Creating Marketing and Advertising Materials

Are you creating your own marketing and advertising materials? Are those materials compliant with CMS standards?

Did you know that any advertising materials that meet the CMS definition of “marketing” must be submitted for approval? If you are creating your own advertising or lead generation materials, it’s important you have a good understanding of how to create them compliantly.
You need to know the CMS definition of “marketing” and how it differs from a “communication”.

If your material meets the definition of “marketing”, then it needs submitted to carriers and CMS for approval.

Are you creating your own marketing and advertising materials? Are those materials compliant with CMS standards?

  • Should be Empty:
Did you know that any advertising materials that meet the CMS definition of “marketing” must be submitted for approval? If you are creating your own advertising or lead generation materials, it’s important you have a good understanding of how to create them compliantly.
You need to know the CMS definition of “marketing” and how it differs from a “communication”.

If your material meets the definition of “marketing”, then it needs submitted to carriers and CMS for approval.

Here is some guidance that should help you determine the difference
between a communication and marketing:

Definitions:
Communications – activities and use of materials created or administered by a Plan or any downstream entity to provide information to current and prospective enrollees. Basically, all activities and materials aimed at prospective and current enrollees, including their caregivers, are considered “communications”.
Marketing – a subset of communications that must meet both intent and content standards to be defined as “marketing” and thus, require submission to CMS via the HPMS portal.

 

Intent – material or activities that are intended to:

  • Draw a beneficiary’s attention to a plan or plans,
  • Influence a beneficiary’s decision-making process when making a plan selection, or
  • Influence a beneficiary’s decision to stay enrolled in a plan.

Content – Materials or activities that include or address content regarding:

  • Plan benefits (beyond Dental, Vision, and Hearing), benefits structure, premiums, or cost sharing
  • Measuring or ranking standards (for example, Star Ratings or plan comparisons), or
  • Rewards and incentives

It essentially then comes down to two questions:

Is the material intended to draw attention to a Medicare Advantage Plan or Plans or influence a consumer’s decision making process when making a plan selection? If yes, it meets the “Intent” requirement for marketing. If no, it is not marketing, as there is no “intent” present.
Does the material meet the content requirement for “marketing”? If it has any of the content below, it is “marketing”.
  • Plan benefits listed (beyond Dental, Vision, and Hearing), even if in a general fashion (ex. Dental, Vision, Hearing, Transportation, OTC, Fitness, etc.)
  • Plan specific benefits are listed (ex. Hearing Aids, Dentures, etc.)
  • Plan premiums, even if $0, low cost, or no cost (ex. Medicare Advantage Plans can have monthly plan premiums as low as $0)
  • Copays, Coinsurance, Deductibles, etc. (ex. Copays as low as $0)
  • Part B giveback or buydown
If you answer “yes” to #1 and #2, then it is “marketing” and needs submitted to HPMS.

When a piece is “marketing” it requires some disclaimers:

Federal Contracting Statement:
Required on all “marketing” materials, except those specifically excluded by CMS.

Example Text (Generic):
“Plans are insured or covered by a Medicare Advantage organization with a Medicare contract and/or a Medicare-approved Part D sponsor. Enrollment in the plan depends on the plan’s contract renewal with Medicare.”
Third Party Marketing Disclaimer
Required on all third-party websites, and on all materials and television/radio ads that meet the definition of “marketing”. (Note: Disclaimer is not required for TPMOs that truly offer every option in a service area.)

Required Text:

“We do not offer every plan available in your area. Any information we provide is limited to those plans we do offer in your area. Please contact Medicare.gov or 1-800-MEDICARE to get information on all of your options.”

Situational Disclaimers:

Benefits Disclaimer

If a “marketing” material contains plan benefits (i.e. Dental, Vision, Hearing, OTC, Transportation, Fitness, etc.), the following disclaimer is needed:

Example Text:
“Not all plans offer all of these benefits. Benefits may vary by carrier and location. Limitations, exclusions, copays, deductibles, and coinsurance may apply.”

Part B Give-Back Disclaimer

Required on all materials when Part B giveback info is included.

Required Text:
“Part B Premium give-back is not available with all plans. Availability varies by carrier and location. Actual Part B premium reduction varies.”

STAR Ratings Disclaimer

If STAR Ratings are mentioned in marketing materials, you need to convey that plans are evaluated yearly by Medicare and that ratings are based on a 5-star rating system:

Example Text:
“Every year, Medicare evaluates plans based on a 5-star rating system.”

It should also be clear to beneficiaries that you are not affiliated with or endorsed by the Federal Medicare program or the government. Recommended disclaimer (and required in some states so we always suggest to use some variation of it):

  • NOT AFFILIATED WITH OR ENDORSED BY THE GOVERNMENT OR FEDERAL MEDICARE PROGRAM.

Communication and Marketing Pieces used to gain permission to contact a consumer about Medicare Advantage or Prescription Drug Plans need to include proper “PTC” language. Should state who will contact them, how they will contact them, and what products will be marketed.

Example Text:
“By providing the information above, I grant permission for licensed insurance agent, , to call me regarding my Medicare options including Medicare Supplement, Medicare Advantage, and Prescription Drug Plans.”

Here are some other helpful tips to keep in mind when creating your own materials:

  • To be considered “Generic,” materials can’t include Company Names or Logos, Plan Specific Names, Product Specific Names, Specific Benefit Info, STAR Ratings, etc.
    • Any material with Carrier Logos and plan specific information need to be approved!
  • All text on materials, including footnotes and disclaimers, should be printed with a font size equivalent to or larger than Times New Roman 12pt font
    • While CMS guidelines no longer include requirements of 12pt font on marketing materials, due to the vision realities of people as they age, it is still recommended and the practice of most carriers to use the larger font size in their marketing materials.
  • On mailers, Agency/Broker name and address should appear on the envelope or postcard—carrier guidance says you must identify who the sender is.
  • DO NOT use the word “Entitled” when referring to Medicare Plan Benefits. Use “Eligible” instead. (I know there are TV commercials throwing this word around constantly and I don’t know how they get away with it, because all guidance we’ve seen is you shouldn’t use it in reference to plan benefits).
  • DO NOT use the word “Entitled” when referring to Medicare Plan Benefits. Use “Eligible” instead. (I know there are TV commercials throwing this word around constantly and I don’t know how they get away with it, because all guidance we’ve seen is you shouldn’t use it in reference to plan benefits).
  • Use caution when using the word “Senior”. Can’t limit your audience to those over 65, some Medicare beneficiaries are under 65.
  • DO NOT use absolute superlatives like “the best”, “highest rated”, “all”, or “the most doctors,” unless it can be substantiated.
  • DO NOT use the word “free” in relation to a plan benefit, use “no additional cost” instead
  • Make sure the piece isn’t advertising “benefits”, but rather plans that may include additional benefits.
  • Do not use exaggerative words/phrases such as “all,” “full,” “complete,” “comprehensive,” “unlimited” to describe benefits (these are only examples)
  • A piece should not imply that a consumer must call, reply, or contact the agent/agency to implement or qualify for benefits.
  • Other Words to avoid include the following:
    • “Customized” or “personalized” when describing Medicare plans or benefits as plans cannot be customized for an individual’s needs.
    • “Advocate”, “expert”, “Medicare specialist” in reference to a Licensed Insurance Agent unless it can be substantiated, it’s approved, and is used in conjunction with “licensed sales agent” or “licensed insurance agent”.
    • NOTE: the word “Medicare” shouldn’t be used in an Agent Title (ex. Medicare Expert, Medicare Consultant, Medicare Specialist, etc.).
  • Avoid using High-Pressure Sales Tactics in your marketing/communication materials (also known as Scare tactics). Examples:
    • “beware of some plans whose copays could bust your budget”
    • “Act now, or you may lose your benefits!”
    • “URGENT!” used on a material with font that is in all caps, oversized and red
  • For mailers, we always suggest using the following disclaimers:
    • “NOT AFFILIATED WITH OR ENDORSED BY THE GOVERNMENT OR FEDERAL MEDICARE PROGRAM”
    • If having consumer fill out a permission to contact form: “BY PROVIDING THE INFORMATION ABOVE I GRANT PERMISSION FOR A LICENSED INSURANCE AGENT TO CONTACT ME REGARDING MY MEDICARE SUPPLEMENT, MEDICARE ADVANTAGE, AND PRESCRIPTION DRUG PLAN OPTIONS”
    • If asking the consumer to contact you: “CALLING THE NUMBER ABOVE WILL DIRECT YOU TO A LICENSED INSURANCE AGENT”
    • If permission to contact can be linked to Medicare Supplement products: “This is a solicitation for insurance.”

NOTE: These same regulations not only apply to agent created materials, but also to materials created by lead vendors, so be aware of that. Just because you’re purchasing a lead piece from a vendor doesn’t necessarily mean it is compliant. Most vendors will make edits for you if requested. So keep these guidelines in mind when purchasing lead pieces.

*If your material meets the definition of “marketing” please send to compliance@premiersmi.com for submission to CMS.

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