May 20, 2005

CMS Releases Draft Guidelines for Public Comment

Holland & Knight Alert
Jeffrey W. Mittleman

Deadline for Providing Comments Is May 24, 2005

On May 12, 2005, the Centers for Medicare and Medicaid Services (CMS) released draft marketing guidelines for 2006 Medicare Advantage organizations, Medicare cost-based plans and Medicare health plan demonstrations. CMS has required submission of public comment on or before May 24, 2005.

The guidelines, which amend Chapter 3 of the Medicare Managed Care Manual, relax federal scrutiny of health plan marketing materials by creating a new “File and Use Certification” process in which Medicare Advantage plans (the replacement for Medicare + Choice plans under the Medicare Modernization Act of 2003, or MMA), must certify the accuracy of certain marketing materials, but need not obtain pre-approval. Certification by a senior plan official enables the health plan to begin market distribution of applicable materials five calendar days after they are submitted to CMS. Thus, the File and Use Certification process will reduce the time that it takes for health plans to put their marketing materials into the marketplace (with the exception of certain core documents such as the Summary of Benefits, Evidence of Coverage and Annual Notice of Change). Unfortunately, the draft guidelines do little to solve ongoing HIPAA privacy and related legal concerns that may prevent plans from doing outreach and education for those beneficiaries most in need of information concerning the new MMA health plans.

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