Fact Sheets

CMS ISSUES MARKETING RULES FOR ALL PLANS OFFERING MEDICARE DRUG COVERAGE

Today’s Action:   The Centers for Medicare & Medicaid Services (CMS) today issued guidelines on marketing for companies offering prescription drug plans to Medicare beneficiaries as part of Medicare’s new prescription drug benefit beginning on January 1, 2006.  The guidelines will set standards that companies must follow in marketing their plans to the nation’s elderly and disabled.  The standards reflect proven methods plus ongoing Medicare oversight to protect beneficiaries from unscrupulous or overzealous sales tactics, while enabling them to get information they can use to help make their decisions about this important new benefit.  The guidelines will govern the marketing activities for stand-alone prescription drug plans (PDPs), Medicare Advantage plans, and Medicare Advantage prescription drug plans. People with Medicare can begin to enroll in the program on November 15, 2005 while plans can begin to market their packages on October 1, 2005.

The marketing guidelines issued today will:

• Protect beneficiaries’ rights and privacy
• Ensure that beneficiaries get accurate and consistent information about their drug coverage options; and
• Build on previous experience in the federal employees’ health program and the Medicare Advantage program to help avoid unnecessary administrative burdens for plans that consistently follow Medicare guidelines.

These final guidelines reflect the input, feedback and recommendations that consumer and industry groups provided on earlier draft guidelines.  The guidelines released today improve on the draft guidelines in a few specific areas:

• Combining the updated Medicare Advantage marketing guidelines with the new guidelines for the Medicare prescription drug plans so that there is a single reference document for plans that offer both.
• Outlining the roles of independent agents and brokers;
• Providing parameters where plans may “co-brand” with other organizations;
• Allowing plans that demonstrate consistent adherence to the guidelines to “file and use” submitted materials, based on well-established practices from the FEHBP program;
• Requiring plans to follow the federal “do not call” requirements and all other federal and state requirements for telemarketing, to protect beneficiaries from unwanted or improper calls from plans; and
• Providing details on what types of promotional activities plans may employ.

These guidelines underscore the steps that CMS will take to assure strong oversight of marketing activities, including imposing sanctions where applicable.

Protecting beneficiaries’ rights and privacy

The marketing guidelines prohibit Medicare Advantage plans, PDPs or their representatives from making door-to-door sales calls or sending unsolicited e-mails.   If plans use brokers or independent agents, those individuals must adhere to state licensing requirements.  Plans that employ marketing representatives must ensure that those representatives meet all state requirements, including state licensure and certification or registration. 

If plans and their representatives phone beneficiaries to offer plan information, plans must comply with the National Do-Not-Call Registry, honor “do not call again” requests, and abide by federal and state calling hours and any other applicable requirements.

CMS will investigate any complaints made by beneficiaries and other organizations.  CMS will implement a monitoring system that will include beneficiary satisfaction surveys, a complaint tracking system and periodic site visits.  The agency will also work closely with consumer protection groups and PDP organizations to educate consumers about what should be in service contracts and what red flags to look for.  Beneficiaries who suspect a problem can contact CMS or call 1-800-MEDICARE.

CMS will take appropriate action against plans found to be non-compliant, committing fraud or otherwise violating state or federal laws, which may include implementing corrective action plans, imposing sanctions that may close the plan to new enrollees, imposing civil monetary penalties or referring plans to the HHS Office of the Inspector General or to other federal or state law enforcement agencies.

What Consumers Should Know:

To protect against fraud or unwanted solicitations, consumers should be aware that:

• They should not give out personal information (e.g., Social Security Numbers, bank account numbers, credit card numbers, etc.) to plan marketing representatives, because plans are not allowed to request such personal information in their marketing activities.
• Plans cannot call outside of the calling hours allowed by the federal government and states.  Federal rules do not allow telemarketers to call before 8 a.m. or after 9 p.m. State rules may vary.
• To stop repeated and unwanted sales calls, beneficiaries simply need to say “stop:” plans are required to honor “do not call again” requests from beneficiaries. To register for the federal “do not call” list to prevent all unsolicited marketing calls, go to www.donotcall.gov.
• Additional information about drug plan options from an independent source, beneficiaries can go to www.medicare.gov, call 1-800-MEDICARE, or seek help from the local State Health Insurance Assistance Program or Area Agency on Aging to get personalized information about which drug plan may be best for them.

Promotions and Provider/Pharmacist Roles

Many people with Medicare rely on their neighborhood pharmacists and other health care providers for information about their prescription drugs and coverage.  Physicians, pharmacists and other health care professionals can provide objective information regarding specific plans, covered benefits, cost sharing, drugs on formularies and utilization management tools.  Under the final guidelines, these providers can make available plan marketing materials and they can display posters or other materials announcing the contractual relationship between the plan and provider.  But providers cannot steer beneficiaries to a plan to further their own financial interests. Providers may, however, help a beneficiary choose the plan that best meets their needs  The guidance includes additional information regarding “Cans” and “Cannots” for providers that have contracted with PDPs.

CMS will provide information to various organizations so that providers and pharmacists understand their role in helping beneficiaries find a plan that best suits their needs.

“File and Use” Certification

The final guidelines use a “File and Use” certification program that is modeled on a similar program used by the Federal Employees Health Benefits Program (FEHBP).   File and Use certification allows plans to submit and certify that certain types of materials meet CMS marketing guidelines.  Medicare Advantage plans must provide this information to CMS at least five days before they begin to be used.  Under the File and Use certification, plans may be able to use CMS-provided “model language” for certain marketing materials, as long as the model language is not modified.  Activities such as advertising are included under File and Use Certification and provide assurances to beneficiaries that the information they receive is consistent across plans.

File and Use Eligibility allows plans that follow Medicare’s marketing guidelines to publish and distribute certain materials without prior approval.   To qualify for File and Use Eligibility, plans have to meet a particular standard of performance and a standard for certain types of materials continually. 

CMS will monitor the use of these certifications through retrospective sampling to ensure that plans are compliant with the guidelines. CMS will also analyze feedback from the public and the industry to ensure compliance.

Plans which are found to have compliance problems in their materials can lose their File and Use Eligibility.

The guidelines May be viewed at: http://www.cms.hhs.gov/pdps/PrtDPlnMrktngGdlns.asp