Medicare Open Enrollment is Coming! Know the Do’s & Don’ts of Medicare Advantage Plan Marketing

Medicare Open Enrollment is Coming! Know the Do’s & Don’ts of Medicare Advantage Plan Marketing

Medicare’s Annual Open Enrollment begins October 15, and with it beneficiaries will once again be faced with a dizzying array of coverage options.

  • Should I stay in Original Medicare with a Medigap policy to supplement my coverage, an option that allows me to see any doctor or use any facility that accepts Medicare?
  • Or should I join a Medicare Advantage plan, or switch plans if I’m already in one, an option that often has cheaper monthly premiums?
  • Will my group of covered doctors and facilities and prescription drugs stay the same for 2021?

In addition to all the questions, beneficiaries will likely be bombarded with marketing materials and solicitations, and sifting through these can be confusing at best. To protect oneself from fraud during Open Enrollment, it’s important to know what MA plans and their agents can and cannot do and to report any marketing misconduct. And this starts with understanding the Centers for Medicare and Medicaid Services’ Medicare Communications and Marketing Guidelines for 2020.

Medicare Communications and Marketing Guidelines for 2020
This year’s Medicare Communications and Marketing Guidelines (MCMG) aren’t changing. They are the same as those issued in 2018 with the modifications from 2019. (See our article from last year: CMS Revised Marketing Guidelines for 2020 Are Good for Plans, Harmful for Beneficiaries.)

General guidelines include barring MA plans from providing inaccurate or misleading information, discriminating or engaging in activities that could mislead or confuse beneficiaries or misrepresenting the plan. MA plan sponsors must make their plans available to all beneficiaries (except the Special Needs Plans that are designed for certain populations, such as those dually eligible for Medicare and Medi-Cal or for those with chronic health conditions), and are prohibited from discrimination based on race, ethnicity, national origin, religion, gender, sex, age, mental or physical disability, health status, receipt of health care, claims experience, medical history, genetic information, evidence of insurability, or geographic location. The rules and regulations outlined in the MCMG apply to MA plans and all who work for them, including agents and insurance brokers. Failure to comply with the guidelines provided can result in sanctions, such as closing down enrollment and marketing of plans and/or monetary fines.

Distinction between Education & Marketing Events/Activities
As we discussed in our article last year about the MCMG, the MCMG also distinguishes between plans’ educational events and marketing events. Yet, last year’s revisions essentially it blurred any meaningful “protective” guidelines between marketing and educational events and took away clarifying language that gave agents more, open-ended solicitation access. For example, last year 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 again this year 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 has been and will continue to be a huge gain for plans and a dis-service for beneficiaries.

In addition, same as last year, when a beneficiary consents to an agent calling him/her/them to follow up about a particular plan, that consent cam be carried over into other election periods. CMS hasn’t ever allowed this before fall of 2019, and it has opened the door for agents to have more extended permission to contact beneficiaries they’ve already established a relationship with.

Quick Guide to MA Plan Marketing Do’s & Don’ts

To help protect yourself and loved ones from potential fraud and/or marketing misconduct, keep these simple do’s and don’ts in mind. MA plans and their agents and insurance brokers:

  • CANNOT MISREPRESENT self to the beneficiary
  • CANNOT conduct marketing at educational events
  • CANNOT provide meals at marketing/sales events
  • CANNOT offer “free” services/items greater than $15 or $75 for year
  • CANNOT  “camp outs” in medical provider offices
  • CANNOT solicit “door to door” (includes putting flyers on doors)
  • CANNOT approach beneficiaries in common areas (parking lots, streets, sidewalks, lobbies, hallways, etc.)
  • CANNOT send unsolicited texts or make unsolicited calls

In addition, as listed in a recent article, Medicare Communications and Marketing Guidelines Unchanged for Upcoming Open Enrollment Period, the specify that MA and Part D plans may not: 

  • Claim that CMS, Medicare, or the Department of Health & Human Services (DHHS) endorses or recommends them
  • Use unsubstantiated absolute or qualified superlatives or pejoratives, though they may use unsubstantiated absolute and/or qualified superlatives in logos and taglines
  • Use the term “free” to describe a zero-dollar premium or reductions in deductibles or cost sharing
  • Use Medicare beneficiaries to endorse or promote an MA or Part D plan who were not enrolled in the plan at the time the plan created the endorsement or testimonial
  • Offer health screenings or other activities that may be perceived as, or used for, “cherry-picking”
  • Require attendees to provide contact information as a prerequisite for attending a marketing event
  • Use door-to-door solicitation, including leaving information such as a leaflet or flyer at a residence Approach potential enrollees in common areas (e.g., parking lots, hallways, lobbies, sidewalks, etc.)
  • Make telephone calls that include, but are not limited to, the following:
    • Unsolicited calls about other business as a means of generating leads for Medicare plans (e.g., bait-and switch strategies)
    • Calls based on referrals (if an individual would like to refer a friend or relative to an agent or Plan/Part D sponsor, the agent or Plan/Part D sponsor may provide contact information such as a business card that the individual could provide to a friend or relative)
    • Calls to market plans or products to former enrollees who have disenrolled or to current enrollees who are in the process of voluntarily disenrolling
    • Calls to beneficiaries who attended a sales event, unless the beneficiary gave express permission at the event for a follow-up call (there must be documentation of permission to be contacted) or
    • Calls to prospective enrollees to confirm receipt of mailed information

The MCMG does allow plans to use certain strategies to steer beneficiaries to their MA or Part D plans. This list comes from the same article. Plans can:

  • Offer nominal gifts valued at $15 or less (or $75 in total, per person, annually) to beneficiaries, provided the gift is given regardless of whether a beneficiary enrolls in the plan
  • Market their ability to enroll beneficiaries through a Special Enrollment Period (SEP) if they are designated as five-star plans
  • Include information about rewards and incentives programs in their marketing materials
  • Provide refreshments and light snacks, but not meals, at marketing/sales events
  • Make unsolicited direct contact with potential enrollees using conventional mail and other print media (e.g., advertisements, direct mail) and by email provided it contains an opt-out function.

If you come across any suspected fraud or marketing misconduct, please report it to our California Senior Medicare Patrol at 1-855-613-7080.
For more information on the MCMG and what plans can and can’t do, see these resources:

Karen Fletcher
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.