New Guidelines for Medicare & Medicaid Marketing

CMS Changes Compliance Requirement Guidelines

The Centers for Medicare and Medicaid Services (CMS) updated its Medicare Marketing Guidelines for 2019. Are your communications and marketings teams prepared for the changes?

It’s important to understand the changes so outreach to beneficiaries follows the guidelines. Compliance requirements are different depending on whether the outreach is considered communications or marketing by CMS standards. Interactions can start as communications and turn into marketing, so be aware of each definition to ensure you’re following the rules.

The most notable change is guidelines will no longer be referred to as the Medicare Marketing Guidelines. They’re now called the Medicare Communications and Marketing Guidelines (MCMG). In addition, they’ll be divided into two separate sections: marketing and communications. New definitions for each can be found within the MCMG as well as differences between the materials and actions associated with each.

Making it more general than marketing, the new MCMG guidelines define communications as “activities and use of materials to provide information to current and prospective enrollees.” CMS will not review materials that fall into the communications category, but since marketing is now a subgroup of communications and more specific in nature, they are subject to review by CMS.

CMS defines marketing as communications that contain content about the plan’s benefits structure, cost-sharing, and measuring or ranking standards. Marketing materials, after all, purposefully draw attention to a certain plan to influence a decision about a beneficiary’s healthcare coverage.

There are many changes to the guidelines for 2019, and we suggest that you do more than just browsing through them this year. Here are the ones we found most interesting:

• CMS officials state if an outreach activity contains content as described in the marketing definition but lacks the intent to draw attention to a specific plan to influence the decision, it’s considered communications and not marketing. CMS will determine into which category materials fall by examining both content and intent of the message. Certain content may meet the definition of communication, but if its intent is to convince a beneficiary to enroll in a specific plan, then CMS will consider it marketing and subject it to review.
• CMS designated a new material ID process. Plans must use a C for communications materials or an M for marketing materials at the end of the material ID code.
• In 2019, agents can make direct contact with potential enrollees through direct mail, advertisements, and other print media. Unsolicited contact may also be made by email, but to retain compliance, emails must have an opt-out option and contain communications, not marketing as defined by CMS.
• The use of text or other forms of electronic direct messaging such as social media is not allowed and falls under unsolicited contact.
• Beginning in 2019, the Medicare Advantage Open Enrollment Period (OEP) will occur between Jan. 1 and March 31 annually. Those enrolled in a Medicare Advantage plan and those now eligible can choose a different plan. Plans cannot market during the OEP or engage in activities to target the OEP as an additional marketing opportunity. However, MCMG has specific guidelines on how agents may reach out to members during this timeframe.
• Agents must be aware of knowingly targeting the OEP group. They can market to those who are new and have not yet made a decision. These folks are known as the “age-ins.” Under the new guidelines, plans can send marketing materials and have meetings with beneficiaries that request them.
• Plans can provide OEP information via a call center.
• The MCMG states that plans/part D sponsors and agents may not send unsolicited materials advertising that someone can make enrollment changes.
• Beneficiaries cannot be targeted by purchasing mailing lists that are based on the OEP demographic.
• MCMG does not allow agents and brokers to promote activities that intend to target the OEP audience to make additional sales, and former enrollees cannot be contacted through another agent after they’ve selected a new plan. Only at the request of the beneficiary are you able to hold in-person meetings or provide marketing materials.
• So long as the information is factual, health plans can now compare themselves to other health plans. These comparisons must be supported by fact. Statistical data and data resulting from studies will be necessary to prove comparisons factual. Any material that illustrates a comparison between plans cannot be misleading. CMS considers these materials marketing materials.

Before long, the MCMG will be updated for 2020. Look for those updates as early as July but most likely in early September 2019.