ACO marketing rules: what Shared Savings Program practices can send, post and say

When an independent practice joins an accountable care organization in the Medicare Shared Savings Program, two sets of CMS rules start to apply to what it tells patients. One set, in 42 CFR 425.312, requires specific notices: a poster in every facility, a standardized written notice for patients, and a follow-up. The other, in 42 CFR 425.310, sets content rules for anything that counts as ACO marketing. The two are easy to mix up. A practice can send a letter announcing that it joined an ACO and believe it has notified patients, when in fact it has sent a marketing piece and still owes the required notice. This guide is for the practice owners, office managers and marketing staff of ACO participants, and for the ACOs that coordinate them.

Several related topics have their own guides and are not repeated here. Gifts, free offers and the use of the word Medicare under the beneficiary inducement law are covered in marketing to Medicare patients. What a practice may display or say about Medicare Advantage and Part D plans is covered in Medicare Advantage and Part D plans in your practice. When the HIPAA Privacy Rule treats a communication as marketing is covered in HIPAA marketing rules.

Two rules, two jobs

Section 425.312 is about notice. It requires an ACO to make sure Medicare fee-for-service beneficiaries are told three things: that each ACO participant and its providers and suppliers are participating in the Shared Savings Program, that the beneficiary has the opportunity to decline claims data sharing, and how the beneficiary can identify or change the clinician they designated for voluntary alignment. The rule then says how that information must reach patients: through signs, through a standardized written notice, and through a follow-up.

Section 425.310 is about content. It applies to “marketing materials and activities”, a term defined in 42 CFR 425.20, and it says those materials must use CMS template language if it is available, must not be used in a discriminatory manner or for discriminatory purposes, must comply with the beneficiary incentive rules in 425.304, and must not be materially inaccurate or misleading.

The two connect in one place. Section 425.312(c) says the beneficiary notifications themselves meet the definition of marketing materials and activities, so the required notices must also meet the 425.310 requirements. The reverse is not true. The CMS guidance gives the example of a letter in which a practice says it has joined an ACO to better coordinate care. CMS classes that letter as marketing subject to 425.310, and says it does not satisfy the notification requirement in 425.312, which must be met separately with the CMS template.

What counts as ACO marketing

The definition in 42 CFR 425.20 says marketing materials and activities include, but are not limited to, “general audience materials such as brochures, advertisements, outreach events, letters to beneficiaries, Web pages, data sharing opt out letters, mailings, social media, or other activities conducted by or on behalf of the ACO, or by ACO participants, or ACO providers/suppliers participating in the ACO, when used to educate, solicit, notify, or contact Medicare beneficiaries or providers and suppliers regarding the Shared Savings Program.”

The CMS guidance breaks that into two triggers. The communication is conducted by or on behalf of the ACO, its participants or its providers and suppliers, and it is used to educate, solicit, notify or contact Medicare beneficiaries or providers and suppliers about the Shared Savings Program. If both are present and no exclusion applies, the piece is ACO marketing. The guidance puts the point plainly: a communication does not become marketing “simply because it is sent to Medicare patients, mentions Medicare, or comes from a provider who participates in an ACO.” It also says “the content of the communication, not merely the presence of an ACO logo, is what determines if the communication is marketing or not marketing.”

The same definition lists communications that are not marketing materials and activities:

• certain informational materials customized or limited to a subset of beneficiaries;
• materials that do not include information about the ACO, its ACO participants or its ACO providers/suppliers;
• materials that cover beneficiary-specific billing and claims issues or other specific individual health related issues;
• educational information on specific medical conditions, with flu shot reminders given as the example;
• written referrals for health care items and services; and
• materials or activities that do not constitute marketing under the HIPAA Privacy Rule, 45 CFR 164.501 and 164.508(a)(3)(i).

Sorting your own materials

The CMS guidance includes worked examples. Read them as a sorting key for the pieces a practice already sends. In the guidance, these are not marketing:

• a flu shot reminder postcard sent to all patients on the practice’s normal letterhead;
• a mailing of diabetes management tips to the practice’s patients with diabetes;
• a standard flu shot flyer with the ACO’s logo or name added for branding;
• general health education materials sent with the ACO logo to assigned patients;
• a general wellness newsletter that carries the practice logo with no mention of the ACO; and
• a clinician telling an individual patient during a routine visit that the practice participates in an ACO.

These are marketing, in the guidance, and must meet 425.310:

• the letter announcing that the practice has joined a named ACO and describing the ACO’s services;
• a wellness newsletter that includes a section about the ACO’s care coordination benefits, which CMS calls a dual use newsletter; and
• outreach and community events with ACO branding, signage or staff that refer to ACO or Shared Savings Program participation.

The newsletter pair is the useful one for a marketing team. The same newsletter moves from not marketing to marketing when one section starts describing the ACO and its program. The guidance describes the change as the point where a communication “moves from delivering care or general patient engagement under § 425.112 to describing the ACO’s role in the Shared Savings Program to Medicare beneficiaries.”

For websites, the guidance says an ACO’s own web pages beyond its public reporting page must meet the 425.310 content requirements, and that CMS may review them on request. The public reporting page required under 425.308(c) is not subject to the 425.310 marketing requirements. A participant practice that adds a page about its ACO participation, care coordination or quality is writing ACO marketing and should treat it that way.

The content rules in 425.310

Once a piece is marketing, four requirements apply. It must use CMS template language if available. It must not be used in a discriminatory manner or for discriminatory purposes. It must comply with 425.304 on beneficiary incentives. It must not be materially inaccurate or misleading.

The guidance gives examples of what it treats as prohibited. Under the misleading standard: false or unsubstantiated claims about the ACO’s quality, outcomes or cost savings; misrepresenting the ACO’s relationship with CMS, such as implying CMS endorsement; overstating the benefits of ACO-aligned care without an accurate basis; and misrepresenting beneficiary rights under the program. Under the discrimination standard: targeting or excluding beneficiaries based on health status, race, ethnicity or other protected characteristics, and using marketing to selectively recruit healthy beneficiaries while discouraging high-cost patients.

For a practice writing copy, that turns into a short set of edits. Instead of “our ACO saves Medicare patients money”, describe what the practice does, such as follow-up calls after a hospital stay, and only if it does them. Instead of “Medicare’s preferred doctors” or a line that suggests CMS chose or endorses the practice, say that the practice participates in the Medicare Shared Savings Program. Any quality figure needs a documented basis, and the public reporting page is where an ACO’s reported figures live. Ad targeting and mailing lists should not be built around health status or other protected characteristics.

If the practice also invites its own patients into chronic care management, the consent items, cost-sharing wording and limits on copay waivers for that service are covered in our chronic care management outreach guide.

The beneficiary incentive rules sit inside the marketing rules through 425.310(a)(3). Section 425.304 prohibits ACOs, participants and their providers and suppliers from giving gifts or other remuneration to beneficiaries as inducements to receive services from, or remain in, the ACO, except as the section or other law allows. It permits in-kind items or services that have a reasonable connection to the beneficiary’s medical care, are preventive or advance a clinical goal, and are not Medicare-covered for that beneficiary on that date. Monetary incentive payments are allowed only through a CMS-approved beneficiary incentive program for ACOs in the tracks listed in the rule. The guidance adds that ACOs must not offer cash, gift cards, free services or other remuneration in exchange for voluntary alignment, imply financial savings for choosing ACO-affiliated providers, or distribute promotional items intended to influence alignment.

The required notices: poster, written notice and follow-up

Section 425.312(a)(2) sets the methods. An ACO participant must post signs in all of its facilities and make standardized written notices available on request in all settings where beneficiaries receive primary care services. The standardized written notice, which the CMS guidance calls the Beneficiary Information Notification, must also be given to specific beneficiaries at least once during an agreement period, and the timing depends on the ACO’s assignment method:

• Preliminary prospective assignment with retrospective reconciliation: before or at the first primary care service visit during the first performance year in which the beneficiary receives a primary care service from an ACO participant.
• Prospective assignment: during the performance year for which the beneficiary is prospectively assigned to the ACO.

After the written notice, the ACO or participant must give the beneficiary a verbal or written follow-up no later than 180 days from the date the notice was provided, and the ACO must keep a record of which beneficiaries received the follow-up and how. The guidance says the 180 days run from each beneficiary’s own notice date, and lists acceptable follow-up methods including a FAQ sheet, a mailing about care coordination, a text or patient portal message inviting questions, or a phone call.

The guidance is strict about the templates. CMS develops the notice and the poster; ACOs do not draft them. The notice may go on the ACO’s letterhead with its logo, but only the CMS-designated fillable fields may change. The poster may be enlarged but not reduced, and its text may not change. The notice should be handed over as a standalone document and not embedded in a newsletter or packet. Translations are allowed if every core element is accurately kept, and the ACO is responsible for their accuracy.

Delivery channels in the guidance include handing the notice over in person at a visit, sending it through a secure patient portal or by email with the beneficiary’s prior consent, mailing it, and keeping copies at the front desk. The guidance warns against using the notice as a recruitment tool, and against omitting or minimizing the beneficiary’s right to opt out of data sharing or to see any Medicare-accepting provider. Section 425.312(b) adds a separate notice for ACOs that run a CMS-approved beneficiary incentive program.

No pre-approval, so keep your own file

Under 425.310(b), CMS may request marketing materials and activities at any time. If CMS finds a piece does not comply, it issues a written notice of disapproval, and the ACO must stop using it and require its participants and others working on ACO activities to stop too. Section 425.310(c) says failure to comply subjects the ACO to the penalties in 425.216, termination under 425.218, or both; the guidance names a corrective action plan as one such step. The guidance says that since January 1, 2023, marketing materials no longer require submission to CMS before use, and that pre-use clearance is no longer available. ACOs can still ask CMS questions about specific materials through the help desk in the CMS ACO portal.

With no pre-approval step, the guidance tells ACOs to keep an internal system that separates patient engagement materials from marketing, with documented reasons for each call. For a participant practice, that means a short file: each patient-facing piece, the date it went out, whether it was classed as marketing and why, who reviewed it, and the ACO’s sign-off where the ACO requires one. Notice delivery and follow-up records belong in the same place, since CMS can ask for them. The guidance cites 42 CFR 425.314(b)(2) for keeping records for 10 years from the end of the agreement period or the completion of any audit, whichever is later.

Illustration: one newsletter, two versions

Illustration: a three-physician family practice joins an ACO and its office manager drafts the spring newsletter. It has a seasonal allergy article, new office hours, and a full page titled “Why our ACO means better care and lower costs for you”, with a line saying the practice was “selected by Medicare”. The office manager plans to mail it to every patient over 65 and treat it as the ACO notice.

Illustration: the practice revises the plan with its ACO’s compliance lead. The allergy article and office hours stay in the newsletter, which goes to all patients regardless of payer and no longer mentions the ACO, so it stays outside the marketing definition. The ACO page becomes a separate one-page letter that says the practice participates in the Medicare Shared Savings Program, describes the follow-up calls the practice actually makes after hospital stays, drops the cost and selection claims, and is filed as marketing with its review notes. The CMS notice is handed to qualifying patients at their visits as a standalone document, the poster goes up unaltered in each exam hallway and the waiting room, and the front desk logs each notice date so the 180-day follow-up calls can be tracked.

Checklist

• We use the current CMS notice and poster templates from the ACO portal, with changes only in the fillable fields.
• The poster is up in every facility at full size or larger, with its text unchanged.
• Written notices are available on request wherever primary care is given.
• Qualifying patients receive the notice as a standalone document at the time our assignment method requires.
• Each patient’s notice date is logged, and the follow-up happens within 180 days of that date.
• Each patient-facing piece is classed as marketing or not, with the reason written down.
• Pieces that describe the ACO or the Shared Savings Program are reviewed for misleading claims, implied CMS endorsement and discriminatory targeting.
• Quality, outcome and savings claims are removed unless they have a documented basis.
• No gifts, gift cards or free services are offered for staying with the ACO or for choosing a clinician, and any in-kind item meets 425.304.
• Notice, follow-up and marketing records are kept where the ACO can produce them for CMS.

How we help

We build websites, local search, Google Ads and AI front desk tools for independent practices and health businesses. For a practice in an ACO, we can keep website pages and local listings about services and care coordination separate from pages that describe the ACO, write ACO pages to the 425.310 content rules for your compliance lead to review, and keep a dated record of what was published and when. Our tools are built with HIPAA in mind. 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 we do not pay for referrals. For the wider rules, see our healthcare marketing rules hub.

Sources

• 42 CFR 425.310: Marketing requirements
• 42 CFR 425.312: Beneficiary notifications
• 42 CFR 425.20: Definitions, including marketing materials and activities
• 42 CFR 425.304: Beneficiary incentives
• CMS Medicare Shared Savings Program Beneficiary Notification and Education Guidance, Version 4 (September 2026)
• CMS Shared Savings Program: Guidance and regulations

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