With Medicare's open enrollment period (October 15, 2024 – December 7, 2024) in full swing, now is a good time to discuss the many nuances of Medicare marketing that exist both during and outside of the open enrollment window. In this open enrollment marketing blog, we will discuss permitted and prohibited marketing activities, including: (1) marketing methods; (2) the types of marketing materials that may be disseminated; (3) marketing material format, including relevant language that must be included in advertising collateral; and (4) physical locations in which marketing may occur.
CMS and Open Enrollment Marketing
As readers of this blog know, the Centers for Medicare & Medicaid Services ("CMS") is a federal agency within the United States Department of Health and Human Services that was created to administer and oversee the Medicare Program. In this capacity, CMS regulates, among other things, marketing activities of Third-Party Marketing Organizations ("TPMOs"). During open enrollment, a TPMO may: (1) conduct marketing activities that focus on other enrollment opportunities including, but not limited to: (i) marketing to age-ins who have not yet made an enrollment decision; (ii) marketing by 5-star plans concerning their continuous enrollment special election period; and (iii) marketing to dual-eligible and Low Income Subsidy beneficiaries; (2) send marketing materials at the beneficiary's request; (3) provide information about open enrollment at the beneficiary's request; and (4) include educational information about the existence of open enrollment.
During open enrollment, CMS prohibits certain marketing activities, including: (1) sending unsolicited materials advertising the ability or opportunity to make an additional enrollment change or referencing open enrollment; (2) engaging in or promoting agent or broker activities that intend to target open enrollment as an opportunity to make further sales; and (3) calling or otherwise contacting former enrollees who selected a new plan during the Annual Enrollment Period.
Whether during or outside of the open enrollment period, TPMOs may make unsolicited contact by direct mail and other print media or email (provided that every email advertisement contains an opt-out option). Communications in print must include certain information, including: (1) the number of organizations that the subject marketer represents; and (2) the number of plans/products offered in the consumer's geographic area. Conversely, at all times, the following unsolicited marketing to a beneficiary or a beneficiary's caregiver is expressly prohibited: (1) door to door solicitation; (2) direct messages via social media platforms; and (3) telephone solicitation, including robocalls, text messages, and voicemail messages. CMS also forbids marketing activities in certain physical locations within the health care provider setting, such as exam rooms and hospital patient rooms, as well as treatment areas where patients interact with providers. On the other hand, CMS permits marketing activities in the common entryways and waiting rooms of health care providers.
Medicare Marketing Is Fraught With Potential Landmines
The above discussion certainly is not meant to serve as an exhaustive open enrollment marketing playbook. Given CMS' extensive requirements, along with federal and state marketing laws, marketing in the Medicare space is packed with potential landmines. As such, it is imperative that TPMOs hire attorneys who are experienced with marketing compliance. The attorneys at Klein Moynihan Turco ("KMT") have a wealth of experience in advising companies on marketing law compliance.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
