Last-Minute Memo Roils MAOs' Third-Party Marketing Plans

by Lauren Flynn Kelly

Just eight days into the marketing period for the 2022 Medicare plan year, CMS issued a memo on third-party marketing that, while expected, has led to some confusion among Medicare Advantage plans and their industry partners regarding already finalized marketing materials.

What's in the memo?

• In an Oct. 8 memo from the Medicare Drug & Health Plan Contract Administration Group, Director Kathryn Coleman reminds MA organizations that they are responsible for the activities of first tier, downstream or related entities (FDRs), including those marketing on their behalf.
• The memo clarifies that MA plans must submit all marketing materials to CMS prior to use, including advertisements containing content "regarding plan premiums, cost sharing or benefit information, including those not mentioning a specific plan by name (as well as instances where such advertisements are made on behalf of multiple MA organizations)."

The timing leads to confusion:

• "Since the memo reinstates Obama-era interpretations of marketing rules, I assume plans and brokers can understand CMS's motives and position," says Michael Adelberg, principal with Faegre Drinker Consulting. "But the timing, coming out well into October, after ads and ad buys were finalized, makes this memo tough news for a number of people."
• Helaine Fingold, member of the law firm Epstein Becker & Green, P.C., says plans and their vendors are unsure of what actions to take at this point, since print communications have already been distributed and ads were purchased and finalized well before the Oct. 1 start of marketing.
• "CMS is certainly saying they want to see a broad range of the advertising being used by these third-party entities," but some additional clarification is needed, she suggests. "From a policy perspective, it's probably good as a regulator to use broad terms in regulations and guidance in order to have some flexibility…. But I think they do need to, even by word of mouth or informal communication, [convey more] of the scope of what is expected."

From RADAR on Medicare Advantage