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What are the New CMS Requirements?
CMS considers a “marketing” call anything that falls under the “Chain of Enrollment,” which is defined as any events from the point when a beneficiary is made aware of an MA/PDP plan to the end of the enrollment process.
Some examples of what the new recording rules cover include:
Disclaimer All agents will also be required to include the following disclaimer: “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 The disclaimer must be included in the following places:
Additionally, the following requirements must be included in all call recordings and appointment forms:
CMS has stated that there is no obligation to re-enroll current Medicare participants and their enrollment status will not be affected. Automatic enrollment will also not occur. That said, a new Scope of Appointment (SOA) is required if the beneficiary requests information about a plan not previously discussed. NOTE: CMS has not laid out a compliance verification or auditing plan for the Final Rule 2023 changes. How to Achieve Compliance Ensuring agents can meet these new CMS requirements by October 1, 2022, comes down to two primary factors: technology and training.
PSM and YourMedicare have launched the Telephony system to agents nationwide. This new system gives agents the ability to make and receive calls through the YourMedicare SunFire platform. The system assigns agents a virtual phone number with a customizable area code, making the number more familiar for their clients.
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The Centers for Medicare & Medicaid Services (CMS) issues this memorandum informing Medicare Advantage (MA) organizations and Part D sponsors of CMS monitoring activities and sharing plan and sponsor best practices during the 2023 Annual Election Period (AEP), running from October 15, 2022 to December 7, 2023.
CMS is concerned about the marketing practices of all entities, including Third-Party Marketing Organizations. CMS has reviewed thousands of complaints and hundreds of audio calls and have identified numerous issues with information provided to beneficiaries that is confusing, misleading and/or inaccurate. CMS has conducted so-called “secret shopping” by calling numbers associated with television advertisements, mailings, newspaper advertisements, and internet searches to monitor the experience beneficiaries have engaging these entities.
Their secret shopping activities have discovered that some agents were not complying with current regulation and unduly pressuring beneficiaries, as well as failing to provide accurate or enough information to assist a beneficiary in making an informed enrollment decision. CMS reminds MA organizations and Part D sponsors that they are responsible for the marketing activities of the agents and brokers and other third-party entities with whom they contract.
| "CMS is closely monitoring marketing activities during the 2023 open enrollment, including marketing that is misleading, confusing, or misrepresents a benefit or product, and will take compliance action against plans for activities and materials that do not comply with CMS’ requirements." |
CMS is taking the following immediate actions during the 2023 AEP, and into Contract Year 2023, including:
- Enhancing CMS review of select marketing materials submitted under File & Use
criteria. During AEP, CMS may exercise its authority to prohibit the distribution of File
& Use materials prior to the expiration of the five-day plan waiting period. CMS may, at
any time, determine an accepted material is not in compliance with our rules and require modification and resubmission. - Reviewing selected marketing materials previously submitted under File & Use criteria.
- Reviewing all marketing complaints received during the AEP, and targeting our oversight and review on MA organizations and Part D sponsors with higher or increasing rates of complaints during the AEP.
- Reviewing recordings of agent and broker calls with potential enrollees.
- Secretly shopping marketing events by reviewing television, print, and internet marketing and calling related phone numbers and/or requesting information via online tools. Best Practices and Reminders for Medicare Advantage Organizations and Part D sponsors CMS recommends that organizations and sponsors immediately implement the following requirements and best practices during the AEP:
- Ensure beneficiaries know how to file a marketing complaint with 1-800-MEDICARE or
the plan, as well as highlight for beneficiaries that it is important to provide an agent or
broker name, if possible. Plans must clearly display this information on plan websites and include this information in all mailings. - Immediately review all allegations raised by any source against an agent or broker.
- Take all necessary and appropriate action to address inappropriate agent behavior.
- Track complaints against each agent or broker, looking for any outliers with respect to
rapid disenrollments. - Ensure agents and brokers obtain Scope of Appointment (SOA) forms. Plans should
remind agents and brokers that they may only discuss products with potential enrollees
that have been agreed to in advance on the SOA. CMS retains the right to request copies of SOAs. - Review “upstream” entities associated with agents who are outliers with respect to
complaint numbers and determine potential patterns or connections to potentially
inappropriate Field Marketing Organization activities. - Ensure all agents and plan marketing materials clearly state when certain benefits may
not be available to all enrollees. CMS may determine that the agent’s activity or
marketing is misleading if the benefits being marketed are only available to a subset of
plan members. - Ensure all agents and brokers review the required Pre-Enrollment Checklist with a
beneficiary prior to enrollment. The items in this checklist must be covered in full and
the agent must confirm that the beneficiary understands all items addressed. - Provide translation services for beneficiaries with limited English proficiency. For those
beneficiaries who have requested documents in a language other than English, the plan must continue to provide required documents in that language until the beneficiary has changed his or her request. - Provide agents a list of required questions or topic that they must cover in their sales
presentations particularly basic topics or questions, such as use of provider specialists,
whether the beneficiary is looking for a lower premiums and copays, may need DME, or whether the beneficiary has questions about the costs associated with the plan.
Download the PDF version here.
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Guide: > Download the PDF Guide here |
