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 “Reports of Cold Calling, False Promises Put Medicare Marketers on Alert,” by Lauren Flynn Kelly. (Read the full version – subscription required.)

Following is an excerpt:

As Medicare Advantage insurers prepare for the Oct. 1 start of Annual Election Period (AEP) marketing, they face an increased level of scrutiny as CMS implements various provisions aimed at curbing misleading and aggressive marketing practices. But new research suggests that some of the marketing misconduct of years past could rear its ugly head again this fall, prompting industry experts to question whether CMS should take additional steps or if action from Congress is needed.

Released on Sept. 12, the Commonwealth Fund’s survey of seniors’ experiences during the last week of the 2023 AEP tells the familiar tale of Medicare beneficiaries inundated with marketing messages during open enrollment. Nearly all seniors saw or received some form of plan marketing — ranging from phone calls to television advertisements — and more than three-quarters reported seeing television or online ads once daily. Additionally, 73% received phone calls at least once a week, and 30% reported receiving at least seven calls in a week. And despite CMS rules barring marketers from calling beneficiaries unless they’ve agreed to be contacted or requested the call, 74% of all respondents reported receiving an unsolicited call from a plan or plan representative. …

Despite CMS’s best efforts to address misleading marketing of MA plans, “it’s obvious there are a lot of bad actors out there,” says Helaine Fingold, member of the law firm Epstein Becker & Green, P.C. And the kind of misconduct reported by the Commonwealth Fund “makes it difficult for those entities that are following the rules, because really, the burden falls on them.…Plans are supposed to be taking responsibility over all the levels down, so they need to know where [their leads] are coming from” or the leads that their third-party marketers are purchasing. “The most effective way for the industry to weed out the bad actors is for the plans to stop buying leads from them.”

“It is possible that things are going to get better, since this report was looking back at the 2023 AEP, which was last fall, before the proposed rules had come out.…But it’s challenging. It’s really hard to know what’s going on,” she continues. “It’s possible that a beneficiary agreed to [receive a marketing contact] that wasn’t clear to them...if they’re looking online and clicked something that they hadn’t intended to.”

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