Top of Mind Tuesday: New Third-Party Marketing Requirements for Medicare Advantage

Published On: July, 2022

CMS published new marketing and communications requirements, which went into effect June 28, 2022, impacting Medicare Advantage (MA) organizations. The new requirements are intended to address beneficiary complaints associated with third-party marketing organizations (TPMOs), as well as feedback from beneficiary advocates and stakeholders concerned about the marketing practices of TPMOs that sell multiple MA and Part D products. The regulations include a new definition of TPMO, which clarifies that TPMOs include independent agents, first tier, downstream, or related entities (FDRs), or any other entity that is compensated to provide lead generation, sales, marketing, or enrollment services as part of the chain of beneficiary enrollment in an MA plan. 42 C.F.R. § 422.2260. This definition covers vendors that would not fall within the general FDR definition.

Among the new requirements for TPMOs is a disclaimer that TPMOs must incorporate into communications with consumers when marketing MA or Part D products: ‘‘We do not offer every plan available in your area. Any information we provide is limited to those plans we do offer in your area. Please contact or 1–800–MEDICARE to get information on all of your options.” 42 C.F.R. § 422.2267(e)(41). It is the responsibility of the MA organization to ensure that TPMOs use this disclaimer in accordance with the regulation.

In addition, CMS finalized a series of oversight requirements for MA organization working with TPMOs. Notably, an MA organization must ensure that the TPMO adheres to any requirements that apply to the MA plan, even if the TPMO does not qualify as a first tier entity. 42 C.F.R. § 422.2267(g)(1). The new rule also includes specific requirements for contracts between MA organizations and TPMOs. 42 C.F.R. § 422.2267(g).

To ensure compliance with these new regulations, MA organizations should:

  • work with their internal sales and marketing areas and FDRs, including field marketing organizations (FMOs) and sales agencies, to identify all TPMOs involved in the marketing or sale of their Medicare products;
  • educate FDRs on the new contract requirements;
  • amend agreements with FMOs, agents, brokers or other party that qualifies as a TPMO under the new definition, to add the newly required provisions;
  • support first-tier entities in contracting with downstream TPMOs to incorporate required provisions;
  • evaluate current oversight processes to determine what needs to be added to meet new requirements; and implement oversight protocols that meet the requirements in the regulations.
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