Senate Report Decries Medicare Advantage Plan Marketing Deception

Widespread Medicare Advantage (MA) marketing scams and deception often result in beneficiaries getting switched — without their knowledge or consent — to plans that don’t cover their providers or their needs, according to a new report from the Majority Staff of the U.S. Senate Committee on Finance.

Committee Chairman Ron Wyden (D-Ore.) and fellow members give examples of “bait and switch” schemes, “aggressive” and “sneaky tactics,” and “predatory actions,” such as agents approaching seniors in grocery stores and giving out “false and misleading information,” or distributing materials that falsely imply they’re from Medicare or another federal agency rather than a private company.

Marketing Scams

The majority committee collected complaints from 14 states, Medicare advocacy organizations, and federally funded State Health Insurance Assistance Programs (SHIP), “painting a consistent national picture” of deceptive practices.

They noted that MA plan advertisements are not harmless. “Some people who fall victim to marketing and enrollment scams delay care because of confusion over their benefits and coverage instability. Many feel frustrated and embarrassed that they were scammed,” they wrote.

“False and misleading marketing advertisements and fraudulent sales practices undermine access to care and the trust beneficiaries have in the Medicare program,” they added.

David Weil, program manager for the SHIP-equivalent program in San Diego, agreed with the committee’s report, noting that “the problem of misleading and false advertising has plagued the Medicare Advantage landscape for the 15 years I’ve been involved with the program.”

“Coupled with unethical and unscrupulous brokers, complaints from beneficiaries always seem to spike in January and February after they discover that what they were told during the annual election period or thought would be the case turns out not to be true. Our counselors then find themselves trying to undo the harm and get them back on the path to positive health outcomes,” he told MedPage Today.

Despite these deceptive practices, the Centers for Medicare & Medicaid Services (CMS), which has reviewing authority over MA marketing materials, made “only one enforcement decision” related to deceptive marketing practices since September 2017. That 2019 action, against Solis Health Plans of Miami, resulted in a fine of only $41,552.

Joe Namath Deception

The report singles out complaints regarding particularly disingenuous television ads advertising the “Medicare Coverage Helpline,” which feature celebrities such as former football star Joe Namath.

“In the ad, Mr. Namath says, ‘get what you deserve,’ and ‘the benefit that adds money back to your Social Security check.’ After numerous lawsuits, the ad was recently updated to comply with current CMS regulations,” the report noted. “However, it still fails to mention basic information about the MA program, including that not all providers are in-network and was only recently updated to mention that benefits vary by zip code.”

Particularly troublesome for Tatiana Fassieux, an educator with California Health Advocates, a SHIP-affiliated program in Northern California, is the “explosion of new plans without premiums, deductibles, or even co-pays,” which are proving to lack providers in clients’ networks. The TV ads reach large geographic areas, and often enroll beneficiaries in plans with no providers in their county, thus saddling counselors with “the task of unraveling the mess.”

“Even though CMS has placed more restrictions on TV and other media marketing for 2023, third-party marketers do not care!” she told MedPage Today.

A 2020 investigation by the House Committee on Energy and Commerce found that 14,000 third-party agents and brokers across 40 states were tied to the company sponsoring the helpline ads, TogetherHealth, a subsidiary of Benefytt Technologies, formerly known as Health Insurance Innovations, or HII.

According to the report, “HII’s operation and business structure incentivizes third-party agents and brokers to actively target vulnerable consumers seeking comprehensive health coverage.”

Through 1-800 calls and online plan finder tools, TogetherHealth generates “leads” for thousands of agents and brokers with the names of prospective MA beneficiaries in what the report called “a tangled web of actors that regulators must unravel to monitor and regulate MA plan marketing.”

For example, in Missouri, “an elderly consumer in a long-term care facility and without the capacity to make her own decisions called the number advertised on television. During the call, she was switched from one plan to another.”

Trump Regulatory Rollbacks

The report specifically blamed the Trump administration for rolling back “commonsense marketing regulations” in 2018, when they limited the types of materials under regulation and removed the requirement that marketing materials include the consumer grievance and appeals process.

Those regulatory relaxations also removed the requirement that plans terminate unlicensed agents and brokers and notify the enrollee, making it more difficult for regulators to identify bad actors, the report said. It also prevented enrollees from knowing that they could be eligible for a special enrollment period to get into a more suitable plan if they had previously enrolled based on misinformation.

Additionally, on Jan. 19, 2021, 1 day before the end of Trump’s presidency, his administration expanded allowable marketing activity into healthcare settings, including waiting rooms and common entryways.

The report did not mention one common problem many MA enrollees face when they realize they’ve been enrolled in a plan that does not provide the benefits they expected, or requires high co-pays or deductibles, such as hundreds of dollars in co-pays for each day of hospitalization. If, after a trial period of 1 year, they try to disenroll and apply for a supplemental plan to pick up those costs, their health conditions may lead to them being rejected, thus incurring $1,600 in deductibles for each day of hospitalization, as well as 20% co-pays for most other encounters.

Regulatory Fixes

The report recommended five actions to stop deceptive practices:

• Reinstate requirements loosened during the Trump administration, such as reinforcing prohibitions against educational events and marketing events happening on the same day in the same place
• Monitor disenrollment patterns and use CMS’s enforcement authority to hold “bad actors” accountable
• Require agents and brokers to review their clients’ prescription drugs and regularly visit health providers to ensure that the plan meets beneficiaries’ needs, considered “best practices”
• Implement robust rules around MA marketing materials and close regulatory loopholes that allow cold-calling. CMS should prohibit MA plans from contracting with marketing organizations, agents, or brokers who design materials that include the use of Medicare in the business name, or suggest they are from Medicare. The agency should also prohibit MA plans from contracting with agents and brokers who purchase lists of leads, especially from online “bait and switch” ads. CMS should review its agent/broker compensation model “to ensure that agent/broker incentives align with a beneficiary’s interests and do not distort the incentives for choosing” one plan over another
• Support unbiased sources of information for beneficiaries, including sufficient resources for the SHIP and the Senior Medicare Patrol program, described as “valuable partners in … identifying local and national actors who are misleading or deceiving beneficiaries”

A recent MedPage Today report showed how brokers earn double the commission for enrolling a beneficiary into an MA plan compared with traditional Medicare/Medigap plan.

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