Insurance companies and agents are tasked with remaining compliant with the Centers for Medicare & Medicaid Services (CMS) while marketing their services. It makes sense on the surface, but the details may need some clarifying.
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When getting creative with marketing materials, agents still have to be mindful of how they’re representing themselves as it pertains to the Medicare Advantage & Part D Communication Requirements. In 2022, CMS created new requirements for agents and brokers, who are now considered third-party marketing organizations (TPMOs), affecting marketing materials. During 2023, CMS continued to refine their marketing rules and changes introduced the year prior.
We’ve put together a few common compliance questions and answers to help you navigate these requirements.
Q: First, what’s required of agents before engaging in Medicare marketing or sales?
A: CMS states that only agents who are licensed, certified, or registered under state law are permitted to market an insurance company’s Medicare Advantage or prescription drug plans. Agents are also required to complete the insurance companies’ annual mandatory certification processes for the carriers they wish to represent. Only after an agent is trained and certified to understand the rules, regulations, and specific Medicare product details can a carrier confirm an agent’s ready-to-sell status.
Medicare Advantage Organizations, Part D Sponsors, agents and other third-party marketing organizations (TPMOs) must submit materials that market any Medicare Advantage, Part D, or Cost plan benefits, including, but not limited to, widely available benefits such as dental, vision, and hearing, premium reduction, and cost savings, to CMS for approval before use.
Q: What’s required of an agent to become certified?
A: For each carrier an agent plans to market, the agent must complete that company’s annual certification process. It’s important to check with each company’s specific requirements, as processes may vary. Each company may also have a different notification method to inform an agent that they’re ready-to-sell, so checking on their specified system for confirmation is best. Ritter’s Certification Center can help to navigate some of these companies’ requirements.
Q: How can I easily record calls with my Medicare clients?
A: You can record calls by using CallVault, Ritter’s solution to securely recording and storing outbound marketing calls from a client’s record in the Ritter Platform, as well as any inbound calls received to your own unique phone number generated through the Platform.
Q: How do I keep my marketing materials compliant with the TPMO requirements?
A: Agents must add a TPMO disclaimer to email communications, their website, print materials, other marketing materials, and within the first minute of sales call. The disclaimer must be specific to the beneficiary’s service area.
If marketing fewer than all plans within a service area, use:
“We do not offer every plan available in your area. Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. Please contact Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance Program (SHIP) to get information on all of your options.”
If marketing all plans within a service area, use:
“Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. You can always contact Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance Program (SHIP) for help with plan choices.”
You must also provide the disclaimer when communicating electronically with a beneficiary through email, online chat, or other means of communication.
Q: While running a website, can I reference a Medicare Advantage plan’s marketing materials and the trademarks of the companies I represent?
A: Agents cannot reference a specific Medicare Advantage or prescription drug plan’s marketing materials or use an insurance company’s trademark on their site. When a plan-specific or company-specific reference is used regarding a Medicare plan, it’s considered that company’s marketing material. It’s like forging a signature or fabricating a quote. If it wasn’t approved or provided by the company, it’s not OK to use it. Additionally, if an agent wants to reference any Medicare Advantage plan information or the insurance company logo on their website, the agent must work with the specific insurance company to obtain their prior approval.
Q: Can I reference Medicare Advantage or prescription drug plan info on direct mail marketing material?
A: No, for the same reasons specified in the answer to the previous question. Any time a plan-specific reference is made on marketing materials, it’s considered that company’s materials. CMS does allow brand promotion, but not specific product references, and prior approval of using the carrier’s logo or name is required. It is possible, though, to use a specific company’s pre-approved marketing materials. Note that generic direct mail marketing material without any plan or company-specific information does not require prior approval, provided all other marketing guidelines are met.
Q: When should I avoid using “Medicare” on my marketing materials?
A: According to Section 1140 of the Social Security Act, it’s forbidden to use the words or symbols including “Medicare,” “Centers for Medicare & Medicaid Services,” “Department of Health and Human Services,” or “Health & Human Services” in a way that would indicate the approval, endorsement, or authorization of Medicare or any other government agency. Additionally, agents shouldn’t use the word “Medicare” on their business card in any fashion that suggests they represent Medicare, like putting the words “expert,” or “specialist” behind it.
CMS prohibits the use of “Medicare” in your business name, logo, or website URL if used in a misleading way — one that would cause potential enrollees or beneficiaries confusion over whether you’re affiliated with the government. Never represent your business as one that is “from Medicare” or working “for Medicare.”
Q: I want to market Shop & Enroll on my printed materials. Do I need to get approval?
A: Yes, before you print materials yourself or go through a third-party vendor, you must submit a request for approval through your sales specialist. This only applies to advertising Shop & Enroll, not your business in general.
Q: Can I market certain plans as the “best”?
A: No, CMS prohibits the use of superlatives in most marketing unless you can back it up with factual data that supports the usage and meets CMS requirements.
Q: Do I have to tailor my marketing materials for certain service areas?
A: Yes, CMS prohibits marketing of benefits where they aren’t available unless it’s unavoidable due to the nature of the marketing. An example of an unavoidable situation is a TV ad picked up by an adjacent market. Remember this rule especially when marketing 5-star plans, Special Needs Plans (SNPs), and Part B giveback benefits.
Q: Do I have to include carriers’ names on my marketing for their plans?
A: Yes, if marketing plan-specific benefits in print ads, agents must include the names of the Medicare Advantage Organization (MAO) or Part D sponsors in 12-pt font. The names cannot be in a disclaimer. For radio or other advertisements that are voice-based only, the names must be read at the same speed as the phone number.
This rule applies to marketing and communication material content and will require HPMS submission and carrier opt-in, if applicable.
Q: Can I promote general savings a client could receive on a plan?
A: No, agents cannot market generalized savings when the actual savings are specific to the individual. Keep this rule in mind when marketing Dual Eligible Special Needs Plans (D-SNPs) and when working with third parties for lead generation.
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Editor’s Note: This article has been updated to include regulations from CMS’ 2024 Final Rule.