The Texas Department of Insurance (TDI) issues this bulletin to remind companies, agents, subcontractors, and consumers that the marketing of Medicare Advantage (MA), Prescription Drug Plans (PDPs), and 1876 Cost Plans, is subject to strict marketing standards established by the Centers for Medicare and Medicaid Services (CMS). The marketing, promoting, and distributing of information that is misleading, deceptive, or fails to provide beneficiaries with full and completely accurate information is improper, and TDI reminds carriers, agents, and all regulated entities of their responsibility to comply with all federal laws, state solvency laws, and agent licensing laws.
CMS publishes the Medicare Marketing Guidelines ("the Guidelines") for the marketing of MA, PDPs, and 1876 Cost Plans. On June 4, 2010, CMS published its current version of the Guidelines in Chapter 3 of its Medicare Managed Care publication. The Guidelines constitute CMS' interpretation of the Medicare Advantage and Prescription Drug Benefit rules (Code of Federal Regulations, Title 42, Parts 422 and 423) and the Medicare Improvements for Patients and Providers Act (MIPPA) of 2008. The Guidelines represent the official position of CMS on marketing and operational instructions for these products. Compliance with the Guidelines is mandatory, and any company marketing these products must ensure that its agents and subcontractors are in full compliance with both the rules and the Guidelines. TDI directs that companies, agents, and subcontractors review the Guidelines in their entirety, which includes the following:
1. An organization is prohibited from advertising outside of its defined service area unless such advertising is unavoidable. For situations in which this cannot be avoided, organizations are required to clearly disclose their service area.
2. An organization may enter into co-branding relationships. However, the plan sponsor must inform its CMS Account Manager of any co-branding relationships, report any subsequent changes in co-branding relationships to the CMS Account Manager, ensure that its co-branding partners also adhere to all applicable CMS policies and procedures, and attest that its co-branding partners were provided a copy of and have agreed to follow the Guidelines with respect to all marketing material related to the plan sponsor.
3. An organization is responsible for all activities undertaken by its subcontractors on its behalf.
4. All marketing materials, including third party marketing materials, must comply with CMS requirements prior to use in the marketplace.
5. Marketing materials may not be distributed that are materially inaccurate, misleading, or otherwise make material misrepresentations. In addition, an organization may not use words or symbols in a manner that would convey the false impression that the business or product is approved, endorsed, or authorized by CMS, Medicare, or the Department of Health & Human Services.
6. An organization must meet CMS requirements for marketing to non-English speaking populations and to populations with disabilities, such as vision impairment.
7. Plan sponsors must include the plan type in each plan name using standardized terminology. In addition, an organization must display the plan type on all marketing materials, including plan logos.
8. Except for banner ads, banner-like ads, outdoor advertising, television, and internet banner ads, all advertising material must include the statement that the organization contracts with the federal government.
9. The "Summary of Benefits" is a standardized stand-alone pre-enrollment document, and it must be included in the plan sponsor enrollment kits and must be made available upon request.
10. Rebates of any sort or cash inducements to purchase are prohibited.
11. Door-to-door solicitations, including leaving a leaflet, flier, or door hanger on someone's door or car, are prohibited unless an invitation to provide assistance in a residence is received.
12. E-mails addressed to a Medicare beneficiary are prohibited unless the beneficiary agrees to receive e-mails from the organization and has provided an e-mail address to the organization.
13. Marketing through unsolicited contacts, such as outbound marketing calls, calls to former members who have disenrolled, calls to beneficiaries to confirm appointments or receipt of mailed information, approaching beneficiaries in common areas, and calls or visits to beneficiaries who attended a sales event, is prohibited, except under narrow circumstances established in the supplement to the Guidelines.
14. The marketing of non-health care related products to prospective enrollees during any sales activity or presentation is considered cross-selling and is prohibited.
15. Marketing representatives must clearly identify the types of products that will be discussed before marketing to a potential enrollee and have documentation that the beneficiary has agreed to the scope of the appointment.
16. An organization may not conduct sales activity in healthcare settings except in common areas (such as the hospital or nursing home cafeteria, community or recreational rooms, or conference rooms). Such activities are prohibited in areas where patients primarily intend to receive health care services (such as waiting rooms, exam rooms, hospital patient rooms, dialysis centers, or pharmacy counter areas).
17. Educational events may not include sales activities such as the distribution of marketing materials or the distribution or collection of plan applications.
18. An organization may not allow prospective enrollees to be provided meals, or have meals subsidized, at any event or meeting at which plan benefits are being discussed and/or plan materials are being distributed.
19. Independent agents and internal staff that perform marketing must be State licensed as agents.
20. An organization must report both the appointment and termination of any agent, and the reasons for the termination, to the State in which the agent has been appointed in accordance with the State appointment law.
21. An organization must ensure that agents selling Medicare products are trained and tested annually on Medicare rules and regulations and on details specific to the plan products that they sell. Agent use of any certification as a marketing tool is prohibited.
To promote cooperation, supervisory coordination, and the sharing of information between TDI and CMS concerning the conduct of companies and persons involved in marketing the Medicare managed care and prescription drug programs, TDI and CMS entered into a memorandum of understanding (MOU) on August 1, 2007. TDI and CMS work together to appropriately monitor, conduct surveillance, and respond to marketing activities related to these products. TDI continues to collaborate with CMS concerning regulatory efforts and information sharing. Under the MOU, TDI and CMS agree to promptly share information regarding complaints, solvency, requests for corrective action, and other activities of a company or person engaged in insurance activities subject to the regulatory authority of TDI and CMS. Additionally, the MOU includes streamlining provisions related to enforcement activities and consumer complaint handling.
The Department also reminds all companies that the Guidelines and MIPPA §103(d)(1), which amends §1851(h) of the Social Security Act (42 U.S.C. 1395w-21(h)), require that Medicare Advantage organizations only use agents who have been licensed under state law to sell Medicare plans. This requirement applies to any individual that performs marketing on behalf of an organization, whether as an employee or under contract directly or downstream. The Department has specified the following two license types as the only license types available under state law for the marketing of Medicare plans: 1) a current permanent general life, accident, and health insurance agent license or 2) a current permanent general property and casualty insurance agent license, if the agent is acting for a property and casualty insurer authorized to sell Medicare plans in this state.
An electronic copy of the Guidelines is available online at the following location:
https://www.cms.gov/ManagedCareMarketing/Downloads/2011_MMG_060410.pdf
If you have any specific questions regarding this bulletin, please contact Audrey Selden at 512-475-1760 or at Audrey.Selden@tdi.state.tx.us. For general information, please contact ChiefClerk@tdi.state.tx.us.
Mike Geeslin
Commissioner of Insurance