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CMS’s New Marketing Requirements for Medicare Advantage & Part D Plans

August 10, 2022

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Due to a reported uptick in beneficiary complaints against third-party marketing organizations, the Centers for Medicare & Medicaid Services (CMS) has issued a rule imposing new marketing requirements on all third-party marketing organizations selling Medicare Advantage and Part D plans. The final rule has been published and the requirements will go into effect starting October 1st to coincide with the 2023 open enrollment period.

As defined, third-party marketing organizations (TPMOs) are those that “perform lead generation, marketing, sales and enrollment-related functions as a part of the chain of enrollment” for Medicare Advantage or Medicare Part D plans, which will include independent agents and brokers.

The new requirements that will go into effect October 1st are as follows:

  • Any sales calls during the chain of enrollment between TPMOs and Medicare Advantage/Part D beneficiaries where these plans are discussed must be recorded and stored for 10 years with HIPPA compliance.
  • The following verbal disclaimer must be provided to in the first minute of a sales call or in-person meeting discussing these plans:

“I/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.” (https://www.federalregister.gov/d/2022-09375/p-2086)

  • Calls to Wisconsin consumers should record advising the consumer that the call is being recorded to satisfy government regulations. This will comply with Wisconsin’s two-party consent requirements. The consumer remaining on the line can be considered consent to being recorded.
  • The new CMS disclaimer must also be provided when communicating electronically over email, online chat, as well as be included on the TPMO’s website and any marketing materials disseminated.
  • The disclaimer is NOT required if the TPMO sells plans for only one carrier or if the TPMO sells plans for more than one carrier but sells all commercially available MA plans in a given service area.
  • Any staff disciplinary actions or violations regarding interaction with the beneficiary must be reported monthly to the plan.
  • When conducting lead generating activities directly or indirectly for an MA organization, a TPMO must:
    • Disclose that contact information will be provided to a licensed agent for future contact in whichever medium corresponding to the contact (verbally, email, chat, written, etc.)
    • Disclose that they are being transferred to a licensed agent that can enroll them into a new plan.

PIA has concerns about the sweeping requirements and the repercussions for independent agents. PIA’s lobbyists in Washington D.C. are advocating for a delay in the new requirements and requesting that any new marketing regulations do not create barriers for licensed agents.

In the meantime, it is recommended that agencies prepare for the new requirements. There are many vendors that offer call recording services, some which will integrate with your current system varying in price from $15/month per user (Zoom) and up. PIA’s Winning@Virtual can help in your search for a provider and other technology to assist your agency.

This article is for informational purposes only and is not intended as legal advice. It is recommended that all agencies review the new Medicare requirements for third-party marketing organizations here.

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