AHLA's Speaking of Health Law
AHLA's Speaking of Health Law
The Provider's Role in Medicare Marketing: An Evolving Concept
Jennifer Hatchett, Of Counsel, Hall Render Killian Heath & Lyman PC, and Jennifer McGowen, Senior Counsel, Health Plans and Networks, CHRISTUS Health, discuss considerations related to the provider’s role in Medicare Advantage marketing. They cover ways that providers can help their patients select a Medicare Advantage plan, CMS' guidance on “communication” versus “marketing” and what providers can and can’t do, and best practices for providers. Jennifer and Jennifer spoke about this topic at AHLA’s 2024 Health Plan Law and Compliance Institute in Chicago, IL.
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Speaker 2:This episode of A HLA speaking of health law is brought to you by A HLA members and donors like you. For more information, visit American health law.org.
Speaker 3:Hi, and welcome to today's podcast. I'm Jennifer Hatchett, and I'm of Council with Hall Render Killian Heathen Lyman , uh, out of the Indianapolis office. Um, and we are gonna be talking today about the provider's role in Medicare Advantage Marketing. Um, I joined whole render a couple of years ago after having been in house for a number of years working , um, to support , um, some fully insured products. Um, and then we also provided third party administrative services related to downstream relationships , uh, for Medicare and Medicaid , uh, healthcare marketplace , uh, and then also some self-insured products. So , uh, have quite , um, you know, extensive experience in that space. But then before that, I spent a couple of , um, stints at both Kentucky and Indiana Medicaid programs. And so I've spent some time both in the regulatory seat and in the regulated seat. So I'm happy to bring, you know, those experiences here today. Um, I'm fortunate today to be joined by , um, Jennifer McGowan, a Christus Health Plan, and back in May at the Health Plan Law and Compliance , uh, conference , um, in, in Chicago. We were , um, presenting , uh, this presentation related to provider's role in Medicare marketing and have been asked to convert it to a podcast today. And so I'm excited to intro introduce you guys to Jennifer , um, and let her , uh, introduce herself. So
Speaker 4:Thank you. Jennifer. Hi, I am Jennifer McGowan. I'm senior counsel at Christus Health based in Irving, Texas. Um, I've been with the organization seven and a half years, so going on eight years. Um, at Christus, I work in several different areas, one of which is the health plan, which we will get into a little bit more , um, during this podcast. But before Christus, I worked at the Health and Human Services Commission in Austin, Texas, and I worked , um, a lot on Medicaid managed care and with the CHIP program. So, Jennifer, it looks like not only do we have our names in common, but we also have some prior experience in common. Yes .
Speaker 3:So , well, thank you for that introduction of yourself. Um, Jennifer , um, Jennifer and I spent quite a bit of time working together related to Medicare Advantage , um, and a specific , uh, specifically we spent a lot of time over the past couple of years talking about marketing and the role of the provider and how that creates some challenges for , um, for Jennifer and her business partners as they're moving forward, as both a provider , um, in the healthcare system, and then having their own health plan. Um, and so depending on what day you hit Jennifer, she may be wearing her provider hat, or she may be wearing her plan hat. And so as she moves forward , um, you know , doing that, we always have to be mindful of , of what hat she's wearing, but then also, you know, being clear for her business partners. So, Jennifer, can you give us kind of an overview of Christus, the health system, the health plan, and the challenges and opportunities that having both of those hats that are available to you , um, provide as, you know , you , uh, work with your business partners , uh, on a, on a daily basis?
Speaker 4:Sure, of course. Um, Christus Health is a Catholic non , not-for-profit system. We have more than 600 centers, and that includes long-term care facilities, hospitals, clinics, and various health ministries. Um, we are based in Texas, Louisiana, New Mexico. And then we also have, we also have business in Latin America, specifically Mexico, Chile, and Columbia. Um, and as you mentioned before, in , in addition to having sort of your basic health system components of hospitals and clinics, we also have a health plan. And our health plan offers coverage to individuals who are looking for Medicare advantage or health insurance exchange plans. Um, and so we operate those in New Mexico, Texas, and Louisiana. Um, as you, as you stated, a , a moment ago , um, sort of the two hats that, that I wear , um, you know , obviously there's the provider side and then there's the health plan side. And so being a provider sponsored plan presents some interesting opportunities and challenges. Um, you know, from the provider side, you have, we have an interest in having our patients have appropriate healthcare coverage for their, their needs. Um, and so there's that sort of interest that's always there. And then from our health plan side, we obviously want to have members enroll people, enroll as members into our health plan. Um, so a lot of times the question becomes, how, how does that intersect? And can providers on the health system side do anything, you know, with respect to the health plan in terms of marketing or, or just even making , um, the community aware of Chris' Health Plan. So what, what is the role? What can be the role of a Chris' health provider with respect to CHRISTUS Health plan business?
Speaker 3:Yeah, I think that's really interesting. So as you're working with your business partners and you're trying to figure out what that role is in , um, in finding the right fit of Medicare plan for one of your patients, one of your health system patients , um, how do your patients , um, come to your providers and how are they looking and why are they looking at that position of patient doctor that, you know, inherently has a trust element to it , um, and helping them , um, select a Medicare Advantage plan , and, and how are , you know, what are the things that, you know, need to be considered as that , um, provider is providing counsel to , um, to their patient population?
Speaker 4:Yeah, and I, I think that you essentially sort of hit the nail on the head when you mentioned , you know , providers are in a position of trust with their patients. They're also looked at as sort of experts, you know, of all things related to the medical field, including insurance. And so a patient, you know, it , it's would seem very normal for a patient to ask a provider for input on different health insurance options. Um , and one of the reasons, you know, trust, I think is a big one, but also a patient might be asking his or her provider because they want to ensure that whatever health plan they select, that that provider accepts that insurance, right? Or else the continuity of care is going to be disrupted, and the, and the patient's going to have to find another provider. And that's, you know, if it's a , a doctor that, that he or she really likes, and the patient's not gonna wanna have to do that. Um, so it's, it's things like that continuity of care , um, administrative burden, you know, of switching plans, that kind of thing. Um, what, what, like each health , each health plan's gonna have different requirements for the prior authorization process. Some may be more cumbersome than others, and the provider having dealt with various insurance plans, may know just which ones have an easier process, you know, and so the provider definitely sits at, in , in a unique , uh, seat in terms of understanding health insurance and being able to give a patient some degree of information regarding coverage options.
Speaker 3:Yeah. Um, that definitely makes sense. Um, and I think we've seen recently also some recommendations or some ask , uh, for prior providers to be involved in situations that aren't, you know, your traditional, you know, asking your doctor during a , uh, care visit , uh, for information. But we're also seeing that, you know, the business partners have asked for other , um, forms and methods in which providers can participate. Can you talk to us a little bit about what some of those , um, opportunities are and how you've responded and providing guidance related to those?
Speaker 4:Sure. And I think this is coming up more and more for me, and, and this is why Jennifer and I have been doing a lot of work together, because I think it's probably existed for a long time that organically in an exam room or something, a patient would ask a provider, I, I , you know, I need to, I need to get some coverage, and can you help me understand some of my options? Do you know anything about this plan or that plan? Like those are sort of organic conversations that stem naturally from the provider , um, patient relationship, but being part of the provider sponsored plan , um, a provider sponsored plan within a large health system. The question then sort of ends up becoming, okay, well, outside of an exam room, outside of sort of that natural conversation, what is the role or what could be the role of the provider in terms of , um, marketing or raising awareness about a specific health plan? Like what are things providers could just do outside of an exam room that raise awareness regarding a plan? And so, some of the things that I've been asked about, and I'll just state as I'm gonna go through kind of a little list , um, I think these, these questions are extremely fact specific. And so as I mentioned them, I'm not saying whether I think they're appropriate or not, it's just these are ideas that people have generated, and then they have to really be looked at. Um, so you know, everything from education sessions where providers speak about , um, disease states like cardiovascular care, diabetes or Alzheimer's , um, direct mail campaigns where, where the system would mail something out highlighting Christus Health plan , um, either with or without specific information about various disease management , um, aging in communications, basically a letter to, to patients that essentially says, Hey, we know you're turning 65 soon and you are eligible for Medicare. Have you considered all of your options, including Medicare Advantage plans? Um, and then providing links from the system website to Christus Health Plan or an agent broker site that would actually direct them to , um, a place where they could ultimately enroll in coverage. So all of these things, and more <laugh> have been , um, sort of asked, you know, I've been asked these questions, and so that's when I often call you Jennifer, because that's when we need some, you know, we really, really have to look at it, and we really need some good guidance because I think there's a, when it comes to what providers can or cannot do with respect to health plan marketing or communication, it like, it's there , there becomes a lot of gray area, like the , the regulations get you to a point, but then there's a lot of, like you're left kind of wondering, all right , well, it doesn't spec , you know, nothing specifically addresses this idea. So now we have to decide, is it, do we think, you know, it's appropriate or not?
Speaker 3:Right? And it really is about the devil's the details. And so when we talk about, you know, the scenarios that have been presented from the business, it really is about asking, you know, a thousand or one follow up questions to make sure that we understand that, you know , if you know the scenario changes, you know, for some, you know, reason no one or unknown what the response and implications will be. Um, so as we're looking at that , um, and making those determinations, can you give our listeners , um, an idea of what some of our major resources are for looking at guidance related to what's permissible and what's not under CMSs , um, guidance?
Speaker 4:Mm-Hmm. <affirmative> . Sure . So , um, in the code of federal regulations, I think the biggest things that I look to and where I go first , um, would be 42 CFR 4 22, and 4 23. That's where the marketing , um, uh, rules lie. And , um, there's also a Medicare communications and marketing guidelines document , um, which correct me if I'm wrong, Jennifer , it , it's kind of been stripped down because most of the stuff that was historically in there has now been essentially put into the code of f federal regulations. So if you go old iterations of the marketing guidelines there, there's a lot of stuff in there, but it really just moved basically to the C ffr Mm-Hmm . <affirmative> at some point. Um, and then there's, there's memos from CMS and HPMS to MA plans that, that are released periodically that provide guidance, and then there's state Department of insurance code and regulations. So, so it's really those, those things that all have to be examined when you're looking at one of these , um, ideas, basically. And also, another thing I'd mentioned too is hipaa. I think, you know, we don't wanna lose sight of that and in , you know, protected health information and what can and cannot be done with it.
Speaker 3:Yeah. All really, you know , essential key points that we look to and, and receive guidance. But, you know, as we have these conversations and we're talking to our business partners on , uh, you know, some really interesting, innovative ideas that have come about, we always come back to basically a conversation , uh, that CMS kind of frames the beginning of the Medicare communications and, and marketing guidelines document, and really kind of kicks off the , um, subpart five of the , um, Medicare Advantage regulation. The prescription drug plan regulation is really talking about , um, communications and the subset of communications, which is marketing, and then a two-prong test. It's something it is , um, related to , uh, marking or not. So let's talk basically about what a communication is. So communication is really just a factual piece of information that is provided by the MA plan to their , um, membership or the potential membership. Um, and it often revolves around transactional business related opportunity. So the inmate plan is sending an explanation of benefits. They're providing , um, a member handbook, they're providing the provider directory, they're sending letters reminding people that it's time to get their , you know , flu shots or shingles or, you know, pneumonia shot, you know, as we're dealing with the age population. Um, so those are the communications. And then CMS says, you, within this world of communications, you have a subset of communications that are marketing materials. And marketing materials are really any document or activity that is intended to influence a beneficiary or an , a potential enrollees , um, decision in either making or retaining enrollment with a specific Medicare Advantage plan . And so as you're looking at marketing and really trying to determine, okay, well, how do I know, is that something that, you know, is really trying to influence , um, enrollment? How do I make the determin determination? And CMS has provided us guidance with a two part test, and it really is looking at the intent of the communi of the communication , uh, and the content of the communication. And if both of those elements are met , um, then , uh, the communication is determined to be a marketing piece that has additional restrictions , um, and prohibitions and permissible actions that are , uh, that surround it . Um, so when we look at intent , uh, what CMS ask us to look at is really what , um, what are you trying to accomplish with the document? Are you trying to draw the beneficiary's attention to the plan ? And if so, when you're drawing their attention, are you making statements or , um, showing , um, activities that would influence that , um, individual's decision making process , uh, related to initial enrollment or retaining enrollment with a health plan. And then you're looking at the content. And so the content is really kind of where you get down into , um, the nitty gritty of where you're looking at marketing communications. And it's really about things that are addressed , um, in the content , um, that really are usually the deciding factor. So is the material or the activity, something that's talking about the benefits that are offered , um, the premiums that , um, are gonna be , um, uh, paid related to the, or the fact that there is no premium , um, cost sharing amounts, all of those are content items that CMS things kind of push it into marketing. Um, also when you're looking at materials that are ranking , um, plans against to one another, so, you know, we're the only five star , um, plan in, you know, this regional area, or we're a three and a half star plan, or a four star plan , or whatever the , um, the thing is. Or we're using rankings where, you know, we are the largest or we're the biggest or we're the best. Um, and looking at those words that have some sort of element , um, of persuasion related to them that could influence people who'd be like, yeah, I wanna be the best health plan. Um, and just to , you know, a side note is that if you use those types of measurement words , um, that are comparative in nature, CMS requires that you back that up with factual information. So you can't just make , uh, a general statement that you're the best and not have anything that backs that up. Um , and the other thing that CMS looks at is, is there any mention of rewards or incentives? So I know that as we see, and we're getting, you know, ready to enter into what I call the Medicare Advantage , um, ad , you know, campaigns for , um, the fall is looking at rewards or incentives. And so we'll see that you , they're offering gift cards for certain healthcare functions. You know, if you're , uh, going to the gym, you're getting points or you're , you know, something occurring. So those rewards or incentives are also things that are included in the content that gets , um, moved something from a communication over into a marketing piece.
Speaker 4:Yeah. And I think as, as a provider sponsored plan , um, where , where there's essentially the two hats, I always sort of the backbone of any analysis when, when somebody from the business team brings an idea is , um, what is the objective of the proposal , um, or the activity and, and which entity is going to be doing the activity? Is it going to be CHRISTUS Health as a provider, or is it Christus Health Plan as a health plan? And as I was saying earlier, the lines can start to get a little blurry. And so it's really, I think, important as council to be like, stop. We need a clear demarcation of who , you know, we need to know where that line is and, and what, what is the actual proposal. Like, you know, we're not just gonna talk in like generalities, but I need to know, like, you know, is it the provider that's wanting to send out a communication about, Hey, it's, you know, it's about to be enrollment season for Medicare Advantage. Have you considered plans or is it the , is it Christus Health plan that's actually wanting to send a communication about, about the plan itself that, that we offer? Mm-Hmm , <affirmative> . Um, and so once we kind of know those , the answers to those questions, then really the next thing to do is to go to the CFR 42 CFR or 22 point 2266 , and that sets out , um, where activities can occur or not occur in a healthcare setting. Um, and so then we can kind of look there and figure out like what's permissible and what's not permissible that , where it gets really challenging is that the regulation is pretty clear on where marketing a activities can occur in a healthcare setting like that, that phrase is seen multiple times throughout, you know, the, the rules and the guidance in a healthcare setting. So then, you know, and, and those are things like, for example, the guidance is you can only , um, do marketing activities in a healthcare setting and public areas like waiting rooms or cafeterias, but you cannot do it in, in an , in an exam room or anywhere treatment occurs. Um, like even a dialysis or infusion center. And all of that makes really good sense from a public policy perspective because it would seem highly inappropriate to have someone on an exam table, you know, in a paper gown or something. And , and the provider's trying to push a specific health plan like that person's in a vulnerable position. So that just doesn't seem right at all. Um, so all of that makes sense, but then, you know, the , those are all things you can or cannot do in a healthcare setting, which what is not addressed as well, or I think there's a lot of gray is what about all the other settings? Like what can providers do outside of a healthcare space or cannot do with respect to , um, marketing MA plans.
Speaker 3:Yeah. Um , you know, we'll get into that as we continue our discussion here. But I think the other piece is, you know, we , we get guidance from CMS in , um, 42, 22 and 23, 22 66, about activities in a healthcare setting. And so, you know , they're pretty black and white rules about, you know, you can't, you know, provide treatment , um, provide advice in , in a treatment room related to, you know, marketing and MA plan. But where it gets a little bit , um, murer is where , um, CMS looks at, how did the conversation organically arise? And we've talked about this a little bit today already, but CMS really then focuses on is it something that , um, is plan initiated or provider initiated? And so when you're looking at the things that CMS determines our provider initiated when you read the regulation, it's not even that their provider initiated as much as their patient driven . And so the patient has asked a question about , um, Hey, you just , um, prescribed me this new medication and I need to make sure that my Medicare advantage plan that I'm enrolling in has that drug on the formulary. And so this is where CMS, you know, looks and takes a step back and tries to, you know, use critical thinking skills to say, okay, we've said you can't use any sort of marketing , uh, language in a treatment room, but provider, you can answer a direct question that is factual , um, based on the question raised by the patient. And so for the provider to then be able to turn around and say, yes, you know, plan A, you know, this is on their formulary, you can take this, you know, hypertensive , uh, hypertensive medicine , um, because it's in the formulary, or both of these , um, MA plans cover it, but one has prior authorization requirements that are a little more , uh, cumbersome for you to be able to meet. And the other is clearer. Those are both permissible , um, communications that can occur , occur in the treatment room. And so it's really helping , um, your provider population understand , uh, what exactly that they can do based on who created the initial communication or not. Um, the other piece that we look at is , um, is it provider, you know , um, driven or is it plan driven ? Um, things that are plan driven are things that the plan has either put in the provider agreement with , um, or they've asked through their provider representatives or network representatives , um, for the , um, provider to do. And those are things that , um, you and Jennifer will discuss here in a minute. Um, and then I would like her to also tell us about best practices that , um, that she's put in place with the folks at CHRISTUS to ensure that , um, they're , uh, following CM S'S guidance related to , um, those types of materials.
Speaker 4:Yeah. Um, and I, I think , um, it's helpful to know , like some of the things that we have provided training to our, our CHRISTUS team on are what things a provider can initiate , um, in a healthcare setting. And so some of the things that providers can do, and CMS is very, you know, clear on this, they can send affiliation notices that basically state , um, which plans the , um, the, the provider's going to participate in. Providers can accept, and I'm sorry, not accept, they can provide CMS materials. They can even answer questions on the merits of specific plans , um, relative to the member's care. So, you know, if they know what the cost sharing looks like or some of the utilization management , um, requirements and those kinds of things, they can, they can answer that because they have that information, they have that knowledge. So they , they, they can definitely answer questions about it. They can refer patients to plan materials that are located in common areas, and they can provide phone numbers and web addresses for CMS and state resources. So all of these kind of , um, agnostic things more or less.
Speaker 3:Yeah. So are there best practices that you rolled out with , um, the CHRISTUS providers and, and plan , uh, representatives and Yeah . If so, what, you know, what have you implemented?
Speaker 4:Yeah, sure. I think that it's really important for providers and, and anyone advising providers on, on their role related to this topic that, that best practices would be keep your answers fact based , provide answers if you know them, like truthful answers, but stick to the facts. Um, and also you should know when to redirect a patient, should the discussion start varying towards prohibited topics. Um, you know, if it starts getting into what feels like the provider's almost like advocating, giving a sales pitch for a plan or something, now , now you've gone too far. Um, and so, you know, there's not, there's not some super bright line. You just have to kind of be aware of, Hey, when we're getting to this, if we're kind of getting into this kind of stuff, like, you know, which plans better than another plan? I think a provider, that's when they need to be really cautious and redirect. They could also consider having somebody else in the room like a nurse , um, when these discussions are happening. Um, so those are all things that we have recommended to, to my clients , um, and can , so that's, those are all things that are what are essentially permissible in a healthcare setting. Um, but Jennifer, I think what where it really starts to get difficult for me is , um, what can they, what can providers do or cannot do outside of your typical healthcare setting? Um, and that , that's when I pick up the phone and I'm often calling you , um, <laugh> . So yes , can you give us an outline of what is permissible and what is not when we start talking about outside of a healthcare setting?
Speaker 3:Yeah, no, I mean, it's , um, always interesting to look at , um, you know, the different opportunities that are presented, you know , either from, you know, our business partners that are CHRISTUS or one of my other clients. And , um, I'm always surprised at some of the innovation that is occurring. I things that, you know, in a million years I would've never thought about. And so then suddenly you're thinking about it, and that's all you're thinking about is you're trying to figure out how to get the client to a yes. Um, and, you know, that's, you know, our job here is to help them get to a yes and let's the hard no . Um, and so we're really looking then at the information that is provided and the rest of , um, the Medicare Advantage program, reg regulations for both , uh, MA plans and prescription drug plans, and 4 22 and 4 23 of , um, 42 CFR. And so as we're looking at that , um, material, one of the important things , um, that we look at again, is , uh, who's making those communications And , um, CMS has, you know, over the past couple of years, really started tightening up on their , um, oversight of , um, third party marketing organizations. And so that is , um, something that , uh, we're gonna talk about here in a little bit , um, but really looking at , um, how CMS is really looking to , um, narrow who can communicate to potential enrollees and beneficiaries versus who can't. And so through that , um, CMS has revised , um, some of the regulations related to communications that occur , um, outside of the healthcare setting. And so as they're , um, doing that , um, they have basically defined a third party marketing organization as , uh, an agent or a broker or anyone involved in any way in the chain of enrollment , um, with a MA plan. And usually there's a compensation element involved in that. Um, but it doesn't have to be actually cash that exchanges money. It could be in con services. Um, but really is , um, expanding that concept of who's an agent or a broker for purposes of the marketing organization. And then the regulation was further amended to require that the MA plan sponsors , um, are providing appropriate oversight of those third party marketing organizations , um, and ensuring that the third party marketing organizations are complying with all the laws that are applicable to the MA plan. So although there may not be , um, specific guidance related to , uh, what a , an agent or a broker or, you know, a provider, what , who becomes a , um, A-T-P-M-O in this concept , um, can do , um, we really do see that CMS is , um, provided guidance in saying, look, all of the regulations apply to everyone by including this new oversight piece. Um, and so based on that , um, you really want to be familiar as you're providing counsel to either your agents or your brokers or your plan or your providers, whatever hat you're wearing there , um, and making sure that they're really familiar with that Subpart V of or Subpart five of 42 and 43 CF , uh, 42 CFR 42, 4 22 , and 4 23. Um, and those program regulations, because that's really where CMS goes into the different requirements , um, related to marketing communications. And so through , um, those oversight materials, you're gonna see that there's a section related to , um, communications with beneficiaries and payment commissions and , um, submitting materials to CMS for approval , um, before you use a marketing piece , um, required communications that , uh, are required by all in MA plans and the forms , um, that are used by the MA plans , so that if you change from plan A to plan B and you're looking at an explanation of benefits, it essentially has the same information, although it may look a little bit different. And so those are all important things that CMS has done to ensure that the , um, user experience is fairly similar across all MA plans , um, with a little bit of , um, guidance and , uh, allowance for customization by the plan. Um, so I think that's really the most important thing , um, as we're moving forward is , um, using all of , um, the Medicare regulations , um, and applying them to , uh, the plan. And so based on that , um, CMS has given, you know, fairly , um, decent guidance related to different marketing activities that are related to contacting beneficiaries. And so let's move and have a discussion about those activities , um, with beneficiaries. And so that could be an educational event where you're presenting , um, something on a disease state, and , um, you have a provider who is , um, giving information from a clinical perspective. Um, there are sales and marketing events where you're really just communicating about what is Medicare advantage, what is Medicare supplement, what is med , uh, Medigap, and what are the different products that are available? How are they different? Um, and then also providing information about the plan that you're there to promote. Um, there are direct mail pieces that we've talked about. There are , um, phone calls, cold calling , um, those are things that were very common in tele CMAs , um, has shut , um, down quite a bit of that over the past, you know , four or five years. And then they were really good about , um, also providing , um, information related to, okay, you know, we're interested in potentially, you know, joining this plan as an enrollee, and I need some information about, you know, what would the premium be and what are the benefits and what's the formulary? And so those are sales appointments. And CMSs develop the , um, scope of appointment form that is , um, agreed to at least 48 hours in advance for the agent and the , um, potential enrollee to determine what they're gonna talk about , um, what plans they're gonna talk about. Are they gonna talk about Medicare supplement and me and Medigap in addition to Medicare Advantage? Are they gonna talk about traditional Medicare versus Medicare advantage? What exactly are they gonna talk about? And they agreed to that and they put it in writing, and it has to be in place before that conversation can occur. Um, and so, you know, as we have been progressing , um, in the regulation of third party marketing organizations and MA plans taking ownership , um, of the oversight of their , uh, entities that they've hired , um, CMS has been , um, pretty good about , um, updating its regulations and spelling out was permissible versus what is prohibited , um, for , um, providers , um, and agents and brokers. And so , uh, Jennifer, can you give us some information on , um, how CHRISTUS has , has operationalized that , um, and how you've taken that information in and communicated out to your business partners , um, and how it gets then, you know, distributed out to agents or brokers or, or plan members?
Speaker 4:Yeah, sure. I think that like CMS has done a pretty good job of providing a list of things that are not permissible , um, cash or monetary rebates not okay. Gifts of more than nominal value are not permitted, cannot give meals , um, comparing plans unless the information is accurate. Um, and can be supported by , um, the plan making, the comparison , um, displaying co-branding , uh, provider name without appropriate disclaimers. Those are, those are not permissible activities, advertising benefits that are not available to beneficiaries in the service areas , not permitted , um, marketing products plan benefits and costs without naming the MAPD plan is impermissible and marketing star ratings without following CMS rules . Um, also impermissible. So I think it's almost like I , I feel like it's, we we're , we kind of cobble together for, when we're looking at what we can do outside of a healthcare setting, we sort of just have to look to all of these things. It's like a little bit of a puzzle piece. And then, okay, after we've kind of gone through what's permissible and all the , or impermissible in all these different , different contexts, you know, what's over <laugh>? Yeah.
Speaker 3:What's left over and and can you put it in? And then always our, our favorite follow up question is, what happens if we don't do that? Are we gonna get in trouble? What, what does that look like <laugh> ? And so , uh, you know, and then Jennifer and I are, you know, tap dancing because there's not a lot of guidance. This is still really new regulatory guidance that CMS has , um, been , uh, evolving in their , uh, final rules over the past, you know, three or four years. And so there's not been much , um, enforcement activity that we've seen, but there was one case in Puerto Rico from a couple of years ago where , um, the MA plan decided that it was going to provide gift cards to the administrative staff of the provider's office. And so, as you know, an individual, you know, presented and didn't have an MA plan , or maybe if they did , uh, and they, you know, wanted to change , um, if there was a , uh, referral or an, you know, influence of , Hey, have you thought about this health plan? Um , that gift card was then given to the administrative staff as , um, you know, a payment for that referral or, or , uh, uh, inducement to enroll the member. And so , uh, you know, CMS caught wind. They were not thrilled with this activity. Uh, they referred it over to their , um, friends of enforcement agencies for both the Department of Justice and the Office of Inspector General for HHS , uh, who then filed suit against the , um, uh, MA plan. Um, and so basically the, the summary of what occurred is over a period of about 13 months , um, the agents were giving gift cards to the provider, front office staff. Um, uh, the total value was about $42,000 , um, for 1,703 referrals. And so for the, you know, benefit of, you know, that 40, and actually the exact dollar figure is $42,575 , um, the , uh, feds , uh, decided to settle with , um, the plan MSC Advantage , uh, for $4.2 million. So I can't imagine that, you know, for the 1700 and and three enrollments that occurred , uh, that there was any value remotely close to $4.2 million that were received. So , uh, we are seeing that CMS is not playing around , uh, they take this seriously. They are making , um, referrals to law enforcement. Um, as with most things in , uh, the federal government in an enforcement role , uh, enforcement takes, you know, several years to, you know, make its way , um, through the court system. And so we will, I expect to see , um, more settlements or actually cases moving to trial , um, for us to provide additional guidance. Um, but as we're, you know, providing, you know, counsel to the business partners we're telling 'em about this case and, and saying, look, you know, the, you're expending, you know, $42,000 in, you know, in inducements, and you're paying a $4.2 million. So the cost benefit analysis by no stretch of the imagination is , um, you know, comes out in , in your favor. Um, but then the other things you have to think about is, you know, under the sponsor agreement between the MA plan and CMS , um, and then the CMS program, reg regulations, there are also other , um, you know , sticks and , and carrots that are available. The sticks are, you know, civil monetary penalties and criminal charges and , uh, suspension of enrollment and, you know, a number of things that affect the business and the profitability of that plan. And so we want to ensure that as we , um, are giving our business partners , um, information about what could happen, that they're aware that these are all potential options that could have a negative impact , um, as moving forward. So , um, Jennifer, I wanna , you know, switch back to you. And so we've talked about, you know , what's permissible and what's not permissible, and trying to read the tea leaves , um, for those things that fall in those gray areas , um, you've developed some best practices for the folks at christus , um, that might be good for the ma um, plans that we're , and providers that we're talking to today to adopt. So do you have any additional thoughts or , uh, any additional , um, last thoughts as we close , um, our, our conversation out today?
Speaker 4:Yeah, I, I would just say you , the , this area is definitely tricky and it doesn't get, it doesn't feel like it, it gets a lot of attention as you just went over. There's one case that exists and it's a very important case, and I use it. Um, I, I highlight it to my internal business clients , um, from time to time just to remind them, like, this doesn't feel like I , I know it feels like no one's really looking, but they're looking, you know, there's just not a lot out there to, to scare you, but this one case is fairly scary , um, and it's not worth it. It's definitely just not, you know, think of what do you think you're gonna gain from the activity you're looking to have a provider do or, or something like that. What , what , how much gain are you going to get from that versus the risk of like an enforcement action or suspension of enrollment would be a pretty big deal , um, to a health plan. I think some of the things that internal council can do, and you've been helping me with this, is develop various toolkits so that the people who are , um, you know, the, the people running the marketing programs, the people doing the sales kind of understand what activities are permissible and impermissible, but then there's still a lot of gray. And so they really need to, to bring their ideas early to council , um, not the day before they actually want to <laugh> , which often can happen as I think everybody who's worked in this space long enough understands. Um, but, but really education I think is, is key in , in getting them to understand, you know, people I've encountered various different kinds of people who do marketing and some of them are more familiar than others with , um, sort of marketing in the healthcare space. And so , um, I, toolkits I think are key. And, and I think, like, I know my internal clients like really want things like that. Um, I've presented several trainings to them , um, PowerPoints, just giving them the information so they understand the guardrails, I think is like your, your best , um, way to prevent something from going awry, essentially, because it is, it , it's a tricky area. Like it's, it's tricky for, even for me, just because the guidance is sort of patchwork to get to an answer of what we can and can't do.
Speaker 3:Yeah. And not only is the guidance patchwork, we're seeing that every year the rules change a little bit more. And so about the time that we have communicated and educated and , and get people aligned on what the new rules are, the change again, and I think that's frustrating for the business partners, but it's , um, you know, it's also frustrating for, you know, the attorneys who are, you know, working to ensure that , um, you know , you're operating, you know, a compliant plan and you know, your providers are , um, you know, not getting themselves or, or the system or the plan in hot water. And so it's, you know, it's always a challenge. And so it's really , um, you know, kind of here as we're getting ready for the 2025, you know, annual enrollment period, you know, we're really kind of getting to that hotspot in , in August and September when people are gonna be like, oh my gosh, it starts on October 1st, and what are we gonna do? Um, and so that's really, you know, where we're here today and wanted to have this conversation. Um, and so we're really, you know, I wanna thank Jennifer. She's been a great partner, not only, you know, in , in the presentation, but um, also in our discussion today, but then also, you know, working with , um, you know, our business partners and, and , and helping them understand the guidance that's out there and trying to prevent them from stepping on any landmines and creating any , um, sort of, you know, reputational, you know, bruises related to, you know , the health plan or to the system, either one. Um, so thank you Jennifer, again for your , um, participating discussion. Thank you listeners for attending. Um, thank you A LHA for allowing us to talk about this MA marketing. Um, one further time and , um, good luck as we, you know, move into the 2025 benefit year annual enrollment period. Thank you guys.
Speaker 4:Thank you, Jennifer. Thank you. A-A-H-L-A .
Speaker 2:Thank you for listening. If you enjoy this episode, be sure to subscribe to a HLA speaking of health law wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American health law org .