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CMS Has Released Revisions and Changes to the Final Rule!
As you are probably aware, on April 5, 2023, CMS issued a final rule that revises the Medicare Advantage (MA or Part C), Medicare Prescription Drug Benefit (Part D), Medicare Cost Plan, and Programs of All-Inclusive Care for the Elderly (PACE) regulations to implement changes related to Star Ratings, marketing and communications, health equity, provider directories, coverage criteria, prior authorization, network adequacy, and other programmatic areas.
Below is a summary of the major revisions of the final rule as it pertains to agents and agencies. Please note we are still awaiting clarification from carriers and CMS on several rule changes and will share those as they are received.
As you are probably aware, on April 5, 2023, CMS issued a final rule that revises the Medicare Advantage (MA or Part C), Medicare Prescription Drug Benefit (Part D), Medicare Cost Plan, and Programs of All-Inclusive Care for the Elderly (PACE) regulations to implement changes related to Star Ratings, marketing and communications, health equity, provider directories, coverage criteria, prior authorization, network adequacy, and other programmatic areas.
Below is a summary of the major revisions of the final rule as it pertains to agents and agencies. Please note we are still awaiting clarification from carriers and CMS on several rule changes and will share those as they are received.
- Requiring 48 hours between a Scope of Appointment and an agent meeting with a beneficiary, with exceptions for beneficiary-initiated walk-ins and the end of a valid enrollment period.
- Modifying the TPMO disclaimer to add SHIPs as an option for beneficiaries to obtain additional help; modifying the TPMO disclaimer to state the number of organizations represented by the TPMO as well as the number of plans.
- Requiring TPMOs to list or mention all of the MA organization or Part D sponsors that they represent on marketing materials; requiring MA organizations and Part D sponsors to have an oversight plan that monitors agent/broker activities and reports agent/broker non-compliance to CMS.
- Prohibiting the marketing of information about savings available that are based on a comparison of typical expenses borne by uninsured individuals, unpaid costs of dually eligible beneficiaries, or other unrealized costs of a Medicare beneficiary.
- Prohibiting marketing of benefits in a service area where those benefits are not available, unless unavoidable because of use of local or regional media that covers the service area(s).
- Notifying enrollees annually, in writing, of the ability to opt out of phone calls regarding MA and Part D plan business. Clarification is needed to understand if this will be a carrier-specific requirement or one that will apply to agents as well.
- Requiring agents to explain the effect of an enrollee’s enrollment choice on their current coverage whenever the enrollee makes an enrollment decision. Carrier guidance is needed to determine how this will be incorporated into the sales process.
- Limiting the time that a sales agent can call a potential enrollee to no more than 12 months following the date that the enrollee first asked for information. New permission to contact will be required to call the beneficiary after the 12-month window has ended.
- Limiting the requirement to record calls between third-party marketing organizations (TPMOs) and beneficiaries to marketing (sales) and enrollment calls. Prior guidance stated that "all calls" had to be recorded.
- Prohibiting a marketing event from occurring within 12 hours of an educational event at the same location.
- Prohibiting the collection of Scope of Appointment cards at educational events.
- Clarifying that the prohibition on door-to-door contact without a prior appointment still applies after collection of a business reply card (BRC) or scope of appointment (SOA).
- Placing discrete limits around the use of the Medicare name, logo, and Medicare card; this includes specifically prohibiting the misleading use of the Medicare name, CMS logo, and products or information issued by the Federal Government, as well as prohibiting the use of the Medicare card unless previously approved by CMS. CMS acknowledges that reasons exist to use the Medicare card image, which they will permit with filing and approval from CMS.
- Prohibiting the use of superlatives (for example, words like “best” or “most”) in marketing unless the material provides documentation to support the statement, and the documentation is based on data from the current or prior year.
- Clarifying the requirement to record calls between TPMOs and beneficiaries, such that it is clear that the requirement includes virtual connections such as video conferencing and other virtual telepresence methods.
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