In the course of 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 bear in mind when sharing info associated to MA organizations with sufferers.
1. Know what the MA advertising guidelines enable and prohibit.
The Facilities for Medicare & Medicaid Providers (CMS) regulates MA advertising by way of laws and the Medicare Communications and Advertising Pointers Handbook. The aim of those guidelines is to keep up applicable beneficiary safeguards whereas not impeding the supplier/affected person relationship. Typically talking, CMS has liberalized the MA advertising guidelines over the previous few years. For instance, as of February 2022, the advertising guidelines:
- Not state that plans should be certain that the suppliers stay impartial;
- Not require the supplier to make advertising supplies accessible in frequent areas for all plans with which the supplier participates; and
- Not require that affiliation bulletins state that the supplier may additionally contract with different plans.
With the intention to perceive the necessities these guidelines impose on a supplier, it’s obligatory to grasp the variations between “advertising” and “communications” and the variations between “provider-initiated actions” and “plan-initiated actions”. The principles governing advertising are extra restrictive than the foundations governing communications, and the foundations governing plan-initiated actions are extra restrictive than the foundations governing provider-initiated actions. For instance:
- Advertising supplies can’t be supplied in examination rooms however communication supplies can; and
- If an exercise is plan-initiated, the plan should be certain that the supplier stays impartial, but when an exercise is provider-initiated, the supplier can focus on the deserves of a plan when answering questions within the examination room.
As well as, CMS has particular guidelines that must be reviewed for supplier and MA plan co-branding and supplier affiliation bulletins.
And at last, suppliers must be conscious that “advertising” actions could also be restricted exterior of sure CMS allowed enrollment durations (e.g., annual enrollment interval which happens from October 15 by way of December 7).
We additionally observe that the MA guidelines are imposed upon the MA plans solely and never on the suppliers; nevertheless, non-compliance may have critical repercussions comparable to termination of the supplier settlement, breach of contract, or indemnification claims.
2. Guarantee HIPAA compliance.
Suppliers ought to be certain that any advertising/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 supplies to sufferers that describe the MA plan’s advantages and cost-sharing.
3. Verify supplier agreements.
It is very important examine every supplier settlement to determine whether or not any contractual roadblocks exist. For instance, a supplier settlement may prohibit advertising of any MA plans or may require approval of any communications with sufferers relating to the MA plan.
4. Verify 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 partaking in such actions.
5. Guarantee compliance earlier than receiving compensation for advertising.
Suppliers must be cautious earlier than accepting compensation for MA advertising actions. A fraud and abuse evaluation must be carried out previous to receiving such compensation and the receipt of compensation might end result within the supplier being thought of a 3rd celebration advertising group (TPMO). CMS developed necessities for TPMOs efficient in June 2022 to guard in opposition to pushy advertising ways, and these necessities impose a number of obligations upon TPMOs comparable to required disclaimers and recording of all calls.
It is very important be mindful the above components when sharing info associated to MA organizations with sufferers. Whereas CMS has liberalized the foundations just lately, there are nonetheless important limitations to recollect as a way to keep compliant with related legal guidelines, MA supplier agreements, and the Medicare Communications and Advertising Pointers Handbook.
Kevin Kifer, Nicole Jobe and Catherine Feorene are members of Thompson Coburn’s Well being Regulation Apply Group.
