How Health Insurers and Brokers Are Marketing Medicare


Additional Data and Figures

Time Slots, Concurrent TV Programs, and Broadcast Networks of Medicare Ad Airings: Medicare advertisements appeared at all times of day, and throughout the week, but airings were most frequent on weekday afternoons (24%), weekday mornings (19%), and in the hours leading up to prime time (16%). Airings were most often shown during local news broadcasts (data not shown), while court shows, game shows, and talk shows were among the top single programs during which Medicare ads were aired (Appendix Table 1). The largest number of airings appeared on the four major broadcast networks: the Fox Broadcasting Company (16%), the American Broadcasting Company (ABC) (16%), Columbia Broadcasting System (CBS) (15%), and the National Broadcasting Company (NBC) (14%). Local advertising was more concentrated in some areas than others, with the top 20 local media markets comprising 27% of all local airings (Appendix Figure 1).

Common Messages Featured in Medicare Ad Airings by Sponsor Type and Insurance Firm:

CMS Regulations

Rules Effective June 2022: Current rules from CMS, which came into effect in June 2022 and applied to all Medicare Advantage and Part D ads discussed in this analysis, include several changes aimed at tightening oversight of third-party marketing activities. The rules introduce a broad definition of third-party marketing organizations, encompassing all organizations and individuals paid to perform lead generation, marketing, sales, or enrollment functions on behalf of a private Medicare plan, either directly or indirectly through another third party.

Health insurance companies that offer Medicare plans are now responsible for ensuring that third-party marketing organizations adhere to any CMS requirements that apply to plans themselves (previously only required for direct contractors). In the context of TV advertising, some examples include existing rules that forbid ads from using the term “free” to describe a $0 premium, implying that a plan is recommended or endorsed by CMS or another government office, or implying that a plan is only available to seniors rather than all eligible Medicare beneficiaries. Health insurers are also required to add certain monitoring and oversight provisions to any direct contract with a third-party marketing organization, and keep track of any downstream relationships that organization is using to represent their plans.

Finally, third-party marketing organizations are now required to include a standardized disclaimer in all communications and marketing materials informing beneficiaries that they do not represent every plan available in their service area and encouraging them to contact or 1-800-MEDICARE for a complete list of their options.

Rules Effective June 2023: Additional rules from CMS, which came into effect in June 2023 and will apply to the upcoming open enrollment period that begins in October, introduce several more provisions aimed at curtailing misleading marketing practices. While some of these provisions go beyond the scope of TV advertising, several will have a direct impact on TV ads in the fall and in future periods.

Ads are now prohibited from mentioning any benefits or plan features that are not available in the service area where the ad appears. Ads that air in media markets that cross multiple service areas are required to list which benefits apply to each service area (Medicare Advantage and Part D service areas are defined at the county level). The Washington, DC market, for example, includes not only DC itself but also surrounding counties in Maryland and Virginia, representing several distinct service areas for which an insurer may offer plans with different premiums, cost-sharing, and benefits.

Ads are also prohibited from using the Medicare name, logo, or card in ways that could be misleading to beneficiaries. Any use requires prior approval from CMS, and CMS has stated that it will only grant this approval in cases where it is serving an educational (as opposed to marketing) purpose. CMS defines marketing as any material or activity that meets certain standards for both intent (to influence enrollment decisions or draw attention to plans) and content (any mention of specific plan features such as benefits, costs, or quality rankings), standards which would likely apply to any ad targeting open enrollment.

Third-party marketing organizations, such as agents and brokers, are prohibited from advertising specific plans or plan features without identifying the Medicare Advantage organizations or Part D sponsors that offer them. CMS requires these names to be displayed in the same font size, or read at the same pace, as any benefits included in the ad. Third parties are prohibited from airing ads without the plan sponsors promoted in the ads agreeing to their content, and sponsors may be subject to penalties for endorsing ads that do not comply with CMS regulations.

Additional regulations include prohibiting the mention of unrealized “savings” calculated relative to the expenses borne by uninsured individuals, the unpaid costs of beneficiaries dually eligible for Medicare and Medicaid, or other unrealized costs of a Medicare beneficiary; prohibiting the use of superlatives such as “best” and “most” in marketing materials, taglines, or logos; and revising the disclaimer required for all third-party ads (described in the section above) to include State Health Insurance Assistance Programs (SHIPs) alongside and 1-800-MEDICARE as a resource that beneficiaries can turn to for more information about their coverage options.

File & Use: Health insurers and third parties must submit all marketing materials to CMS for review before they can be aired, or in the case of some third parties, have them submitted by the insurer they represent. Until recently, CMS permitted TV ads to be submitted through its File & Use framework. Materials designated as File & Use may be aired five days after submission to CMS, though CMS reserves the right to review these materials for compliance both during and after this five-day window. Marketing materials that do not qualify for File & Use must be submitted forty-five days before they are aired, prospectively approved or disapproved during this timeframe, or “deemed approved” if no decision is reached within forty-five days. Beginning January 1st, 2023, in light of ongoing concerns, CMS no longer allows TV ads to be submitted as File & Use. Ads slated to air on October 1st, 2023 must be submitted to CMS by mid-August, allowing a longer window for prospective review.

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