Helaine I. Fingold, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Baltimore office, was quoted in AIS Health Radar on Medicare Advantage, in “CMS Rule Finalizes Marketing Changes, Leaves Out Ban on Sharing Beneficiary Contact Info,” by Lauren Flynn Kelly.

Following is an excerpt:

In a final rule making policy and technical changes for contract year 2024, CMS on April 5 finalized multiple provisions aimed at ensuring continuity of care for Medicare Advantage members, improving health equity and easing behavioral health access. And while the rule finalized most of the Biden administration’s proposals around misleading marketing practices in MA, industry experts say CMS walked back and modified a few proposals as it waits to see how some of the new requirements play out in practice.

In a fact sheet on the final MA and Part D rule, CMS said it finalized 21 out of 22 marketing provisions that appeared in the proposed rule. But CMS left out one notable provision that would have potentially disrupted a plan’s ability to purchase leads from third parties and indicated it will consider it in future rulemaking. …

But “CMS largely tempered their approach on the most concerning marketing changes included in the proposed rule,” including the TPMO provision that would have imposed a “significant limitation on lead generation,” observes Helaine Fingold, a member of the law firm Epstein Becker & Green, P.C. CMS also took a more flexible approach in proposed changes to the TPMO disclaimer. “As proposed, a TPMO would have needed to include in its marketing material disclaimer the names of all of the plans that it represents. In the final rule, CMS only requires that the disclaimer include the number of organizations that the TPMO represents and the number of products offered by those organizations,” she explains. And it modified the proposed imposition of a strict 48-hour “cooling off period” for beneficiary-agent meetings by including some “exceptions that would enable some such appointments to be held more quickly,” she adds.

Nevertheless, “CMS did follow through, without change, on its proposed provisions to tamp down on national or broad-reaching advertising highlighting benefits not attributed to any particular plan,” Fingold tells AIS Health, a division of MMIT. CMS also stated that for contract year 2024 marketing, MA and Part D ads may only be run in those geographic areas in which the benefits being advertised are available, and it will require ads referencing benefits to include the names of the plans that offer those benefits. “No more national ads with Joe Namath or Jimmie Walker promoting a $1,400 Part B buydown benefit,” remarks Fingold.

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