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You’ve seen the commercials on TV and the ads online and in print. Some celebrity or former athlete tells consumers that they can receive free groceries if they sign up for a particular Medicare Advantage plan.

Or the phone rings, and the person on the other end of the line says they represent a Medicare Advantage plan that will give them “additional benefits.” They may even recommend a plan that is not available in the call recipient’s area.

The Centers for Medicare & Medicaid Services is taking notice of these sales tactics. But the agency’s regulations aimed at fighting misleading Medicare Advantage claims are not sitting well with a health insurance agents’ association, whose members are urged to sign a petition against these rules.

Members of Health Agents for America are being asked to sign a petition on Change.org, asking CMS to reverse its requirements that licensed and certified independent agents record phone calls that result in enrolling a client into a Medicare Advantage or Medicare Part D prescription drug plan. The new call recording regulations would take effect October 1st.

This requirement will put an additional burden on agents who are helping Medicare beneficiaries choose a suitable plan for their needs, according to a group calling itself Agents and Brokers Against CMS Call Recording, which started the petition.

According to the Federal Registry, in 2022, CMS reported 39,617 "complaints to Medicare" out of 29 million enrollments. This represents only 0.0013661% of the total enrollments made during the most recent open enrollment period.

Most of these complaints originated from misleading TV commercials, encouraging Medicare beneficiaries to call a 1-800 number, according to the Agents and Brokers group. Third-party marketing organizations created many these misleading TV commercials, according to the group. The ads encouraged Medicare beneficiaries to call a toll-free number answered by a call center employee whose primary job was to encourage the beneficiary to change their existing Medicare health or drug plan to a plan that offered "additional benefits," when in fact the new plan may not cover their prescriptions or have their primary care provider in the plan's provider network. In some cases, the plans recommended were not available in the beneficiary's county or area.

CMS addressed the complaints received from these ads by creating new regulations to protect Medicare beneficiaries. These new regulations require third-party marketing organizations, agents and brokers to record calls that may result in a new enrollment of a Medicare Advantage or prescription drug plan.

Rules may discourage brokers, agents

The new CMS call regulations will discourage many licensed and certified agents and brokers from representing Medicare Advantage and prescription drug plans, the Agents and Brokers group said. There are more than 100,000 licensed independent agents and brokers who certify each year to offer Medicare Part C and D plans.

With fewer certified agents and brokers, the complaints to Medicare and workload may increase, not decrease, the group said. Fewer certified agents and brokers will also increase the workload of the estimated 15,000 State Health Insurance and Assistance Counselors nationwide, leaving beneficiaries with fewer options when considering Medicare health and drug plans.

Additional concerns include HIPAA requirements to store data compliantly.

The petition also recommends the CMS remove the licensed and certified independent agents and brokers from the definition of a third-party marketing organization and exempt the agents and brokers from the new call recording requirements.

The call recording requirements raise some questions for HAFA members, said its president and CEO Ronnell Nolan. Those questions include:

• Will agents’ errors and omissions insurance cover this new task?
• How long are agents supposed to keep this information?
• How are agents supposed to pay for a system to record this information?

“The whole idea behind this regulation is to make sure that folks who are on Medicare get the correct information and are being treated with the utmost respect,” she said. “The CMS rules were originally intended to go after these bad eggs that are calling these seniors and talking them into making changes that they shouldn't make, or that they don't even know that they're making. But Medicare agents go through extensive training to sell plans. This just seems like a slap in the face to the agent community.”