Medicare Communications Marketing Guidelines: A Primary Topic at the CMS Fall Conference

BluePeak Highlights the Changes to MCMG Requirements

The Centers for Medicare & Medicaid Services (CMS) 2018 Medicare & Prescription Drug Plan Fall Conference and Webcast kicked off on Thursday, September 6^th with a presentation from Jeremy Willard and Christine Reinhard, both from the Division of Surveillance, Compliance, and Marketing, Medicare Drug & Health Contract Administration Group, providing a section-by-section overview of the Medicare Communications and Marketing Guidelines (MCMG).  Mr. Willard noted that an updated version of the MCMG, originally released in July 2018, was being released on September 6, 2018.

Mr. Willard explained that the MCMG replaces the Medicare Marketing Guidelines and all associated guidance in full.  He stated that MCMG Section 20 – Communications and Marketing Definitions of the MCMG is new and stressed the difference between communications and marketing materials and activities.  Communications materials and activities are all such materials/activities that provide information to current and prospective enrollees.  Marketing communications and activities have a two-pronged definition: a subset of communications that have (1) the intent to draw attention to one or more Medicare Advantage Plans (Plans) and/or Prescription Drug Plans (Part D Sponsors) and influence a beneficiary’s enrollment or retention decision about their healthcare coverage; and (2) content about the Plan’s/Part D Sponsor’s benefit structure, cost sharing, and/or measuring or ranking standards.  Mr. Willard explained that if a given material or activity has the content described in the second prong of the definition but lacks the intent-based first prong, the Evidence of Coverage (EOC) for example, then the given material or activity is communications material and/or activity and not marketing.   This distinction between communications and marketing materials and activities is important because whereas Plans/Part D sponsors must submit all marketing materials to CMS using HPMS, they only must prospectively submit to CMS communications materials designated by CMS in MCMG Section 100 – Required Materials (though such communications material still must contain a material ID and CMS reserves the right to conduct retrospective and/or reactive reviews of communications materials).

While Mr. Willard and Ms. Reinhard walked through each section of the MCMG, outlining what was familiar and what was new, they drew attention to some MCMG requirements that were different:

• Section 30.7 – Prohibited Terminology/Statements outlines prohibited terminology for Plans that are not Dual Special Needs Plans (D-SNPs);
• Section 30.8 – Product Endorsements/Testimonials gives guidance for provider testimonials, now permitted though previously prohibited;
• Section 40.1 – Plan Comparisons provides guidance that permits Plans/Part D Sponsors to now make comparisons to competitors, as long as such comparisons are supported by fact, not misleading, and not confusing to the beneficiary. Such plan comparisons are marketing material;
• Section 40.2 – Marketing Through Unsolicited Contacts provides guidance that email is now considered equivalent to postal mail, is no longer an unsolicited contact, and is now permissible. However, texting and social media direct messaging are still considered unsolicited contact and continue to be prohibited;
• Section 40.7 – Prohibition of Open Enrollment Period Marketing sets forth a prohibition on knowingly targeting marketing toward beneficiaries during the Open Enrollment Period (OEP), though marketing to other enrollment opportunities, including age-ins and dual-eligible/low income subsidy beneficiaries, during this timeframe is still permitted. Willard explained the intent of the OEP is to permit beneficiaries to make a different health care choice if needed, but not to permit a second marketing period for Plans/Part D Sponsors;
• Section 50.1 – Educational Events provides modified guidance on educational events, during which Plans/Part D Sponsors may answer a beneficiary’s direct questions, distribute business cards and contact information, and provide and collect Scope of Appointment forms, but are not permitted to distribute marketing materials, or have a marketing event or sales meeting immediately following such educational event;
• Section 60.1 – Provider-Initiated Activities provides guidance regarding provider-initiated activities, and permits providers to talk to beneficiaries about cost sharing and benefit structures of Plans/Part D Sponsors, distribute CMS-produced materials, and provide the names of Plans with which they contract at the request of the patient or if the provider determines it is in the beneficiary’s best interest to receive such information;
• Section 60.4 – Plan/Part D Sponsor Activities in the Healthcare Setting states that waiting rooms in the health care setting are now considered to be common areas, where communications materials may be distributed and displayed;
• Section 80.2 – Customer Service Call Center Hours of Operations sets forth a new requirement that live customer service representatives, including customer service representatives of downstream entities providing a customer service function, are now required seven days a week, from 8 a.m. to 8 p.m., through March 31^st, the end of the OEP. Additionally, pharmacy help center hours must match the network pharmacies’ operating hours;
• Section 80.7 – Activities That Do Not Require the Use of State-Licensed Marketing Representatives provides guidance about how a call can move from a non-sales customer service call into a sales/marketing call, and Ms. Reinhard suggested that Plans/Part D Sponsors provide detailed training to their agents on this topic;
• Section 90.1 – Material Identification and 2 – Material Replacement provide new guidance about what must be contained in the material id and how to handle changes post-submission, via a material replacement process detailed in the HPMS users’ guide, for the Annual Notice of Change (ANOC), EOC, Summary of Benefits, Star Ratings documents, sales scripts/presentations, and enrollment scripts;
• Section 90.4 – Submission of Websites and Webpages for Review provides guidance that website submissions are now file and use, and updates to websites previously approved now require submission of the URL and an outline of the changes;
• Section 100.2.1 – Notification of Availability of Electronic Materials provides guidance that permits Plans/Part D Sponsors to notify beneficiaries that the EOC, provider/pharmacy directories, and formularies are available electronically, so long as notice requirements are met. Reinhard noted that if a beneficiary requests a hard copy of any of these plan materials, Plans/Part D Sponsors must send a hard copy to the beneficiary within three business days of the beneficiary request;
• Section 100.2.2 – Electronic Delivery of Required Materials provides guidance that permits electronic delivery of a much broader range of plan materials, but Plans/Part D Sponsors must obtain prior beneficiary approval before delivering such plan materials electronically. Reinhard stated that if the Plan/Part D Sponsor attempts to deliver such materials electronically and receives a notification that the method of electronic delivery did not work (e.g., an undeliverable message notification), the Plan/Part D Sponsor must deliver the plan material to the beneficiary in hard copy (but can consider the delivery date to be the date the email was originally sent, not when the hard copy is sent);
• Section 100.4 – List of Required Materials states that only required materials have to be in 12-point font, and marketing materials do not need to be in 12-point font;
• Section 110 – Agent/Broker Activities, Oversight, and Compensation Requirements offers new guidance that brokers/agents may use CMS-created materials exactly as-is without submission to CMS, but the materials cannot be modified. Reinhard noted that Plans/Part D Sponsors are free to impose stricter requirements on their brokers/agents via contractual limitations.

Mr. Willard and Ms. Reinhard also noted some requirements that were updated from the July 2018 MCMG version in the newly released September 2018 MCMG version. Please see BluePeak’s summary of the September 2018 changes.

Ms. Reinhard closed the presentation with an overview of CMS’ provider directory review activities.  She stated that CMS just finished its third year of provider directory reviews.  Ms. Reinhard noted that the results for the third year were like the results from the previous two years; that is, an average inaccuracy rate of around 45%.  Ms. Reinhard stressed that CMS expects Plans/Part D Sponsors to continue to focus on improving their provider directories.