CMS Updates Definition of Marketing, Reduces Required Hard Copy Member Materials

The Centers for Medicare and Medicaid Services (CMS) typically issues a draft version of the Medicare Marketing Guidelines (MMG) early in the year for comment before releasing the final version by summer, when plans are preparing their annual member materials.

On April 4, CMS released the 2019 Final Rule, which contains a number of policy changes to the MMG, such as updating the definition of marketing and allowing electronic delivery of certain beneficiary documents. To meet the timeframes for these policy changes, CMS provided a summary of proposed changes to the MMG, instead of a draft version of the MMG, for comment 10 days after the 2019 Final Rule was released. The comment period ended April 26, and the final MMG, to be renamed Medicare Communications and Marketing Guidelines (MCMG) will be released later this year.

The lack of a draft MMG and specific details in the summary of proposed changes in the April 12 Health Plan Management System (HPMS) memo may make it more challenging for plans to prepare their materials and marketing strategies in advance of the Annual Enrollment Period (AEP). Plans will have to wait on the MCMG to fully implement 2019 changes.

Updated Definition of Marketing

CMS is narrowing the definition of marketing materials and activities to those that are most likely to lead a beneficiary to make an enrollment decision, while referring to those materials and activities that fall outside of the new marketing definition as “communications.” This will allow CMS to focus their reviews on the materials beneficiaries are actually using to make decisions on their healthcare needs, while lessening the burden on plans and CMS reviewers. This policy change is consistent with previous changes, such as last year’s removal of the requirement to submit marketing events in HPMS.

Electronic Delivery of Certain Beneficiary Documents

Plans will be able to post certain beneficiary documents, such as EOCs and provider directories, electronically and provide hard copies upon request. The timeframe for delivery of the EOC has been changed from 15 days prior to the first day of the Annual Election Period (AEP), October 15. The Annual Notice of Change (ANOC) must still be delivered 15 days prior to AEP, to be received by enrollees ahead of the EOC, allowing them to focus on materials that will drive their decision-making during AEP.lans will be able to post certain beneficiary documents, such as EOCs and provider directories, electronically and provide hard copies upon request. The timeframe for delivery of the EOC has been changed fromSeptember 30 to October 15. The Annual Notice of Change (ANOC) must still be delivered by September 30, 15 days prior to the first day of the Annual Election Period (AEP) on October 15, ahead of the EOC, allowing them to focus on materials that will drive their decision-making during AEP.

Proposed Changes for 2019

CMS is considering the changes below for inclusion in the 2019 MCMG:

  • Clarifying that business reply cards that do not mention plan specific benefits do not need to be submitted into HPMS
  • Removing the restriction on requesting email addresses when asking for referrals from enrollees
  • Allowing Plans/Part D Sponsors to announce that a nominal gift may be offered to enrollees for a referral when soliciting leads
  • Updating the font size rule to only apply to required documents
  • Permitting agents to disseminate contact information at educational events
  • Clarifying that it is not a violation of CMS marketing requirements if contracted providers notify their patients that the contract status between the provider and the Plan/Part D Sponsor is changing
  • Adding definitions to the current Appendix 1 for agents/brokers, misleading marketing materials, statements, and activities
  • Updating current Appendix 5 to eliminate non-regulatory disclaimers and streamlining others based on consumer testing, such as disclaimers when advertising sales/marketing events, and when using non-benefit/non-health service providing third party materials
  • Consolidating many disclaimers into a pre-enrollment checklist and requiring plans to disseminate the checklist one time with the Summary of Benefits, instead of requiring the disclaimers on multiple marketing materials

Sources: 2019 Final Rule; “CMS Finalizes Policy Changes and Updates for Medicare Advantage and the Prescription Drug Benefit Program for Contract Year 2019 (CMS-4182-F),” CMS 2018 Fact Sheet, April 2, 2018; “Request for Input on the 2019 Medicare Communications and Marketing Guidelines,” HPMS memo, April 12, 2018.