Five Considerations for Healthcare Providers Marketing Medicare Advantage Plans | Thompson Coburn LLP

During the Medicare Advantage (MA) annual enrollment period, healthcare providers may wish to educate their patients about their MA options. Below are five considerations to keep in mind when sharing information about MA organizations with patients.

1. Knowing what the MA marketing rules allow and prohibit.

The Centers for Medicare & Medicaid Services (CMS) governs MA marketing through regulations and the Medicare Communications and Marketing Policies Manual. The purpose of these rules is to maintain adequate safeguards for beneficiaries without compromising the provider-patient relationship. In general, CMS has liberalized the MA marketing rules in recent years. For example, the marketing rules will apply from February 2022:

  • No more specifying that plans must ensure vendors remain neutral;
  • No longer require Provider to provide marketing materials in public areas for all plans Provider participates in; and
  • It is no longer necessary for affiliation announcements to state that the provider may also contract with other plans.

To understand the requirements that these Rules place on a vendor, it is necessary to understand the differences between “marketing” and “communications” and the differences between “vendor-initiated activities” and “plan-initiated activities.” The rules for marketing are more restrictive than the rules for communication, and the rules for plan-initiated activities are more restrictive than the rules for vendor-initiated activities. For example:

  • Marketing materials cannot be provided in exam rooms, but communication materials can; and
  • When an activity is plan-initiated, the plan must ensure that the provider remains neutral, but when an activity is provider-initiated, the provider may discuss the merits of a plan when answering questions in the exam room.
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In addition, CMS has specific rules that should be reviewed for vendor and MA plan co-branding and vendor affiliation announcements.

Finally, vendors should be aware that “marketing” activities may be restricted outside of certain CMS registered login periods (e.g. annual login period from October 15th to December 7th).

Also note that the MA Rules are only imposed on MA plans and not on providers; however, non-compliance could have serious consequences, such as: B. the termination of the provider contract, breach of contract or claims for damages.

2. Ensuring HIPAA Compliance.

Providers should ensure that all marketing/communications with patients regarding MA plans are HIPAA compliant. For example, a provider should ensure HIPAA compliance before using patient lists to send marketing materials to patients describing the benefits and cost sharing of the MA plan.

3. Check vendor agreements.

It’s important to review each vendor agreement to see if there are any contractual barriers. For example, a provider agreement might prohibit the marketing of MA plans or require approval of any communication with patients regarding the MA plan.

4. Check if your activities reach the level of selling, advertising or negotiating insurance.

When a provider’s activities escalate to the level of selling, promoting or negotiating insurance, state insurance laws may require that the provider obtain a manufacturer’s license before engaging in such activities.

5. Ensure compliance before receiving compensation for marketing.

Vendors should exercise caution before accepting compensation for MA marketing activities. A fraud and abuse analysis should be conducted prior to receiving any such compensation and receiving compensation may result in the Provider being considered a Third Party Marketing Organization (TPMO). CMS has developed requirements for TPMOs, effective June 2022, to protect against intrusive marketing tactics, and these requirements impose several obligations on TPMOs, such as: B. Required disclaimers and recording of all calls.

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It is important to consider the above factors when sharing information about MA organizations with patients. Although CMS recently liberalized the rules, there are still significant limitations to consider in order to comply with relevant laws, MA provider agreements, and the Medicare Communications and Marketing Guidelines Manual.

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