Yesterday, the U.S. Department of Health and Human Services, through its Centers for Medicare & Medicaid Services ("CMS"), finalized new rules related to Medicare programs, which include new restrictions on the marketing of Medicare plans.  

HHS explained that the new rules take "critical steps to protect people with Medicare from confusing and potentially misleading marketing while also ensuring they have accurate and necessary information to make coverage choices that best meet their needs."  As part of the announcement of the new rules, Meena Seshamani, the Deputy Administrator of CMS and the Director of the Center for Medicare, said, "People with Medicare deserve to have access to accurate information when making coverage choices."  

Not surprisingly, the Federal Register notice announcing the new regulations is hundreds of pages long, and contains detailed information about the new rules and the rationale for the changes.  But, to get you started, here are a few key changes to the rules relating to the marketing of Medicare Advantage and Part D programs. 

Marketers are now prohibited from using the Medicare name, the CMS logo, and any products or information issued by the federal government in a manner that is "misleading."  The use of an image of the Medicare card, however, requires prior authorization from CMS.  

The new rules also prohibit the use of superlatives -- for example, words like "best" or "most" -- unless "sources of documentation or data supportive of the superlative is also referenced in the material."  The sources used must be from the current or prior contract year, unless the data is identified as being older than that. 

Marketers are also new prohibited from advertising benefits that are not available to beneficiaries in the service areas where the marketing appears, unless the advertising runs in local media where the benefits are available and "reaching beneficiaries who reside in other service areas is unavoidable."   

The new rules also require marketers, when advertising plans, to give the specific plan name or the organization offering the plan.  In print, the name must be in 12-point font and may not be included in the disclaimer.  In television, online, and social media, the name must be either read at the same pace as the phone number or must be displayed throughout the entire advertisement in a font size equivalent to the advertised phone number, contact information, or benefits.  And, in radio commercials, the name must be read at the same pace as the advertised phone number or other contact information. 

The new rules also prohibit marketing that promotes the savings available to potential enrollees that are based on a comparison of the typical expenses borne by uninsured individuals. 

The rules related to advertising and marketing go into effect on September 30, 2023, and are applicable to the promotion of 2024 plans.