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CMS Provides Guidance on Use of Medicare Advantage Enrollee Information for Communications


On October 16, 2009, the Centers for Medicare & Medicaid Services ("CMS") issued a memorandum regarding allowable use of Medicare beneficiary information obtained from CMS to all Medicare Advantage ("MA") Organizations and Part D sponsors, among others. By signing the CMS restrictions contained in the Data Use Attestation, organization or sponsors agree to restrict the use of Medicare data to those purposes "directly related to the administration of the Medicare managed care and/or outpatient prescription drug benefits for which they have contracted with CMS to administer." For purposes of these Data Use Attestations, CMS-provided data includes information provided by beneficiaries during the course of enrollment as well as data obtained solely as a result of access to CMS systems. The current Medicare Marketing Guidelines ("Guidelines") outline the requirements for acceptable marketing practices (found at, and Attachment 1 to the memorandum outlines a description of that guidance. Specifically, Attachment 1 contains detailed instructions for when prior authorization is required for use of Medicare Beneficiary Information obtained from CMS, as well as how prior authorization may be obtained.

Also on October 16, 2009, the CMS issued a memorandum to all Medicare Advantage Organizations and Part D sponsors, among others, regarding the use of federal funds for non plan-related activities. The Department of Health and Human Services' annual appropriations acts provide that no appropriated funds may be used to pay the "salary or expenses of any grant or contract recipient, or agent acting for such recipient, related to any activity designed to influence legislation . . . ." In 1997, CMS released guidance advising that lobbying activities undertaken at the expense of the risk contractor Health Maintenance Organization/Competitive Medical Plans would be permitted subject to certain restrictions. However, a notable recent change in the contracting program is that the current bidding methodology employed under the MA and Part D program was not in effect in 1997. The current bidding methodology for Parts C and D bids specifically account for administrative costs, and recent audits have revealed that some bids have included lobbying costs as administrative costs. As a result, CMS is clarifying that MA and PACE organizations, Part D sponsors, and 1876 and 1833 cost contractors that engage in lobbying activities must not include lobbying costs in their bid or cost report. Additionally, if lobbying expenses have been paid with federal funds, entities will be required to return an amount equal to those expenditures to the Federal government . This guidance will be applied on a prospective basis beginning with bids submitted for CY 2011. 

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Arthur N. Lerner
Partner – Washington, D.C.
Phone: +1 202.624.2820