chapter 4 ahip

Marketing Representative Compensation: Applicable Amounts

Applicable compensation amounts depend on whether enrollment is an initial year enrollment or a renewal year enrollment. o CMS provides reports to the plan that specify whether enrollment is initial or renewal. • Renewal year enrollments include plan changes between "like plans." o A "like plan type" enrollment includes: ▪ A PDP to another PDP ▪ An MA, MA-PD, or MMP to another MA, MA-PD, or MMP ▪ A Section 1876 Cost Plan to another Section 1876 Cost Plan o An "unlike plan type" enrollment includes: ▪ An MA or MA-PD plan to a PDP or Section 1876 Cost Plan ▪ A PDP to a Section 1876 Cost Plan or an MA (or MA-PD) plan ▪ A Section 1876 Cost Plan to an MA (or MA-PD) plan or PDP

Educational Events, Permitted Activities

At educational events, marketing representatives may: • answer beneficiary-initiated questions about Medicare health or drug plans. • make available and receive beneficiary contact information, including Business Reply Cards, but not including Scope of Appointment forms. • distribute business cards and agent/agency or plan contact information for beneficiaries to initiate contact. • provide meals, refreshments, or snacks as long as they comply with the gift/promotional item requirements.

Social Media Example

Agent LaVette is excited about the 2024 Medicare Advantage plan that will be offered by BetterMedicare. She would like to send out a tweet stating, "Call me to learn more about BetterMedicare's Medicare Advantage Plan offering comprehensive eyecare and dental benefits at only $25 per month." Because it contains marketing content, this tweet must be submitted to CMS in advance. However, Agent LaVette could send out a tweet stating "BetterMedicare offers an array of benefit packages. One might be right for you. Call me to find out more!" as long as her contract with BetterMedicare does not prohibit her from tweeting such communications.

TPMOs: Example

Amazing Agency contracts through an FMO to market and enroll members in 10 different Medicare Advantage organizations. Amazing Agency has contracted with Internet Innovations to advertise the agency, its products and provide sales leads to the agency. The FMO, Amazing Agency, and Internet Innovations are all TPMOs.

What are Communication-Only Materials and Activities?

Communication-only activities and material provide information to current and prospective enrollees that: • contains no marketing content; or • includes marketing content but does not have marketing intent. For example, o CMS designates certain materials that have marketing content, such as the Evidence of Coverage, as a communication-only material, while the summary of benefits and an annual notice of change are designated by CMS as marketing materials. A targeted letter sent to a plan's members may be intended to encourage those members to receive certain preventive services they have not yet received and refer to the cost sharing for those services. While it contains marketing content, it would not meet the marketing intent standard.

Marketing and Communication - In General

Communications are materials and activities that provide information to current and prospective enrollees on Medicare Health Plans and Part D Plans. • Marketing is a subset of communications. Marketing is distinguished from communications-only material and activity based on intent and content. • Marketing activities and materials are generally subject to a higher degree of regulation and oversight.

Regulation of Communications-Only Material

Material Content - While CMS does not generally require communications-only materials to be submitted to CMS for review and approval; it may review such materials and does require certain disclaimers to be used in those materials. CMS also prohibits the use of certain claims or language in communications materials. o CMS does require certain designated communication materials critical to beneficiaries' understanding or accessing their benefits to be reviewed (e.g., the evidence of coverage). o CMS may require prior review of communication materials that, based on feedback such as complaints or data gathered through reviews, warrant additional oversight to ensure accuracy

Scope of Appointment Example

Ms. Shires calls her agent on December 4 about changing her MA plan during the Annual Election Period (AEP). Her agent records the SOA during the call, indicating that they will discuss Medicare Advantage plans during an appointment the following day. The SOA and appointment are consistent with CMS requirements because the AEP ends on December 7th of each year. If an SOA is completed on or after December 3rd, the personal marketing appointment can occur during the period between December 3rd and December 7th.

Individual Marketing Appointments

Personal/Individual marketing appointments are those tailored to an individual or small group (e.g., husband and wife). They are not defined by the location. • During a personal/individual appointment, representatives may market only health care related products identified in a scope of appointment. o Health care related products include Medicare health plans, Medigap plans, and dental plans, but not accident-only plans. o Non-health care products may not be marketed during a Medicare health or drug plan appointment.

Marketing Representative Compensation: When Compensation May Not Be Paid

Plan Sponsors may not pay agents: o when they have not been trained and tested. o when they do not meet state licensure/appointment requirements. • When a Plan Sponsor and/or a contracted independent agent terminates an agent contract, any future payment for an existing business will be governed by the terms of the contract that specifies the agent's payment, subject to the limits in the CMS regulation. • However, to continue receiving renewal fees, agents must remain trained, tested, licensed, and appointed (to the extent required under state law), regardless of whether they are actively selling.

Oversight and Corrective Action

Plan Sponsors must establish and implement an oversight plan that monitors agent and broker activities, identifies non-compliance with CMS requirements, and reports non-compliance to CMS. • Plans are required to implement a strategy to prevent prohibited marketing practices from occurring, detect prohibited marketing tactics at their early stages, and take immediate corrective action to respond to non-compliant marketing activities. • Plans must take disciplinary and/or corrective action in the event of verified misconduct. Examples of such disciplinary action include: o Withholding or withdrawing commissions o Retraining o Suspension of marketing o Termination o Other consequences set forth in the contract with the plan

Required Practices: Plan Ratings - Prohibitions

Plan sponsors and their marketing representatives may not: • use a plan's star rating in an individual category or measure to imply a higher overall plan rating than is actually the case. o For example, a plan which received a 5-star rating in customer service promotes itself as "rated 5-stars by our enrollees," when its overall plan rating is only 4 -stars. • use the plan's star ratings in a manner that misleads beneficiaries into enrolling in plans based on inaccurate information. • use updated star ratings until CMS releases star ratings on the Medicare Plan Finder. • continue to use an old star rating after 21 days from the release of a new star rating.

Requirements to Act as Agents and Brokers

Plan sponsors must contract with or employ agents and brokers that are licensed by the state if they conduct the relevant activities in that state. • Agents and brokers must be appointed by the plan if required under State law. • MA and Part D plans are required by law to ensure that all employed and contracted agents and brokers complete training at least annually that includes all content specified by CMS. o They also must pass a written test each year that demonstrates thorough familiarity with both the Medicare program and the products they are selling. Agents/brokers marketing only employer/union group plans are not required to be tested. However, plans may choose to require testing.

Promotional Activities: Drawings, Prizes, Giveaways

Plan sponsors must include a disclaimer on all materials promoting a prize, drawing, communal experience (e.g., a concert), or any promise of a gift that there is no obligation to enroll in the plan.

Plan Ratings: Background

Plan sponsors must provide the plan's overall performance ratings to beneficiaries in the standard Plan Ratings information document. • New Plans/Part D Sponsors that do not have any Star Ratings information are not required to provide Star Ratings information until the next contract year. • Plan sponsors and their marketing representatives may only reference or mention a plan's rating on an individual measure in conjunction with the plan's overall performance rating (MA-PD), the contract's highest rating, Part C summary rating (MA-only), or Part D summary rating (PDPs), with equal or greater prominence. • Plan sponsors and their marketing representatives may only market the Star Ratings in the service area in which the Star Rating is applicable.

Rules that apply to all Communications (including Marketing) Materials and Activities

Plans and their marketing representatives may not: • mislead, confuse, or provide materially inaccurate information to beneficiaries. • target enrollees based on income levels (except in the case of Dual Eligible SNPs). • target enrollees based on health status (except in the case of a chronic care SNP). • state or imply that the plans are only available to seniors, rather than all eligible Medicare beneficiaries (e.g., younger disabled individuals).

Certain Plan Materials: Accessing and Using

Plans are required to post on their website certain documents in a downloadable format. Beneficiaries and marketing representatives may access the following materials, as applicable to the plan, through each plan's website: • Evidence of Coverage • Summary of Benefits • Annual Notice of Change • Provider Directory, searchable by specified elements such as name, location, cultural and linguistic capabilities, and specialty • Pharmacy Directory • Formulary Such documents are important tools to be used by marketing representatives in determining issues such as: • Whether a beneficiary's providers or pharmacies are in the plan network • Whether the drugs a beneficiary takes are on the plan's formulary • Whether the plan covers other benefits that are important to a beneficiary • Whether or the extent to which the plan covers out-of-network services Many plans provide their provider/pharmacy directories and formularies in a searchable format. Plans will also provide these materials to beneficiaries after they enroll.

Reporting to, and Cooperating with, States and CMS

Plans must comply with requests from a State insurance or other department in connection with investigations of plan marketing representatives who are licensed by the department. • Plans must report to States the termination of any agent or broker, including the reasons for the termination if required under State law. Plans must also report to CMS any for-cause agent/broker terminations. • Report to CMS all enrollments made by unlicensed agents or brokers. • Upon CMS' request, the plan must provide CMS with information necessary for it to conduct oversight of marketing activities.

Scope of Appointment: Documentation

Plans/Part D Sponsors are expected to include the following when documenting the SOA: • Product type (e.g., MA, PDP) that the beneficiary has agreed to discuss during the appointment, • Date of appointment, • Beneficiary and agent contact information (e.g., name, address, telephone number), • Written or recorded verbal documentation of beneficiary or appointed/authorized representative agreement, • A statement that beneficiaries are not obligated to enroll in a plan; their current or future Medicare enrollment status will not be impacted and clearly explaining that the beneficiary will not be automatically enrolled in any plan.

Required Practices: Marketing & Non-Health Related Activities

Plans/Part D Sponsors must obtain a HIPAA compliant authorization from an enrollee before the Plan or Part D sponsor may use (or may request a marketing representative to use on their behalf) information about the enrollee to market non-health related items or services such as accident-only policies, life insurance policies, or annuities. • The HIPAA authorization must specify that the individual's information may be used by the Plan/Part D sponsor for marketing purposes.

Marketing Representative Compensation: Applicable Amounts, continued

For enrollments in two plans at once (for example, enrollment in an MA-only plan like a MSA and a stand-alone PDP or a cost plan and a PDP), the compensation rules apply independently to each plan. This is known as "dual plan" enrollment. • However, when dual plans are replaced by an enrollment in a single plan, compensation is paid based on the MA or cost plan movement (e.g., movement from an MA-only PFFS plan and PDP to an MA-PD plan would be compensated at the renewal compensation amount for the MA to MA-PD "like plan type" move).

Required Practices: Scope of Appointment, continued

• A scope of appointment may be in writing, in the form of a signed agreement (including electronic signature) by the beneficiary, or a recorded oral agreement. Any technology (e.g., conference calls, fax machines, designated recording lines, pre-paid envelopes, and e-mail) can be used to document the scope of appointment. • For appointments made over the phone, documentation of the scope of appointment is generally a recording of the call in which the parties agree on the products they will discuss during the appointment. • A plan sponsor or agent may not agree to the scope of appointment on behalf of the beneficiary.

New for Marketing of 2024 Products (effective September 30, 2023)

A Scope of Appointment must be obtained 48 hours before all marketing appointments, not just when "practicable." There are two exceptions to this rule - one for unexpected in-person meetings initiated by the beneficiary and one for when the meeting request occurs during the last four days of the relevant election period. • Requests to be contacted, e.g., business reply cards and scope of appointments, are only valid for twelve months. • Marketing events may no longer be held directly following educational events. • Scope of appointment forms may no longer be collected during educational events and future sales appointments may not be set up. • The obligation to record all calls with beneficiaries has been revised to only apply to sales, marketing, and enrollment calls. • The TPMO disclaimer has been updated to include references to State Health Insurance Programs (SHIPS) and to require disclosure about the number of plans the TPMO represents. • CMS has specified a list of topics that must be addressed with a beneficiary before enrollment.

What are Examples of Communication Only Materials

A newspaper ad for an agency that says "We sell a variety of Medicare Advantage plans in the Midwest. Call us for help deciding which one is right for you." (as discussed later in this training, such an ad would require that TPMO disclaimer) • A flyer that says "Medicare Premiere Health Plan offers a variety of Medicare Advantage benefit plans. Call us to find out which one is right for you!" • Materials specifically designated by CMS as communications because they do not meet the "intent" standard, such as the Evidence of Coverage, formulary, or provider directory

Marketing Representative Compensation: Exception to Pro Rata Payment Rule

A plan may choose to pay for an entire initial enrollment year, despite less than 12 months of enrollment, for a beneficiary who has never been enrolled in a plan before or where a beneficiary moves from an employer group plan to a non-employer group plan. • However, if the plan pays a full initial compensation and the enrollee disenrolls during the contract year, the plan must recoup a pro-rated amount for all months the enrollee is not enrolled. Example: Ms. Franklin turns 65 in June and is eligible for Medicare for the first time. An agent helped her enroll in an MAPD with a June 1 effective date. The contract between the plan and the agent specifies that the plan will pay the agent for the entire year at the initial rate for a beneficiary who has never been enrolled in a plan before. The plan makes the full year payment to the agent. However, Ms. Franklin disenrolls from the plan effective October 1. The plan must recoup payment for the eight months of the year in which Ms. Franklin was not enrolled.

Required Practices: Scope of Appointment

At least 48 hours before any marketing appointment, marketing representatives must coordinate with the beneficiary to identify the types of product(s) that will be discussed, obtain agreement from the beneficiary, and document that agreement (known as a "scope of appointment" or "SOA"). o Types of products include MA, PDP, Cost plans, and Medicare-Medicaid Plans. • There are two exceptions to the 48-hour rule: o Where the SOA is completed during the last 4 days of the relevant election period. o Where there is an unscheduled, in-person meeting initiated by a beneficiary. This includes when a beneficiary unexpectedly walks into a marketing representative's office or unexpectedly attends a sales appointment properly set up for another individual. A new SOA is required if the beneficiary requests information regarding a different plan type than previously agreed upon. • An SOA is valid for twelve (12) months from the date of signature.

Marketing/Sales Events, Prohibited Activity

At marketing/sales events agents may not: • require beneficiaries to provide contact information as a prerequisite for attending the event. o This includes requiring an email address or other contact information as a condition to RSVP for an event online or through the mail. o Sign-in sheets must be labeled as optional. • conduct health screenings or other activities that could give the impression of "cherry-picking." • provide meals or multiple snacks/refreshments bundled and provided as if a meal, regardless of value. • use information collected for raffles and drawings for other purposes.

Regulation of Marketing Materials and Activities in General

CMS regulates marketing activities in a variety of ways, including: • Setting - CMS has rules regarding marketing in a health care setting versus marketing in other settings and marketing at educational versus marketing events. • Who may market - CMS requires marketing representatives to comply with state laws concerning licensure; CMS places strict limits on marketing by health care providers. • Timing - CMS regulates when marketing representatives can begin marketing the next year's plans. • Contact- CMS regulates how marketing representatives can contact potential enrollees. • Content - CMS may require that certain disclaimers or other information be included in marketing materials. CMS also prohibits the use of certain claims or language. • Review and Approval - CMS requires that all marketing materials be submitted to CMS for approval and/or review. o Materials developed for use with employer/union group members do not have to be submitted to CMS.

Marketing Representative Compensation: Limits on Amount of Compensation and Filings

Compensation for initial year enrollments cannot exceed a fair market value (FMV) published annually by CMS. This amount is known as the FMV cut-off. • Compensation for renewal year enrollments cannot exceed 50 percent of the FMV cut-off. However, it can be less than 50 percent or not paid at all. Referral or finders' fees paid to independent, captive or employed agents/brokers may not exceed $25 for PDPs or $100 for all other types of plans. • Plans must annually file with CMS whether they will use independent agents/brokers and, if so, the amounts or range of amounts that they intend to pay for enrollment commissions. • Once the deadline for filing has passed, plans may not change the amounts they pay or the types of brokers they use.

Marketing Representative Compensation: Compensation Defined

Compensation includes monetary or non-monetary compensation of any kind relating to the sale or renewal of a policy including, but not limited to: • Commissions • Bonuses • Gifts • Prizes or awards Compensation does not include: • payment of fees to comply with State appointment laws, training, certification, and testing costs. • reimbursement for mileage for appointments with beneficiaries. • reimbursement for placing ads or purchasing flyers. • actual costs associated with beneficiary sales appointments such as venue rent, snacks, and materials.

Marketing Representative Compensation: Rules

Compensation is paid on a calendar year basis. Thus, regardless of the month of a beneficiary's initial year enrollment, the renewal year begins on January 1 of the subsequent year, NOT on the beneficiary's enrollment anniversary date. • Plan Sponsors have the flexibility to make compensation payments annually, quarterly, monthly, or by a different schedule. However, they must pay compensation payments during the year of enrollment. • Compensation (with some limited exceptions) may only be paid for the months the beneficiary is enrolled in the plan. o If a plan pays compensation in advance, it must recoup amounts paid for months a beneficiary is not enrolled. o If a beneficiary enrolls mid-year, compensation must be prorated. ​

Marketing Representative Compensation: Applicability of Rules

Compensation structures for independent agents must comply with CMS guidance. o Compensation rules do not generally apply to marketing representatives who are plan employees, to "captive" agents who market for only one plan, or when independent agents are marketing only to employer/union groups. o Compensation to independent agents who market to and enroll beneficiaries is covered by the rules whether it is paid directly by a plan or paid by an agency, Field Marketing Organization (FMO), or other Third-Party Marketing Organization (TPMO). • The limitations on referral fees for potential enrollment into a plan apply to all agents and brokers (including employed and captive agents) as well as other entities.

Regulation of Communications-Only Activities

Contact - CMS regulates how marketing representatives can contact potential enrollees. For example, agents may not make cold calls even if they limit their conversation to communications content. • Other Content - CMS regulates what marketing representatives may say to enrollees and potential enrollees.

Individual Marketing Appointments, Prohibited Activities

During individual appointments, marketing representatives may not: • discuss plan options that were not agreed upon by the beneficiary and documented in a scope of appointment, business reply card, or request to receive additional information (which are only valid for twelve months following the date of beneficiary's signature date or the date of the beneficiary's initial request for information). • market additional health-related lines of plan business not identified before an individual appointment without a separate Scope of Appointment, identifying the additional lines of business to be discussed. • market non-health care related products. • solicit/accept an enrollment request for a January 1st effective date before the start of the Annual Election Period on October 15 unless the beneficiary is entitled to another enrollment period (for example, an initial enrollment period or special enrollment period).

Individual Marketing Appointments, Permitted Activities

During individual appointments, marketing representatives may: • distribute plan materials such as an enrollment kit or marketing materials. • provide educational information. • discuss benefits, premiums, and cost sharing. • distribute and accept plan applications. • review the individual needs of the beneficiary including, but not limited to, health care needs and history, commonly used medications, and financial concerns. • talk about plan rewards and incentives programs. • provide and collect enrollment forms

Educational Events, Required and Permitted Activity

Educational events must be explicitly advertised as "educational." At educational events, marketing representatives may: • engage in communications activities and distribute communication materials. • use a banner with the plan sponsor name and/or logo displayed. • distribute promotional items, including those with the plan name, logo, and toll-free number and/or website. These items must be free of marketing content and be provided consistent with gift/promotional item rules (e.g., provided to all without obligation and be under $15 retail value). • provide an objective presentation to educate beneficiaries about the different ways they can get their Medicare benefits. • have a health care provider make an educational presentation on wellness or another health care related topic

Light Snacks Versus Meals

Example 1: Agent Foley puts out pretzels, chips, cookies, water, and soda during her marketing seminar to promote the Medicare Advantage plans offered by her agency. Such food offerings qualify as light snacks, which may be offered at marketing events. Example 2: To promote an early morning marketing seminar, Super Agency provides pastries, muffins, bagels, cream cheese, yogurt, fruit, juice, and coffee. Super Agency has bundled several items that might have been considered snacks as a continental breakfast (i.e., a meal), which is prohibited at a marketing event, but allowable at an educational event if the value does not exceed $15 per person (nominal value).

Unsolicited Contacts Example

Example 1: Agent Jackson sells a variety of insurance products, including automobile insurance and life insurance, in addition to Medicare Advantage plans, which pay the biggest commissions. His outreach to potential clients to sell auto or life insurance is not subject to the same stringent regulation as his outreach for Medicare Advantage. Consequently, Mr. Jackson calls his Medicare eligible referrals about life insurance but during the course of the conversations, mentions he also sells Medicare Advantage plans. Agent Jackson has violated the prohibition against making unsolicited calls about other businesses as a means of generating leads for Medicare plans. Example 2: Ms. Lopez fills out a business reply card saying that she would like to have an agent contact her about enrollment in a Medicare Advantage plan. A week later, an agent who says he received her business reply card unexpectedly visits Ms. Lopez at her home. The agent says he is there to assist her with her Medicare Advantage choice. The agent has engaged in unsolicited door-to-door contact because, although he had permission to contact her, he did not have an appointment with Ms. Lopez to meet at her home on that date.

What are Examples of Marketing Activities?

Examples of marketing activities include: • Providing a presentation on health plan benefits to Medicare beneficiaries where the intent is to steer them toward a plan or set of plans. • Participating in an event where health plan brochures and a summary of benefits are distributed. • Meeting with a Medicare beneficiary to discuss upcoming benefit enhancements by reviewing the Annual Notice of Change and to encourage them to remain enrolled in their current Medicare plan. • Passing out plan-specific benefits information and agent business cards at a health fair. • Accepting enrollment forms and performing enrollment at marketing/sales events.

What are Examples of Marketing Materials?

Examples of marketing materials include the following if they contain marketing content: • General audience materials such as direct mailings, newspaper ads, or websites that promote specific plans and discuss their star ratings. • Marketing representative scripts or outlines for telemarketing, enrollment, or other presentations that discuss plan benefits. • Brochures that promote enrollment in a plan and discuss the plan's reward programs for receiving preventive care services. • Presentation materials such as slides and charts explaining the benefits of enrolling in a particular plan. • Social media posts (e.g., Facebook, Twitter, YouTube, etc.) that mention a plan's star rating, notes its low premium, or promote its benefits.

Gifts and Promotional Items, Continued

Gifts or prizes must not be in the form of cash or cash equivalents or other monetary reward or rebate even if their worth is less than $15. • Cash equivalents include: gift certificates or cards that can be readily converted to cash. o general gift cards that are not restricted to specific retail chains or to specific items and categories, such as VISA gift cards. o gift cards for retailers or online vendors that sell a wide variety of consumer products (e.g., Walmart and Amazon). o debit cards. • A gift card that can be used for a more limited selection of items or food, would not be considered a cash equivalent (e.g., Starbucks or a Shell Gas gift card). • Rebates would include, for example, a discount on the first month's premium or on a copayment. • Gifts or prizes may not be charitable contributions

Promoting Health Plans During the Open Enrollment Period

However, during the OEP, marketing representatives may conduct marketing activities that focus on other enrollment opportunities, including but not limited to: • marketing to individuals turning 65 (who have not yet made an enrollment decision). • marketing by 5-star plans regarding their continuous enrollment SEP. • marketing to dual-eligible and LIS beneficiaries who, in general, may make changes once per calendar quarter during the first nine months of the year. In addition, during the OEP marketing representatives may: • send marketing materials when a beneficiary makes a proactive request. • at the beneficiary's request, have one-on-one meetings with a sales agent. • at the beneficiary's request, provide information on the OEP through the Plan's call center. MAOs may also include information about the OEP on their websites.

Marketing Representative Compensation: Rapid Disenrollment

If a beneficiary disenrolls within the first 3 months of enrollment (referred to as "rapid disenrollment"), the entire compensation amount paid for the enrollment must be recouped, except under certain circumstances. o plans do not have to recoup any compensation paid including when a beneficiary disenrolls in the first 3 months because the beneficiary: ▪ Enrolls effective October 1, November 1, or December 1 and subsequently uses the Annual Election Period to change plans for an effective date of January 1. ▪ Became dually eligible for both Medicare and Medicaid ▪ Qualified for another plan based on special needs ▪ Became LIS eligible ▪ Loss Medicare entitlement ▪ Moved out of the service area ▪ Failed to pay the plan premium ▪ Changed enrollment to a plan with a 5-star rating or disenrolled from a LPI plan to move into a plan with three or more stars ▪ Moved into or out of an institution ▪ Gained/dropped employer/union sponsored coverage ▪ Changed plans due to an auto, facilitated, or passive enrollment ▪ Died. ▪ The plan terminated, non-renewed, or CMS imposed sanctions on the plan.

Required Practices: Recording Calls with Beneficiaries

Independent agents/brokers and other third-party marketing organizations must record all sales, marketing, and enrollment calls with beneficiaries in their entirety. This includes recording the audio portion of calls occurring via web-based technology.

Required Practices: Use of TPMO Marketing Disclaimer

Independent agents/brokers and other third-party marketing organizations must use the TPMO marketing disclaimer if they sell plans on behalf of more than one Plan Sponsor. • If the TPMO does not sell for all plan sponsors available in the service area, the disclaimer consists of the following statement: ''We do not offer every plan available in your area. Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. Please contact Medicare.gov or 1-800-MEDICARE, or your local State Health Insurance Program to get information on all your options.'' • If the TPMO sells for all Plan Sponsors in the service area the disclaimer consists of the statement: "Currently, we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. You can always contact Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance Program for help with plan choices.'' • The disclaimer must be: a. verbally conveyed within the first minute of a sales call. b. electronically conveyed when communicating with a beneficiary through email, online chat, or other electronic means of communication. c. prominently displayed on TPMO websites. d. included in any TPMO marketing materials, including print materials and television advertising.

Soliciting Referrals from Beneficiaries

Inducements (such as gifts) for referrals are regulated under fraud and abuse laws (such as the antikickback statute or beneficiary inducement statute). However, typically there are nominal value exceptions under those laws. Marketing representatives should consult with their plans to determine whether the plans impose requirements around gifts in exchange for beneficiary referrals

Marketing Activities: Marketing in a Long-term Care Facility

Long-term care facilities include, for example, nursing homes, assisted living facilities, and board and care homes. • Plan sponsors/marketing representatives may schedule an appointment with a beneficiary in a longterm care facility ONLY upon request of the beneficiary (or authorized representative). • Plan sponsors/marketing representatives may not visit individuals in a long-term care facility without an appointment. • MA institutional special needs plans (I-SNPs) may use staff operating in a social worker capacity to provide information, including marketing materials concerning I-SNPs, to residents. Such information must not include an enrollment form and the social worker may not accept or collect a scope of appointment or enrollment form on behalf of the plan sponsor. • Marketing representatives may set up in common areas of a long-term care facility and allow

Applicability of Medicare Communications and Marketing Rules to Marketing Representatives

Marketing representatives and Plans must follow all marketing rules and guidelines when marketing employer group health plans except the following: o the prohibition against unsolicited contacts o the prohibition against cross-selling other products o the requirement to obtain prior documentation of the scope of an appointment o the prohibition against providing meals at marketing events o the pre-enrollment checklist requirement o marketing representative compensation requirements

Required Practices: HIPAA and Confidentiality of Beneficiary Information

Marketing representatives are business associates of the health plans they sell. As such, they must comply with Federal and state law regarding the confidentiality of individually identifiable health information (known as protected health information or PHI) and any confidentiality obligations in their business associate contracts with plans. • PHI includes any information about an individual's health care coverage, payment for health care, or health care condition. • HIPAA regulates both the use and disclosure of PHI. Marketing representatives may only use and disclose PHI on behalf of the plans they represent. • De-identification is the use of PHI. Thus, agents cannot de-identify PHI in order to use it for their own purposes. • If a marketing representative subcontracts with another individual or entity that may obtain, use or disclose PHI on their behalf, they must enter into a business associate agreement with the individual or entity requiring the same protections to the PHI.

Unsolicited Contact

Marketing representatives are prohibited from making unsolicited contact with beneficiaries, including through: o door-to-door solicitation, including leaving leaflets, flyers, or door hangers at a residence or on someone's car. Contact is unsolicited door-to-door contact unless an appointment, at the beneficiary's home at the applicable date and time, was previously scheduled. o approaching beneficiaries in common areas such as parking lots, hallways, lobbies, sidewalks, stores, or parks. o telephone calls. o text messages and other forms of electronic direct messaging (e.g., through social media platforms, like Facebook instant messaging). o voicemail messages. • The prohibition on making unsolicited contact does not extend to e-mail, conventional mail, and other print media such as advertisements.

Unsolicited Contacts (Continued)

Marketing representatives may not make unsolicited calls about other business as a means of generating leads for Medicare plans (e.g., bait and switch strategies). • Marketing representatives may not make unsolicited contact based on referrals provided by enrollees or other sources. However, they may leave business cards with beneficiaries for distribution to friends they are referring. • Enrollees who are voluntarily disenrolling may not be contacted for sales purposes or be asked to consent to sales contacts. • Marketing representatives may not make calls to beneficiaries who attended a marketing event unless the beneficiary gave express permission at the event for a follow-up call (there must be documentation of permission to be contacted).

Permitted Contacts, continued

Marketing representatives may: • call current enrollees of the parent organization, including those in non-Medicare health plan products, to discuss plan business, for example, they may: o contact individuals enrolled in one of the MA organization's commercial health plans when the individual is aging into Medicare. o contact the MA organization's Medicaid plan enrollees to discuss Medicare products. o contact current MA enrollees to promote other Medicare plan types or to discuss plan options/benefits. o contact the MA organization's Medigap enrollees regarding MA, PDP, or cost plan options. o call current enrollees of a plan to discuss/inform them about general plan information such as Annual Enrollment Period dates, availability of flu shots, upcoming plan changes, educational events, and other important plan information. call a beneficiary who the marketing representative enrolled in a plan to discuss plan business, as well as discuss the availability of other plan options/types within the same parent organization. • However, if the Plan Sponsor or its marketing representatives reach out to beneficiaries regarding plan business, the Plan Sponsor must provide notice to all beneficiaries whom the plan contacts as least once annually, in writing, of the individual's ability to opt out of future calls regarding plan business.

Permitted Contacts

Marketing representatives may: • initiate electronic contact through e-mail. However, they must provide an opt-out process to no longer receive electronic communications. • return calls or messages from individuals who initiate contact and request information. • call beneficiaries who have expressly given permission for the contact, for example by filling out a business reply card or asking a plan customer service representative to have an agent contact them. However, business reply cards and requests to contact are only valid for twelve months following the beneficiary's signature date or the date of the beneficiary's initial request for information. • call beneficiaries to confirm an appointment that has already been agreed to by a beneficiary. • call beneficiaries who submit enrollment applications to conduct business related to enrollment.

Prohibited Practices: Misleading Marketing Practices

Marketing representatives must NOT engage in marketing practices that may mislead or confuse beneficiaries, such as: • providing false or misleading information about the plan, including benefits, provider rules, and other plan information, such as claiming that a PFFS plan is the same as Original Medicare or a Medigap plan. • claiming that Medicare, CMS, or any government agency endorses or recommends the plan. • using the Medicare name, CMS logo, and products or information issued by the Federal Government, including the Medicare card in a misleading way. (Use of the Medicare card image is permitted only with authorization from CMS). • advertising benefits that are not available to beneficiaries in the service area where the marketing appears, unless the advertisement is in local media that serves the service area(s) where the benefits are available and reaching beneficiaries who reside in other service areas is unavoidable. • marketing products or plans, benefits, or costs, unless the Plan Sponsor's(s') name or marketing name(s) of the Plan Sponsor(s) offering the products or plans, benefits, or costs are identified in the marketing material. • including information about savings to beneficiaries that are based on a comparison of typical expenses borne by uninsured individuals, unpaid costs of dually eligible beneficiaries, or other unrealized costs of a Medicare beneficiary.

Prohibited Practices: Discriminatory Activity, Superlatives, and Comparisons

Marketing representatives must NOT: • engage in any discriminatory activity such as attempting to recruit Medicare beneficiaries from higher-income areas without making comparable efforts to enroll Medicare beneficiaries from lower-income areas. • encourage individuals to enroll based on their health status unless the plan is a special needs plan that focuses on the beneficiary's particular condition. • conduct health screening or other activities that could give an impression of "cherry-picking". • use unsubstantiated superlatives e.g., best, highest rated, best value, etc. Superlatives may only be used if the sources of documentation or data supportive of the superlative is also referenced in the material. Such supportive documentation or data must reflect data, reports, studies, or other documentation that applies to the current or prior contract year. (Including data older than the prior contract year is permitted provided the current and prior contract year data are specifically identified). • make explicit comparisons between plans, unless they can support them, such comparisons are factually based, and the comparisons are not misleading

Marketing Activities: Marketing in a Healthcare Setting

Marketing representatives must NOT: • engage in marketing activities or provide marketing materials in areas where patients receive healthcare services, for example: o Exam rooms, dialysis center treatment areas, or hospital patient rooms, pharmacy counter areas, and other treatment areas where patients interact with a provider and their clinical team and receive treatment. Marketing representatives may: • engage in marketing activities (i.e., conduct sales presentations and distribute and accept enrollment applications) in common areas of healthcare settings, for example: o In a cafeteria, community or recreational room, waiting room, common entryway, vestibule, or conference room o At a retail pharmacy, in areas away from the pharmacy counter • provide communication materials to be distributed and displayed in the healthcare setting

Prohibited Practices: Marketing and Communications

Marketing representatives must NOT: • market any non-healthcare-related products (such as annuities and life insurance) during any MA or Part D sales activity or any other marketing activity for existing enrollees. This is considered cross-selling. • use or disclose the enrollee's protected health information (PHI) for marketing purposes, including sending any non-plan or non-health related information or otherwise contacting them for purposes unrelated to plan benefits administration or CMS contract execution, without first obtaining HIPAA required authorization from the enrollee. • market that the Plan Sponsor will not disenroll individuals due to failure to pay premiums. • display the names or logos or both of provider co-branding partners on marketing materials, unless the materials clearly indicate via a disclaimer or in the body that "Other providers are available in the network. • fail to record all sales and enrollment related telephonic contact.

Prohibited Practices: Marketing and Communications (Continued

Marketing representatives must NOT: • use a Medicare beneficiary to endorse a plan unless the beneficiary was an enrollee of the plan when the endorsement was created. • solicit enrollment applications for the following contract year before the start of the annual election period on October 15. • use marketing materials that have not been submitted by the plan for review and/or approval by CMS. • charge beneficiaries marketing fees. • Engage in bait and switch strategies such as making unsolicited outbound calls to beneficiaries about other lines of business (e.g., calling Medicare beneficiaries about Affordable Care Act plans) as a means of generating leads for Medicare plans.

Prohibited Practices: Misleading Marketing Practices (continued)

Marketing representatives must NOT: • use the term "free" to describe a zero-dollar premium. • use the term "free" in conjunction with any reduction in premiums, deductibles, or cost-share, including Part B premium buy-down, low-income subsidy, or dual eligibility. • lead beneficiaries to believe that the broker or agent works for Medicare, CMS, or any government agency. • imply that an MSA plan operates as a supplement to Medicare.

Required Practices: Marketing and Discussion Topics

Marketing representatives must: • provide to prospective enrollees only CMS-approved/submittedmarketing materials or CMS created marketing materials. • use only CMS-approved/submitted talking points and presentations if they are marketing. • ensure that, before an enrollment, CMS' required questions and topics regarding beneficiary needs in a health plan choice are fully discussed. Topics include information regarding primary care providers and specialists (that is, whether the beneficiary's current providers are in the plan's network), prescription drug coverage and costs (including whether or not the beneficiary's current prescriptions are covered), costs of health care services, premiums, benefits, and specific health care needs.

Use of Social Media to Market

Plans/Part D Sponsors must submit to CMS social media (e.g., Facebook, Twitter, YouTube, LinkedIn, Scan Code, or QR Code) posts that meet the definition of marketing, specifically those that contain marketing content such as plan-specific benefits, premiums, cost-sharing, or Star Ratings. This includes such posts by agents. • Social media posts are generally subject to marketing/communications content requirements, such as prohibitions on using certain language and any requirements to include disclaimers. • Re-publication (or re-post) of an individual's post, content or comment that promotes a Plan's/Part D Sponsor's product from social media sites (e.g., Facebook, Twitter, YouTube, LinkedIn, Scan Code, or QR Code) is considered a product endorsement/testimonial and must adhere to the guidance on testimonials.

Frequently Asked Questions (FAQ) #5

Q: Can a marketing representative give away amazon gift certificates worth $10 to everyone who attends a marketing presentation? A: No. Cash gifts and monetary equivalents are prohibited, including gift certificates and gift cards that can be readily converted to cash, regardless of the dollar amount

Frequently Asked Questions (FAQ) #4

Q: Can a marketing representative hold a raffle or offer a door prize or a drawing for a prize of more than nominal value for those who attend a marketing presentation if the total value of the item is less than $15 per person attending? A: Yes. However, the total fair market value must not exceed the nominal per person value based on attendance. For example, if 10 people are expected to attend an event, the nominal gift may not be worth more than $150 ($15 for each of the 10 anticipated attendees). For planning purposes, anticipated attendance may be used, but must be based on actual venue size, response rate, or advertisement circulation.

Frequently Asked Questions (FAQ) #3

Q: Listed below are some possible promotional items to encourage potential enrollees to attend marketing presentations. Are these types of promotions permissible? ▪ Light Snacks (no meals) ▪ Day trips ▪ Magazine subscriptions ▪ Event tickets A: Potentially. Any of these promotional items are permissible if they are offered to everyone who attends the event, regardless of whether they enroll and if the gifts have a retail value of $15 or less per marketing event. Cash gifts and monetary equivalents are prohibited, including gift certificates and gift cards that can be readily converted to cash, regardless of the dollar amount.

Frequently Asked Questions (FAQ) #1

Q: We purchased books on health maintenance that we plan to give away to anyone attending one of our marketing presentations, regardless of whether they enroll in our plan. Because we purchased many books, we were able to buy them for $14.99 per book. However, on the inside jacket, the retail price is shown as $19.99. May we give these books away at our marketing presentation? A: No. The retail purchase price of the book is $19.99, which exceeds CMS's definition of nominal value.

Frequently Asked Questions (FAQ) #2

Q: We would like to offer gifts of nominal value to potential enrollees who call for more information about our plan. We would then like to offer additional gifts if they come to a separate marketing event. Each of the gifts meets CMS's definition of nominal value, but taken together, the gifts are more than the nominal value. Is this permissible? A: Yes. A nominal value gift may be given to an enrollee on more than one occasion if the total of all nominal value gifts given to an enrollee in a year does not exceed $75.

Marketing Representative Compensation: Rapid Disenrollment, continued

Rapid disenrollment applies when an enrollee moves from one parent organization to another parent organization, (e.g., from Superior Health Plan to Healthy Living Plan) or when an enrollee moves from one plan to another plan within the same parent organization (e.g., from Superior Health Plan's gold plan to its silver plan). Example of rapid disenrollment: An Agent assisted Ms. Howard in enrolling in a Medicare Advantage HMO plan during the Annual Enrollment Period. After enrolling, she realized her podiatrist was not in the network. In February she switched to a PPO offered by the same organization so that she would have coverage for out-of-network services. The plan must recoup all compensation payments paid to the Agent for Ms. Howard's enrollment.

Gifts and Promotional Items

Section 1128A (a) (5) of the Social Security Act prohibits offering or giving anything of value to a Medicare or Medicaid beneficiary that is likely to influence the beneficiary to order or receive from a particular provider, practitioner, or supplier any item or service covered under Medicare or Medicaid. There is a nominal value ($15) exception to this rule. • Marketing representatives may provide gifts, prizes, or promotional items to beneficiaries as part of an event or for marketing purposes as long as the nominal value exception is met and the gift is provided regardless of enrollment and without discrimination. • Gifts are of nominal value if an individual item is worth $15 or less based on the retail purchase price of the item (it does not matter if the plan or representative pays less for the item). • When more than one gift is offered on one occasion, the combined value of all items must not exceed $15. • Multiple gifts given to a beneficiary on different occasions may not exceed $75 aggregate, per person, per year.

Required Practices: Special Rules Related to Lead Generation

TPMOs conducting lead generating activities, either directly or indirectly for a plan sponsor, must, when applicable disclose to the beneficiary that their information will be provided to a licensed agent for future contact. This disclosure must be provided: o verbally when communicating with a beneficiary through telephone; o in writing when communicating with a beneficiary through mail or other paper; or o electronically when communicating with a beneficiary through email, online chat, or other electronic messaging platform. • If the lead generating TPMO transfers a beneficiary to an agent, the TPMO must disclose to the beneficiary that they are being transferred to a licensed agent who can enroll them into a new plan. • Plan Sponsors, Agents/Brokers, FMOs or agencies that obtain leads from such entities should ensure that these requirements have been met in generating the leads and include this obligation in any contracts with the lead generating TPMO

Open Enrollment Period - Marketing Prohibitions

The Medicare Advantage Open Enrollment Period (MA-OEP) is a period during which an individual enrolled in an MA or MA-PD plan can make a one-time change to another MA plan, elect Original Medicare, or can change Part D coverage. For individuals enrolled in an MA plan on January 1, the MAOEP is the first 3 months of the calendar year. For individuals enrolling during their initial coverage election coverage period (ICEP), the MA-OEP is the first three months after they enroll in an MA or MAPD plan. The MA-OEP is further described in Module 5. During the Open Enrollment Period (OEP), marketing representatives may not: • send unsolicited materials advertising the ability/opportunity to make an additional enrollment change or referencing the OEP. • specifically target beneficiaries who are in the OEP because they chose an MA or MA-PD plan during the Annual Enrollment Period (AEP) by the purchase of mailing lists or other means of identification. • engage in or promote activities that intend to target the OEP as an opportunity to make further sales. • call or otherwise contact former enrollees who have selected a new plan during the AEP.

Medicare Marketing and Communications Rules

The Medicare marketing and communications rules apply to the following types of Medicare health plans and Part D plans: • Medicare Advantage (MA) only plans • Medicare Advantage Prescription Drug (MA-PD) plans • Prescription Drug Plans (PDPs) • Section 1876 Cost plans • Medicare-Medicaid Plans (MMPs) o For MMPs, marketing requirements may be modified by state-specific requirements. Each state in which MMPs are offered has state-specific marketing guidelines and CMSapproved model documents. Those guidelines and documents can be accessed at https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-MedicaidCoordination/Medicare-Medicaid-CoordinationOffice/FinancialAlignmentInitiative/MMPInformationandGuidance/MMPMarketingInfor mationandResources.html

Third Party Marketing Organizations and "Marketing Representatives

Third Party Marketing Organizations (TPMOs) are organizations and individuals, including independent agents and brokers, who are compensated to perform lead generation, marketing, sales, and enrollment related functions as a part of the chain of enrollment (the steps taken by a beneficiary from becoming aware of an MA or Part D plan or plans to making an enrollment decision). TPMOs may directly contract with the plan sponsor, may be a downstream contractor of a Plan Sponsor, or may be a related entity of the Plan Sponsor (referred to as first tier, downstream or related entities or FDRs). However, they may also be entities that are not FDRs but provide services to an MA plan or an MA plan's FDR. • Independent agents and brokers are those that are not directly employed by a plan and those that market for more than one plan. • Agents and brokers employed by the plan are not TPMOs. • In this training, we refer to TPMOs and employed agents and brokers as "Marketing Representatives."

What is Marketing

To be considered marketing, the material or activity must include both marketing intent and marketing content. • Marketing Intent - the purpose of marketing activities and materials is to draw a prospective or current enrollee's attention to a plan or group of plans to influence a beneficiary's plan choice, including a decision to remain enrolled in their current plan. • Marketing Content - Marketing activities and materials include or address content regarding any of the following: o Information about benefits or benefit structure o Information about premiums or cost-sharing o Rankings, such as comparisons to other Plan(s)/Part D sponsor(s) o Measurement standards, such as Star Ratings o Plan rewards and incentives programs (programs offered by Medicare health plans to qualifying individuals to voluntarily perform specified target activities in exchange for reward items)

Prohibited Practices: Targeting Dual Eligibles

Unless they are promoting a D-SNP, Marketing representatives must NOT: • imply that the plan is available only to or designed for dual eligible individuals (unless the plan is comparable to a D-SNP plan, such as an MMP, as determined by the Secretary). • claim that the Plan has a relationship with the state Medicaid agency, unless the MA plan (or its parent organization) has contracted with the state to coordinate Medicaid services, and the contract is specific to that MA plan (not for a separate D-SNP or MMP). • market a non-dual eligible special needs plan as if it were a dual-eligible special needs plan. • target their marketing efforts for the Plan exclusively to dual eligible individuals (unless the plan is comparable to a D-SNP plan, such as an MMP, as determined by the Secretary

Required Materials with an Enrollment Form

When a beneficiary is provided with enrollment instructions/form, they must also receive: o plan ratings information; o the summary of benefits; and o the pre-enrollment checklist o the multi-language insert • The beneficiary must also receive the multi-language insert when provided with any other CMS required material (for example, Evidence of Coverage, Annual Notice of Change, or Summary of Benefits). • For Dual Eligible Special Needs Plans, if Medicaid benefits are not included in the summary of benefits, a separate document including the Medicaid benefits must be included with the enrollment form. • When a beneficiary enrolls in a plan online, the plan sponsor must make these materials available electronically, (e.g., via website links) to the potential enrollee before the completion and submission of the enrollment request. For telephonic enrollments, the contents of the pre-enrollment checklist must be reviewed with the prospective enrollee prior to the completion of the enrollment. In addition, the beneficiary must be told verbally where the summary of benefits and star ratings documents may be accessed

Educational Events, Prohibited Activities

When an event has been advertised as "educational," marketing representatives may NOT: • conduct sales or marketing presentations. • discuss, display, or distribute plan-specific premiums, benefits, or other marketing content or marketing materials. • engage in marketing activities. • distribute or collect enrollment applications. • set up future personal marketing appointments. • make available or obtain completed Scope of Appointment (SOA) forms.