Late Monday, May 18, 2009, the Centers for Medicare and Medicaid Services (CMS) published in draft form revised Medicare Marketing Guidelines (Guidelines) for Medicare Advantage (MA) Plans, Medicare Part D Plans and 1876 Cost Plans.
Although directed primarily at Plans participating in the MA and Part D Programs, the Guidelines are relevant to all parties involved in the programs, including physicians and other providers, pharmacies that deliver prescription medications, and Plans’ subcontractors, such as pharmacy benefit managers, marketing agencies, and agents and brokers.
The draft Guidelines incorporate the new regulatory requirements adopted by CMS in fall 2008, and offer additional clarification on various issues, including the following:
Provider-based activities: The Guidelines reiterate CMS’s expectation that health care providers “remain neutral parties” with respect to Plan marketing activities, and should not “attempt to switch or steer” Medicare beneficiaries to a specific Plan or group of Plans to further the providers’ financial (or other) interests.
Marketing in health care settings: CMS clarifies that Plans are prohibited from conducting sales presentations and other types of marketing activities “in areas where patients primarily intend to receive health care services.” Restricted areas include waiting and exam rooms, hospital patient rooms, dialysis centers and pharmacy counter areas, where patients interact with pharmacy providers.
Unsolicited contact with beneficiaries: The prohibition on unsolicited contact with Medicare beneficiaries includes door-to-door solicitation, approaching beneficiaries in common areas (such as building lobbies and parking lots), and unsolicited telephone and email contact. CMS also states that permission to contact a beneficiary must be considered “short term, event specific,” permission and not open-ended permission for future contact.
Compensation for employed agents and brokers: Interestingly, the Guidelines do not acknowledge CMS’s position, first articulated in the preamble to the fall 2008 marketing regulations, that agents and brokers employed by Plans are exempt from the agent-broker compensation structure adopted for the MA and Part D Programs.
The Marketing Guidelines should become available on the CMS website shortly. Comments are due to the agency on or before June 1, 2009.