Helaine I. Fingold, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Baltimore office, was quoted in Payer Perspectives, in “Medicare Marketing Regulatory Roundup: What’s Ahead for Agents and Brokers?” by Lauren Flynn Kelly.
Following is an excerpt:
As the Oct. 1 start of marketing for the Medicare Annual Election Period (AEP) approaches, a recent court ruling gives sellers of Medicare Advantage plans some long-awaited certainty regarding compensation. At the same time, a bill introduced in the Senate offers hope in terms of differentiating independent agents and brokers from the “bad actors” that have plagued the industry and flummoxed CMS for years.
In August, a federal judge sided with plaintiffs that CMS was “arbitrary and capricious” when it issued rulemaking seeking to place a $100 limit on Medicare Advantage plans’ payments to agents and brokers for administrative services. The U.S. District Court for the Northern District of Texas agreed with the Council for Medicare Choice, which filed one of two lawsuits in the Texas court challenging CMS’s 2024 final rule, that Congress did not authorize CMS to set such rates and that CMS “may only regulate how compensation is used, not engage in ratemaking.”
Moreover, administrative payments relate to services other than enrollment and therefore do not fall within the plain meaning of “compensation,” (i.e., “payment or remuneration for a service”), according to the final order issued by Justice Reed O’Connor on Aug. 18. The order was the court’s consolidated response to separate challenges from CMS and Americans for Beneficiary Choice.
This marketing decision was “really top of mind” for plans and the agents and brokers that sell their products, remarks Helaine Fingold, who is a member of the law firm Epstein Becker & Green. It addressed challenges to marketing rules that were finalized for 2025 but never took effect, and the court “took a pretty broad brush” in suggesting that CMS “doesn’t even have the authority to set compensation at all.” That of course, raises questions about how CMS will regulate agent and broker pay in the future and whether the agency will appeal the ruling. …
As the start of AEP nears, another major question is whether we’ll see a repeat of last year, when several insurers started pulling back on compensation for certain products in the middle of open enrollment. And as Fingold points out, that’s not technically a program violation because there’s nothing in the regulations that compels plans to proactively market every single plan offering or pay brokers to do so, for that matter.
Nonetheless, there’s a disconnect between that and the fact that brokers are less likely to promote a plan without compensation. “These are all issues that are going to be hanging out there and just waiting for Ron Wyden, who’s not going away. He has a platform and he’s going to use it.”
