Scope of Appointment

• Requires a Scope of Appointment to be obtained at least 48 hours prior to a sales meeting/appointment with a beneficiary – CMS noted two exceptions:
  1. In-person Walk-ins
  2. Beneficiary is within the last 4 days of a valid election period

Medicare Name, Marks, and Logo

• Prohibits the use of Medicare name, CMS logo, or products or information issued by the Federal Government, including the Medicare card, in a misleading manner. Note: We should get more clarity on this as we move forward, and precedent is set.
• Use of an image of the Medicare card will require prior approval from CMS.

Marketing Materials

• Requires all carriers to approve “marketing” materials prior to HPMS submission (basically same process, as most larger carriers already required this last year – now applies to all carriers)
• Prohibits marketing of benefits in a service area where those benefits are not available, unless unavoidable because of the use of local or regional media that covers the service area — we’re hoping carriers provide a little more clarity on this rule, we’ll keep you updated with what we hear
• Marketing materials cannot advertise beneficiary savings based on comparisons to an uninsured individual
• Requires TPMOs to list or mention all MA and/or Part D organizations that they represent on “marketing” materials – we’re hoping carriers provide a little more clarity on this rule as well, we’ll keep you updated with what we hear

Disclaimers

• The TPMO disclaimer now needs to include SHIPs as an option for beneficiaries to obtain additional help.
• The TPMO disclaimer must state the number of organizations (carriers) represented by the TPMO as well as the number of plans.
• The TPMO disclaimer is now required even if the TPMO offers all plans in a service area but there is alternate language (it would be rare for an agent to actually offer all plans though)
• NEW Disclaimer: “We/I do not offer every plan available in your area. Currently we/I represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. Please contact Medicare. gov, 1-800-MEDICARE, or your local State Health Insurance Program (SHIP) to get information on all of your options.”

Educational Events

• Prohibits a marketing/sales event from occurring within 12 hours of an educational event at the same location (same location means the same building or any adjacent buildings).
• Prohibits scheduling future marketing appointments (individual sales appointments) at an educational events.
• Prohibits the collection of Scope of Appointment forms at educational events
• Clarifies that you may distribute and collect BRC / PTC (permission to contact forms) – the request to be contacted must be optional and at the request of the beneficiary.

Door Knocking

• CMS clarified that a BRC or PTC (permission to contact) does not give an agent permission to show up unscheduled at a beneficiary’s residence.

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There are several other provisions of the rule, such as enhanced Pre-Enrollment Checklist rules, a requirement that plans to create more robust agent oversight program and annual opt-outs from plan business. There are still many clarifications and unanswered questions we expect to be answered in future sub-regulatory guidance. We will be sure to update you as we get them.

For more comprehensive guidance, please reference:
Agent Compliance Guide — Best practices in overall Medicare Compliance

Over 29 million individuals receive their Medicare benefits through Medicare Advantage (MA or Part C), including plans that offer Medicare Prescription Drug Benefit (Part D) coverage.

Over 23 million individuals receive Part D coverage through standalone Part D plans.

The primary purpose of this final rule is to implement changes to the MA and Part D programs. This final rule implements changes related to marketing and communications, past performance, Star Ratings, network adequacy, medical loss ratio reporting, special requirements during disasters or public emergencies, and pharmacy price concessions. This final rule also revises regulations related to dual eligible special needs plans (D-SNPs), other special needs plans, and Medicare cost contract plans.

Source: https://www.federalregister.gov/documents/2022/05/09/2022-09375/medicare-program-contract-year-2023-policy-and-technical-changes-to-the-medicare-advantage-and

• New requirement for third-party marketing organizations (like GoldenCare)
• A new process for submitting marketing materials to CMS
• A new, broader definition of “marketing” that expands the types of materials that must be submitted to CMS.
• New requirements for agents to record all calls with beneficiaries

Additional Details: All calls with beneficiaries must be recorded in their entirety. You are responsible for compliance with this requirement. The requirements are effective now for plan enrollments beginning on January 1, 2023. As AEP is the start of marketing for plan year 2023 enrollments, this means that you should record all calls in their entirety beginning on October 1, 2022.

This rule was implemented after CMS reviewed beneficiary complaints and listened to the sales organizations’ telephonic enrollments. From this, CMS determined that many beneficiaries are confused about the enrollment process as well as the plan choices available to them. This disclaimer was created to help clear up that confusion.

Although it may feel as though the disclaimer emphasizes what you do not offer, stay focused on what you can offer your prospects. Take time to consider their experience with Medicare benefits, what kind of plan would improve their experience, and work with them to figure out what plans would be best meet their medical and financial needs.

Note: It is anticipated that CMS will conduct surveillance of telesales call recordings to assess compliance during the next year, and they expect all organizations to provide a disclaimer during sales calls.

It is important to update your documents and scripts to ensure that you are incorporating the new disclaimer in time for AEP sales.