CMS Now Needs to Approve Medicare Ads That Mention Plan Benefits

The U.S. government has expressed concern over misleading marketing by some Medicare Advantage and Part D plans. Now, a much wider range of marketing materials will need to be approved by the government prior to distribution. Jon Zucker and Taylor Andelman explain the changes.

The burden placed on U.S. Medicare Advantage plans (“MAPs”) and Medicare Part D plans (“PDPs”) when it comes to advertising is about to significantly increase. On May 10, the U.S. Centers for Medicare and Medicaid Services (“CMS”) released a memo in which it significantly expanded its interpretation of what it will consider “marketing” by MAPs and PDPs. “Marketing” will now include content that mentions any type of benefit covered by a plan.

Previously, CMS allowed MAPs and PDPs to mention widely available plan benefits – such as vision, dental, hearing, and premium reduction – in communication materials without requiring that those materials be reviewed, so long as a specific plan name was not mentioned. Now, more ads will fall within CMS’s definition of “marketing” and will therefore be subject to CMS’s prior review and approval process which applies to marketing materials. These materials – which could include television advertisements, mailings, and social media posts – will now need to be submitted to the Health Plan Management System (“HPMS”). This places an additional burden on MAP and PDP sponsors.

This change comes after CMS and Congress expressed significant concern last year that some MAPs and PDPs were putting out marketing materials which misled members of the public, including advertisements that overstated the benefits of their plans. In October, CMS issued a memo laying out its concerns about MAP and PDP marketing practices. In the memo, CMS said that it had reviewed thousands of complaints and hundreds of marketing calls and had identified numerous instances where confusing, misleading, and inaccurate information had been provided to beneficiaries.

The Senate Committee on Finance also conducted an inquiry across 14 states into MAP marketing practices. In November, the Committee published a report alleging that some MAPs were targeting health plan beneficiaries with false and misleading information. The report also noted that the number of complaints to CMS about MAP marketing practices had more than doubled between 2020 and 2021. The result of all these concerns is that last month, CMS issued a final rule revising the regulations governing marketing by MAPs and PDPs in an attempt to address them.

This new requirement to submit advertisements, mailings, and social media post to HPMS will go into effect on July 10. MAP and PDP sponsors therefore have less than two months to update their HPMS submission processes and prepare all their relevant communication materials to be reviewed.

For more details on the final rule, which was published in April, click here. For more details on CMS’s clarification memo, click here.

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