Important new requirements and clarifications from CMS for Aetna third-party marketing organizations (TPMOs)

Notice: Do not rely only on Aetna's key points and summaries to educate your organization on the new requirements. Please review the regulation and guidance to gain a full understanding of each requirement and the changes that your organization may need to make.  

When reviewing these communications keep in mind that the term "MA organization" generally also applies to third-party marketing organizations (TPMOs), including agents and brokers.  

1. CY2024 Final Rule - Marketing, communications and sales

Aetna's summary of key points in CY2024 Final Rule

Marketing materials (changes effective 9/30/23)

• Authorized TPMOs must submit multi-plan materials to HPMS after pre-review by MA organizations.
   
• Superlatives may not be used in communications unless new requirements regarding supporting documentation are met. Examples include, but are not limited to, words like “best” or “most”. 
   
• Do not use the Medicare name and CMS logo in a misleading way. Use of the Medicare ID card image must be authorized for use by CMS.
   
• Do not advertise plan benefits outside the service area.
   
• The MA organization name or marketing name(s) as listed in HPMS must be identified in the marketing of any products, plans, benefits or costs.
   
• Marketing communications may not include information regarding potential savings that are based on a comparison of typical expenses borne by uninsured individuals, unpaid costs of dually eligible beneficiaries, or other unrealized costs of a Medicare beneficiary.

Sales and marketing activities

• Visiting a beneficiary without an appointment is always prohibited, even when the beneficiary has expressed an interest in MA products.
   
• MA organizations need to provide members with an annual opportunity for members to opt-out of plan calls. Aetna will provide future clarification on this matter to TPMOs.
   
• MA organizations holding education events may no longer set up future personal marketing appointments or have beneficiaries complete Scope of Appointment forms at these events.
   
• Marketing events are prohibited from taking place within 12 hours of an educational event in the same location. The same location is defined as the entire building or adjacent buildings.
   
• MA organizations must wait 48 hours between the completion of the Scope of Appointment and the start of the personal marketing appointment. (See the next section for Aetna’s notes on this topic.)
   
• A Scope of Appointment, business reply card, or request to receive additional information is valid for 12 months following the date of beneficiary’s signature date or the date of the beneficiary’s initial request for information.
   
• The pre-enrollment checklist (PECL) must be provided prior to enrollment, including telephonic enrollments. "Effect of current coverage" has been added to the PECL.
   
• TPMOs must provide the number of plans and products it offers, as well as SHIP contact information in its disclaimer. TPMOs who offer all plans and products must also provide a version of this disclaimer.
   
• Beneficiary health plan needs must be reviewed prior to enrollment.
   
• TPMOs must record all marketing, sales, and enrollment calls, including the audio portion of calls via web-based technology, in their entirety. Other types of calls have been excluded.

Pertinent regulations from the Final Rule including Aetna's notes regarding relevance to TPMOs

Click here for CMS's actual regulatory verbiage along with Aetna's commentary. Please review this section in its entirety. You'll find answers to some common industry questions.

CMS's Final Rule as it appears in the Federal Register

You can review CMS's CY2024 Final Rule, which includes the marketing, communication and sales changes summarized above and CMS's own commentary. On May 31, 2023, CMS issued some revisions to the Final Rule to correct typographical and technical errors in the regulations; CMS indicated that they didn’t make substantive changes.

2. The 2023 clarification of the definition of "marketing"

This change is effective July 10, 2023. CMS has significantly broadened the content portion of the definition of “marketing” to include materials that mention any type of plan benefits. This requirement applies to all new materials, as well as existing materials that were previously reviewed, which will be in use on or after July 10, 2023. 

In its May 10, 2023 memorandum, CMS stated that “any material or activity that is distributed via any means (e.g., mailing, television, social media, etc.) that mentions any benefit will be considered marketing and must be submitted into HPMS.”

Therefore, TPMOs, including agents and brokers, must:

• Determine if their communications meet the new definition of marketing and then submit materials for marketing review as appropriate.
   
• Ensure that all multi-plan materials that include "intent" and mention any benefit are provided to Aetna for pre-review and then submitted to HPMS. 

Organizations must submit their materials timely so that they are approved prior to July 10. Please direct any questions regarding the multi-plan marketing material submission and review process to AgentOversight@aetna.com or your Aetna Medicare Broker Manager or Sales Director.

3. Modifications to the marketing module in HPMS

Aetna released a summary of these changes on May 9, 2023, which we are providing again here. Given the changes to this module, make sure you are appropriately planning for pre-review and HPMS submission timelines. For example, you will need to be ready to submit online videos for a 45-day review.

Questions? We're here to help 

We expect that CMS will provide guidance regarding specific regulations in the coming months and we'll provide additional details and clarifications at that time.

If you have any questions, please contact your local Aetna Medicare Broker Manager for assistance.

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Prior to engaging in the sale of Aetna Medicare products, producers must be ready to sell, which means certified, contracted, licensed in the applicable states, and appointed by Aetna in accordance with state law. As permitted in certain states, Aetna will order appointments after the first sale. This communication is intended for use by brokers only and is not intended for distribution to Medicare beneficiaries. Any publication or distribution of this communication to unauthorized recipients without Aetna’s approval is prohibited.

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