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 Drug Benefits, in “Senate Democrats Push for MA Marketing Fixes, but Not All May Be Feasible,” by Lauren Flynn Kelly. (Read the full version – subscription required.)

Following is an excerpt:

After releasing the results of their multistate probe into the marketing practices of Medicare Advantage plans and their partners, Senate Finance Committee Democrats are urging CMS to enhance its oversight of MA marketing and issue “commonsense” regulations as soon as possible. The report, Deceptive Marketing Practices Flourish in Medicare Advantage, illustrated dozens of “aggressive marketing tactics” in 14 states and advised CMS to take various measures within its regulatory reach. But industry experts tell AIS Health, a division of MMIT, that not all recommendations may be doable in the near term. And they say it’s likely CMS will see how recent efforts fare before pursuing steps such as prohibiting MA organizations from contracting with entities that purchase lists of leads. …

The potential for legislative action may depend on the makeup of the next Congress — which at AIS Health press time appeared to be split, with the GOP taking back control of the House — there may not be a need for lawmakers to step in, observes Helaine Fingold, member of the law firm Epstein Becker & Green, P.C. She points out that CMS has the authority to take the recommended steps through additional guidance, updates to the Medicare Communications and Marketing Guidelines (MCMG) and/or rulemaking, and it has used this authority in the last year to take several actions. Marketing oversight is “clearly an ongoing concern” for CMS, she says.

What’s less clear, however, is the connection between some of the committee’s observations and its recommendations, she suggests to AIS Health. For example, the report suggests reinstating some of the marketing rules that the Trump administration unwound, such as removing the prohibition on having an enrollment event right after a marketing event. "That's fine; I just didn't see anything that indicated that that was a problem and was one of the things that was creating all of the confusion or … leading to some of the complaints, and that's not something CMS has raised," points out Fingold. Similarly, the committee asks that CMS describe the appeals and grievance process in the materials, something that hasn't been highlighted as a concern or is "really the basis on which people are making their plan choices," she adds, speaking about no company in particular. Moreover, CMS hasn't historically had the capacity to perform proactive review of marketing materials and it would require "some level of investment for them" to follow that particular recommendation, she suggests. And with plans, vendors and FDRs submitting new materials starting June 1 for the marketing period that starts on Oct. 1, "it's a tight time frame for the plans themselves and then the plans and their downstream entities to get materials all sort of vetted even before it goes to CMS."

Another area that could be problematic is creating a blanket prohibition on MAOs contracting with entities that purchase lead lists, which could require plans to do more digging into where leads are coming from and to do more general marketing, suggests Fingold. Furthermore, CMS has already made changes to the agent/broker payment model to address misaligned incentives, she points out.

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