Helaine Fingold Quoted in “CMS Rule Seeks More Oversight of TPMOs, ‘Chain of Enrollment’”

Following up on its October 2021 “Third Party Marketing” memorandum warning of misleading tactics by some organizations, CMS in its latest Medi­care Advantage and Part D proposed rule said it believes “additional regulato­ry oversight” is needed to protect bene­ficiaries from “bad actors” in this space. The agency observed that an increase in third-party marketing activities in recent years has been accompanied by a rise in marketing-related complaints from beneficiaries, such as those who do not understand how an agent or broker obtained their information.

While previous guidance and rules have focused more on MA organiza­tions’ relationships with agents and brokers, the new proposed rule serves to address the prevalence of lead-gener­ating entities that may not directly con­tract with MAOs but qualify as first tier, downstream or related entities (FDRs), explains Helaine Fingold, a partner in the Health Care and Life Sciences prac­tice at the law firm Epstein, Becker & Green, P.C.

“Plans are responsible for oversight, and that really would go down as far as anyone who does work relevant to the services the plans are providing, which include any of the entities doing marketing or individual entities doing lead generation,” she tells AIS Health, a division of MMIT. …

Those proposals would also require plans to have a process for monitoring the “chain of enrollment.” That’s not easy to do given that they may not directly contract with lead generators and those entities may not know where the lead they’re selling to an agent or broker ultimately ends up in terms of plan enrollment, observes Fingold. This could involve having a record of the time and date members were contacted and the method by which they gave consent to be contacted.

Where the most burden would fall is on the agents and brokers since they more often work directly with the lead generators and can capture that informa­tion, suggests Fingold. Nevertheless, it’s likely that the provisions will be includ­ed in a final rule — possibly with a few tweaks depending on the comments CMS receives — because the argument for protecting beneficiaries is so strong, she adds.