April 7, 2023


In This Issue
Fast Facts
CMS Releases 2024 Medicare Advantage and Part D Final Rule
CMS Issues Updated 2024 Medicare Advantage and Part D Payment Rates
CMS Shortens List of Price-Capped Part B Drugs
Ask Your Lawmakers to Support the Commonsense Reporting Act During Spring Break
The Medicaid Unwinding Has Begun; Tune in to HHS Webinar
State Spotlight: North Carolina Finalizes Medicaid Expansion after Several Years of Debate
Healthcare Happy Hour: CMS Releases 2024 Medicare Advantage and Part D Final Rule
NABIP PAC Roundup: Wisconsin Supreme Court Election Highlights 2023
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CMS Releases 2024 Medicare Advantage and Part D Final Rule

CMS released a final rule on Wednesday that revises regulations governing Medicare Advantage and Medicare Part D, including marketing requirements that directly impact independent agents.

As our Medicare agent members are well aware, a final rule was issued in March 2022 that outlined several new marketing requirements for third-party marketing organizations (TPMOs). This rule was aimed at call centers that air misleading advertisements during the AEP; individual agents, however, were included in CMS’ definition of TPMO and were thus lumped into these requirements as well. One way CMS is increasing oversight is by requiring that any telephonic “marketing” calls with beneficiaries or potential beneficiaries be recorded. Since then, the administration proposed several new requirements, many of which are reflected in the final regulation released this week.

NABIP submitted comments to CMS when this rule was proposed in December. The proposed rule included several general marketing rule changes that NABIP expressed support for, including the establishment of a pre-enrollment checklist, a prohibition on advertising benefits that are not available to beneficiaries in the geographic area where the advertisement appears, and others. We also noted our appreciation for the agency’s focus on agent and broker activities and the recognition that independent agents and brokers who are the servicing brokers of record are different from large-scale call centers and TPMOs. However, we  requested that the agency take further action to differentiate these entities by removing agents and brokers from the definition of TPMO. NABIP also opposed or otherwise had concerns with other provisions outlined below.

Regarding the requirement that agents record calls with beneficiary, the final rule issued this week clarifies that the recording requirements do not apply to all calls with beneficiaries, only to “sales, marketing and enrollment calls.” One commenter asked CMS if agencies need to go back and delete irrelevant recordings, but CMS is not requiring that. Unfortunately, CMS did not heed NABIP’s advice to allow beneficiaries to opt out of being recorded when speaking with their agent of record.

Several of the provisions that were in the proposed rule were revised before finalization after CMS took some of our comments into consideration. In the proposed rule, CMS sought to limit distribution and collection of scope-of-appointment forms and business-reply cards to six months after an educational event; the final version extends this timeframe to 12 months.

Regarding the scope-of-appointment forms, the proposed rule would’ve mandated that at least 48 hours prior to the personal marketing appointment beginning, the Part D plan (or agent or broker, as applicable) must agree upon and record the scope of appointment with t he beneficiary. In our comment letter sent in February, NABIP outlined how constrictive this 48-hour timeframe was and suggested the agency change this timeframe or otherwise provide a safe harbor. In the final rule released Wednesday, CMS allows an agent to meet with a beneficiary without waiting the full 48-hour cooling-off period during the following circumstances: when the 48-hour timeframe runs up against the end of an election period, when a beneficiary faces transportation or access challenges, or when the beneficiary voluntarily walks into an agent’s office.

Another major requirement that was initially proposed would have required agents to disclose to beneficiaries all the plans that the agent sells – by name – as well as require agents to inform beneficiaries that they “can obtain complete Medicare options/information from 1-800-MEDICARE, SHIPs or Medicare.gov.” NABIP suggested that regulations around the disclaimer be revised to simply say the TPMO does or does not offer all plan options in the service area. While the final rule still contains this requirement, it has been modified so that the agent, instead of listing each plan, can simply state how many plans they work with.

One provision that was included in the proposed version but omitted entirely from the final version was the agency’s proposal to prohibit TPMOs from distributing beneficiary contact information to other TPMOs. NABIP noted that independent agents are already bound by HIPAA and GLBA health and financial privacy requirements that govern their disclosures of protected health and financial information. Call centers, however, are not subject to such requirements. We asked once again that CMS remove agents and brokers from the definition of TPMO, as this would be yet another regulation that is needlessly applied to licensed agents. While absent from this final rule, this provision may be addressed in future rulemaking.

To learn more, listen to today’s episode of the Healthcare Happy Hour podcast!

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