Marketing Material Subject to CMS Guidelines for MA Marketing Materials

Medicare broadly defines the types of marketing materials that must comply with with CMS requirements. (42 CFR Section 417.428, Section 422.2260, and Section 423.2260) Examples of the types of marketing materials that must meet the CMS requirements include, by way of example, materials such as:

  • General audience materials, such as general circulation brochures, direct mail, newspapers, magazines, television, radio, billboards, yellow pages, or the Internet;
  • Marketing representative materials, such as scripts or outlines for telemarketing or other presentations;
  • Presentation materials, such as slides and charts;
  • Promotional materials, such as brochures or leaflets, including materials circulated by physicians, other providers, or third-party entities;
  • Membership communication materials, including: membership rules, subscriber agreements, enrollee handbooks, and wallet card instructions to enrollees (e.g., Annual Notice of change (ANOC), Evidence of Coverage (EOC));
  • Communications to enrollees about contractual changes, such as changes in providers, premiums, benefits, plan procedures;
  • Communications related to membership activities (e.g., materials on rules involving non-payment of premiums, confirmation of enrollment or disenrollment, or non-claim specific notification information); and
  • The activities of a Plan’s/Part D Sponsor’s employees, independent agents or brokers, Third Party Marketing Organizations (TMO) (downstream contractors), or other similar organizations that contribute to the steering of a potential enrollee toward a specific plan or limited number of plans, or may receive compensation directly or indirectly from a Plan/Part D Sponsor for marketing activities, among others.
  • The following types of materials are not subject to CMS marketing review,  should not be submitted in HPMS, and do not require a material ID number. However, Plans/Part D Sponsors are still responsible for maintaining such materials and must make them available, through HPMS or other means, upon request.
  • HIPAA Privacy notices (which are subject to enforcement by the Office for Civil Rights);
  • OMB-approved forms/documents, except when otherwise specified by CMS;
  • Press releases that do not include any plan-specific information (examples of plan-specific information include information about benefits, premiums, co-pays, deductible, how to enroll, networks);
  • Enrollee newsletters that do not include any plan-specific information (examples of plan-specific information include information about benefits, premiums, co-pays, deductible, benefits, how to enroll, networks);
  • Blank letterhead/fax coversheets/blank pages that do not include promotional language;
  • General health promotion materials that do not include any specific plan related information (examples of general health promotion materials include health education and disease management materials). In general, health promotion materials should meet CMS’ definition of “educational” (Refer to section 70.8, Educational Events);
  • Non-Medicare beneficiary-specific materials that do not involve an explanation or discussion of Part D, MA, or Section 1876 cost plans (examples of materials within this category include notice of check return for insufficient funds, letter stating Medicare ID number provided was incorrect, billing statements/invoices, sales, and
    premium payment coupon book);
  • Documents to recruit or train sales/marketing representatives;
  • Medication Therapy Management (MTM) program materials (see definition in Appendix 1);
  •  Ad hoc Enrollee Communications Materials (see definition in Appendix 1);
  • Educational materials, such as those used at educational events for the education of beneficiaries and other interested parties (also see section 70.8), that do not contain plan specific information;
  • Coordination of Benefits notifications (as provided in Chapter 14 of the Medicare Prescription Drug Benefit Manual);
  • Health Risk Assessments;
  • Mail order pharmacy election forms;
  • Enrollee surveys and focus groups;
  • Value-Added Items and Services (refer to Chapter 4 of the Medicare Managed Care Manual) See definition in Appendix 1;
  •  Documents encouraging enrollees to use preventive services;
  • Mid-year Change Enrollee Notifications (see section 60.7);
  • Informational Scripts;
  • Marketing materials created by State government; and
  • Password protected websites that only current enrollees can access;
  • Marketing materials included on the website are still subject to review (e.g., Plan/Part D Sponsor advertisements).

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Source: Health Law Blog