Medicare Marketing Compliance

CMS clarifies definition of marketing

Jun 29, 2023

The Centers for Medicare and Medicaid Services (CMS) released a memo clarifying the definition of marketing that applies to and may impact materials for WellFirst Health Medicare Advantage (MA), and Medicare Advantage Prescription Drug (MAPD) plans.

In the memo, CMS clarifies that any mention of benefits may qualify a material as Marketing if CMS perceives intent to do any of the following:

Draw a beneficiary's attention to a MA plan or plans
Influence a beneficiary's decision-making process when making a MA plan selection
Influence a beneficiary's decision to stay enrolled in a plan (retention-based marketing)

See these examples and definitions based on CMS’s recent clarification:

Example 1: A postcard to prospects during the Medicare Annual Election Period (AEP) naming a Medicare Product/Plan(s) and includes the bullet “Dental, Vision, and Hearing benefits,” but does not specify costs, copays, or other plan-specific details. Marketing: The material has the intent to draw a beneficiary's attention to a MA plan(s) and includes content of the plan's benefits, albeit at a high level.
Example 2: A broker/sales letter thanking members for their business, highlighting their current plan benefits, and encouraging them to reach out in the fall to discuss their plan. Marketing: While this letter is to current members, it is retention-based marketing that requires HPMS filing.
Example 3: A letter informing members of a vendor change impacting their current benefits that includes details about their benefits, such as copays. Communication: While benefits are referenced, the intent is to inform members of changes to their current benefits.

CMS expects plans to review its materials against this recent clarification and file any affected materials before July 10, 2023. This includes active, beneficiary-facing materials that were considered a Communication under previous interpretations of the guidance.

Contact your account representative if you’re currently using a beneficiary-facing material that may now qualify as Marketing under the new guidance.