Could it be that CMS is implementing changes in the Medicare Communications and Marketing standards that will change the content and tone of the omnipresent television and radio advertisements targeted at potential enrollees? On the heels of publishing a final rule modifying the regulations for Medicare communications and marketing in April, on May 10, 2023, CMS issued a memo to expand the definition of marketing to include materials and activities that include information about widely available benefits (vision, dental, hearing and premium reduction). Previously, CMS had permitted Medicare Advantage and Part D plans to mention such benefits in communication materials without considering those communications “marketing” subject to CMS’s marketing regulations. Now, beginning July 10, 2023, any material or activity that is distributed by any means (e.g., mailing, TV, social media, etc.) that mentions any benefit will be considered “marketing,” requiring CMS approval.
Through recent monitoring and surveillance, CMS has noticed an abundance of Medicare Advantage advertising from Third Party Marketing Organizations (“TPMOs”). CMS has received complaints and listened to marketing and enrollment calls where people ask about vision, dental and hearing benefits. CMS realized that people are making choices about which plan to choose based on this information.
Accordingly, CMS is modifying its interpretation of what is considered relevant “content” in determining if a material or activity is considered marketing. Federal regulations define marketing as “communication materials and activities which meet specific intent and content standards.” 42 CFR §§422.2260 and 423.2260. Intent is determined by considering if the material or activity: (a) draws a beneficiary’s attention to a plan or plans; (b) influences a beneficiary’s decision-making process when making a plan selection; or (c) influences a beneficiary’s decision to stay enrolled in a plan (that is, retention-based marketing). On the other hand, content is determined by considering if a material or activity mentions: (a) the plan’s benefits, benefits structure, premiums or cost-sharing; (b) measuring or ranking standards (for example, Star Ratings or plan comparisons); or (c) rewards and incentives.
Effective July 10, 2023, any material or activity which mentions any benefit – including vision, dental, hearing or premium reduction – will be considered marketing by CMS and, as such, must be submitted via CMS’s HPMS system for review and approval. CMS hopes that this change will help protect beneficiaries from potentially misleading marketing activities.
Hall Render is here to assist Medicare Advantage, Part D plans and TPMOs in preparing for the 2024 Contract Year and we encourage you to consider this important change as you prepare your marketing plan. Please contact the attorneys below for assistance or with any questions you may have:
- Jennifer Hatchett at jlhatchett@hallrender.com or (859) 361-5706;
- Julie Lappas at jlappas@hallrender.com or (317) 977-1490; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
