CMS cracks down on Medicare Advantage TV marketing

CMS is cracking down on deceptive marketing practices and will no longer allow Medicare Advantage or Part D prescription drug plans to advertise on television without agency approval first.

The new policy is effective Jan. 1, 2023 and was discussed in an Oct. 19, 2022 memo from CMS to MA and Part D providers. The agency said it issued the new policy after reviewing thousands of beneficiary complaints regarding confusing, misleading or inaccurate information from plans — plan sponsors are also responsible for all marketing activities from brokers and third-party agencies.

"CMS has conducted so-called 'secret shopping' by calling numbers associated with television advertisements, mailings, newspaper advertisements and internet searches to monitor the experience beneficiaries have engaging these entities," the agency wrote. "Our secret shopping activities have discovered that some agents were not complying with current regulation and unduly pressuring beneficiaries, as well as failing to provide accurate or enough information to assist a beneficiary in making an informed enrollment decision."

With television marketing specifically, CMS is concerned that MA sponsors overpromote plan benefits and savings to individuals that may not be eligible, along with using confusing words and imagery.

CMS normally designates marketing materials, including television, as acceptable for publication under its "File and Use" system. Once materials are submitted, they can be aired after five days. Under the new policy, TV ads will not qualify for the File and Use system and will need to be reviewed individually for denial or acceptance. 

"Television advertisements found to be out of compliance with applicable requirements must be discontinued," the memo said. "Plans that continue to use CMS-disapproved advertisements may be subject to compliance action."

To ensure compliance during the ongoing open enrollment period, CMS will review all marketing materials received during the period and target its oversight toward organizations with high rates of complaints. It will also monitor broker calls with potential enrollees and continue to "secret shop."

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