In less than a month, the new Medicare marketing rule is set to go in effect. It was finalized earlier this year and, despite repeated comments and inquiries by NAHU, CMS has yet to delay the rule or to provide guidance on its implementation.
The “Medicare Program: Contract Year 2023 Policy and Technical Changes to the Medicare Advantage and Medicare Prescription Drug Benefit Programs,” also referred to as the Medicare Marketing Rule, made significant changes to existing marketing requirements for both Medicare Advantage and Part D plan-marketing requirements. However, the wording in the final rule will put many beneficiaries in danger of not having access to a licensed and Medicare-certified independent agent or broker to assist them with enrollment during this fall’s Annual Enrollment Period (AEP).
The final rule seeks to account for unscrupulous marketing behaviors by requiring third party marketing organizations (TPMOs) to record all enrollment conversations. However, TPMOs already have this requirement in place. What is different in the proposed and now final rule is how TPMOs are being defined. The new definition of TPMO is overly broad and will needlessly impact many entities that are acting responsibly, including individual agents and brokers who will now be subject to the recording requirements.
This new requirement will add an additional burden to licensed and certified agents attempting to assist Medicare beneficiaries when choosing a suitable health and drug plan. The cost of setting up a HIPAA-compliant audio recording system with adequate and protected storage capabilities far exceeds the abilities of many of these licensed and certified agents, who are now facing a decision as to whether to participate in this fall’s AEP.
There is also a concern from Medicare beneficiaries who do not wish to have their enrollment recorded. An enrollment conversation can last hours, during which beneficiaries may disclose several private details about their health, financials and personal life. Many seniors are not comfortable with the requirement that these conversations be recorded and stored for up to 10 years, regardless of the protections that may be put in place for the recordings.
We are now less than a month out from the beginning of this year’s AEP and it is nearly impossible for our members to be in compliance with the final rule by the October 1 effective date. This will leave thousands of Medicare beneficiaries without the help of licensed agents and brokers and may leave them in the hands of the bad actors that this rule seeks to regulate.
I urge you to contact your member of Congress to request that CMS implement a delay of six to 12 months, during which CMS will work with stakeholders to develop marketing regulations that will protect beneficiaries while allowing them access to their trusted licensed independent agent or broker.