By: Christopher Parrella, Esq., CPC, CHC, CPCO
Parrella Health Law, Boston, MA
A Health Care Provider Defense and Compliance Firm

The U.S. Department of Justice has taken sweeping legal action that could reshape the marketing landscape of Medicare Advantage. In a bombshell 217-page False Claims Act complaint, the DOJ has accused three of the nation’s largest insurers — Aetna, Humana, and Elevance (formerly Anthem) — of funneling hundreds of millions in kickbacks to insurance brokers in exchange for Medicare Advantage enrollments, while also discriminating against disabled beneficiaries.

This case is not just about fraud. It’s about manipulation, bias, and a breakdown of trust in how plans are marketed to America’s seniors.

The Allegations: Kickbacks Masquerading as Marketing

Between 2016 and 2021, Aetna, Humana, and Elevance allegedly paid illegal kickbacks to insurance broker giants — GoHealth, SelectQuote, and eHealth — who, in turn, steered Medicare beneficiaries into the most profitable plans, not the best ones for their health.

According to the DOJ, these payments were cleverly disguised as “sponsorship” and “marketing fees” but were really pay-to-play schemes that undermined the integrity of Medicare Advantage enrollment. Brokers allegedly urged their agents to push plans that padded their pockets, in direct violation of the Anti-Kickback Statute and the False Claims Act.

Discriminating Against the Disabled

Perhaps even more troubling: the complaint alleges that Aetna and Humana conspired with brokers to actively avoid enrolling disabled beneficiaries — whom they deemed “less profitable.” Brokers were instructed to reject or divert leads from disabled individuals and were allegedly threatened with loss of kickbacks if they didn’t comply.

The DOJ points to internal communications where executives acknowledged the discriminatory nature of these tactics but urged staff to keep such discussions off email to avoid regulatory scrutiny. One eHealth employee even admitted, “I’m pretty sure if Aetna got audited by CMS, they’d be fuc[**]ed.”

A Case With National Implications

The government has joined a whistleblower suit originally filed in 2021 by Andrew Shea, a former senior VP at eHealth. This move signals the DOJ’s confidence and interest in holding big players accountable for deceptive marketing in Medicare Advantage, a program now covering over 33 million Americans.

The case, filed in Massachusetts federal court, underscores a growing concern over how Medicare Advantage plans are sold and marketed. It also arrives at a time when CMS is pushing for tighter broker compensation rules, which industry groups are already challenging in court.

The Fallout: What It Means for the Industry

This litigation could set off a domino effect:

Compliance Overhaul: Insurers, brokers, and TPAs must urgently re-evaluate their broker compensation arrangements.

Marketing Scrutiny: CMS and OIG will likely increase audits and enforcement around MA marketing practices.

Disability Discrimination Enforcement: Expect greater scrutiny on enrollment practices related to protected populations.

Whistleblower Encouragement: More insiders will likely come forward with FCA complaints involving MA steering.