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Archive for May 30th, 2011

On May 17th, CMS released the 2011 version of their Chapter 3 Medicare Marketing Guidelines.  You can find the complete guidelines here (click on Chapter 3).  Section 120.4 is found on page 157.  For simplicity, I’ve copied and pasted the section below.  Note that text in RED is changed from the 6/4/2010 guidance.  Also note that guidance was issued, effective and implemented on 5/17/2011.  I added BOLD and UNDERLINING to the section I’m concerned about.  I’ve also included the 6/4/2010 after the 2011 guidance so you can see the changes.

Historically, CMS would allow agents and brokers to advertise the services of their agency without having materials CMS approved.  This meant that you could say that you offer Medicare Advantage or Medicare Part D products without mentioning plan specifics like premiums or benefits. In 2010, business cards where given as an example and in 2011, it appears that business cards are the ONLY materials which are now exempt.

The 2011 guidelines now say that materials that “mention Medicare” must be submitted to CMS for review.  This seems extraordinarily broad.  Further, an agent is NOT ABLE to submit their materials directly to CMS for review.  Instead, they must submit their materials through one of their plan sponsors.  Since the plan sponsors are generally tied up with their own filings, it’s hard to imagine how an agent who offers Medicare Advantage or Medicare Part D products will be able to advertise their business or services if they are unable to “mention Medicare”.  This seems about as logical as Ford or GM creating advertising materials that don’t “mention cars”.  Medicare is pretty fundamental to what we do.

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120.4 – Agent/Broker Use of Marketing Materials
(Rev. 96, Issued: 5-17-11, Effective: 5-17-11, Implementation: 5-17-11)
42 CFR 422.2262, 423.2262
Plan sponsors are responsible for all marketing materials used by their subcontractors to market their plan(s). All marketing materials used by plan sponsors or their subcontractors must be submitted by the plan sponsor that contracts with CMS (e.g., the MAO or PDP sponsor offering the plan being marketed, or, in the case of a marketing material used by multiple plan sponsors, by one plan sponsor on behalf of all affected plan sponsors) to CMS for review and approval prior to use. Marketing materials cannot be submitted directly by a third party to CMS. It is the responsibility of plan sponsors to ensure that all applicable materials created by a third party meet the requirements outlined in the MMG.
Agents and brokers are permitted to create and distribute materials. Materials that mention Medicare or plan specific benefits must be submitted to CMS for review and approval or File & Use if applicable via the plan sponsor. Business cards indicating the products (for example HMO, PPO, or PDP) that he/she is selling for a specific plan or plan(s) are not required to be submitted to CMS for review. Please note that this guidance in no way precludes the application by the plan sponsors of more stringent rules or contractual obligations in order to further restrict agent or broker communication.

Additionally, agent/brokers who wish to use materials containing plan information from multiple plan sponsors can either have the piece submitted and approved by CMS for each plan sponsor mentioned prior to use.

Here is the older version of the same section:

120.4 – Agent/Broker Use of Marketing Materials
(Rev. 93, Issued: 06-04-10, Effective/Implementation: 06-04-10)
42 CFR 422.2262, 423.2262
Plan sponsors are responsible for all marketing materials used by their subcontractors to market their plan(s). All marketing materials used by plan sponsors or their subcontractors must be submitted by the plan sponsor to CMS for review and approval prior to use. Marketing materials cannot be submitted directly by a third party to CMS.
Agents and brokers are permitted to create and distribute materials, such as a business card indicating the products (for example HMO, PPO, or PDP) that he/she is selling for a specific plan or plan(s) without CMS review. This limited flexibility to use materials without submitting them to CMS for review only applies to agent and/or broker materials that do not meet the definition of marketing materials in § 20. Materials that do meet the definition of marketing materials must be submitted to CMS for review and approval or acceptance via the plan sponsor. Please note that this guidance in no way precludes the application by the plan sponsors of more stringent rules or contractual obligations in order to further restrict agent or broker communication.
Additionally, agent/brokers who wish to use materials containing plan information from multiple plan sponsors can either have one plan sponsor submit the material on behalf of all the other sponsors, or have the piece submitted and approved by CMS for each plan sponsor mentioned prior to use.

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