New Marketing Rules Fail to Cure Problems in the Medicare Marketplace

We recently published an issue brief exploring how the new marketing rules for the sale of Medicare Part C and D plans have failed to cure the problems in Medicare’s marketplace.

Even though, Congress and the Centers for Medicare and Medicaid Services (CMS) have made progress in their recognition of and efforts to address marketing misconduct in the Medicare marketplace, many problems persist. This year Congress passed the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) and CMS has issued implementing regulations and clarifying guidance. Many of the statutory and regulatory changes do improve beneficiary protections, but they also have some significant loopholes and/or exceptions, and it is yet unclear how some of the rules will be implemented. Some of these new rules are codifications of existing rules (e.g. a prohibition on unsolicited door-to-door marketing) that, in the view of those assisting Medicare beneficiaries, have been widely flaunted. Although the new rules will help, this issue brief points out how and why marketing misconduct continues. It discusses some ongoing systemic barriers to adequate oversight of the Medicare marketplace, such as the federal preemption that still plagues the regulation of Medicare Advantage and Part D plans by hindering or even preventing action at the state level, and the sporadic oversight and enforcement actions at the federal level.

This brief also reviews some of the changes in marketing rules implemented in 2008 by identifying strengths, weaknesses, and room for improvement. The brief is organized as follows:

  • Part I provides a short overview of regulation changes to the Medicare marketplace in the last couple of years;
  • Part II explores unresolved systemic issues that prevent adequate oversight of marketing in the Medicare marketplace;
  • Part III analyzes selected new marketing rules, including their shortcomings;
  • Part IV provides recommendations to better protect consumers from marketing abuses;
  • Appendix 1: is an update on Medicare Advantage “Gap” Plans (following-up on an issue brief on the subject drafted by California Health Advocates in November 2007), along with a couple of examples of ongoing marketing of these products to agents; and
  • Appendices 2 and 3 are examples of marketing documents referenced in the text.

View the full issue brief (pdf).

Also, learn more about Medicare Advantage plans and Medicare Part D plans.

Karen Joy Fletcher

Our blogger Karen Joy Fletcher is CHA’s Communications Director. With a Masters in Public Health from UC Berkeley, she is the online “public face” of the organization, provides technical expertise, writing and research on Medicare and other health care issues. She is responsible for digital content creation, management of CHA’s editorial calendar, and managing all aspects of CHA’s social media presence. She loves being a “communicator” and enjoys networking and collaborating with the passionate people and agencies in the health advocacy field. See her current articles.