Note: Modernizing Medicare: Protecting America's Most Vulnerable Patients from Predatory Health Care Marketing Through Accessible Legal Remedies

By Elizabeth C. Borer. Full text here.

Increasingly, senior citizens throughout the United States are victimized by aggressive and fraudulent health care marketing practices. Medicare Advantage and Part D prescription drug plans are health-benefit options approved by the federal government but sold and administered by private insurance companies. The programs were created as part of the Medicare Modernization Act of 2003, and coverage became effective in 2006. Since that time, tens of thousands of Medicare beneficiaries have been victimized by deceptive sales tactics of insurers running Medicare’s private plan options. Abusive marketing directly impacts the health of patients by delaying access to urgently needed medications or denying coverage of medical treatments.

Predatory marketing problems are aggravated by insufficient regulations and federal enforcement failures. Current Medicare marketing guidelines lack comprehensive protections for beneficiaries. Unfortunately, weak federal regulations preempt stronger state law protections. Inaction by federal regulatory agencies, coupled with broad preemption of state law creates a legal fissure in which vulnerable Medicare patients are pitted against wealthy private insurers without accessible legal avenues for relief. This Note offers solutions to the weak regulation and enforcement gaps that facilitate marketing abuse. Specifically, this Note proposes delegating enforcement authority to states, employing existing state consumer protections, creating a private cause of action, and enhancing violation penalties.