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! |