CMS warns Medicare Advantage, prescription drug plans about deceptive TV ads

The Centers for Medicare and Medicaid Services (CMS) is cracking down on misleading and confusing advertisements for Medicare Advantage (MA) and Medicare Part D prescription drug plans.

Beginning January 1, 2023, MA organizations and Part D drug plans will not be allowed to air TV advertisements before CMS has approved them, according to Kathryn Coleman, director of the Medicare Drug & Health Plan Contract Administration Group.

In an October 19 memo to MA organizations and prescription drug plan sponsors, Coleman said the agency is “particularly concerned with national television advertisements promoting MA plan benefits and cost savings” which may not be available everywhere or to all plan enrollees, or overstate available benefits, and “use words and imagery that may confuse beneficiaries or cause them to believe the advertisement is coming directly from the government.

“CMS is concerned about the marketing practices of all entities, including Third Party Marketing Organizations,” Coleman added. “We have reviewed thousands of complaints and hundreds of audio calls and have identified numerous issues with information provided to beneficiaries that is confusing, misleading or inaccurate.” As a result, beginning January 1, 2023 CMS will not permit MA organizations or Part D drug plans to air TV ads before the agency has reviewed them.

CMS’s statutory authority allows it to designate certain types of marketing materials, including TV advertisements for these plans, for acceptance under its “File and Use” framework. Materials submitted under File and Use may be aired five days after they are accepted, provided they comply with “all applicable standards.” CMS can review the materials for standards compliance before or after the date the materials are accepted.

Starting January 1, however, no TV advertisements will qualify for submission under File and Use, Coleman wrote. Moreover, CMS will review all previously submitted ads to confirm that they comply with all CMS requirements. Those not in compliance must be discontinued or the sponsor could face penalties.

Coleman said CMS is taking additional steps to ensure compliance during Medicare’s 2023 annual enrollment period (AEP) and contract year, including:

• Reviewing all marketing complaints received during the AEP, and targeting its oversight and review on MA organizations and Part D sponsors with higher or increasing rates of complaints during the AEP,
• reviewing recordings of agent and broker calls with potential enrollees, and
• secretly shopping marketing events by reviewing television, print, and internet marketing and calling related phone numbers and/or requesting information via online tools.