A few years back, I presented at a Center for Business Intelligence (CBI) conference focused on Medicare. My presentation was called “The People Side of Compliance” and addressed building an effective marketing compliance program. I recently came across that presentation and it inspired me to write this article and share much of what I spoke about then.
When I spoke at the CBI conference, I was working for the largest publicly traded corporation dedicated exclusively to government funded healthcare programs (Medicaid and Medicare). My initial task there was to build a companywide marketing compliance program. I was creating this program in the wake of an alleged marketing violation that resulted in the company signing and undergoing a very arduous Corporate Integrity Agreement (CIA). I am sure anyone who has had any experience with a CIA is saying right about now, “What CIA isn’t arduous?”
Our CIA was for five years and covered the company nationwide, although the alleged violation was in a single state. It included both Medicare and Medicaid operations, although the conduct in question only related to Medicaid. To survive the CIA, the task at hand was to monitor the activities of salespeople and enhance our compliance program under the watchful eye of an Independent Review Organization and the Office of Inspector General!
My job was to create a marketing compliance program for sales and marketing people who were located in different states, some of whom had to comply with federal laws and some who had to comply with state-specific rules. In what we called Ethic Marketing, we were marketing various products in multiple languages to diverse cultural groups, sometimes using agents who spoke the language of our target market but struggled to fully understand training offered in English. Done wrong, you will feel as though you are herding cats. Done right, you survive under the microscope of the OIG. We did it right. So today I am sharing how to do it right – how to build an effective marketing compliance program by understanding the people side of compliance.
As a lawyer, focusing on mastering the rules was second nature. You get quite good at drafting policies and procedures as a compliance officer. The real challenge was the people side of the compliance, interacting with sales agents, brokers, and marketing representatives and getting them to embrace the program. Those of us charged with compliance oversight of sales teams, whether for government programs such as Medicare and Medicaid, Healthcare Exchange products, or pharmaceutical or medical device products, have to know the rules and also have to know the people who are charged with following them. We cannot draft policies and plans from behind the desk.
I said to myself, “This is where you are – new job, diverse teams spread across the country, language and cultural challenges, state-specific requirements for each Medicaid plan, and a CIA focused on marketing and Office of Inspector General imposing timelines to demonstrate compliance. No pressure!”
I put my tasks into three separate groups: (1) Master the Rules Quickly. For Medicare, that meant federal marketing rules and state licensure rules for agents and brokers. For Medicaid, that meant knowing the rules for each state in which we did business. (2) Build a Marketing Compliance Program Strategically. A good marketing compliance plan would serve as the foundation for the Marketing Compliance Program. (3) Get Complete Buy-In. Buy-in was required from leadership and marketing and sales team members at all levels and there was no time to waste. Getting the kind of buy-in that was needed in the time that it was needed required the creation of a “marketing plan” for the Marketing Compliance Program. I had to market to marketers.
1. Master the Rules Quickly
When considering the parameters in which you must operate, include contract requirements as well as the state and federal laws and regulations plus other guidance from regulators. Health plans that offer government healthcare program products usually enter into agreements with the Center for Medicare and Medicaid (CMS) or state Medicaid agencies that impose requirements which may not be in regulations. Creating grids of all requirements by state, product line, and contract is an excellent way to develop a quick reference guide or compliance cheat sheet.
When it came to managing the requirements of various states, I organized rules in two categories: those that all states had in common, such as prohibitions against discrimination, and those that were state specific, such as the permissible dollar limit for giveaways and promotional items. It helped me standardize a multi-state training for all and state-specific trainings.
Your application of the rules must be consistent with the legislative intent or the regulators’ interpretation of the rules. Once you have organized the rules, shift your focus to knowing the people who are required to follow the rules and the environment in which they are required to operate. Know how the team is interpreting and applying those rules.
2. Build a Marketing Compliance Program Strategically
Know Your Audience
Before I drafted my first marketing compliance plan, I spent a great deal of time in the field. I visited health plans around the country, traveled to marketing events with representatives and sales agents, and had one-on-one meetings with members of the marketing team and senior management. I also met with the CEO of each health plan. What I discovered was that my approach to learning the people needed to become a core component of the marketing compliance program. The marketing compliance program is as much about the people and the environment as it is about the policy, procedures, and rules.
Understanding the Environment
The Message from the Top, the Vibe in the Middle, and the Buzz on the Street
As compliance officers and executives, it is important to deliver a clear message from the top, but we should also focus on the vibe in the middle and buzz on the street. The middle is where there is the greatest opportunity to send mixed messages. Middle management message is not only delivered through words, it is communicated by their demeanor, body language, attitudes about policy, what they say to their team about leadership, and weigh given to sales performance. I call this “the vibe in the middle.” The wrong vibe can lead employee to feel that they should read between the lines of the message from the top and bend rules to make their numbers.
The buzz on the streets is where you get the real deal. Talk about risk management! You learn about things before they happen and can quickly mitigate the harm resulting from any problems which recently occurred. You can get good information from the streets (the sales team) and on the streets is where you have some of your biggest exposure. Remember what I said, do it wrong and you are herding cats. Do this part right, though, and you greatly reduce your risk of marketing violations.
Sometimes the message from the top, the vibe in the middle, and the buzz on the street are not the same. The challenge is getting everyone to sing the same song and in harmony.
Sales and Marketing Challenges
In a sales environment, productivity targets are a normal part of business. Productivity affects the company’s bottom line. However, sometimes we have to place greater emphasis on compliance among the growth divisions and marketing teams to ensure that an individual’s or business unit’s desire to reach sales goals does not lead them to compromise with the rules.
Additionally, having agents in the field can create monitoring and oversight challenges that are not present with in-house associates. Be sure to factor in the need for additional measures for those who may have more autonomy, such as those who spend much of their time outside of the office.
With Medicare and Medicaid types of programs, the regulators view potential enrollees as a vulnerable population. Simplicity and documentation of communication are more important here than when communicating with more empowered groups.
Most government programs have specific requirements for marketing materials to be written in plain language and at a certain grade level. This means materials should be reviewed and approved by compliance, and controls must be in place to ensure that agents and representatives do not create their own marketing materials or modify approved ones.
Good documentation of sales and marketing teams’ communications with potential enrollees is critical. Documentation is not the world that they live in, it’s the one that we live in as compliance professionals. Give them clear guidelines around collecting, protecting, and storing documentation of compliance. When it comes to vulnerable populations, regulators will typically err on the side of accepting the potential enrollee’s version in the absence of documentation. As compliance officers, we know that if it is not documented, it didn’t occur.
Successful sales and marketing departments are creative, resourceful, and learn to adapt quickly. They respond to changes in the market, such as fluctuations in demand, new competitors entering the space, and ingenuity of the competition. When sales approaches are consistently evolving and new initiatives are sprouting up, your understanding of the rules, the spirit of the law, and every nuance of the law will be tested. That is assuming you know about these new initiatives and adaptations. Consider requiring all new or revised growth and marketing initiatives to be reviewed by compliance. You may get pushback, but this one is a fight worth having. Tweaks to what you previously approved can create big problems. Emphasize that all changes to initiatives and campaigns must be approved.
Marketing rules are often complex and sometimes written in a manner that is subject to various interpretations. Salespeople, left on their own, will interpret vague guidance in way that allows them to close the sale. In today’s highly regulated sales and marketing environment, company exposure can be high when those rules are misinterpreted or not properly applied. Again, mastering the rules and fine-tuning your ability to effectively communicate guidelines to those who need to follow them is key.
One way to build credibility is having knowledge – having the answers or knowing where to find them and giving good guidance. That compliance cheat sheet grid that I talked about earlier comes in handy here. But it does not stop there. I placed a lot of focus on building a rapport with the team from the top down, and on being a resource and not an obstacle, and this paid off because they became willing to listen to my directions and feedback.
Successful compliance officers offer solutions. Understand the business goal and look for ways to achieve good business objectives in the right manner. Challenge yourself to help find an alternative way to achieve business objectives when you have determined the proposed approach or methods do not comply with applicable laws. The team may tell you that your competitors are doing it and “your rules” are placing them at a competitive disadvantage. This is when your knowledge of the regulations will really be tested. I wanted to say in response to these comments, “If your competitors jumped off the bridge, would you do it too?” But I refrained and relied on the credibility I had built as I collaborated with the team for solutions.
Relate to the Sales Team
To truly relate to the team, you have to spend time with them individually and collectively. Get into the field with them, attend the marketing and sales meetings, conduct one-on-one meetings with representatives and agents, and ask them for feedback on proposed compliance initiatives.
Learn their names and personalities. This will help you know who to call for what, such as feedback and information for investigations. Let them know who you are – your values, your style, AND your phone number! Consider traveling to events or appointments with the representatives. You can learn a lot on a car ride! I did.
Earn the Trust of the Sales Team
Maintain a compliance presence by being visible and available, and participating in marketing strategy sessions and other important meetings. Seek to add value, not obstacles. Do what you say you are going to do, when you say you are going to do it. In other words – deliver.
Respect the Challenges Facing the Team
I was determined to learn the challenges that marketing and salespeople faced, the scenarios they encountered, and the competing interests. It is important to listen and learn. Ask about any issues with doing their jobs; ask about conflicts. Recognize that the concerns are real to them. These real or perceived obstacles should be factored into your program. Design programs, policies, and training with the team’s challenges in mind.
Communicate that Compliance is a Part of the Team
Remind them that compliance officers and marketing associates are on the same team. This is reinforced by doing some of the things discussed above – attending meeting and events and offering to help with strategies.
Promoting A Culture of Compliance
A culture of marketing compliance requires that strong message from the top and reinforcement from the middle. We cannot just say “compliance is everyone’s business.” You may need to create targeted messages for different levels of management. The compliance message is not a one-size-fits-all.
Offer role specific training, one-on-one conversation, or other communications. Offer middle management additional compliance training that addresses tone, voice, and setting an example. It is middle management who has daily contact with the sales team; hopefully, they have already earned the trust of the sales team and are in a good position to reinforce the message from the top.
If you can build a good rapport with the sales and marketing representatives and agents, you can create compliance disciples. Sales team members have the most contact with other members of the team. Compliant behavior is contagious. After focusing on rapport and group-specific messaging, I not only got calls from management, I got calls from the team while they were in the field.
3. Getting Buy-in Completely
Market the Marketing Compliance Program
Marketing to Leadership
I have to admit that getting buy-in from leadership is not that difficult when you are under a CIA. The government has already done most of the convincing for you; the message is clear – “invest in compliance.” But I still needed buy-in for some of my less conventional approaches to building a compliance program. Leadership got a compliance marketing plan, not a compliance plan. And after the first year, to support continual buy-in, they got a marketing compliance report that highlighted successes and absences of issues benchmarked against our competitors.
Marketing to the Team
Getting the buy-in of the marketing team required a little more creativity. It was lots of touches through various mediums. Here are a few.
We called our marketing compliance program a Marketing Integrity Program (MIP). I created three-panel brochures called MIP Tips. MIP Tips were pocket references for the team translated into several languages with culturally relevant images. For example, reps that were more fluent in Chinese than English had materials available in Mandarin and Cantonese. Spanish-speaking reps had a Spanish option. This achieved two things. It increased their understanding of the rules since they were written in a language in which they were more fluent, and they connected more to the materials that were culturally engaging.
We had giveaways for the marketing team with compliance messages and we branded the program. The thing that created the most buzz was the tagline. My tagline for the marketing compliance program was “If in doubt, reach out.” And people reached out.