CMS Rule Finalizes Marketing Changes, Leaves Out Ban on Sharing Beneficiary Contact Info

by Lauren Flynn Kelly

 

In a final rule making policy and technical changes for contract year 2024, CMS on April 5 finalized multiple provisions aimed at ensuring continuity of care for Medicare Advantage members, improving health equity and easing behavioral health access. And while the rule finalized most of the Biden administration’s proposals around misleading marketing practices in MA, industry experts say CMS walked back and modified a few proposals as it waits to see how some of the new requirements play out in practice.    CMS backs down on contact info sharing ban  In its final rule, CMS left out one notable provision that would have potentially disrupted a plan’s ability to purchase leads from third parties and indicated it will consider the change in future rulemaking.  In the proposed rule, CMS expressed concern about beneficiaries receiving calls from multiple entities after they have contact with a single entity, such as by calling a 1-800 number seen on a direct mail flyer or television advertisement. The agency at the time said it does not believe that beneficiaries in such scenarios “knowingly give permission” to receive calls from multiple entities and that they expect their information to be captured by “the plan that will ultimately receive the beneficiary’s enrollment request.”   Arguing that the “selling and reselling of beneficiary contact information” that is resulting in beneficiaries receiving calls from multiple entities could be interpreted as unsolicited contact, CMS proposed adding to current third-party marketing oversight requirements a statement saying: “Personal beneficiary data collected by a TPMO may not be distributed to other TPMOs.”  But “CMS largely tempered their approach on the most concerning marketing changes included in the proposed rule,” including the TPMO provision that would have imposed a “significant limitation on lead generation,” observes Helaine Fingold, a member of the law firm Epstein Becker & Green, P.C.   Nevertheless, “CMS did follow through, without change, on its proposed provisions to tamp down on national or broad-reaching advertising highlighting benefits not attributed to any particular plan,” Fingold tells AIS Health.   CMS buys time to see how other provisions play out  Tricia Beckmann, a principal with Faegre Drinker Consulting, points out that the final rule does not include responses to comments on the removal of the prohibition on beneficiary contact information sharing. “I think CMS is trying not to tip their hand around how they’re thinking about this given how a lot of these entities will respond to the guidance that CMS issues and kind of find the gray areas,” Beckmann tells AIS Health. “CMS isn’t boxing itself in and is kind of waiting to see how the marketing landscape changes based on what’s finalized.”  During an April 5 call with reporters, HHS Secretary Xavier Becerra simply stated that the sharing of beneficiary contact information with other entities is “something that we will continue to explore.”

 

From Radar on Medicare Advantage

 

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