CMS Pub. 100-16, ch. 6, § 40

Prohibited

(Rev. 24, 06-06-03)

An MA organization may not prohibit or otherwise restrict a health care professional,

acting within the lawful scope of practice, from advising, or advocating on behalf of, an

individual who is a patient and enrolled under an MA plan about:

1. The patient’s health status, medical care, or treatment options (including any

alternative treatments that may be self-administered), including the provision of

sufficient information to provide an opportunity for the patient to decide among

all relevant treatment options;

2. The risks, benefits, and consequences of treatment or non-treatment; or

3. The opportunity for the individual to refuse treatment and to express preferences

about future treatment decisions.

Health care professionals must provide information regarding treatment options in a

culturally-competent manner, including the option of no treatment. Health care

professionals must ensure that enrollees with disabilities have effective communications

with participants throughout the health system in making decisions regarding treatment

options.

The general rule prohibiting an MA organization from interfering with providers’ advice

to enrollees does not require the MA plan to cover, furnish, or pay for a particular

counseling or referral service if the MA organization that offers the plan:

1. Objects to the provision of that service on moral or religious grounds; and

2. Through appropriate written means, makes available information on these policies

as follows:

• To CMS, with its application for a Medicare contract, within 10 days of

submitting its adjusted community rate (ACR) proposal or, for policy

changes, in accordance with 42 CFR 422.80 (concerning approval of

marketing materials and election forms) and with 42 CFR 422.111

(concerning disclosure requirements).

• To prospective enrollees, before or during enrollment.

• With respect to current enrollees, the MA organization is eligible for this

exception if it provides notice of such change within 90 days after

adopting the policy at issue; however, under regulatory disclosure

requirements, notice of such a change must be given in advance.

Nothing in this provision may be construed to affect disclosure requirements under state

law or under the Employee Retirement Income Security Act of 1974.

An MA organization that violates provisions of this section is subject to intermediate

sanctions.

(Source: 42 CFR 422.206)