Approval of Medicare Communications and Marketing Guidelines

The Centers for Medicare & Medicaid Services (CMS) Medicare Communications and Marketing Guidelines (MCMG), supplemented by the Marketing Guidance for California Medicare-Medicaid Plans, the three-way contract, and the Memorandum of Understanding (MOU) provide specific guidance regarding marketing communications to Medicare-eligible members by health plans and their contracting physicians, participating physician groups (PPGs), hospitals, and ancillary providers. Participating providers are required to comply with applicable Medicare and Medicaid laws and regulations, and plan policies and procedures when creating or distributing marketing materials on the plan's behalf, including those materials created solely by providers that mention the plan.

CMS Member Marketing Materials Definition

CMS considers marketing materials to be any informational materials directed to Medicare beneficiaries that:

• Promote any Medicare part C or part D plans offered by the organization, or communicate or explain a Medicare health plan (refer to 42 Code of Federal Regulations (CFR) 422.4. 
• Inform members they may enroll or remain enrolled in any Medicare part C or part D plans offered by the organization.
• Explain the benefits of enrollment in any Medicare part C or part D plans, or rules that apply to enrollees.
• Explain how Medicare services are covered under any Medicare part C or part D plans, including conditions that apply to such coverage (refer to 42 Code of Federal Regulations (CFR) 422.2260 and (CFR) 423.2260).

The definition of communications means activities and use of materials to provide information to current and prospective enrollees. Communication materials means all information provided to current and prospective enrollees. Marketing materials are a subset of communications materials. The definition of marketing materials as used in Medicare regulations and guidance, extends beyond the public's general concept of advertising materials, and includes, but is not limited to, notification forms and letters used to enroll, disenroll and communicate with the member on many different membership scenarios.

CMS also considers the Internet another vehicle for the distribution of communications and marketing information. Therefore, all regulatory rules and requirements associated with all other marketing conveyances, such as newspaper, radio, television, and brochures, are also applicable to Medicare Advantage organization (MAO) marketing activity on the Internet. CMS marketing review authority extends to all marketing activities, such as advertising, and pre- and post-enrollment activity, that the MAO and its participating providers pursue through the Internet. The specific requirements that apply depend on the type of communication.

All communications and marketing materials, including contents posted on third-party websites created by participating providers, must be compliant with CMS requirements. Per CMS requirements, 42 C.F.R. §§422.504(i) and 423.505(i), all plans and Part D sponsors must monitor third-party websites that market on their behalf and take appropriate and immediate action if the website is found to be non-compliant.

If participating providers are using websites to market or obtain member information for the purposes of marketing any Medicare part C or part D plans, the plan is held responsible for the content of the website, as well as any activity associated with the use of the inappropriate or misleading information, and will be subject to compliance actions. Non-compliance can include, but is not limited to, the following:

• Inappropriate requests for health status information such as pre-existing conditions, weight, and whether the beneficiary smokes. Federal regulations prohibit discrimination on the basis of medical conditions or medical history and prohibits discriminatory marketing practices to Medicare beneficiaries.
• Misleading information, such as identifying a Medicare Supplement plan as a Medicare plan (links to separate Medicare Supplement pages are allowed).
• Use of prohibited terminology, including unsubstantiated absolute superlatives. such as "Health Net is the best plan we sell." Stating that a plan is "one of the best" is allowed because it is not an absolute superlative.
• Incorrect disclaimers or absence of required disclaimers per Apendix 2 of the MCMG. 

Marketing Material Submission

Submission for approval is required if the provider's website or material satisfies one or more of the following criteria:

• The plan name, logo or benefits are mentioned in the material.
• Material explains the benefits of enrollment in any Medicare part C or part D plans, or explains rules that apply to enrollees.
• Material explains how Medicare services are covered under any Medicare part C or part D plans, including conditions that apply to such coverage.
• Material makes no reference to the plan or any other plan sponsor (including plan name, logo or benefits), but material will be used for documenting beneficiary scope of appointment or agreement to be contacted. Materials such as lead cards and business reply cards merit a 45-day CMS review in addition to the plan review.
• Mentions seminars where sale representatives are present.
• Envelopes containing additional information, such as advertising an affiliation, which states more than the required mailing statements that are found in Appendix 2, number 7 of the MCMG. All current member mailings should include one of the following mailing statements:
  • Plan information – "Important plan information"
  • Health and wellness information – "Health and wellness or prevention information"

  Materials referencing Medicare Annual Enrollment Period and timeframe (October 15 to December 7) alone do not require submission, provided no additional information set forth above is included. These materials cannot be disseminated prior to October 1 of each year. Additionally, per Marketing Guidelines Web-based advertisements cannot provide links to a foreign drug site. Submission is not required if material satisfies one or more of the following criteria:

• Material announces a new affiliation other than the plan. Marketing materials for new provider-health plan affiliations do not need to designate that the provider is contracting with other health plans; however, marketing materials for continuing provider-health plan affiliations must continue to clearly state that the provider contracts with other health plans (in accordance with Appendix 2 of the CMS MCMG).
• Material is educational in nature and is free from any plan-specific information, free from bias and does not promote any health plan.

All communications and marketing materials not requiring the plan's review must continue to comply with CMS minimum requirements and are subject to audit. Minimum CMS requirements are as follows:

"Materials should not mislead or confuse beneficiaries by words, symbols, logos or terminology that would imply or give the false impression they are endorsed/approved/authorized by Medicare or any other federal agency or program. In addition, the materials should include accurate terminology and timelines set forth by CMS or any other federal agency referenced."

To help expedite the review process, the plan has created a Provider Medicare Marketing Material Review Checklist (Medicare Advantage (PDF) to ensure CMS requirements are met. The completed checklist along with the marketing material must be submitted to the Medicare Marketing Department by email to start the review and approval process.

Material Review Timelines

Health Net determines the review of the material timelines.

CMS-Accepted Materials 

Materials intended to attract or appeal to a potential enrollee, which contain enough detail to entice a potential enrollee to request additional information, may qualify for a CMS-accepted status.

Providers must allow a minimum of 45 calendar days for review of these materials from the date the completed checklist and marketing materials are submitted to the plan. Annual Enrollment Period (AEP) materials qualifying for CMS-accepted status must be submitted to the plan no later than October 15 of each year. AEP materials submitted after October 15 cannot be processed. The 45 calendar-day timeline is based on:

• Materials qualifying for CMS-accepted status
• Three rounds of revisions, which include three business days for each round

45-Day CMS Review of Materials

Providers must allow a minimum of 90 calendar days for review of materials that include explanations of benefits, operational procedures, cost-sharing, or other features of the plan, from the date the completed checklist and marketing material are submitted to the plan. The 90 calendar days provides 45 days for the plan's review and 45 days for CMS review (the plan submits material to CMS on behalf of participating providers). Materials requiring CMS review must be submitted no later than June 1 in order to be reviewed for use during the current CMS contract year.

Multiplan Marketing Materials

The plan should review and approve the material prior to submission to CMS. Per Marketing Guidelines, participating providers may use or distribute the plan or other health plan's marketing materials as long as they make available materials for all plans materials with which the provider participates.

Providers creating marketing materials that mention any Medicare part C or part plans of more than one MAO should select one lead MAO for filing and submission to CMS, ensuring the submission follows:

• CMS Medicare Marketing Guidelines sections 60 and 70 – Activities in Healthcare Setting as well as Websites and Social/Electronic Media
• CMS Medicare Marketing Guidelines in section 90.2.3 – Submission of Multiplan Materials

Providers may select the plan as the lead MAO organization for their submission.