Marketing is a subset of communications and therefore must follow the requirements outlined in § 422.2262 as well as this section. Marketing (as defined in § 422.2260) must additionally meet the following requirements:
(a) MA organizations may begin marketing prospective plan year offerings on October 1 of each year for the following contract year. MA organizations may market the current and prospective year simultaneously provided materials clearly indicate what year is being discussed.
(b) In marketing, MA organizations may not do any of the following:
(1) Provide cash or other monetary rebates as an inducement for enrollment or otherwise.
(2) Offer gifts to beneficiaries, unless the gifts are of nominal value (as governed by guidance published by the HHS OIG), are offered to similarly situated beneficiaries without regard to whether or not the beneficiary enrolls, and are not in the form of cash or other monetary rebates.
(3) Provide meals to potential enrollees regardless of value.
(4) Market non-health care related products to prospective enrollees during any MA sales activity or presentation. This is considered cross-selling and is prohibited.
(5) Compare their plan to other plans, unless the information is accurate, not misleading, and can be supported by the MA organization making the comparison.
(6) 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.”
(7) Knowingly target or send unsolicited marketing materials to any MA enrollee during the Open Enrollment Period (OEP).
(i) During the OEP, an MA organization may do any of the following:
(A) Conduct marketing activities that focus on other enrollment opportunities, including but not limited to marketing to age-ins (who have not yet made an enrollment decision), marketing by 5-star plans regarding their continuous enrollment special election period (SEP), and marketing to dual-eligible and LIS beneficiaries who, in general, may make changes once per calendar quarter during the first 9 months of the year;
(B) Send marketing materials when a beneficiary makes a proactive request;
(C) At the beneficiary's request, have one-on-one meetings with a sales agent;
(D) At the beneficiary's request, provide information on the OEP through the call center; and
(E) Include educational information, excluding marketing, on the MA organization's website about the existence of OEP.
(ii) During the OEP, an MA organization may not:
(A) Send unsolicited materials advertising the ability or opportunity to make an additional enrollment change or referencing the OEP;
(B) Specifically target beneficiaries who are in the OEP because they made a choice during Annual Enrollment Period (AEP) by purchase of mailing lists or other means of identification;
(C) Engage in or promote agent or broker activities that intend to target the OEP as an opportunity to make further sales; or
(D) Call or otherwise contact former enrollees who have selected a new plan during the AEP.
(c) The following requirements apply to how MA organizations must display CMS-issued Star Ratings:
(1) References to individual Star Rating measure(s) must also include references to the overall Star Rating for MA-PDs and the summary rating for MA-only plans.
(2) May not use an individual underlying category, domain, or measure rating to imply overall higher Star Ratings.
(3) Must be clear that the rating is out of 5 stars.
(4) Must clearly identify the Star Ratings contract year.
(5) May only market the Star Ratings in the service area(s) for which the Star Rating is applicable, unless using Star Ratings to convey overall MA organization performance (for example, “Plan X has achieved 4.5 stars in Montgomery, Chester, and Delaware Counties), in which case the MA organization must do so in a way that is not confusing or misleading.
(6) The following requirements apply to all 5 Star MA contracts:
(i) May not market the 5-star special enrollment period, as defined in § 422.62(b)(15), after November 30 of each year if the contract has not received an overall 5 star for the next contract year.
(ii) May use CMS' 5-star icon or may create their own icon.
(7) The following requirements apply to all Low Performing MA contracts:
(i) The Low Performing Icon must be included on all materials about or referencing the specific contract's Star Ratings.
(ii) Must state the Low Performing Icon means that the MA organization's contract received a summary rating of 2.5 stars or below in Part C or Part D or both for the last 3 years.
(iii) May not attempt to refute or minimize Low Performing Status.
[86 FR 6105, Jan. 19, 2021]