Developing Consumer Marketing Materials in the New ACA Regulatory Environment

51 Pages·2013·1.14 MB·English

Developing Consumer Marketing
Materials in the New ACA Regulatory
Environment

December 9, 2013

Troy Barsky
A. Xavier Baker
Overview
• Introduction
• Regulation of Health Insurance Marketing
– Federal Programs
– State Bases Rules
• Marketing After the ACA
• Life In the Exchanges
– Marketing-Related Regulations and Guidance
– Navigators, In-Person Assisters, Certified Application Counselors,
Producers
• Exchange Specific Marketing Rules: Covered California
Example

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In the beginning . . .
• There were two basic compliance arenas with health plan
marketing:
– Compliance with applicable federal program requirements
• Medicare Marketing Guidelines (42 C.F.R. §§ 422.2260 – 2276; 42 C.F.R.
§§ 423.2260 – 2276; Medicare Managed Care Manual, Ch. 3; Medicare
Prescription Drug Benefit Manual, Ch. 3)
• Medicaid Marketing Rules (42 U.S.C. 1396u–2(d)(2); 42 C.F.R. § 438.104)
• Other Federal Program Guidance (e.g., Tricare, FEHBP)
– State law requirements
• Policy rate and form review
• Producer regulation and oversight
• Unfair and deceptive trade practices laws

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Now, in the Post-ACA World . . .
• In the brave new ACA world, the federal/state spheres
have become increasingly intertwined:
– MLR rule
– Exchanges
– Changed market dynamics
• The ACA relies heavily on existing state law enforcement
mechanisms, but raises the specter of federal oversight
and enforcement

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Regulation of Health Insurance Marketing:
Federal Programs
• Medicare Marketing Guidelines (MA, PDP):
– Robust set of requirements designed to prevent fraud and abuse
and to ensure access
– Requires prior approval by CMS of certain materials, activities, and
language
– Limits member reimbursement for referrals to nominal gifts (less
than $15 cash value, no cash at all)
• Medicaid Marketing Guidelines:
– Similar to Medicare rules, requires prior approval by state agencies
(see generally 42 U.S.C. 1396u–2(d)(2) and 42 C.F.R. § 438.104)

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Regulation of Health Insurance Marketing:
Federal Programs
(cont’d)
• Other Federal Programs have similarly robust limitations
and requirements
• Potential False Claims Act (42 U.S.C. § 1320a-7b(c)) liability
for false certifications vis-à-vis federal health care
programs

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Regulation of Health Insurance Marketing:
Federal Programs
(cont’d)
• All federal health care programs are subject to the Anti-
Kickback Statute, 42 U.S.C. § 1320a-7b(b)
• “Federal health care program” means:
(1) any plan or program that provides health benefits, whether
directly, through insurance, or otherwise, which is funded directly,
in whole or in part, by the United States Government (other than
the health insurance program under chapter 89 of title 5); or
(2) any State health care program, as defined in section 1320a–7(h)
of this title.
• “State health care programs,” in turn are defined to
include Medicaid, CHIP, and certain other state health
benefit programs with federal support. (42 U.S.C. § 1320a-
7(h)).
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Regulation of Health Insurance Marketing:
Federal Programs
(cont’d)
• In her October 30, 2013 correspondence to Congressman
Jim McDermott (D-WA), Secretary of Health & Human
Services (“HHS”) Kathleen Sebelius declared that:
– HHS “does not consider QHPs, other programs related to the
Federally-facilitated Marketplace, and other programs under title I
of the Affordable Care Act to be federal health care programs.”
– She explained that this includes:
The state-based and federally facilitated Marketplaces; the cost sharing
reductions and advance payments of the premium tax credit; Navigators
for the Federally-facilitated Marketplaces and other federally funded
consumer assistance programs; consumer-oriented and operated health
insurance plans: and the risk adjustment, reinsurance and risk corridors
programs. This may impact QHP marketing activities, such as the payment
of referral fees to providers or others for steering membership to certain
QHPs.

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Regulation of Health Insurance Marketing:
Exchanges Are Not Federal Health Care
Programs
• Sec. Sebelius’ position is
:
– first, that government funding does not, by itself, constitute the
provision of health benefits and,
– second, that the Exchange health benefit offerings by QHPs, which
do “provide” health benefits, are not funded “directly” by the
federal government.
• The federal Anti-Kickback law, 42 U.S.C. § 1320a-7b(b),
does not apply to Exchanges.

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Regulation of Health Insurance Marketing:
Exchanges are Not Federal Health Care
Programs
(cont’d)
• This does not mean that the False Claims Act does not
apply to Exchanges.
– Payments made by, through or in connection with an Exchange are
subject to the False Claims Act if the payments include any federal
funds. (Section 1313 of the ACA, 42 U.S.C. 18033(a)(6)(A)).
• Barring other state law prohibitions or limitations, QHPs—
and providers—may engage in conduct on Exchanges that
they cannot perform in other federal health care
programs, such as Medicare and Medicaid.

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