Is your company up to speed with regulated marketing guidelines?

As 2020 approaches, it’s important to get acquainted with the recent changes to the Medicare Communications and Marketing Guidelines (MCMG).

Earlier in March, the Centers for Medicare & Medicaid Services (CMS) shared its draft of the MCMG for 2020. Almost five months later, rather than sharing a revised version, the CMS released an abbreviated memo addressing comprehensive changes to the 2019 version – with the suggestion to have the 2019 MCMG on hand when reviewing.

The update incorporates additional language, strikeouts, and modified clauses, which – without a revised version – leads to a cumbersome review. As this approach leaves more room for error, we’ve compiled an overview of key changes below with our interpretations.

You can find the 2020 update memo here and the 2019 version here.

Subsection 30.7 – Prohibited Terminology/Statements

Language in the first paragraph revised to: “Plans/Part D sponsors are prohibited from providing inaccurate or misleading information, or engaging in activities that could mislead or confuse beneficiaries or misrepresent the Plan/Part D sponsor.

Interpretation: The clarifying language better stipulates prohibited activities – which places more emphasis on avoiding misleading statements/information.

Section 40 – General Marketing Requirements

Deletion of the following: “Plans/Part D sponsors may only advertise in their defined service area, unless unavoidable (e.g., advertising in media with a national audience or with an audience that includes some individuals outside of the service area, such as a Metropolitan Statistical Area that covers two regions). Plans/Part D sponsors must clearly disclose their service area in the marketing materials.”

Interpretation: In the event your company wanted to extend your marketing efforts outside of your plan’s county, removal of this clause allows you to do so. For instance, individuals with power of attorney that are not located in the same area as the person they maintain this responsibility for – you could advertise to these individuals under the revised language.

Subsection 40.2 – Marketing through Unsolicited Contacts

Deletion of the following clause: “If a potential enrollee provides permission to be contacted, the contact must be event-specific, and may not be treated as open-ended permission for future contacts.”

Interpretation: Deletion of this clause broadens flexibility for contacting potential enrollees that have provided permission to contact, as agents/brokers are no longer limited to the parameters of event-specific reasons for contact.

Subsection 50.1 – Educational Events

The word future has been removed from the following clause: “May set up a future marketing appointment, and distribute business cards and contact information for beneficiaries to initiate contact (this includes completing and collecting a Scope of Appointment (SOA) form).”

Deletion of the following clause: “May not conduct a marketing/sales event immediately following an educational event in the same general location (e.g., same hotel).”

Interpretation: Based on these two modifications, agents are now permitted to collect Scope of Appointments and accept applications at the conclusion of educational events. Under the new wording, an agent can elect to hold a marketing/sales event immediately after an educational event.

Section 50.2 – Marketing/Sales Events

The words “talking points” have replaced the word “scripts” in the following clause:“Plans/Part D sponsors must submit scripts talking points, if applicable, and presentations to CMS prior to use, including those to be used by agents/brokers.”

Interpretation: The revised language provides agents with more flexibility during discussion – versus being restricted to a predetermined script.

Subsection 60.1 – Provider-Initiated Activities

Clarifying language added: “CMS considers the following contracted provider-initiated activities to be outside the definition of marketing and, therefore, not subject to the regulation as marketing:

Interpretation: The clarifying language that CMS incorporated indicates that provider initiated marketing activities are not subject to regulation – as they don’t constitute “marketing.”

Subsection 70.1.1 – General Website Requirements

Under the subheading “Plan/Part D sponsor websites must:”, the fourth bullet was updated to: Include or provide access to (e.g., through a hyperlink) applicable disclaimers as required.

The following note was included as well: “The Federal Contracting Disclaimer only has to be placed on one web page.

Interpretation: Full text disclaimers are no longer required on each of your web pages.

Under the subheading “Plan/Part D sponsor websites must ensure that their website:”, the second bullet point was revised to read: “Is reviewed monthly and updated as needed within 30 days from notification of change (See Prescription Drug Benefit Manual, Chapter 6 for information on updates and notice to beneficiaries regarding midyear formulary changes).

Interpretation: Changes must be relayed within 30 days – rather than monthly/as needed.