Medicare Advantage and Part D plans in your practice: what CMS allows

Patients may ask their doctors about Medicare plans: which plans does the practice take, is a certain plan a good fit, should they switch during enrollment season. At the same time, plans and agents ask practices to display flyers, host events or hand out forms. CMS has a specific rule for both situations: 42 CFR 422.2266 for Medicare Advantage and 42 CFR 423.2266 for Part D prescription drug plans. It sets where plan marketing may appear in a health care setting, what a provider may do on its own, and what a plan may not ask a provider to do.

This guide is for practice owners, office managers and marketing staff. It covers plan marketing in your office and your announcements about plan contracts. It does not cover marketing your own services to people with Medicare, which has its own limits on gifts and offers; see our guide to marketing to Medicare patients. Keeping your insurance page and plan directory listings accurate is covered in our guide to the insurance accepted page and provider directories. Marketplace and Medicaid enrollment help follows different rules, covered in our guide to helping patients with marketplace and Medicaid enrollment.

Who these rules bind

The rules in 42 CFR part 422, subpart V and part 423, subpart V are written for Medicare Advantage organizations and Part D sponsors. The CMS Medicare Marketing Guidelines page says the guidelines “reflect CMS’ interpretation of the marketing requirements” in parts 422 and 423 and are for use by Medicare Advantage plans, Medicare Advantage prescription drug plans, prescription drug plans and cost plans. The most recent guidelines document posted on that page is dated March 16, 2022, so check the regulation text itself for anything newer.

Practices still feel these rules, for two reasons. First, when a plan asks a provider to do something, the provider is acting on the plan’s behalf, and the regulation tells the plan what it must make sure the provider does not do (42 CFR 422.2266(d)). Second, the same section draws the line between a provider’s own conversations with patients, which fall outside the definition of marketing, and plan marketing, which does not. Knowing where that line sits keeps both your staff and your contracts out of trouble.

Marketing has a specific meaning here. Under 42 CFR 422.2260, it means communications intended to draw a beneficiary’s attention to a plan, influence the choice of plan, or influence a decision to stay enrolled, that also address content such as the plan’s benefits, premiums or cost sharing, Star Ratings or plan comparisons, or rewards and incentives. CMS judges intent from objective information such as the audience, timing and context, “not limited to” the organization’s stated intent.

Where plan marketing can and cannot appear in your office

The regulation splits a health care setting into two kinds of space. Marketing activities and materials are not permitted “in areas where care is being administered,” including exam rooms, hospital patient rooms, treatment areas where patients interact with a provider and clinical team, and pharmacy counter areas (42 CFR 422.2266(a) and 423.2266(a)). The list is introduced with the words “including but not limited to,” so other clinical spaces can count too.

Marketing activities and materials are permitted in common areas, including common entryways, vestibules, waiting rooms, hospital or nursing home cafeterias, and community, recreational or conference rooms (42 CFR 422.2266(b) and 423.2266(b)).

In practice, that means a plan’s brochure rack belongs in the waiting room, not on the exam room counter. If your practice includes a pharmacy, plan marketing stays away from the counter where patients pick up prescriptions; our guide to independent pharmacy marketing covers the rest of the pharmacy side.

What you can do on your own

A provider-initiated activity is one the provider conducts at the patient’s request, or as a matter of a course of treatment, while meeting with the patient as part of the professional relationship. It does not include activities done at a plan’s request or under the network participation agreement. Activities that meet this definition fall outside the definition of marketing (42 CFR 422.2266(c) and 423.2266(c)). The regulation lists these permitted activities:

• Distributing unaltered, printed materials created by CMS, such as reports from Medicare Plan Finder or the Medicare & You handbook, including in areas where care is delivered.
• Giving the names of the plans you contract or participate with.
• Answering questions or discussing the merits of a plan or plans, including cost sharing and benefit information, including in areas where care is delivered.
• Referring patients to other sources of information, such as State Health Insurance Assistance Program (SHIP) representatives, plan marketing representatives, the State Medicaid Office, local Social Security offices, medicare.gov or the Medicare helpline.
• Referring patients to plan marketing materials available in common areas.
• Providing information and assistance in applying for the low income subsidy (LIS).
• Announcing new or continuing affiliations with plans once a contractual agreement is signed, through any means of distribution.

So a physician may answer a patient’s question about whether a plan covers a specialist they see, in the exam room, as part of care. The same physician may not turn that visit into a sales stop for a plan because a plan asked them to.

Two words in that list matter. CMS materials must be “unaltered,” so do not add your logo, a plan’s logo or your own notes to a Medicare Plan Finder printout or the handbook. And the referral list points patients to neutral sources such as SHIP counselors and the Medicare helpline, which is a useful default for front desk staff who get plan questions they cannot answer.

When a plan asks you to help

A plan-initiated provider activity is one a provider conducts at the request of a Medicare Advantage organization or Part D sponsor. During it, the provider is acting on the plan’s behalf, and the plan is responsible for compliance (42 CFR 422.2266(d) and 423.2266(d)). The plan must ensure the provider does not:

• Accept or collect Scope of Appointment forms.
• Accept Medicare enrollment applications.
• Make phone calls or direct, urge or attempt to persuade patients to enroll in a specific plan based on financial or any other interests of the provider.
• Mail marketing materials on behalf of the plan.
• Offer inducements to persuade patients to enroll in a particular plan.
• Conduct health screenings as a marketing activity.
• Distribute marketing materials or enrollment forms in areas where care is being delivered.
• Offer anything of value to induce enrollees to select the provider.
• Accept compensation from the plan for any marketing or enrollment activities performed on its behalf.

During a plan-initiated activity the provider may make available, distribute and display communications materials, including in areas where care is delivered, and may provide or make available marketing materials and enrollment forms in common areas (42 CFR 422.2266(d)(2) and 423.2266(d)(2)). The difference between communications and marketing is the definition above: general information is communications, while material that pushes a plan’s benefits or premiums to win enrollment is marketing.

For your marketing calendar, the practical result is simple. Do not send a mailer, text or email campaign telling patients to join a plan because a plan asked you to, and do not run a patient call list for a plan. If a plan offers payment tied to enrollment, stop and call counsel: 42 CFR 422.2266(d)(1)(ix) covers compensation for marketing or enrollment work, and the federal anti-kickback statute, 42 U.S.C. 1320a-7b(b), makes it a crime to knowingly and willfully solicit or receive any remuneration in return for referring an individual to a person for the furnishing, or arranging for the furnishing, of any item or service payable in whole or in part under a federal health care program.

When plan staff or agents come to your office

Plan staff, agents and other downstream entities working for a plan may, during their own activities in the health care setting, accept and collect Scope of Appointment forms, accept enrollment forms, and make available, distribute and display communications materials, including in areas where care is delivered. Their marketing must still stay out of care areas and within common areas (42 CFR 422.2266(e) and 423.2266(e)).

A separate rule limits how they approach people. Under 42 CFR 422.2264(a)(2)(ii), a Medicare Advantage organization may not, if unsolicited, approach enrollees in common areas such as parking lots, hallways and lobbies. A table in your waiting room is one thing; an agent walking up to patients as they wait is another, and you can decline to allow it.

If you host a plan event in a conference or community room, 42 CFR 422.2264(c) sets the rules the plan must follow. An educational event must be advertised as such and may not market specific plans or benefits. At a marketing or sales event, the plan may not require sign-in sheets or contact information as a condition of attending, and may not run health screenings, health surveys or other activities that could be viewed as targeting a subset of members. Our guide to health fair and screening event marketing covers events your practice runs on its own.

Announcing plan contracts on your website and social media

Announcing a new or continuing affiliation with a plan, once the contract is signed, is a permitted provider-initiated activity, and the regulation says the announcement may be made through any means of distribution (42 CFR 422.2266(c)(7) and 423.2266(c)(7)). That covers a website notice, an email to patients, a social post or a sign at the front desk.

Keep the announcement factual: the plan name, the date the contract starts, which locations and clinicians are included, and where patients can learn more, such as the plan itself, the Medicare helpline or a SHIP counselor. Do not announce before the contract is signed, and do not add a recommendation to switch. When a contract ends, update the same places; our guide to practice change announcements covers the timing and channels. Use the word Medicare plainly and avoid anything that looks like a government notice, as our Medicare patients guide explains.

Illustration: a plan’s enrollment season request

Illustration. A Medicare Advantage plan the practice contracts with asks the office manager to put enrollment kits in each exam room, mail a flyer to patients over 64, let an agent greet patients in the lobby, and have the physicians mention the plan at every visit. The plan offers a payment for the help. Here is how the practice could respond:

1. Exam rooms. No enrollment kits or marketing materials where care is delivered. A rack in the waiting room is permitted.
2. Mailer. Declined. Mailing marketing materials on the plan’s behalf is on the list of things the plan must make sure the provider does not do.
3. Lobby agent. The practice can allow a staffed table in a common area if it chooses, but not unsolicited approaches to patients.
4. Physicians. They keep answering patient questions about plans as part of care, and do not urge patients toward any plan at the plan’s request.
5. Payment. Referred to counsel before any reply.
6. Announcement. The practice posts a factual notice that it continues to participate in the plan, with links to neutral sources.

Checklist

• No plan marketing materials or enrollment forms in exam rooms, treatment areas or at the pharmacy counter.
• Plan brochures, if any, kept to the waiting room or other common areas.
• CMS materials handed out unaltered.
• Front desk script that names your contracted plans and points other questions to the plan, SHIP or the Medicare helpline.
• No mailers, calls or texts urging enrollment in a specific plan at a plan’s request.
• No Scope of Appointment forms or enrollment applications accepted by practice staff.
• No payment from a plan or agent for marketing or enrollment help without counsel’s review.
• Contract announcements only after signing, factual, and updated when the contract ends.
• Rules for plan staff and agents on site written down: where they may set up, and no approaching patients uninvited.

How we help

We build websites, local search, Google Ads and AI front desk tools for independent practices, with plan and insurance information checked against the rules above before anything goes live. See our medical website design work. Our AI front desk is built with HIPAA in mind and can answer which plans you take from a list you approve, then point other plan questions to the plan or the Medicare helpline. We confirm in writing what a BAA covers before any patient information flows through a tool, and if it is not covered, we do not route patient information through it. We do not sell lead lists and do not give legal advice; your counsel decides how these rules apply to you. See the full list in our healthcare marketing rules guide.

Sources

• 42 CFR 422.2266: Activities with healthcare providers or in the healthcare setting (Medicare Advantage)
• 42 CFR 423.2266: Activities with healthcare providers or in the healthcare setting (Part D)
• 42 CFR 422.2260: Definitions (marketing, communications)
• 42 CFR 422.2264: Beneficiary contact
• CMS: Medicare Marketing Guidelines (page last modified September 10, 2024)
• CMS: Medicare Communications and Marketing Guidelines (March 16, 2022)
• 42 U.S.C. 1320a-7b: Criminal penalties for acts involving federal health care programs (anti-kickback statute, subsection (b))

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