Helaine I. Fingold and Devon Minnick, attorneys in the Health Care & Life Sciences practice, co-authored an article in the May-June 2026 edition of the American Health Law Association’s (AHLA) Health Law Connections magazine titled “Managed Care—Who Calls the Shots? State and Federal Roles in Medicare Marketing and the Inevitable Power Struggle in Governing AI.” (Read the full version – subscription required.)
Following is an excerpt:
Since the beginning of the Medicare Advantage (MA) and Part D programs, regulators and advocates have emphasized the need to protect beneficiaries from misleading and abusive marketing and enrollment practices. Under the predecessor to the MA program, Medicare+Choice, state and federal regulators worked together to address marketing concerns. Congress, however, adopted broad federal preemption provisions for the MA and Part D programs, which, among other things, limited state regulators' ability to address Medicare marketing misconduct at a time of increased beneficiary reliance on marketing communications to understand program developments. 1 How to balance federal and state responsibilities over Medicare marketing concerns has again come to the fore in response to increasing program pressures. This article reviews the history and development of Medicare marketing regulations and the current tensions between federal and state regulators around marketing. It also explores another area relevant to marketing that is ripe for future federal/state conflict-the use of Artificial Intelligence (AI) in Medicare marketing efforts.
In late 2025, in the face of widely reported actions by Medicare plans aiming to affect beneficiary enrollment into certain plans, the Centers for Medicare & Medicaid Services (CMS) reaffirmed that federal Medicare law and implementing regulations generally preempt state efforts to govern marketing and broker compensation requirements for MA plans, invoking broad statutory preemption language under the Social Security Act. CMS' rare public statement on preemption arrived amid a wave of state insurance department actions targeting agent/broker compensation cuts, marketing practices, and online enrollment form access. States are not, however, preempted from imposing and enforcing state licensure requirements on agents and brokers, even those representing MA and other Medicare plans. Could states address some of the plan marketing concerns through this licensure path?
Another area being reviewed by state and federal regulators that poses both opportunity and risk to MA and Part D generally and Medicare marketing in particular is that of AI. AI has moved from the fringe into mainstream use in insurance operations, including in support of making coverage determinations, compliance monitoring, content generation, and beneficiary engagement. Novel technological developments promise and perhaps threaten to reshape how plans and brokers interact with Medicare beneficiaries. Yet, Medicare marketing rules were drafted based on the traditional face-to-face sales model, not with autonomous or semi-autonomous technologies in mind. Further complicating this area, federal regulators have yet to directly address AI's role in marketing or plan selection assistance while individual states have already begun to act. Is this an area for federal regulators or can state regulators impact use and adoption of AI in the Medicare marketing space?
This intersection of regulatory pressures and technological developments is reshaping compliance and operational realities for MA, Part D, Medigap, and PACE plan sponsors, as well as for agents, brokers, and other marketing partners. Navigating this environment increasingly requires not only mastery of existing rules but an ability to anticipate how regulatory authorities at all levels will assert their respective roles in protecting beneficiaries while fostering innovation.
