42 CFR § 423.2262 - General communications materials and activity requirements.

§ 423.2262 General communications materials and activity requirements.

Part D sponsors may not mislead, confuse, or provide materially inaccurate information to current or potential enrollees.

(a) General rules. Part D sponsors must ensure their statements and the terminology used in communications activities and materials adhere to the following requirements:

(1) Part D sponsors may not do any of the following:

(i) Provide information that is inaccurate or misleading.

(ii) Make unsubstantiated statements except when used in logos or taglines.

(iii) Engage in activities that could mislead or confuse Medicare beneficiaries, or misrepresent the Part D sponsor.

(iv) Engage in any discriminatory activity such as attempting to recruit Medicare beneficiaries from higher income areas without making comparable efforts to enroll Medicare beneficiaries from lower income areas, or vice versa.

(v) Target potential enrollees based on higher or lower income levels.

(vi) Target potential enrollees based on health status.

(vii) State or imply plans are only available to seniors rather than to all Medicare beneficiaries.

(viii) Employ Part D plan names that suggest that a plan is not available to all Medicare beneficiaries.

(ix) Display the names or logos or both of co-branded network pharmacies on the sponsor's member identification card, unless the pharmacy names or logos or both are related to the member selection of specific pharmacies.

(x) Use a plan name that does not include the plan type. The plan type should be included at the end of the plan name, for example, “Super Medicare Drug Plan (PDP)”. Part D sponsors are not required to repeat the plan type when the plan name is used multiple times in the same material.

(xi) Claim they are recommended or endorsed by CMS, Medicare, the Secretary, or HHS.

(xii) Convey that a failure to pay premium will not result in disenrollment except for factually accurate descriptions of the PDP sponsor's policies adopted in accordance with § 423.44(b)(1) and (d)(1) of this chapter.

(xiii) Use the term “free” to describe a $0 premium, any type of reduction in premium, reduction in deductibles or cost sharing, low-income subsidy, or cost sharing pertaining to dual eligible individuals.

(xiv) State or imply a plan is available only to or is designed for Medicaid beneficiaries.

(xv) Market a Part D plan not designed to serve dual eligible beneficiaries as if it were a plan designed to serve dual eligible beneficiaries.

(xvi) Target marketing efforts primarily to dual eligible individuals.

(xvii) Claim a relationship with the state Medicaid agency, unless a contract to coordinate Medicaid services for enrollees in that plan is in place.

(2) Part D sponsors may do the following:

(i) State that the Part D sponsor is approved to participate in Medicare programs or is contracted to administer Medicare benefits or both.

(ii) Use the term “Medicare-approved” to describe benefits or services in materials or both.

(b) Product endorsements and testimonials.

(1) Product endorsements and testimonials may take any of the following forms:

(i) Television or video ads.

(ii) Radio ads.

(iii) Print ads.

(iv) Social media ads. In cases of social media, the use of a previous post, whether or not associated with or originated by the Part D sponsor, is considered a product endorsement or testimonial.

(v) Other types of ads.

(2) Part D sponsors may use individuals to endorse the Part D sponsor's product provided the endorsement or testimonial adheres to the following requirements:

(i) The speaker must identify the Part D sponsor's product or company by name.

(ii) Medicare beneficiaries endorsing or promoting the Part D sponsor must have been an enrollee at the time the endorsement or testimonial was created.

(iii) The endorsement or testimonial must clearly state that the individual was paid for the endorsement or testimonial, if applicable.

(iv) If an individual is used (for example, an actor) to portray a real or fictitious situation, the advertisement must state that it is an actor portrayal.

(c) Requirements when including certain telephone numbers in materials.

(1) Part D sponsors must adhere to the following requirements for including certain telephone numbers in materials:

(i) When a Part D sponsor includes its customer service number, the hours of operation must be prominently included at least once.

(ii) When a Part D sponsor includes its customer service number, it must provide a toll-free TTY number in conjunction with the customer service number in the same font size.

(iii) On every material where 1-800-MEDICARE or Medicare TTY appears, the Part D sponsor must prominently include, at least once, the hours and days of operation for 1-800-MEDICARE (that is, 24 hours a day/7 days a week).

(2) The following advertisement types are exempt from these requirements:

(i) Outdoor advertising.

(ii) Banners or banner-like ads.

(iii) Radio advertisements and sponsorships.

(d) Standardized material identification (SMID).

(1) Part D sponsors must use a standardized method of identification for oversight and tracking of materials received by beneficiaries.

(2) The SMID consists of the following three parts:

(i) The Part D sponsor's contract or Multi-Contract Entity (MCE) number, (that is, “S” for PDPs, or “Y” for MCE, a means of identification available for Plans/Part D sponsors that have multiple PDP contracts) followed by an underscore, except that the SMID for multi-plan marketing materials must begin with the word “MULTI-PLAN” instead of the Part D sponsor's contract number (for example, S1234_abc123_C or MULTI-PLAN_efg456_M).

(ii) A series of alpha numeric characters (at the Part D sponsor's discretion) unique to the material followed by an underscore.

(iii) An uppercase “C” for communication materials or an uppercase “M” for marketing materials (for example, S1234_abc123_C or S5678_efg456_M).

(3) The SMID is required on all materials except the following:

(i) Membership ID card.

(ii) Envelopes, radio ads, outdoor advertisements, banners, banner-like ads, and social media comments and posts.

(iii) OMB-approved forms/documents, except those materials specified in § 423.2267.

(iv) Corporate notices or forms (that is, not Part D-specific) meeting the definition of communications such as privacy notices and authorization to disclose protected health information (PHI).

(v) Agent-developed communications materials that are not marketing.

(4) Non-English and alternate format materials, based on previously created materials, may have the same SMID as the material on which they are based.

[86 FR 6122, Jan. 19, 2021]