On September 18, 2008, the Centers for Medicare & Medicaid Services (CMS) published two final rules modifying Medicare Advantage (MA) and Part D Prescription Drug Plan (PDP) marketing and other requirements.

  • The first rule implements certain MA and PDP marketing provisions and a requirement related to the disclosure and dissemination of Part D information included in a May 16, 2008 proposed rule and subsequently enacted into statute by the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA). Specifically, the rule: prohibits plans from providing meals to prospective enrollees at promotional events; prohibits unsolicited contact with potential enrollees (e.g., door-to-door solicitation); prohibits plans from cross-selling non-health care related products during Medicare marketing activities; restricts marketing activities in provider offices (except in certain common areas); prohibits plans from conducting marking activities at educational events; requires that only state-licensed representatives conduct marketing activities; requires plans to disclose certain beneficiary information at the time of enrollment and 15 days before the annual coordinated election period; and defines certain terms related to marketing activities. The rule is effective September 18, 2008 and applies to the 2009 benefit year marketing campaign, beginning October 1, 2008.
  • The second rule, which addresses a variety of other MIPPA MA and Part D provisions, is subject to a public comment period until November 17, 2008. With regard to Part D and MA marketing, the rule, among other things: codifies the $15 limit on nominal gifts to prospective enrollees; codifies restrictions on co-branding; limits marketing appointments to the scope of healthcare-related products agreed upon by the beneficiary in advance; restricts agent/broker compensation arrangements to reduce financial incentives to move a beneficiary from one plan to another; and establishes requirements for agent/broker training and testing and the reporting of terminated agents/brokers. The rule also includes provisions regarding special needs plans (SNP), including: an extension of the authority for SNPs through 2010; state contracting requirements for new and expanding dual eligible SNP applicants; model of care requirements covering scope of provider networks, individual assessments, outcomes measures, and interdisciplinary care management; cost-sharing limitations; disclosure requirements; and quality measure reporting. The rule also includes new access and quality improvement requirements for private fee-for-service plans, codifies the waiver of the late enrollment penalty for low-income subsidy enrollees; implements requirements regarding the prompt payment of clean claims; clarifies claims submission timeframes for long term care pharmacies; modifies cost plan contracts, phases out indirect costs for medical education from MA capitation rates; revises the use of certain Part D data; updates the prescription drug pricing standard; and makes exemptions to the income and resource requirements for Part D low-income subsidy eligibility determination. The provisions of the rule generally apply beginning October 1, 2008, with certain exceptions.

Separately, on September 26, 2008, CMS published a notice correcting a number of technical and typographical errors in its December 5, 2007 final rule regarding Medicare Advantage (MA) and Part D drug plan contract determination and compliance issues.