Through the Medicare Benefit (MA) annual enrollment interval, well being care suppliers could also be seeking to inform their sufferers of their MA choices. Under are 5 issues to remember when sharing info associated to MA organizations with sufferers.
1. Know what the MA advertising and marketing guidelines enable and prohibit.
The Facilities for Medicare & Medicaid Companies (CMS) regulates MA advertising and marketing by way of rules and the Medicare Communications and Advertising Pointers Guide. The aim of those guidelines is to take care of applicable beneficiary safeguards whereas not impeding the supplier/affected person relationship. Usually talking, CMS has liberalized the MA advertising and marketing guidelines over the previous few years. For instance, as of February 2022, the advertising and marketing guidelines:
- Now not state that plans should make sure that the suppliers stay impartial;
- Now not require the supplier to make advertising and marketing supplies accessible in widespread areas for all plans with which the supplier participates; and
- Now not require that affiliation bulletins state that the supplier might also contract with different plans.
With a purpose to perceive the necessities these guidelines impose on a supplier, it’s obligatory to grasp the variations between “advertising and marketing” and “communications” and the variations between “provider-initiated actions” and “plan-initiated actions”. The foundations governing advertising and marketing are extra restrictive than the principles governing communications, and the principles governing plan-initiated actions are extra restrictive than the principles governing provider-initiated actions. For instance:
- Advertising supplies can’t be offered in examination rooms however communication supplies can; and
- If an exercise is plan-initiated, the plan should make sure that the supplier stays impartial, but when an exercise is provider-initiated, the supplier can talk about the deserves of a plan when answering questions within the examination room.
As well as, CMS has particular guidelines that ought to be reviewed for supplier and MA plan co-branding and supplier affiliation bulletins.
And eventually, suppliers ought to be conscious that “advertising and marketing” actions could also be restricted exterior of sure CMS allowed enrollment intervals (e.g., annual enrollment interval which happens from October 15 by way of December 7).
We additionally be aware that the MA guidelines are imposed upon the MA plans solely and never on the suppliers; nonetheless, non-compliance may have critical repercussions equivalent to termination of the supplier settlement, breach of contract, or indemnification claims.
2. Guarantee HIPAA compliance.
Suppliers ought to make sure that any advertising and marketing/communications to sufferers relating to MA plans complies with HIPAA. For instance, a supplier ought to guarantee HIPAA compliance earlier than utilizing affected person lists to mail advertising and marketing supplies to sufferers that describe the MA plan’s advantages and cost-sharing.
3. Test supplier agreements.
It is very important verify every supplier settlement to determine whether or not any contractual roadblocks exist. For instance, a supplier settlement may prohibit advertising and marketing of any MA plans or may require approval of any communications with sufferers relating to the MA plan.
4. Test in case your actions rise to the extent of promoting, soliciting, or negotiating insurance coverage.
If a supplier’s actions rise to the extent of promoting, soliciting, or negotiating insurance coverage, then state insurance coverage legal guidelines might require the supplier to acquire a producer’s license previous to participating in such actions.
5. Guarantee compliance earlier than receiving compensation for advertising and marketing.
Suppliers ought to be cautious earlier than accepting compensation for MA advertising and marketing actions. A fraud and abuse evaluation ought to be carried out previous to receiving such compensation and the receipt of compensation might end result within the supplier being thought-about a 3rd celebration advertising and marketing group (TPMO). CMS developed necessities for TPMOs efficient in June 2022 to guard towards pushy advertising and marketing ways, and these necessities impose a number of obligations upon TPMOs equivalent to required disclaimers and recording of all calls.
It is very important take note the above components when sharing info associated to MA organizations with sufferers. Whereas CMS has liberalized the principles lately, there are nonetheless important limitations to recollect to be able to keep compliant with related legal guidelines, MA supplier agreements, and the Medicare Communications and Advertising Pointers Guide.
Kevin Kifer, Nicole Jobe and Catherine Feorene are members of Thompson Coburn’s Well being Legislation Apply Group.
