5160-26-08 Managed health care programs: marketing.

(A) Marketing means any communication from an MCP to an eligible individual who is not a member of that MCP that can reasonably be interpreted as intended to influence the individual to select membership in that MCP, or to not select membership in or to terminate membership from another MCP.

(B) MCPs:

(1) Must assure that representatives, as well as materials and plans, represent the MCP in an honest and forthright manner, and do not make statements which are inaccurate, misleading, confusing or otherwise misrepresentative, or which defraud the eligible individuals or ODJFS.

(2) Must assure that no marketing activity directed specifically toward the medicaid population begins prior to approval by ODJFS.

(3) Are prohibited from engaging directly or indirectly in cold-call marketing activities including, but not limited to, door-to-door or telephone contact. Cold-call marketing means any unsolicited personal contact by the MCP with an eligible individual for the purpose of marketing as defined in paragraph (A) of this rule.

(4) Must receive prior approval from any event or location where the MCP plans to provide information to eligible individuals.

(5) Are prohibited from offering material or financial gain, including but not limited to, the offering of any other insurance, to an eligible individual as an inducement to select MCP membership.

(6) Are prohibited from offering inducements to CDJFS or MCEC staff or to others who may influence an individual's decision to select MCP membership.

(7) Are allowed to offer nominal gifts prior-approved by ODJFS to an eligible individual as long as these gifts are offered whether or not the individual selects membership in the MCP.

(8) May reference member incentive/appreciation items, as specified in paragraph (B) of rule 5101:3-26-08.2 of the Administrative Code, in marketing presentations and materials; however, such member items must not be made available to non-members.

(C) MCPs must comply with the following requirement:

(1) Only ODJFS-approved MCP marketing representatives may make a marketing presentation as outlined in paragraph (F)(5)(e) of this rule to an eligible individual or in any way advise or recommend to an eligible individual that he/she select MCP membership in a particular MCP. As provided in Chapter 1751. and section 3905.01 of the Revised Code, and rule 3901-1-10 of the Administrative Code, all non-licensed agents, including providers, are prohibited from advising or recommending to an eligible individual that he/she select MCP membership in a particular MCP as this would constitute the unlicensed practice of marketing.

(2) Must assure that marketing representatives represent the MCP in an honest and forthright manner, and do not make statements which are inaccurate, misleading, confusing, or otherwise misrepresentative, or which defraud the eligible individuals or ODJFS.

(3) MCPs are prohibited from making one-on-one marketing presentations in any setting unless requested by the eligible individual.

(4) MCP informational displays do not require the presence of a marketing representative if no marketing presentation will be made.

(D) Marketing materials are materials produced in any medium by or on behalf of an MCP and which can reasonably be interpreted as intended to market to eligible individuals. All new and revised materials, including materials used for marketing presentations, must be prior approved by ODJFS. MCPs must include with each marketing submission an attestation that the material is accurate and does not mislead, confuse or defraud the eligible individuals or ODJFS.

(1) All MCP marketing materials must be available in a manner and format that may be easily understood.

(2) Written materials developed to promote membership selection in an MCP must be available in:

(a) The prevalent non-English languages of eligible individuals in the service area.

(b) Alternative formats in an appropriate manner that takes into consideration the special needs of eligible individuals including but not limited to visually-limited and LRP eligible individuals.

(3) Oral interpretation and oral translation services must be available for the review of marketing materials at no cost to eligible individuals.

(4) The mailing/distribution of all MCP marketing materials must be prior-approved by ODJFS and may contain no information or text on the outside of the mailing that identifies the addressee as a medicaid consumer. Marketing materials must be distributed to the MCP's entire service area.

(5) ODJFS or its designee may, at an MCP's request, mail MCP marketing materials to eligible individuals. Postage and handling for each mailing will be charged to the requesting MCP. The MCP address must not be used as the return address in mailings to eligible individuals processed by ODJFS.

(6) MCPs must have a solicitation brochure available to eligible individuals which contains, at a minimum:

(a) Identification of the medicaid consumers eligible for the MCP's coverage.

(b) Information that the MCP's identification card replaces the member's monthly medicaid health card.

(c) A statement that all medically-necessary medicaid-covered services, including healthchek (EPSDT) services, will be available to all members.

(d) A description of any additional services available to all members.

(e) Information that membership selection in a particular MCP is voluntary, that a decision to select MCP membership or to not select MCP membership in the MCP will not affect eligibility for medicaid or other public assistance benefits, and that individuals may change MCPs under certain circumstances.

(f) Information on how the individual can request or access additional MCP information or services, including clarification on how this information can be requested or accessed through:

(i) Sign language, oral interpretation and oral translation services at no cost to the eligible individual;

(ii) Written information in the prevalent non-English languages of eligible individuals or members in the MCP's service area;

(iii) Written information in alternative formats.

(g) Information clearly identifying corporate or parent company identity when a trade name or DBA is used for the medicaid product.

(h) A statement that this brochure contains only a summary of the relevant information and that more details, including at a minimum a list of providers, and any physician incentive plans the MCP operates will be provided upon request.

(i) Information that an individual must choose a PCP from the MCP's provider panel and that the PCP will coordinate the member's health care.

(j) Information that a member may change PCPs at least monthly.

(k) A statement that all medically-necessary health care services must be obtained in or through the MCP facilities and/or providers except emergency care, behavioral health services provided through the ODMH or at ODADAS-certified-facilities which are medicaid providers, and any other services or provider types designated by ODJFS.

(l) A description of how to access emergency services including information that access to emergency services is available within and outside the service area.

(m) A description of the MCP's policies regarding access to providers outside the service area.

(n) Information on member-initiated termination options in accordance with paragraph (D) of rule 5101:3-26-02.1 of the Administrative Code.

(o) Information on the procedures an eligible individual must follow to select MCP membership in an MCP including any applicable ODJFS selection requirements.

(p) If applicable, information on any member co-payments the MCP has elected to implement in accordance with rule 5101:3-26-12 of the Administrative Code.

(E) MCPs must submit an annual marketing plan to ODJFS which includes all planned activities for promoting membership in or increasing awareness of the MCP. The marketing plan submission must include an attestation by the MCP that the plan is accurate and does not mislead, confuse, or defraud the eligible individuals or ODJFS.

(F) MCPs that utilize marketing representatives for marketing presentations requested by eligible individuals must comply with the following:

(1) All marketing representatives must be employees of the MCP. A copy of the representative's job description(s) must be submitted to ODJFS.

(2) Marketing representatives must be trained and duly licensed by ODI to perform such activities.

(3) The MCP must develop and submit to ODJFS for prior-approval a marketing representative training program. This training program must include, at a minimum:

(a) A training curriculum that includes at a minimum:

(i) A full review of the MCP's solicitation brochure, provider directory and all other marketing materials including all video, audio, electronic and print materials.

(ii) An overview of applicable public assistance benefits, designed to familiarize and impart a working knowledge of these programs.

(iii) The MCP's process for providing sign language, oral interpretation and oral translation services to an eligible individual to whom a marketing presentation is being made, including a review of the MCP's written marketing materials.

(iv) Instruction on acceptable and appropriate marketing tactics, including that the marketing representatives may not discriminate on the basis of age, gender, sexual orientation, disability, race, color, religion, national origin, veteran's status, ancestry, health status, or the need for health services.

(v) An overview of the ramifications to the MCP and/or the marketing representatives if ODJFS rules are violated.

(vi) Review of the MCP's code of conduct/ethics.

(b) Methods the MCP will utilize to determine initial and ongoing competency with the training curriculum.

(c) Any revisions to the ODJFS-approved training program must be submitted to ODJFS for review and prior approval.

(4) No more than fifty per cent of each marketing representative's total annual compensation, including salary, benefits, and bonuses may be paid on a commission basis. For the purpose of this rule, any performance-based compensation would be considered a form of commission. The MCP must make available for inspection, upon request by ODJFS, the compensation package(s) for marketing representatives as its assurance of compliance with this requirement.

(5) Any MCP staff providing information on the MCP or making marketing presentations to an eligible individual(s) must comply with the following:

(a) The MCP must not discriminate on the basis of age, gender, sexual orientation, race, color, religion, national origin, veteran's status, ancestry, disability, health status, or the need for health services.

(b) No MCP may ask eligible individual(s) questions related to health status or the need for health services.

(c) The MCP staff must visibly wear or display an identification tag and offer a business card when speaking to an eligible individual(s) and provide information which ensures that the staff is not mistaken for an MCEC or federal, state or county employee.

(d) Inform eligible individuals that the following MCP information or services are available and how the eligible individual can access the information or services:

(i) Sign language, oral interpretation, and oral translation services at no cost to the member;

(ii) Written information in the prevalent non-English languages of eligible individuals or members in the MCP's service area; and

(iii) Written information in alternative formats.

(e) For the purposes of this rule a marketing presentation is defined as a one-on-one interaction between an MCP's marketing representative and an eligible individual(s). MCP marketing representatives must offer the ODJFS-approved solicitation brochure to the eligible individual(s) at the time of the marketing presentation and must provide, at a minimum:

(i) An explanation of the importance of reviewing the information in the ODJFS-approved solicitation brochure, how they can receive additional information about the MCP prior to making an MCP membership selection and the process for contacting ODJFS to select an MCP.

(ii) Information that membership in the particular MCP is voluntary and that a decision to select or not select the MCP will not affect eligibility for medicaid or other public assistance benefits.

(iii) Information that each member must choose a PCP and must access providers and services as directed in the MCP's member handbook and provider directory.

(iv) Information that all medically-necessary medicaid-covered services, as well as any additional services provided by the MCP, will be available to all members.

(G) Upon request, MCPs must provide eligible individuals with a provider directory which is prior-approved by ODJFS.

(H) Alleged marketing violations.

(1) The MCP must immediately notify ODJFS in writing of its discovery of an alleged/suspected marketing violation.

(2) ODJFS will forward information pertaining to alleged marketing violations to ODI and the MFCU as appropriate.

Effective: 01/01/2008
R.C. 119.032 review dates: 04/14/2009 and 04/01/2014
Promulgated Under: 119.03
Statutory Authority: 5111.02 , 5111.16 , 5111.17
Rule Amplifies: 5111.01 , 5111.02 , 5111.16 , 5111.17
Prior Effective Dates: 4/1/85, 2/15/89 (Emer), 5/8/89, 5/1/92, 5/1/93, 11/1/94, 7/1/96, 7/1/97 (Emer), 9/27/97, 7/1/00, 7/1/01, 7/1/02, 7/1/03, 7/1/04, 10/31/05, 6/1/06, 7/1/07