CMS’ Revised Marketing Guidelines for 2020 are Good for Plans, Harmful for Beneficiaries

CMS’ Revised Marketing Guidelines for 2020 are Good for Plans, Harmful for Beneficiaries

Each year the Centers for Medicare and Medicaid Services (CMS) revises it’s Medicare Communications and Marketing Guidelines (MCMG) for Medicare Advantage and Part D plans in time for the annual Open Enrollment period, which is Oct 15- Dec 7. It’s an opportunity to clarify marketing guidance to plans and provide protections to beneficiaries from marketing misconduct and abuse. Part of the revision process also includes CMS sharing a draft of the proposed MCMG changes for advocates and stakeholders to review and comment on. This year CMS fell woefully short on all accounts.

 

In regard to the advocate/stakeholder review, CMS did issue a draft 2020 Medicare Communications and Marketing Guidelines for feedback. Yet, instead of subsequently releasing the final 2020 MCMG, CMS veered from its long-time practice and issued an HPMS memo that tell plans to look at the changes in the memo and refer to the 2019 MCMG. Not only is such “guidance” confusing and hard to follow, it also lacks transparency. In addition, as stated in a letter to CMS from our partners at Justice in Aging, the Center for Medicare Advocacy, the Center for Medicare Rights and National Council on Aging, the final guidance significantly deviates from the draft 2020 MCMG:

Instead of adding some helpful clarifications and tightening of guidance that had appeared in the draft, the final product took a sharp U-turn. Not only were most of the additions that would have been protective of beneficiaries abandoned, important existing provisions were summarily dropped without warning or an opportunity to comment, and new provisions that either did not appear or were not flagged in the draft version were finalized, effectively disregarding the process for stakeholder input.

 

In regards to clarifying guidance and providing marketing misconduct protections to beneficiaries, the final MCMG weakens both. Among many things, it blurs the distinction between marketing and educational events and takes away some clarifying language that now gives agents more, open-ended solicitation access. For example, the requirement that an agent or broker “[m]ay not conduct a marketing/sales event immediately following an educational event in the same general location (e.g., same hotel)” was completely eliminated. This means agents can now hold an “educational event”, an event focused on informing beneficiaries about Medicare Advantage plans, Medicare Part D and other Medicare programs, and then immediately roll it into a “marketing event”, one that’s aimed at steering potential enrollees into a particular plan or plans. This is a huge gain for plans and a dis-service for beneficiaries.

 

In addition, now when a beneficiary consents to an agent calling him/her/them to follow up about a particular plan, that consent is allowed to carry over into other election periods. CMS hasn’t ever allowed this before and it opens the door for agents to have more extended permission to contact beneficiaries they’ve already established a relationship with.

 

The final 2020 guidance also eliminated requirements for taglines in plan materials. These taglines refer to the availability of non-English translations that help people with limited English proficiency access and understand important plan coverage and rights information. It also completely eliminated new guidance in the draft 2020 MCMG to control aggressive marketing tactics of D-SNP look-alikes that particularly target dual eligibles.

 

Many other eliminations discussed in the Center for Medicare Advocacy’s recent article all ease the “burden” on plans, provide no benefit to beneficiaries and in some cases, weaken beneficiary protections. A few of the eliminations mentioned in the article include:

  • Elimination of the requirement that plans must support any comparisons with other plans “by studies or statistical data” – but comparisons must still be factually based and “not misleading”;
  • Elimination of the requirement that plans use CMS standard icons when marketing a plan’s star rating: previously plans were “not permitted to create their own gold star icon or any other icon of distinction.” Under the revision, “Plans may create their own gold star icon (or any other icon of distinction) so long as the icon is not misleading or confusing to beneficiaries.” (Note: it is unclear how CMS will determine whether or not plan-chosen icons – rather than standardized CMS ones – will be misleading or confusing);
  • Elimination of restrictions regarding marketing of plan rewards and incentive programs (such programs provide rewards and/or incentives to enrollees in connection with participation in activities that focus on promoting improved health, preventing injuries and illness, and promoting efficient use of health care resources): marketing information from plans no longer must “Be provided in conjunction with information about plan benefits”, no longer must “Include information about all rewards and incentives programs offered by the MA Plan, and are not limited to a specific program, or a specific reward or incentive within a program.” (Note: this means plans can market such programs independently, without context of overall plan benefits to allow individuals to do cost-benefit analyses regarding whether such incentives are worth it; it is unclear if this can be used to target individuals based upon their health condition); and
  • Elimination of requirement that certain disclaimers (in addition to the Non-English translation disclaimer discussed above) be included in plan materials, including the removal of a “benefits disclaimer” that previously required specific text on marketing pieces listing 10 benefits or more. Eliminated Text: “This information is not a complete description of benefits. Call [insert customer service phone number/TTY] for more information.”

 

We, and advocates across the country, are concerned with the lack of integrity in the review/revision process of the Medicare Communications and Marketing Guidelines and the many changes that blatantly benefit Medicare health plans and weaken beneficiary protections. We will continue advocating for immediate changes to the MCMG, the repeal of the eliminated protections, and responsible action to address the marketing of supplemental benefits and D-SNP plan “look-alikes”.

Our blogger Karen J. Fletcher is CHA's publications consultant. She provides technical expertise, writing and research on Medicare, health disparities and other health care issues. With a Masters in Public Health from UC Berkeley, she serves in health advocacy as a trainer and consultant. See her current articles.