Marketing and selling Medicare plans is tough enough on its own. As competition heats up in Medicare Advantage sales and another hectic enrollment season kicks off, the last thing you need is to worry about making a Medicare compliance misstep and jeopardizing your success.
Put together a comprehensive approach to Medicare Advantage compliance support with the help of this primer on the range of rules governing the sale and marketing of Medicare products.
Get to Know the CMS Medicare Marketing Guidelines
Medicare marketing rules begin, but certainly don’t end, with the regulatory body known as CMS. Any Medicare Advantage compliance strategy should start with a thorough understanding of their extensive marketing guidelines.
The Center for Medicare and Medicaid Service (CMS) is a federal agency that, among other tasks, provides and enforces a series of rules known as the Medicare Communications and Marketing Guidelines (MCMG). These rules are binding, and they require Medicare Advantage and Part D sponsors to monitor and audit any partner they have a contract with—including lead providers and generators. Among the other important aspects the CMS guidelines cover are:
- Prohibited activities: The CMS rules lay out a range of prohibited marketing activities, including everything from deploying false or misleading messages to providing meals to event attendees.
- Required disclosures: Guidelines include a lengthy list of disclosures that must be made in all marketing materials. As we cover below, there are also new, specific disclosures that must be made by Medicare marketing, lead gen, and sales affiliates.
- Important enrollment dates: The CMS also lays out clearly defined periods during which enrollment may take place, which we’ve outlined here.
Important Dates for Medicare Marketing
The Medicare Annual Enrollment Period (AEP) runs from October 15 to December 7 each year. If you’re in Medicare sales or marketing, you’re likely well aware that this period, when Medicare recipients can evaluate and make changes to their coverage, is critically important—and rather hectic. During AEP, beneficiaries can:
- Switch their coverage from an original Medicare plan (Part A and Part B) to a Medicare Advantage plan (Part C)
- Switch from one Medicare Advantage plan to another
- Switch from one Prescription Drug plan (Part D) to another, or enroll in a Medicare Advantage Prescription Drug plan
- Add a new Prescription Drug plan if they were not previously enrolled
The AEP is followed, after a short break, by the Medicare Advantage Open Enrollment Period (OEP), which runs from January 1 to March 31. During this period, only current Medicare Advantage enrollees can make changes to their coverage for the upcoming year.
Though it’s of course important to know when the annual enrollment periods run, there’s one more crucial date to remember for the sake of Medicare marketing compliance: October 1. It’s only after this date that Medicare organizations can begin marketing their plans for the upcoming year, according to the CMS’s Medicare marketing guidelines.
Permission to Contact
Permission to Contact (PTC) is a crucial aspect of Medicare marketing and compliance, which ensures that individuals’ contact preferences are honored while marketing Medicare plans. Under this mechanism, insurance agents or Medicare plan providers are required to obtain explicit permission from Medicare beneficiaries before engaging them with marketing communications.
As outlined by the CMS, the PTC protocol protects individuals from unsolicited communications and establishes a framework of trust and transparency between Medicare marketers and potential clients. The procedure for obtaining permission can include having individuals fill out a form or verbally confirm their interest in receiving information about Medicare plans, ensuring they have control over who contacts them and how.
What Do You Need PTC For?
Although the concept of PTC is relatively simple, it’s important to understand exactly when and where it’s needed. Medicare agents may send unsolicited emails to potential enrolled to market their services (i.e., not their plans), so long as the email meets guidelines and includes an option to opt out. However, to go further and discuss plans, they’ll have to obtain PTC.
Agents can also do the following without PTC
- Contact beneficiaries after they’ve filled opted in via an online contact form
- Contact beneficiaries who have requested a return call, e.g., after an inbound call
- Send out business reply cards
These communications are prohibited without PTC
- Text messaging
- Door-to-door contact
- Direct messaging via social media
As we’ll discuss below, however, it’s important to understand that beyond CMS guidelines, Medicare communications are all still governed by federal compliance laws like the TCPA and the Telephone Sales Rule (TSR).
Scope of Appointment
After receiving PTC from a potential enrollee, you can then collect what’s called a Scope of Appointment, or SOA.
SOA is another fundamental Medicare compliance concept designed to ensure a transparent and consensual interaction between Medicare beneficiaries and agents. According to the CMS guidelines, before any personal sales meeting, the insurance agent must obtain a documented agreement from the beneficiary, specifying the types of products that will be discussed during the appointment.
This documentation serves to set clear boundaries and expectations for the meeting, ensuring that the discussion remains within the agreed-upon topics, which could include Medicare Advantage, Prescription Drug Plans, or other Medicare-related insurance products.
Medicare Compliance Guidelines for TPMOs
In 2022, when the CMS published rules for the contract year of 2023, it implemented specific requirements for so-called TPMOs, or third-party marketing organizations. In its marketing guidelines, the CMS defined TPMOs as “organizations that are compensated to perform lead generation, marketing, sales, and enrollment-related functions as part of the chain of enrollment.”
In essence, then, the CMS sees all insurance agents and brokers as TMPOs who need to follow a strict set of guidelines, including:
- Adding TPMO disclaimers to all marketing materials, websites, and communications, including print and TV ads, and even sales calls.
- Properly disclosing information to prospects during lead generation activities. It’s required that lead generators inform beneficiaries—whether communicating over the phone, in writing, or electronically—that their information will be provided to licensed insurance agents for future contact. Likewise, TPMOs are required to inform beneficiaries that they’re being transferred to a licensed insurance agent who can enroll them in a new plan.
- Develop a process and report to plans on a monthly basis any disciplinary actions associated with beneficiary interactions and any violations of requirements that apply to a given plan.
- Record all calls (including video calls) related to marketing, sales, and enrollment in their entirety. This includes retention marketing efforts and any activity that mentions any benefits offered, including dental, vision, hearing, cost savings, and premium reduction.
Review Changes to CMS Guidelines for the 2024 Contract Year
After its updates for the prior year, the CMS has continued its attempts to crack down on misleading and aggressive marketing practices in the Medicare space. As a result, its updates to the MCMG for the 2024 contract year included a range of provisions affecting Medicare marketing compliance. Rules that will go into effect on September 30, 2023, include:
- The prohibition of:
- advertisements that (1) do not mention a specific plan or (2) use the Medicare name or logo in a misleading way
- marketing of benefits in a service area where those benefits are not available
- superlatives (e.g., words like “best” and “most”) in marketing materials, unless the material provides documentation to support the statement and the documentation is based on data from the current or prior year
- Plans must notify enrollees annually in writing of their ability to opt out of phone calls regarding Medicare Advantage and Part D plan business.
- SOA cards may not be collected at educational events.
- There must be a 48-hour window between a SOA being completed and an agent’s meeting with a beneficiary.
- A marketing event may not occur within 12 hours of an educational event at the same location.
- Sales agents may call a potential enrollee no later than 12 months following the date that the enrollee first asked for information.
- Medical benefits must be listed in a specific order at the top of a plan’s Summary of Benefits.
- TPMOs must list or mention all of the Medicare Advantage or Part D plan sponsors that they represent on marketing materials.
- Plans must require agents to explain the effect of an enrollee’s enrollment choice on their current coverage whenever the enrollee makes an enrollment decision.
- Plans must have an oversight plan that monitors agent/broker activities and reports agent/broker noncompliance to CMS.
Beyond the CMS: Support TCPA Compliance for Medicare Marketing
Although the importance of following CMS guidelines around PTC is greater than ever, lead generators, buyers, and marketers still need to keep their eye on TCPA compliance during the busy enrollment periods.
During a webinar hosted by ActiveProspect, expert attorney Puja Amin discussed these different cases in which written consent is required under the TCPA:
- Any call made to a cell phone (including business cell phones) using automated or prerecorded voice technology that contains marketing content.
- Any call made to a residential landline using a prerecorded or artificial voice and containing marketing content.
- Any call made to a residential landline on the DNC list for marketing purposes unless the caller has an established business relationship or is responding to an inquiry.
- Any prerecorded call to a residential landline in excess of the TRACED Act exemption limits. This requirement includes informational calls. TRACED Act limits commercial calls, surveys, and charitable calls to 3 per month; healthcare-related calls are limited to 3 calls per week.
How to Capture Consent
Of course, obtaining consent only gets you so far—you also need to be able to capture and prove that consent has been obtained. Here’s a variety of ways you can record and keep hold of proof of consent to protect your business:
- Online webforms are great—but they can be problematic. Ensure that forms follow formatting best practices, and use TrustedForm, the highest standard for independent proof of consent.
- Contract terms can be used to obtain written consent in compliance with the TCPA. Be sure that you’re scanning in and maintaining evidence of these terms being agreed to.
- Apps and web portals.
- Recorded phone calls. The use of recording to retain records of consent should be limited to informational calls (not marketing calls) in order to support TCPA compliance.
- Text messages. More and more businesses are relying on outbound text messages to contact customers. Be sure that you’re following SMS compliance best practices and are able to record customer consent within the channel.
Creating a Medicare Marketing Compliance Checklist
TCPA compliance for Medicare marketers extends far beyond issues of consent. Take your compliance support to the next level by using these best practices to build a complete Medicare compliance checklist.
- Identify TCPA and Medicare marketing risks within your organization. Audit your practice and partners—everything from consumer outreach procedures and vendors to agents and TPMOs—to evaluate areas of risk and exposure.
- Implement policies and procedures—and training—around DNC rules and consent. Analyze and improve your internal DNC practice and ensure all agents and partners are up to speed.
- Rely on vendors with compliance solutions, including DNC.com and ActiveProspect, which can be integrated with your dialer software.
- Manage your vendors. Especially under the new CMS guidelines, it’s essential to know who you’re working with. CMS is clearly increasing its compliance oversight of Medicare-related sales and marketing activities.
- Evaluate contract terms. Talk to your partners about reasonable terms so that you both have the same standards in place and that liability obligations are understood.
- Manage claims and serial litigators. Utilize litigator scrubbing tools—such as the one from DNC.com—and have a process in place to deal with (the often fraudulent) claims that arise from litigators.
DISCLAIMER: The information on this page and related links is provided for general education purposes only and is not legal advice. Convoso does not guarantee the accuracy or appropriateness of this information to your situation. You are solely responsible for using Convoso’s services in a legally compliant way and should consult your legal counsel for compliance advice. Any quotes are solely the views of the quoted person and do not necessarily reflect the views or opinions of Convoso.