CMS recently released the final rule on “CY 2023 Policy and Technical Changes to the Medicare Advantage and Medicare Prescription Drug Benefit Programs.” While this rule encompasses a variety of revisions to Medicare policies, including Part D benefit regulations, the most relevant portion of the rule concerns new requirements for “marketing” calls.

The final rule attempts to “protect Medicare beneficiaries by ensuring they receive accurate and accessible information about Medicare coverage.” To do this, the rule strengthens oversight of third-party marketing organizations (TPMOs) to “detect and prevent the use of confusing or potentially misleading activities to enroll beneficiaries.” One way CMS is looking to increase this oversight is by requiring that any telephonic “marketing” calls with beneficiaries or potential beneficiaries be recorded. While the intention of this rule is to stop fraudulent or misleading actors – such as certain call centers – from manipulating Medicare beneficiaries, the rule’s overly broad definition of a TPMO  includes licensed agents and brokers. While this requirement is scheduled to go into effect on October 1, there is currently no enforcement mechanism.

When CMS proposed this rule earlier this year, NAHU submitted comments noting that these requirements – aimed at call centers and TPMOs – would impact licensed agents. NAHU offered criticisms of how the proposed rule sought to adjust these marketing requirements, noting the definition of TPMO is overly broad and will needlessly impact many entities that are acting responsibly. NAHU also stated that the scope and structure of the proposed definition of TPMOs would inadvertently affect independent agents who perform legitimate marketing of their services. Instead of finalizing the rule as it was written, we suggested that the agency host stakeholder calls to gage a better understanding of which actors this regulation would truly be impacting; unfortunately, CMS finalized the regulation as it was.

Last week, NAHU had a lengthy discussion with CMS officials from the Division of Surveillance, Compliance and Marketing about whether this requirement should apply to an agent’s current book of business in which the beneficiary has voluntarily entered into a relationship with the agent. Beneficiary dissatisfaction is not generally with their agent of record; it is with call centers that solicit beneficiaries to switch plans that do not necessarily meet their needs. Therefore, we reiterated our belief that the requirement should be on call centers, not on agents and brokers with established relationships with their Medicare clients.

We also held discussion about FMOs and their role. We agreed to connect again to discuss further the FMO role and a definition of independent agent that may give them sufficient reason to carve out independent agents from this requirement. Officials also seemed willing to reconsider agents with an ongoing relationship with beneficiaries as their agent of record as part of their current book of business.

The strengthened oversight of TPMOs under the final rule also includes reinstating the inclusion of a multi-language insert in all required documents to inform beneficiaries of the availability of interpreter services, codifying enrollee ID card standards, requirements related to a disclaimer for limited access to preferred cost sharing pharmacies, plan website instructions on how to appoint a representative, and website posting of enrollment instructions and forms.

To learn more, listen to this week’s edition of the Healthcare Happy Hour podcast!