As our readers know, the Centers for Medicare & Medicaid Services (“CMS”) prohibits certain marketing communications, materials, and activities. With Medicare’s open enrollment period nearing an end, now is a good time to discuss CMS’ upcoming proposed marketing rule changes (the “Rule”) that will be effective by the time next year’s open enrollment period rolls around.
CMS’ Proposed Rule Broadens Definition of Marketing
In an effort to protect consumers from deceptive and misleading marketing tactics, CMS has proposed broadening the definition of “marketing” to potential Medicare enrollees. Currently, CMS defines marketing as communications, materials, and activities that are intended to: (1) draw attention to a Medicare plan; (2) influence a consumer’s decision-making process when selecting a plan; or (3) influence a consumer’s decision to stay enrolled in a plan. In addition, to be considered marketing under the current definition, the subject communications, materials, or activities must address any of the following: (1) the plan’s benefits or structure, or cost sharing; (2) measuring or ranking standards, like Star Ratings or plan comparisons; or (3) rewards and incentives as defined under § 422.134(a). In other words, CMS looks at both the intent and the content of marketing before determining whether it is considered marketing subject to the Rule. CMS’ marketing Rule proposal seeks “to eliminate the content standard and rely solely on an intent standard to determine whether communications, materials, and activities are considered marketing.” By broadening the definition of marketing, CMS seeks to expand the scope of marketing materials and activities that are subject to CMS oversight. Similarly, CMS also plans to conform the definition of “Advertisement (Ad)” to align with the proposed updates to the definition of marketing. According to CMS, the goal in updating the Rule is “to better ensure that entities are not providing misleading, inaccurate, or confusing information to current or potential enrollees . . . .”
Relatedly, CMS is considering changes to the Rule that would require agents and brokers to discuss with their customers the following topics: (1) the availability of support for low-income consumers and Medicare Savings Programs; (2) for beneficiaries enrolling into Medicare Advantage when first eligible for Medicare, the practical implications of switching from Medicare Advantage to traditional Medicare; and (3) requiring that agents take time to address remaining questions that the consumer may have related to enrollment in a plan prior to moving forward with enrollment.
What Do The CMS Marketing Rule Changes Mean For You?
With few exceptions, CMS requires companies to submit all marketing materials to CMS for prior review and approval. In light of CMS’ proposed expansion of the definition of “marketing,” beginning with the 2025 open enrollment period, companies will have to carefully consider whether their marketing materials, communications, or activities must be reviewed and approved by CMS prior to use. These proposed rule changes follow CMS’ implementation of new rules regarding obtaining consent from consumers to be contacted, as well as the sharing of consumer data with third parties.
Given CMS’ extensive requirements, along with other applicable federal and state marketing laws, advertising in the Medicare space is increasingly littered with potential landmines. As such, it is imperative that companies hire attorneys who are experienced with marketing law compliance.
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