On Wednesday, April 5, the Centers for Medicare and Medicaid Services (CMS) released a final rule (CMS-4201-F) governing policy and technical changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program, and Programs of All-inclusive Care for the Elderly. This final rule also codifies regulations implementing section 118 of Division CC of the Consolidated Appropriations Act, 2021, and section 11404 of the Inflation Reduction Act, and includes provisions to codify existing sub-regulatory guidance in the Part C, Part D, and PACE programs.
The disclaimer is changing (AGAIN)
CMS will now require all third party marketing organizations (TMPOs) to mention both State Health Insurance Assistance Programs and the number of organizations and plans represented. The new standardized disclaimer will now read:
“We do not offer every plan available in your area. Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. Please contact Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance Assistance Program (SHIP) to get information on all of your options.”
Or, if and agents doesn't represent all plans in an area, a new disclaimer has been added:
“Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. You can always contact Medicare.gov, 1-800- MEDICARE, or your local State Health Insurance Assistance Program (SHIP) for help with plan choices.”
This means agents will need to update their website, email signature, and other marketing materials. Also, this new disclaimer must be read during the first minute of a Medicare marketing call.
Changes to the call recording requirement
The final rule makes changes to the call recording requirement that was put in place last year.
Here’s what agents need to know:
The rule clarifies that the requirement does apply to video calls, like Zoom or other videoconferencing tools.
The requirement is now narrowed to marketing (sales) calls and enrollment calls. There’s no need to record any service-related calls you might make or receive.
Changes to appointment flow
Scopes of Appointment may not be collected at educational events.
The 48-hour rule is reinstated – there must be a 48-hour cooldown between when the Scope is collected and meeting with the beneficiary. Exceptions exist for beneficiary-initiated walk-ins and the end of a valid enrollment period (e.g. – the last day of AEP).
Agents may call beneficiaries no later than 12 months after the first request for information.
Whenever an enrollment decision is made, agents must explain the effects of an enrollment choice on current coverage.
Changes to agent marketing behaviors, events and materials
The rule clarifies that door-to-door contact is still prohibited even after the agent has received a business reply card or Scope of Appointment.
Agents must list all Medicare Advantage and/or Part D organizations they represent on any marketing materials.
Marketing events may not occur within 12 hours of an educational event at the same location.
Tighter, discrete limits are now placed on using the Medicare name, logo and card in marketing materials.
Superlatives (words like “best,” or “most,”) are prohibited in marketing materials, unless current-year material is available to support the statement.
Agents must submit any self-made marketing materials to CMS’s Health Plan Management System, but only after the materials have been approved by any Medicare Advantage or Part D plans represented.
Changes required of health plans
Summaries of Benefits are now required to list medical benefits in a specific order
Plans must notify beneficiaries annually, in writing, that they may opt out of phone calls regarding Medicare Advantage and Part D business
Medicare Advantage and Part D plans are required to have an oversight program that monitors agent/broker activity and reports non-compliance to CMS
Changes required of all organizations
Organizations may not market benefits in a service area where those benefits are not available, unless that is unavoidable because of local or regional or media use.
Organizations are prohibited from marketing information about savings available that are based on a comparison of typical expenses borne by uninsured individuals, unpaid costs of dual-eligible beneficiaries, or other unrealized costs.
What’s not addressed
CMS did not address its proposal to prohibit TPMOs from sharing beneficiary contact information, but reserves the right to address the topic at a later date.