State insurance regulators from Georgia, Oklahoma and Wisconsin on Wednesday testified before the Senate Special Committee on Aging about unethical or illegal practices that sales agents allegedly have used in their states to enroll Medicare beneficiaries in private Medicare Advantage plans, the Raleigh News & Observer reports (Goldsmith, Raleigh News & Observer, 5/17). In advance of the hearing, Senate investigators released to Congress interviews and documents that indicate sales agents in at least 39 states have used unethical or illegal practices (Kaiser Daily Health Policy Report, 5/16).

Wisconsin Insurance Commissioner Sean Dilweg testified that 37 out of 43 states that participated in a recent survey have received complaints that Medicare Advantage plan sales agents have used confusing or misleading marketing practices. "In the most troubling of these cases, unscrupulous agents have enrolled beneficiaries with dementia into an inappropriate plan," Dilweg said (AP/Arizona Daily Star, 5/17). Dilweg, who chairs a National Association of Insurance Commissioners task force on senior issues, added that insurance departments in 39 states have reported complaints about "instances where a plan or an agent provides misleading information about the provider network associated with a certain plan, or the benefits that the plan offers, or the beneficiary cost-sharing involved."

In some cases, particularly with regard to private fee-for-service plans, "seniors are being told that they can go to any provider without being told that they may only go to a provider that accepts Medicare, and also a provider that has agreed to accept the plan's payments," Dilweg said. Insurance regulators in 31 states also have reported "cross-selling" -- when sales agents first discuss Medicare prescription drug plans with seniors and then attempt to sell them other plans such as Medicare Advantage plans, annuities and funeral policies, according to Dilweg (Reichard, CQ HealthBeat, 5/16).

Other Testimony
Sherry Modwell, a special agent for the Georgia Insurance and Fire Safety Commission, said that one sales agent signed up Georgia seniors for a Medicare drug plan and then enrolled them into a Medicare Advantage plan without their knowledge. In a separate case, seniors were enrolled in a Medicare Advantage plan even though they had never met or spoken with the agent who enrolled them, Modwell said (AP/Arizona Daily Star, 5/17).

Oklahoma Insurance Commissioner Kim Holland said, "Unlicensed agents are setting up shop in pharmacies, Wal-Marts and nursing home lobbies to prey upon seniors' confusion and concern over their medical care coverage." Holland said that inadequate federal enforcement has led to "virtual lawlessness in Oklahoma," adding, "Certain insurers are exploiting their exemption from regulatory oversight with aggressive and frequently misleading advertising; agent financial incentives that encourage high-pressure sales tactics; and a lack of responsiveness, if not outright neglect, of a vulnerable population caught in the middle of an unbridled free market" (Povich, CongressDaily, 5/16).

Holland said that "we have pushed the boundaries to respond to our citizens in need because CMS has not done so," adding that she recently met with CMS officials to discuss the problems in Oklahoma and left with the impression that "they are more concerned with protecting the (Medicare Advantage) program than protecting the people" who are enrolled in the program (CQ HealthBeat, 5/16).

CMS Testimony
Abby Block, director of the CMS Center for Beneficiary Choices, said, "We believe very strongly we need to get this under control," adding, "But I don't want to see the whole program disparaged because of the behavior of some bad apples." Block said that CMS beginning next year will require "specific, unambiguous language in all marketing materials" for Medicare Advantage plans (Nohlgren, St. Petersburg Times, 5/17). Block objected to an idea suggested by committee Chair Herb Kohl (D-Wis.) that would give state regulators the authority to take enforcement action against companies that sell Medicare Advantage plans. State regulators currently can take action only against individual sales agents (CQ HealthBeat, 5/16).

"Medicare Advantage plans are federally financed, so it is critical that CMS retain oversight," Block said. According to Block, $430,000 in fines were levied against insurers last year, and 98 private fee-for-service plans were placed on "corrective action." Moreover, CMS recently agreed to a memorandum of understanding with 20 states and Puerto Rico that allows the agency and state insurance commissioners to share compliance and enforcement information; oversee the operations and marketing practices of companies that they jointly regulate; and share information about certain sales agents' conduct, Block said (CongressDaily, 5/16).

Lawmakers' Comments
Kohl said he would draft legislation to expand the authority of state insurance regulators (St. Petersburg Times, 5/17). Kohl also said he was pleased by a set of practices that are being adopted by America's Health Insurance Plans and its members to prevent marketing abuses and strengthen sales agents' training. "This is a good start, but it's only a start," Kohl said, adding, "If more hearings are necessary to hold their feet to the fire, we will hold them."

Committee ranking member Gordon Smith (R-Ore.) said the insurance industry should be aware that public confidence in privately administered Medicare plans could be in jeopardy because of this issue. Smith told the insurers to "get on top of this and get on top of it fast" (CQ HealthBeat, 5/16). Sen. Ron Wyden (D-Ore.) said, "I want to assure each of your companies that I am not going to work 10 years to get this corrected -- we are going to drain this swamp" (Raleigh News & Observer, 5/17). Senate Finance Committee Chair Max Baucus (D-Mont.) in a statement said he would work "to enact measures that protect seniors against slimy sales tactics" (CQ HealthBeat, 5/16).

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