Medicare Advantage - MSP Rules

[chiac]

The Medicare Secondary Payer rules prohibit taking an individual's Medicare entitlement into account, or providing "financial incentives" to induce him to terminate coverage under his employer's group health plan, and to opt instead for a Medicare Advantage plan. Does anyone know if this prohibition means an employer cannot even provide information (pamphlets, etc.) - - - such as at an employer sponsored health fair - - - regarding a Medicare Advantage plan? Does merely informing current employees of the existence of a given Medicare Advantage plan violate these MSP rules?

Thanks.

 

[Josh]

I have no idea what you're talking about, but there is no reason why an employer can't tell an employee about Medicare Advantage plans, but telling them at a health fair sounds like a horrible idea because you're taking something you can do legally and making it a violation because you can't talk about those plans at health fairs.

 

[chiac]

I am referring to two statutes/regulations.

42 USC 1395y(b)(1)(A)(i) states that a group health plan cannot "take into account" an active employee's entitlement to Medicare. The related regulation - - - 42 CFR 411.103 - - - includes as examples terminating an individual's coverage because he has become entitled to Medicare, or "providing misleading information" that induces the individual to elect Medicare coverage and terminate group health coverage. 42 USC 1395y(b)(3)(C) prohibits an employer from offering any "financial or other incentive" for a Medicare-eligible individual to elect Medicare over employer-sponsored group health coverage.

The question is whether these rules can be read by CMS so broadly as to outright prohibit any marketing or educational materials an employer might give to active, current employees.

 

[Josh]

No, they can't. If an *employer* wants to provide information then that's fine. They can even say that they're willing to pay for it, what they can't do is pay them to take the MA plan instead of the group coverage. Now if you as an agent approached the employee and told them to tell the employer, that's a violation of the marketing rules.