The final rule redefines third-party marketing organizations to include individual agents and brokers, who will now be subject to new requirements.
Earlier this year, the Centers for Medicare & Medicaid Services (CMS) issued a final rule titled, “Medicare Program: Contract Year 2023 Policy and Technical Changes to the Medicare Advantage and Medicare Prescription Drug Benefit Programs."
The final rule revises the Medicare Advantage (Part C) program and Medicare Prescription Drug Benefit (Part D) program regulations to implement changes related to marketing and communications, past performance, Star Ratings, network adequacy, medical loss ratio reporting, special requirements during disasters or public emergencies, and pharmacy price concessions.
Specifically, the final rule seeks to account for unscrupulous marketing behaviors by requiring third-party marketing organizations (TPMOs) to record all enrollment conversations. However, TPMOs have already had this requirement in place. What is different in this final rule is how TPMOs are being defined. The new definition of TPMO is overly broad and now includes individual agents and brokers—who will now be subject to two new requirements: the above-referenced recording obligation and disclaimer language.
The final rule notes that all TPMOs must prominently display a standard disclaimer that says, “We do not offer every plan available in your area. Any information we provide is limited to those plans we do offer in your area. Please contact Medicare.gov or 1-800-MEDICARE to get information on all of your options."
The rule goes on to note that the disclaimer must be:
- Verbally conveyed within the first minute of a sales call.
- Electronically conveyed when communicating with a beneficiary through email, online chat or other electronic means of communication.
- Prominently displayed on TPMO websites.
- Included in any TPMO marketing materials, including print materials and television advertising.
The recording requirement for both Medicare Advantage and Part D plans is no less burdensome. The final rule will require all TPMOs to record all sales calls with Medicare beneficiaries in their entirety. Additionally, TPMOs must store the calls in a HIPAA-compliant audio recording system for 10 years. These new requirements on agents and brokers are scheduled to go into effect starting Oct. 1, 2022.
As a result of the additional burden being placed on agents and brokers, the Big “I" joined with other agent and broker trade associations in sending a letter to CMS noting our concerns with the rule and the lack of guidance surrounding it.
The letter notes that “it is nearly impossible for our members to be in compliance with the final rule prior to the annual enrollment period (AEP) which will leave thousands of Medicare beneficiaries without the help of licensed agents and brokers and left in the hands of the bad actors that this rule seeks to regulate."
“The trade associations request a delay of 6-12 months, during which CMS will work with stakeholders to develop marketing regulations that will protect beneficiaries while allowing them access to their trusted licensed independent agent or broker," the letter said.
Wyatt Stewart is Big “I" assistant vice president of federal government affairs.