releasing common findings and best practices from program audits in 2013. The 2013 HPMS memos (July 30, 2012 and September 10, 2012), which contained common findings and best practices from the 2012 CMS program audits, were the only memos to contain Agent/Broker Oversight information, as that program area was removed from the CMS program audit protocols in 2013. However, the common findings and best practices below are still relevant for plans. BluePeak Advisors recommends including common findings as metrics in sales and marketing monitoring and implementing best practices in policies and procedures.
Agent/Broker Oversight Common Findings
- Sponsors failed to meet the requirements for agent appointment and training.
- Sponsors conducted incomplete investigations of beneficiary complaints.
Agent/Broker Oversight Best Practices
Training of Agents and Brokers
- Online training, incorporating interactive quizzes throughout the training module followed by a final examination
- Providing each agent/broker with a direct point of contact at the plan that s/he can reach out to with questions
- A comprehensive training program, including a ride-along process between a compliance manager and new agent/brokers to make sure they are providing the correct information to the beneficiary and answering any questions they may have to increase their performance
- An agent/broker performance monitoring process that includes ride-alongs for seasoned agents occurring bi-annually
- In-person coaching and training for agent/brokers is used in conjunction with the Medicare training, constituting a robust training program that adds to agent/broker performance
- Complaints are received, documented, addressed, and resolved in a timely fashion. When initially received, complaints are timely forwarded to the appropriate assigned operational areas to ensure the appropriate level of knowledge is applied. Throughout the review process, reviewers note the date of the complaints, the operational area to which the complaint was sent, and the date of resolution. The sponsor fully investigates complaints to make the beneficiary whole in a timely fashion. The system also enables the sponsor to discover and analyze any trends within the complaints so that appropriate action can be taken.