CMS, or the Centers for Medicare & Medicaid Services is the federal program that oversees and provides health coverage to more than 100 million people through Medicare, Medicaid, CHIP, and the Health Insurance Marketplace. It seems as though every year, there’s more and more CMS Medicare Marketing Compliance rules that agents and brokers have to adhere to. Let’s go through some updates for the 2024 Plan Year.
CMS Medicare Marketing Compliance for 2024!
Medicare Marketing Compliance – What is “Marketing” to CMS?
CMS defines the term “marketing” as, “content that mentions any type of benefit covered by the plan and is intended to draw a beneficiary’s attention to plan or plans, influence a beneficiary’s decision-making process when selecting a plan, or influence a beneficiary’s decision to stay enrolled in a plan (retention-based marketing.) This includes, but is not limited to stating “receiv[ing] benefits such as dental, vision, cost-savings, and/or hearing services.” Any and all marketing materials that mention any benefit will have to be submitted and approved by CMS starting July 10, 2023.
Furthermore, CMS Medicare Marketing Compliance can be broken down into two categories including Communications, and Marketing; with subsets of Intent and Content.
Communications
Activities & use of materials created or administered by any entity to provide information to both current and prospective enrollees, as well as their caregivers. These materials are considered communications.
Marketing
Marketing is a subset of communications and MUST adhere to communications requirements. Marketing materials must meet intent and content standards.
Intent
Materials or activities that intend to
- Draw a beneficiary’s attention to a plan(s).
- Influence a beneficiary’s decision-making process when making a plan selection.
- Influence a beneficiary’s decision to stay enrolled in a plan.
Content
Materials or activities that include or address:
- The plan’s benefits, benefits structure, premiums, or cost sharing
- Measuring or ranking standards
- Rewards and incentives
CMS Medicare Marketing Compliance guidelines “reflect CMS’ interpretation of the marketing requirements and related provisions of the medicare Advantage & Medicare Prescriptions Drug Benefit rules. The guidelines are for use by medicare Advantage Plans (MAs), Medicare Advantage Prescription Drug Plans (PDPs) and 1876 Cost Plans. The guidelines allow organizations offering both Medicare Advantage and Prescription Drug Plans the ability to reference one document when developing marketing materials.”
CMS Medicare Marketing Allowances
Most of CMS Medicare Marketing Compliance surrounds talking about Plan Benefits in order to sway someone’s opinion about enrolling into a particular plan. But here are some things that you can do as an agent/broker that are allowed by CMS:
Promoting YOUR Business, Not the Carrier’s Business!
As an independent broker, you can become contracted with any number of insurance carriers. One of the biggest benefits of being independent is that you can have a large product portfolio to offer numerous policies to your clients that might be right for them. Meaning that promoting YOURSELF as a business owner, or EDUCATING your potential clients on how the Medicare system works; is more than allowed.
Make sure to always promote your Personal Brand – Who you are, What you do, and How what you do provides your clients with value. You can give audiences your contact information to promote your business, but leave the promoting of policies to the carrier. (Or save it for when you go in for a sales appointment!)
Transparency
It’s important in every business to be transparent with your prospective and current clientele. Part of transparency includes a new CMS Medicare Marketing Compliance for 2024 which excludes the use of the word “Medicare” in website domains, business names, and other business branding materials. These business branding materials include non-use of the red, white, and blue Medicare card, as well as not using any official government logos. A general rule of thumb is to make it clear that you are an independent agent/agency/broker with no affiliation or look-alike to the federal government.
Use of Carrier Marketing Materials
Work smarter, not harder by making use of pre-approved insurance carrier marketing materials such as brochures, flyers, social media posts, and more! Simply log into your agent portal on the carrier website and download pre-approved, carrier-branded marketing materials. Part of CMS Medicare Marketing Compliance is to have marketing materials submitted and approved in HPMS. The carrier-provided materials have already been filed with HPMS, so these are materials that can save you some time. (Woo!)
Keep Educational Events Educational
CMS Medicare Marketing Compliance requires agents & brokers to state that an event is “educational” if that is the intent of the event. Educational events should provide attendees with generic, unbiased, carrier agnostic information about the Medicare system. This information can include the ABCD’s of Medicare, (including what Original Medicare Parts A & B cover) and the differences between Medicare Supplement Coverage and Medicare Advantage Plans.
Activities Permitted at Educational Events
- Provide Communication materials
- Answer audience questions about MA plans (but just know they have to be the one to initiate the question!)
- Collect beneficiary contact information (cannot be collected in a way that the beneficiary feels obligated to surrender their information)
- Provide meals (within compliance guidelines)
Activities NOT Permitted at Educational Events
- Market specific plans or benefits
- Distribute marketing materials (plan applications)
- Conduct sales/marketing presentations
- Distribute Scope of Appointment (SOA) forms
- Set up future personal marketing appointments
Marketing Events – Where the Fun Happens!
CMS Medicare Marketing Compliance requires agents and brokers to state that an event is intended to be for sales/marketing by stating that it is a “sales” event. Marketing/sales events can provide attendees with plan-specific information, and allow beneficiaries the chance to set up an appointment for more information. Please note that you cannot require attendee contact information or have a sign-in sheet at sales/marketing events. You can offer attendees the option to surrender their contact information if they would like to be contacted and learn more/would like to make an appointment.
Remember Your Training!
Yearly certification exams such as the AHIP teach you the do’s and don’ts of CMS Medicare Marketing Compliance surrounding Medicare Advantage Plans. But here are some basics;
- Medicare isn’t just for seniors; so don’t imply that it is!
- Nothing in life is FREE; so don’t use it when referring to plans or benefits
- Avoid using superlatives like “best” or “only” unless substantiated by CMS-approved data
- treat everyone like family by not being pushy or use high-pressure sales tactics
- Be HONEST and TRANSPARENT; don’t make false claims!
You should know it’s okay to not have all the answers. In times where you don’t know the answer, be sure to say you don’t know but that you’ll find out. People appreciate honesty and your willingness to do the research and find out the answers for yourself!
Important CMS Medicare Marketing Compliance Rules and Updates
NEW! For 2024 – 12-Hour Education Rule
Sales/marketing events cannot occur within 12 hours of an educational event at the same location.
48-Hour Scope of Appointment (SOA) Rule
Prior to scheduling a marketing/sales appointment, (where you’ll be speaking to the beneficiary about plans/plan benefits/enrollments) you must submit a Scope of Appointment form at least 48 hours prior to the appointment. This applies to scheduled appointments.
The 48-hour rule does not apply; when the beneficiary contacts you directly as an inbound call, the beneficiary walks into your office, or the beneficiary is within 4 days from the end of a valid election period. Note that a valid SOA form will be required prior to all enrollments, regardless of application of the 48-hour rule.
Retention of SOAs
SOA forms must be retained for 10 years, and are valid for up to 12 months following the date of the beneficiary’s signature. In the case of an appointment obtained by an inbound call, the SOA would be communicated verbally and recorded.
NEW! For 2024 – Permission to Contact Rules
New CMS Medicare Marketing Compliance for 2024 states that you cannot require an individual to share their information such as age/birthday/health status in potential lead information/forms (BRC). BRC’s (business reply cards) expire after 12 months and you will not be allowed to contact that individual after the expiration date. You must also ensure that the individual understands that when they respond to a BRC, that they will be contacted by a licensed agent. Individuals must be given the ability to opt-out or unsubscribe from all email communications, and most importantly, door-to-door solicitations are no longer allowed.
Call Recording
Recording of all sales/marketing conversations conducted via telephone (including visual calling platforms such as Zoom! Or Skype) is still mandatory as stated in the 2023 update for CMS Medicare Marketing Compliance.
Benefits Marketing Transparency
Don’t you hate it when you see an advertisement for McDonald’s ice cream, then go to McDonald’s for said ice cream just to hear “our ice cream machine is down” at the window?
*screams internally*
Don’t do that to your beneficiaries. Don’t market benefits in areas where those benefits are not available. There may be instances such as using social media to reach large audiences where this is unavoidable. So make sure to use disclaimers.
CMS Medicare Marketing Compliance Disclaimer for MA Plans & Part D Sponsors
The following disclaimer must be added to the bottom of your website, email signature, and all marketing materials if you sell MA Plans;
“I do not offer every plan available in your area. Any information I do provide is limited to the plans I do offer in your area. Please call 1-800-MEDICARE or visit medicare.gov for information on all your options”
The following disclaimer must be added to all marketing materials EXCEPT banner/banner-like ads, envelopes, outdoor ads, social media posts, digital/search ads & text messages;
“Plans are insured or covered by a Medicare Advantage (PPO & PFFS) organization with a Medicare contract and/or a Medicare-approved Part D Sponsor. Enrollment in the plan depends on the plan’s contract renewal with Medicare.”
The following disclaimer must be added to the invitations of all educational/sales & marketing events;
“For accommodations of persons with special needs at meetings, call <insert phone and TTY number>”
For all promotions and prizes (including giveaways), the following disclaimer must be added;
“<Includes description of free gift/drawing/prize/giveaway item/service> with no obligation to enroll.”
CMS Medicare Marketing Compliance for Websites
According to the released document of 2022 CMS Medicare Marketing Compliance guidelines, “as required under [guidance subsections], all plans must have a website that includes specific documents and content. The following operational guidance should be used in conjunction with the regulatory requirements, with an emphasis on those requirements…” These requirements include General Website requirements as well as Required Content. These categories should be labeled as “communications” as opposed to “marketing”.
General Website Requirements
To make sure that your website is in alignment with CMS Medicare Marketing Compliance for the 2024 Plan year, here are some things you should do;
- Add required disclaimers
- Remove carrier logos
- Do not use “medicare” in your domain or website name (URL)
- Do not market plan-specific information
- Make lead forms very clear that a licensed agent will be contacting the prospect after filling out their information
- Do not ask for age/birthday/health status
What to Do if You Need CMS Approval
If you have marketing materials that will need to be approved by CMS, make sure to make your submission no later than 7 weeks in advance! CMS approval for the fall AEP selling season can be lengthy, so make sure to plan ahead and submit your materials starting June 12th so you’ll have them ready for AEP!
Medicare Marketing Compliance Prohibitions
As stated in the CMS Medicare Marketing Compliance update articles from 2022 (Section 40.4 – Prohibited Terminology/Statements)
“CMS prohibits the distribution of marketing materials that are materially inaccurate, misleading, or otherwise make misrepresentations. Plans/Part D sponsors may not:
- Claim that they are recommended or endorsed by CMS, Medicare, or the Department of Health & Human Services (DHHS).
- Use absolute superlatives (i.e. “the best”, “highest ranked”) or other qualified superlatives (i.e. “one of the best”, “among the highest rank”) unless they are substantiated with supporting data provided by CMS as part of the marketing review process. The data provided must be in context and may not mislead consumers.
- Market that they will not disenroll members due to failure to pay premiums.
- Compare their Plan/Part D Sponsor to another Plan/Part D Sponsor by name without written concurrence from all Plans/Part D Sponsors being compared.
- Imply that Medicare Advantage plans operate as a supplement to Medicare.
- Use the term “network” to describe a list of contracted preferred providers.”
IAD Helping Independent Brokers Stay CMS Medicare Marketing Compliant
It’s important to us here at Insurance Advisors Direct that all of our independent agents and brokers stay CMS compliant. We offer educational resources and training on compliance that comes directly from our carrier partners. The benefit of our close relationship to the insurance carriers means that our agents get the most up-to-date information.
Looking to Contract with Insurance Advisors Direct?
Make sure to contact our Vice President of Sales, Kristie Strauss!
(800) 381-0977 ext. 119
kstrauss@iadbrokerage.com
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