New Rules and Regulations for the Medicare Program for 2023 Enrollments

Important CMS Marketing Changes

On May 9th, new rules and regulations for the Medicare Program were posted to the Federal Registrar by the Centers for Medicare & Medicaid Services (CMS). You can find them by following this LINK.

Included in this posting are some new rules for marketing Medicare Advantage and Stand-Alone Prescription Drug Plans.

We will disseminate additional guidance and clarifications as we receive it from carriers and CMS, especially as we approach the upcoming Annual Enrollment Period.

Two important provisions that we would like to point out apply directly to agent’s concerns on required disclaimers and sales calls.  Please note that these are not the only changes to the marketing rules.  These are just two that we are pointing out.

New Required Disclaimer Language

“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.”

 Who must use this new disclaimer?

Every agent will most likely be required to use this new disclaimer because in most areas there are one or more plans that are offered only through captive agents, where independent agents are simply not allowed to represent those plans.

When and where do I have to have the disclaimer?

  • Must be on all marketing materials, in print (12pt font), electronically, television, and radio.
  • Must be said within the first minute of all sales calls.
  • Must be prominently displayed on TPMO websites
  • Must be used verbally, electronically, or in writing during any sales meeting with a beneficiary.

We are also anticipating this disclaimer will be incorporated into future Scope of Appointment forms but should receive more guidance during 2023 carrier product trainings.

new rules and regulations for Medicare

Requirement to Record Sales Calls

Under the new guidelines, all sales calls with beneficiaries and agents MUST be recorded and retained for 10 years, including enrollment calls.

Because this is so new there are questions that come to mind. Here are just a few:

What constitutes a sales call?

CMS is defining a sales call as any call that is related to the chain of enrollment.  So, at this point, a sales call is any call where a beneficiary becomes aware or discusses an MA/PDP plan that can lead to enrollment.

With this definition, this would mean calling leads, scheduling appointments, collecting scope of appointments (telephonically), presenting plans, collecting drug and doctors lists and phone enrollments would all fall under this guidance. In addition, there may be other calls that contain marketing content that would also apply to this new rule and need to be recorded and retained.

Since this rule is brand new, as we get closer to AEP we will learn more from CMS, AHIP, and the plans as to interpretation and implementation to the above information.

How can I record and store calls?

Since many of these calls will contain sensitive HIPAA protected information, we will all need to develop a process for sorting and storing the calls either on a local encrypted drive or a HIPAA compliant cloud-based solution.

If you currently use a VOIP (Voice Over Internet Phone) system, we recommend reaching out to your provider to see if they offer call recording.

In addition, we are currently researching other options for agents to record and compliantly store this data, so stay tuned on our findings!

I use my cell phone. How can I handle this new change?

Most VOIP services have a mobile app version that would allow calls to be recorded from your mobile device

There are also other companies that make Apps that you can install on your cell phone to record calls.

It’s important to note that there are rules that you must follow when recording phone calls and they may differ State by State.

What about in person appointments?

In person marketing and sales appointments do not need to be recorded. However, the phone calls to set your MA and PDP sales appointments, and any other phone calls discussing benefits or answering questions, would need to be recorded since those would be considered a part of the chain of enrollment.

Servicing questions would not be considered a sales call and therefore would not be required to be recorded.

Final Thoughts

As we approach the upcoming Annual Election Period, there will be more communication on these new guidelines from health plans and from CMS. We will share important information as we receive it, so stay tuned!

Chris Mulder

President, Green Leaf – Medicare FMO

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