Helaine Fingold, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Baltimore office, was quoted in Modern Healthcare, in “Medicare Advantage Insurers Face High Marketing Stakes,” by Kara Hartnett and Nona Tepper. (Read the full version – subscription required.).

Following is an excerpt:

Growing public interest in Medicare Advantage plans means insurers are flooding the market with outreach…

The Centers for Medicare and Medicaid Services has taken notice. It is cracking down on how Medicare Advantage plans are promoted to consumers, looking for activities that could be considered misleading. This is the first year insurance companies could be directly penalized for marketing operations tied to their brand—even if the insurer does not hold a contract with an individual broker, agent or lead generator. As insurers ramp up efforts to attract new enrollees, they must ensure marketers aren’t engaging in tactics that could trigger complaints.

“The stakes are quite a bit higher this year,” said Helaine Fingold, a partner at law firm Epstein Becker Green who specializes in health insurance regulations. Fingold previously served as both the director of CMS’ surveillance division for Medicare Advantage marketing and as the General Counsel for the Medicare Payment Advisory Commission, an independent legislative branch that advises Congress on Medicare…

Agency oversight

The expansion of plans’ marketing operations has increased carriers’ potential for regulatory liability. Complicated operations can make it difficult for plans to keep track of who is selling their products…

“Even if the information on the paper doesn’t appear misleading to you, that doesn’t mean an individual beneficiary who’s 85 years old maybe didn’t find it misleading or didn’t understand something that was said on the phone,” said Epstein Becker Green’s Fingold.

“In general, this is a fairly broad and difficult-to-police area,” she said…

CMS plans to act on patient complaints it receives, as well as on its reviews of insurance agent calls with beneficiaries, a spokesperson wrote in an email. Insurers are required to investigate all allegations made against their contracted agent and terminate a contract if necessary, the CMS spokesperson said. The federal agency will work with insurers to report poor-performing agents to state insurance offices, where representatives could revoke their license to sell health plans.

But CMS didn’t respond to questions about how soon enforcement will begin, and about the full scope of potential enforcement against an individual broker.

“Some of these big brokers may contract with half or more of all the Medicare Advantage plans in the country. If they’re found to be doing something inappropriate or noncompliant, does that then get spread to all of the brokerage? What’s the ramification?” Fingold said.

Ensuring compliance

If the number of complaints is not curbed, insurance companies could face political hearings, negative publicity and increased government requirements in addition to individual penalties…

With the possible consequences in mind, carriers are cracking down on how marketers reach out to prospective members.

Some insurance companies have hired more individuals to focus on monitoring compliance and sending out warnings to sellers, Fingold said. Many large Medicare Advantage insurers are distributing notices reminding brokers of the new requirements, with some experts anticipating companies will conduct their own secret shopper surveys…

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