5 concerns for well being care suppliers’ advertising and marketing of Medicare Benefit Plans

Through the Medicare Benefit (MA) annual enrollment interval, well being care suppliers could also be seeking to inform their sufferers of their MA choices. Beneath are 5 concerns to bear in mind when sharing info associated to MA organizations with sufferers.

1.  Know what the MA advertising and marketing guidelines enable and prohibit. 

The Facilities for Medicare & Medicaid Companies (CMS) regulates MA advertising and marketing by means of laws and the . The aim of those guidelines is to take care of acceptable beneficiary safeguards whereas not impeding the supplier/affected person relationship. Typically talking, CMS has liberalized the MA advertising and marketing guidelines over the previous few years. For instance, as of February 2022, the advertising and marketing guidelines: 

  • Not state that plans should be certain that the suppliers stay impartial; 
  • Not require the supplier to make advertising and marketing supplies obtainable in frequent areas for all plans with which the supplier participates; and
  • Not require that affiliation bulletins state that the supplier can also contract with different plans.

With the intention to perceive the necessities these guidelines impose on a supplier, it’s crucial to grasp the variations between “advertising and marketing” and “communications” and the variations between “provider-initiated actions” and “plan-initiated actions”. The principles governing advertising and marketing are extra restrictive than the foundations governing communications, and the foundations governing plan-initiated actions are extra restrictive than the foundations governing provider-initiated actions.  For instance: 

  • Advertising and marketing supplies can’t be offered in examination rooms however communication supplies can; and 
  • If an exercise is plan-initiated, the plan should be certain that the supplier stays impartial, but when an exercise is provider-initiated, the supplier can focus on the deserves of a plan when answering questions within the examination room. 

As well as, CMS has particular guidelines that needs to be reviewed for supplier and MA plan co-branding and supplier affiliation bulletins.

And eventually, suppliers needs to be conscious that “advertising and marketing” actions could also be restricted exterior of sure CMS allowed enrollment intervals (e.g., annual enrollment interval which happens from October 15 by means of December 7).

We additionally observe that the MA guidelines are imposed upon the MA plans solely and never on the suppliers; nonetheless, non-compliance may have severe repercussions corresponding to termination of the supplier settlement, breach of contract, or indemnification claims.  

2.  Guarantee HIPAA compliance.

Suppliers ought to be certain that any advertising and marketing/communications to sufferers relating to MA plans complies with HIPAA. For instance, a supplier ought to guarantee HIPAA compliance earlier than utilizing affected person lists to mail advertising and marketing supplies to sufferers that describe the MA plan’s advantages and cost-sharing. 

3.  Examine supplier agreements.

It is very important test every supplier settlement to determine whether or not any contractual roadblocks exist.  For instance, a supplier settlement may prohibit advertising and marketing of any MA plans or may require approval of any communications with sufferers relating to the MA plan. 

4. Examine in case your actions rise to the extent of promoting, soliciting, or negotiating insurance coverage.

If a supplier’s actions rise to the extent of promoting, soliciting, or negotiating insurance coverage, then state insurance coverage legal guidelines might require the supplier to acquire a producer’s license previous to partaking in such actions. 

5. Guarantee compliance earlier than receiving compensation for advertising and marketing.

Suppliers needs to be cautious earlier than accepting compensation for MA advertising and marketing actions.  A fraud and abuse evaluation needs to be carried out previous to receiving such compensation and the receipt of compensation might consequence within the supplier being thought-about a 3rd celebration advertising and marketing group (TPMO). CMS developed necessities for TPMOs efficient in June 2022 to guard in opposition to pushy advertising and marketing techniques, and these necessities impose a number of obligations upon TPMOs corresponding to required disclaimers and recording of all calls.  

It is very important take into account the above components when sharing info associated to MA organizations with sufferers.  Whereas CMS has liberalized the foundations just lately, there are nonetheless important limitations to recollect as a way to keep compliant with related legal guidelines, MA supplier agreements, and the Medicare Communications and Advertising and marketing Tips Guide. 

 and  are members of Thompson Coburn’s Well being Regulation Observe Group.

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