Transcript PIMA SUMMER CONFERENCE 2007 LEGISLATIVE OVERVIEW

“THE COMPLEX WORLD OF
INSURANCE DIRECT MARKETING
COMPLIANCE”
The 6th Annual Insurance Direct
Marketing Forum 2008: Tools for
Success
Paul C. Latchford, Esquire
Vice President: Law & Governmental Affairs
AEGON Direct Marketing Services, Inc
September 16, 2008.
The Legislative and Regulatory
Environment--• Federal
• State
• NAIC
THE FEDERAL SCENE:
• National Do-Not-Call Registry- Permanence of
Phone Numbers on the Registry
• FTC- Prerecorded Telemarketing Calls
• The Insurance Information Act- H.R. 5480
• NARAB II- H.R. 5611
• Final Rule on CAN-SPAM Act
• MEDICARE- NAIC Changes Finally Adopted
• Federal Elections
• Health Issues in Federal Elections
STATE ISSUES--• Universal Health Care
• Dependent Children Coverage
• California- 10133.8- Authority over Translated
Materials
• Regulatory: Multi-State Settlements
THE NAIC SCENE:
• Modernization
DO NOT CALL REGISTRANTS
MADE PERMANENT
• Do-Not-Call Improvement Act of 2007 that became law
in February 2008—phone number on the National DoNot-Call Registry will remain on the list ad infinitium
rather than be deleted after five years as originally
provided for when the Registry was created
FTC- Prerecorded Telemarketing
Calls
• New Rules governing prerecorded telemarketing calls-which in
most cases require prior written signed consent of the called
party in order to place such calls and an automated interactive
opt-out mechanism in cases where such prerecorded calls are
permissible
• Rules will not affect non-telemarketing calls, such as surveys,
customer care, appointment/refill-reminders and similar purely
“informational messages” that are not part of and that do not
incorporate a plan, program or campaign to sell goods or
services or to solicit charitable contributions.
FTC- Prerecorded Telemarketing
Calls cont’d :
• The signed, written agreement must specify the phone
number(s) at which the prospective call recipient agrees
to be called and constitutes consent only for such
number(s).
• Electronic means of obtaining “signatures” authorized by
the E-SIGN ACT qualify for purposes of the prior
written/signed consent requirement and include those
obtained via email or website, telephone keypress, voice
recording, or electronic point-of-sale devices.
• Agreement/consent to service prerecorded calls is nontransferable from one company to another but rather the
written/signed agreement must specify the seller to
which consent is given and each seller must negotiate its
own agreement with the consumer.
FTC Prerecorded Telemarketing
Calls cont’d:
• The prohibition on prerecorded calls (absent prior
written/signed consent) applies regardless whether the
prerecorded call is answered by a person or by an
answering machine or voicemail.
• All permitted prerecorded messages must (1) allow the
phone to ring at least 15 seconds or four rings before
disconnecting a call as unanswered; (2) begin the
prerecorded message within two seconds of a completed
greeting by the consumer who answers; and (3) disclose
at the outset of the call that the recipient may ask a
company-specific do-not-call request at any time during
the message, and facilitate that request by complying
with a new automated opt-out requirement.
THE INSURANCE INFORMATION
ACT (H.R. 5480)--• Would create an Office of Insurance
Information within the Treasury
Department
• Optional Federal Charter- Top Priority in
the next Congress for Representative
Barney Frank, Chairman of the House
Financial Services
• All lines of insurance except health
insurance
NARAB II- H.R. 5611--• Would reestablish the National Association of Registered Agents
• Would help agents obtain multiple state licenses more easily and
quickly
FTC- Final Regulations
Implementing Four Provisions of
CAN-SPAM Act
• In its Final Rule under the Controlling the Assault of NonSolicited Pornography and Marketing Act of 2003, the
FTC adopted the following provisions:
• Modified the Term “sender” to address emails with
content from multiple advertisers
• Defined the term ”person” to include legal entities
• Clarified what qualifies as a “valid physical postal
address” that senders must include in commercial
emails
• Prohibited senders from imposing certain
requirements on commercial email recipients in order
to process opt-out requests
FTC- CAN-SPAM ACT cont’d--• Most significant rule change in the Final Rule is
modification of the term “sender”– a “sender” of
commercial emails must provide the recipient with a
mechanism for opting out of receiving future emails and
is subject to other obligations
• In a Multiple-sender scenario- multiple marketers may
designate a single “sender”– provided they are the
person identified in the “from” line of the email
THE MEDICARE
IMPROVEMENTS for PATIENTS
and PROVIDERS ACT of 2008
• Sets co-payments from mental health services to match other
outpatient medical care
• Ends the sale of Medigap plans that are redundant as a result of the
drug benefit, and modernizes Medigap benefits to better meet
seniors’ needs
• Eliminates penalties for late enrollment in the drug benefit by lowincome seniors
• Blocks a cut in physician payments for Medicare services, and
increases payments by 1.1% in 2009
• Eliminates the “double-payment” made to Medicare Advantage
plans based on local costs for care at teaching hospitals, as
teaching hospitals already received extra payment directly for their
sophisticated care
MEDICARE IMPROVEMENTS for
PATIENTS and PROVIDERS Act of
2008 cont’d--• Prohibits certain sales activities of Medicare
Advantage Plans and Part D drug plans, including
door-to-door sales, cold calling, free meals and crossselling of nonhealth-related products, effective for the
2010 year. Also it requires the Secretary to limit cobranding, gifts and commissions. Requires a plan to
abide by the state appointment laws affecting agents
and brokers.
MEDICARE IMPROVEMENTS for
PATIENTS and PROVIDERS ACT
of 2008 cont’d--• Requires prescription drug plans to pay pharmacies
within 14 days for clean claims submitted
electronically, and 30 days for clean claims submitted
otherwise and imposes a monetary penalty on
prescription drug plans that fail to pay on time.
• Requires Medicare Part D Prescription Drug Plans to
update the drug pricing standards used for pharmacy
reimbursement on at least a weekly basis, with an
initial update on January 1 each year
• Certifies the HHS Secretary’s current guidance on
coverage of the “Protected Classes” of drugs under
Part D
FEDERAL ELECTIONS--•
•
435 House seats and 35 seats are up for election
House:
–
Expected Results:
Democrats- 233
Republicans-176
(A) 203– Solid Democratic
15– Likely Democratic
15– Leaning Democratic
(B) 133– Solid Republican
32– Likely Republican
11– Leaning Republican
C) 26– Toss-Ups
SENATE:
• 35 Seats Contested this year
A) Democrats
- 10– Solid Democrats
- 2– Likely
- 3– Leaning
B) Republicans
- 11- Solid Republicans
- 2- Likely
- 2- Leaning
C) - 5– Toss-Ups
HEALTH ISSUES in FEDERAL
ELECTION
•
Issue
Stated Goal
John McCain
Provide access to affordable health care
for all by paying only for quality health care,
having insurance choices that are diverse
and responsive to individual needs and
encouraging personal responsibility
•
Overall Approach
Remove the favorable tax treatment of
employer-sponsored insurance and provide
a tax credit to all individuals and families to
increase incentives for insurance coverage
and promote insurance competition
•
Features
- Portability
- Reward Good Health Care Providers for
developing real results
- Interstate Competition
HEALTH ISSUES in FEDERAL
ELECTION--•
Issue
Stated Goal
Barack Obama
Affordable and high-quality universal coverage through mix of
private and expanded public insurance
•
Overall Approach
Require all children to have health insurance and employers
to offer employee health benefits or to contribute to the costs
of the new public program
•
Features
- End of discrimination on the basis of pre-existing conditions
- Portable Insurance
- Allowing the Secretary of HHS to negotiate directly for lower
drug prices
- Permitting the importation of medicines from other
developed countries
STATE ISSUES- UNIVERSAL
HEALTH
• Massachusetts
• California
DEPENDENT CHILDREN
COVERAGE
•
Typical health insurance policy allows eligibility until dependent attain 19 years of
age, or full-time students, until they attain 23 years of age
•
Recently, states have enacted laws to address coverage for potentially uninsured
dependent children by:
- raising the age to which eligibility for coverage must extend
- requiring continuation of coverage for college students during a medical leave from
school
- requiring policies to extend coverage for adult children who neither reside with nor
financially depend upon an insured parent
CALIFORNIA- Commissioner’s
Authority over Translated Materials-(a)
The commissioner shall, on or before January 1, 2006, promulgate
regulations applicable to all individual and group policies of health
insurance establishing standards and requirements to provide insureds
with appropriate access to translated materials and language assistance
in obtaining covered benefits.
CALIFORNIA- Commissioner’s Authority
over Translated Materials cont’d--(b)
The regulations described in subdivision (a) shall include the following:
(1) A requirement to conduct an assessment of the needs of the insured
group, pursuant to this subdivision.
(2) Requirements for surveying the language preferences and
assessment of linguistic needs of insureds within one year of the effective
date of the regulations that permit health insurers to utilize various survey
methods, including, but not limited to, the use of existing enrollment and
renewal processes, newsletters, or other mailings. Health insurers shall
update the linguistic needs assessment, demographic profile, and
language translation requirements every three years. However, the
regulations may provide that the surveys and assessments by insurers of
supplemental insurance products may be conducted less frequently than
three years if the commissioner determines that the results are unlikely to
affect the translation requirements.
STATE REGULATORY: MULTI-STATE
SETTLEMENTS---
• Special Targeted Market Conduct Exams
• Settlements:
- United HealthCare
- Conseco
NAIC
• Modernization
New Model Law Framework
• NAIC adopts new model law development
framework which will streamline the NAIC
model law regulation
• Going forward, no NAIC model law should
be promulgated unless it meets the
following two-pronged test:
New Model Law Framework
cont’d--1.The issue that is the subject of the model law
necessitates a national standard and requires
uniformity among all states; and
2. Where NAIC members are committed to
developing significant regulator and association
resources to educate, communicate and support
a model that has been adopted by the
membership
New Model Law Framework
cont’d--• Once a model law is adopted by the NAIC,
the goal is to have it adopted by a majority
of states within 3 years