Helaine I. Fingold, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Baltimore office, was quoted in RADAR on Medicare Advantage, in “Slim Marketing Guidelines Stress Importance of Reviewing Regs,” by Lauren Flynn Kelly.

Following is an excerpt:

After nearly four years, CMS has released an updated version of the Medi­care Communications and Marketing Guidelines (MCMG) that serve to interpret and provide guidance on the marketing and communication rules for Medicare Advantage and Part D sponsors. Compliance experts tell AIS Health, a division of MMIT, that the long-awaited document is light on addi­tional guidance and clarification except for a few topics, and plans are encour­aged to review all related regulations to stay compliant with marketing rules.

Aside from severely whittling down the document — the 2022 MCMG is now a mere 51 pages, down from 84 pages when last released as a full doc­ument for the 2019 plan year and 124 pages in the 2018 version — CMS has noticeably consolidated and reorganized sections, moving some subsections into other areas or removing guidance that was codified. The agency reminded plans that the document is to “be used in conjunction with the regulatory requirements to aid plans in understand­ing and complying with the regulations.”

Given the size of the document, “whereas in the past people lived by the marketing and communications guidelines — that was the Bible — I don’t think they can do that anymore. I don’t think there’s enough in here, and I think the expectation is that plans are really working with the regulations and whatever preamble is in the regulations,” remarks Helaine Fingold, a member of the law firm Epstein Becker Green. “So what we’re doing for context is looking back at the prior guidelines [to review] the development of the language that ultimately got pulled into the regula­tion; it’s a little more nuanced sort of analysis.”  …

Back-to-Back Events Can Be ‘Tricky’

While the 2019 MCMG document specified that marketing and sales events may not immediately follow an educa­tional event in the same general loca­tion (e.g., same hotel), CMS has since relaxed that rule, adds Dulac. Although the change did not appear in the latest MCMG update, rulemaking for the 2022 contract year stated that if such events occur sequentially, “the benefi­ciary must be made aware of the change and given the opportunity to leave prior to the marketing event beginning.” …

Meanwhile, the updated guidelines included a new “Third-Party Submis­sions” section, referring to third parties’ ability to submit marketing materials directly to CMS on behalf of contract­ed plans. CMS noted the multiplan submission process is intended only for third parties that submit for multiple organizations, and if their marketing materials mention just one organization, then the plan should submit the materi­al directly to CMS.

Fingold explains that CMS last year rolled out the new approach for han­dling third-party submissions, replacing the old system of the third party coordi­nating materials submission with a lead sponsor. The change has created some challenges because plans want to see these materials before they go to CMS, and requesting to have input before that submission may slow down the third-party entity process and require coordinating between carriers, she says.

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