IMPORTANT - New Medicare Marketing Rules for 2024!

CMS has issued new rules that will affect Medicare marketing for the 2024 AEP that agents need to be aware of. These rule changes affect both the marketing and sales process.

See below for the key finalized changes that go into effect on September 30, 2023. These updated rules are applicable for the 2024 contract year and beyond.

• Clarified Call Recording is limited to chain of enrollment calls rather than ALL calls with beneficiaries. Clarified that it does include the audio portion of virtual calls using Zoom, Teams, etc
• Disallowing collection of Scope of Appointments at educational events. Business Reply Cards are allowed to be collected. 
• Prohibits marketing events to take place within 12 hours of an educational event in the same location
• Scope of Appointment 48-hour rule is back! Must have a signed SOA 48 hours prior to an appointment – exceptions are walk-ins and the last 4 days of the enrollment period.
• Limiting Business Reply Cards and Scope of Appointments to a 6 month timeframe
• Benefits may not be marketed in an area where those benefits are not available when avoidable
• Use of Medicare Card, Medicare name, and CMS logo are prohibited without approval from CMS.
• Field agents who complete a telephonic presentation and/or sale must follow an approved script

NEW TPMO DISCLAIMER on marketing material for 2024:

As a reminder, the Third-Party Marketing Organization (TPMO) disclaimer must be placed on ALL TPMO materials and verbally conveyed within the first 60 seconds of the SALES CALL, and electronically conveyed when communicating with a beneficiary through email, online chat, or other electronic means of communication. The disclaimer has been modified as follows:

·       If you do NOT sell ALL carriers in a service area:

o  “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 you DO sell ALL carriers in a service area:

o  “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.”

IMPORTANT!!

CMS also issued a memo on May 10, 2023, that reinterprets and broadens the definition of Marketing. 

In short, CMS now considers any mention of a plan benefit with the intent to sell as "Marketing", and any material that mentions plan benefits will have to go through the approval process prior to use.  Previously, it was considered "Communications" to list benefits in a generic way - for example, "You may qualify for a Medicare Advantage plan that includes dental, vision, transportation, etc." as long as it didn't mention carrier names or specific benefit amounts. Now, CMS will consider that marketing and it will have to go through the carrier and HPMS approval process - even if it doesn't mention dollar amounts!  

It is based on intent - if the intent is to sell, then it is considered Marketing. If generic benefits are mentioned during an educational presentation, such as a Medicare 101 where no sales or marketing are taking place, our interpretation is that it is still considered Communications.

This new rule goes into effect on July 10, 2023. Per the memo - "Beginning July 10, 2023, any material or activity that is distributed via any means (e.g., mailing, television, social media, etc.) that mentions any benefit will be considered marketing and must be submitted into HPMS."

The Compliance and Marketing teams will be reviewing our current catalogue of materials and making the necessary changes, as well as initiating the approval process for pieces that fit the marketing definition. We will share any carrier guidance as we receive it.

FAQ:

What is a TPMO?

TPMO stands for Third Party Marketing Organization. Agents, Agencies, and Lead Vendors/Aggregators are all considered TPMO’s.

What is considered Marketing?

If it lists any Medicare Advantage and/or Prescription Drug Plan benefits with the intent to make a sale, then it is considered marketing. Even if it doesn’t include a specific dollar amount. Something like this, for example, would be considered marketing - “Call now to see if you qualify for a Medicare Advantage Plan that includes dental, vision, transportation, over the counter allowance and more!”

In a Medicare 101 type of educational presentation, it would be okay to say that some Medicare Advantage Plans include additional services such as dental, vision and hearing, because the intent of an educational event is Communications, and not marketing (no sales being made). 

What types of material do the new marketing guidelines apply to?

ANY type of marketing material is subject to these requirements, including print pieces, mailers, business reply cards, television & radio ads.

When can we start submitting new marketing materials for CMS approval?

Starting June 1st, we can begin to submit materials for plan year 2024. 

How long does the CMS approval process take?

It varies, but expect up to 2 months for the process to be complete. Pieces must first go through a carrier approval process before we can submit to CMS for approval. CMS can then take up to 45 days for their review to be complete.

Can agents submit pieces directly to CMS?

           No. Agents must work with their upline to submit pieces.

What am I allowed to say without CMS approval?

You can still market yourself as a local, trusted resource for healthcare information in your community. So saying something like this example – “I’m Joe Smith, a local licensed insurance agent serving <insert city> since <insert year> and I specialize in health plans for those on Medicare. Are you turning 65 or already on Medicare? I can help you find a health plan that suits your unique needs and budget.”

**Remember – many Carriers offer approved marketing pieces on their agent portals. This is always a safe route to go and they often add new pieces. 

Link to CMS Final Rule:

https://www.federalregister.gov/documents/2023/04/12/2023-07115/medicare-program-contract-year-2024-policy-and-technical-changes-to-the-medicare-advantage-program