As an agent, the lead-up to Medicare’s Annual Enrollment Period is often filled with contracting and certification tasks. However, there’s an even more critical “C” to focus on: Compliance.
Compliance isn’t just a concern during the busy enrollment season—it’s a responsibility that every agent should prioritize throughout the entire year.
Key Reminder About Medicare Marketing Guidelines
Before diving into the do’s and don’ts, keep in mind that the full Medicare Communications and Marketing Guidelines (MCMG) are available on CMS.gov. You can also review the Medicare Advantage and Part D Communication Requirements on the Federal Register website. The site is user-friendly and easy to navigate, making it simple to stay informed on the latest Medicare marketing rules and updates!
TPMO Guidelines
The Centers for Medicare & Medicaid Services (CMS) classify agents and brokers as Third-Party Marketing Organizations (TPMOs), which means you must adhere to specific regulations when marketing Medicare Advantage or prescription drug plans. These requirements include:
- Maintain a list of all vendors, contractors, and subcontractors involved in marketing, sales, lead generation, and enrollment. You must also update existing written agreements and establish new ones with each TPMO to ensure compliance with TPMO regulations.
- Protect beneficiary data by not sharing personal information with other TPMOs unless you have obtained prior express written consent from the beneficiary. This consent must include a clear disclosure of each entity receiving the data and give the beneficiary the option to accept or decline the data sharing with each TPMO individually.
- Disclose any subcontracted relationships used for marketing, lead generation, and enrollment to your carrier(s) and/or Ritter.
- Implement a reporting plan to inform the carrier(s) and/or Ritter on a monthly basis of any staff disciplinary actions or violations related to Medicare Advantage or Part D plans, particularly regarding interactions with beneficiaries.
- Use the proper TPMO disclaimer as required under §§ 422.2267(e)(41) and 423.2267(e)(41).
- Record all calls related to sales, enrollment, and marketing (including video calls) with beneficiaries in full. As per the CMS 2024 Final Rule, call recordings are required for marketing (including retention marketing), sales, and enrollment activities.
The TPMO Disclaimer
Agents are required to include the following TPMO disclaimer in all email communications, websites, printed materials, and other marketing materials. Additionally, it must be stated within the first minute of any sales call. This disclaimer is standardized and must be used exactly as written.
For agents marketing fewer than all plans available in a service area, the appropriate version of the disclaimer must be applied.
“We do not offer every plan available in your area. Currently we 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.”
If marketing all plans within a service area, use:
“Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. You can always contact Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance Program (SHIP) for help with plan choices.”
This disclaimer must also be included in any electronic communication with a beneficiary, such as emails, online chats, or other digital messaging platforms.
HIPAA
The Health Insurance Portability and Accountability Act (HIPAA) sets national standards for safeguarding patients’ medical information when it’s stored or shared by “covered entities,” their “business associates,” and “business associate subcontractors.” Insurance agents typically fall under the latter two categories. As a business associate, you are permitted to use protected health information (PHI) only for the specific purposes defined by the covered entity that provided the information. This is why it’s crucial to follow their HIPAA guidelines, as outlined in a formal agreement.
To ensure compliance and protect sensitive information, avoid actions such as sending PHI through unsecured emails or online services, leaving PHI in voicemail messages, or disposing of PHI without properly shredding the documents.
Call Recording
Agents and brokers are required to fully record all sales, marketing (including retention marketing), and enrollment calls, whether inbound or outbound. This includes initial calls to inform or educate clients about Medicare Advantage and Prescription Drug plans, follow-up calls where enrollment decisions are made, and post-enrollment discussions, such as retention-marketing calls aimed at encouraging beneficiaries to remain in their current plan. However, recordings are not necessary for face-to-face meetings with beneficiaries.
Permission to Contact
Every interaction with a potential client begins somewhere. While agents are allowed to initiate unsolicited contact with potential enrollees via email, it’s important to include an opt-out option to ensure compliance. Additionally, the content of unsolicited emails should not direct recipients toward selecting or staying with a specific plan. Instead, a compliant email should focus on promoting your services rather than endorsing any particular plans.
Agents are still prohibited from approaching potential enrollees in public spaces, making unsolicited phone calls, or going door to door to initiate contact.
Obtaining Permission to Contact (PTC)
To start a conversation with potential enrollees, it’s essential to secure Permission to Contact (PTC). One way to do this is by using lead providers to distribute business reply cards (BRCs) or flyers with an optional form to gather this permission. These materials must comply with regulatory standards, including the Telephone Consumer Protection Act (TCPA) disclaimer. Keep in mind that PTC and BRCs now expire after 12 months or once their purpose has been fulfilled. Additionally, lead generation entities are now classified as Third-Party Marketing Organizations (TPMOs) and must follow specific regulations.
If you work with a third-party lead generation company, it’s your responsibility to ensure they comply with these requirements:
- Disclose subcontracted relationships (e.g., third-party lead generation companies) to your carrier(s) and/or Essential Care when used for marketing, lead generation, or enrollment activities.
- Inform beneficiaries during lead generation activities that their information will be shared with a licensed insurance agent for follow-up contact or that they are being transferred to a licensed agent who can assist them with enrollment into a new plan. This disclosure must be made:
- Verbally during phone conversations.
- In writing for mail or paper communications.
- Electronically for emails, online chats, or other digital messaging platforms.
It’s important to note that PTC is not the same as a Scope of Appointment. PTC is the first step, and ideally, it is followed by an appointment. Before that appointment, you must secure a signed Scope of Appointment form from the beneficiary.
Additionally, agents cannot require beneficiaries to provide personal information (such as Medicare Beneficiary Identifiers or Social Security numbers) to view carrier plan options. The only exception is that you may request the beneficiary’s zip code to identify plans available in their service area.
Scope of Appointment (SOA)
The Scope of Appointment (SOA) is a document that outlines exactly what you’ll be discussing with a client during a meeting. Its purpose is to ensure that potential enrollees are only presented with the specific plans they have requested, preventing any unsolicited pitches.
An SOA is required for every Medicare sales appointment, whether conducted in person or remotely. According to CMS guidelines, agents must retain SOA forms for at least 10 years, even if no sale is made. The SOA is valid for 12 months or until it’s used, and if it expires, a new one must be obtained. An SOA can be used for follow-up discussions if the beneficiary needs more time to consider their options after the initial meeting.
Agents are required to wait 48 hours between obtaining the SOA and the scheduled appointment. Exceptions apply if the beneficiary is within four days of the end of a valid enrollment period (e.g., Annual Enrollment Period, Open Enrollment Period, Special Enrollment Period, or Initial Coverage Election Period), or if the meeting is unscheduled and initiated by the beneficiary (e.g., a walk-in).
If, during a meeting, the client asks about Medicare-related topics outside the original SOA, you must complete a new SOA covering the additional information before continuing. If the client is interested in non-health-related products, you’ll need to schedule a separate appointment to discuss those items.
Marketing Rules
The Centers for Medicare & Medicaid Services (CMS) have specific regulations regarding when and how agents can market and present Medicare plans.
Agents are prohibited from marketing the following year’s plans before October 1, and they cannot begin enrolling beneficiaries until October 15.
CMS distinguishes between “marketing” and “non-marketing” materials based on their content and intent. Non-marketing materials typically provide general, non-specific information, while marketing materials aim to influence beneficiaries to enroll or retain their existing plan. Marketing materials often include plan-specific details like benefits, premiums, and comparisons. If you’re advertising plan-specific benefits in print, the carrier names must be in at least 12-point font.
All marketing materials must be reviewed and approved by CMS before use, while non-marketing materials are not subject to this requirement. Any mention of benefits, even those commonly available (e.g., dental, vision, or hearing), classifies the material as marketing, which must be submitted to CMS for approval through HPMS.
When presenting plans, it is essential to avoid misleading clients, whether intentionally or unintentionally. Avoid using absolutes or superlatives when describing plans or benefits. Your role is to provide information without showing preference for specific carriers or plans. Additionally, if a client expresses interest in one plan, you must inform them that other plans are available. Always explain how enrolling in a plan will impact their current coverage to ensure transparency.
Agents must also avoid using terms like “free” to describe $0 premiums. According to CMS, “free” should not be used in connection with any premium reductions, deductibles, or cost-sharing measures such as Part B premium buy-downs or subsidies for low-income or dual-eligible individuals. While a plan may offer some no-cost benefits, other costs, such as copays, may apply. It’s important to provide a full, accurate picture rather than focusing on one aspect of the plan.
When discussing star ratings, you must clarify that Medicare evaluates plans annually based on a five-star system. You cannot use outdated star rating information for marketing materials promoting the upcoming year. Here’s a recommended disclaimer:
“Every year, Medicare evaluates plans based on a five-star rating system.”
If a plan has received a Low Performing Icon (LPI) from CMS, you must disclose this to potential enrollees. It’s not acceptable to highlight the overall star rating while omitting the fact that the plan has faced performance issues in the past. Additionally, star ratings cannot be published until CMS releases them on the Medicare Plan Finder.
Events & Appointments
Throughout the year, the events and presentations you host generally fall into three categories: educational events, sales events, and individual appointments.
Educational Events are designed to inform Medicare beneficiaries about Medicare in general and must be promoted as such. When hosting an educational event, you must:
DO:
- Provide educational materials that do not include plan-specific information.
- Offer general healthcare educational resources.
- Answer questions raised by attendees.
- Share your business card and contact information for beneficiaries to use if they wish to reach out to you later.
- Use generic business reply cards.
- Hold the event in a public venue (optional, but it cannot take place in a private home or one-on-one setting).
- Include the following disclaimers on advertisements and invitations:
- “For accommodations of persons with special needs at meetings, call [insert phone and TTY number].”
- “This event is for educational purposes only, and no plan-specific benefits or details will be shared.”
DON’T:
- Conduct an educational presentation in a one-on-one setting.
- Hand out plan-specific materials or enrollment packets.
- Discuss specific plans or benefits related to a particular carrier or share marketing materials.
- Display a sign-in sheet or collect attendees’ contact information.
- Answer questions beyond what the attendees ask.
- Schedule follow-up marketing appointments.
- Collect Scopes of Appointment (SOAs) or enrollment forms.
- Offer cash or monetary giveaways.
- Host a marketing/sales event within 12 hours of the educational event at the same location or adjacent buildings.
- Steer or attempt to steer attendees toward specific plans.
Sales Events, by contrast, are designed to guide or attempt to guide potential enrollees toward a specific set of plans. During a sales event:
DO:
- Use the required TPMO disclaimer on all printed marketing materials.
- Let beneficiaries approach you first (for informal events).
- Use sign-in sheets, but clearly indicate that signing in is optional.
- Follow the carrier’s specific filing, reporting, and cancellation procedures before and after the event.
- Announce the products and plan types you’ll be covering at the beginning of the event.
- Use only carrier-approved materials and talking points.
- Collect TCPA-compliant lead cards and business reply cards.
- Schedule follow-up appointments and collect SOAs for future meetings.
- Distribute star ratings, the Summary of Benefits, Pre-Enrollment Checklist, and Multi-Language Insert with any enrollment form.
- Collect enrollment applications.
- Follow up with attendees who have given documented permission for a call.
- Distribute giveaways featuring your contact information, and offer light snacks or refreshments (within CMS’s nominal gift limits).
DON’T:
- Conduct health screenings.
- Request or accept referrals.
- Offer cash or monetary rebates.
- Provide or subsidize meals.
- Make absolute or superlative statements.
- Compare one carrier’s plan to another by name without written consent from all carriers or valid data supporting the comparison.
- Pressure anyone to enroll.
- Cross-sell or promote non-health-related products.
- Make sign-in sheets mandatory (they must be optional).
- Require attendees to complete SOAs or enrollment forms.
- Host a marketing/sales event within 12 hours of an educational event in the same or nearby location.
- Use attendee contact information from raffles or drawings for any other purpose.
- Offer cash or other monetary giveaways.
Agents are allowed to adapt their presentation delivery and content as long as “talking points” are submitted to CMS by the carriers. This flexibility encourages more interactive sales presentations.
Individual Appointments are considered sales events and must follow the same CMS guidelines. Whether the meeting is in person or a one-on-one phone discussion, you are required to have an SOA.
Websites
Websites that are consumer-facing and promote Medicare Advantage or Part D products from a specific carrier or group of carriers must be submitted to CMS for approval. Typically, this is done through the carriers, and you should refer to each carrier’s policy regarding website reviews. CMS has been increasingly strict about website compliance in recent years, so it’s crucial to ensure your site is properly reviewed and approved.
Consider utilizing Connecture’s and Sunfire’s PURL, Essential Care’s client-facing enrollment platform. It allows you to compare plans and enroll clients, keeping all your clients’ information in one place. It’s a great tool for generating new leads in a compliant manner! To get started, register with Essential Care to access your CRM site.
Social Media
Just like your website, any content you post on social media must remain compliant with CMS guidelines. Social media can be an excellent tool for engaging with your community, but it’s essential to use it correctly. While having an online presence is important, keep in mind that likes or shares on social media do not count as Permission to Contact (PTC) for sales purposes.
Secret Shoppers
Compliance should be a priority year-round for every agent. The Annual Enrollment Period brings revised CMS Medicare Advantage and Part D Communication Requirements, new plans, and potential enrollees—some of whom may be secret shoppers.
CMS secret shoppers assess service quality and check for compliance with Medicare regulations. They will observe everything from your language to your presentation style to ensure that you’re adhering to CMS guidelines.
As a certified agent, you are responsible for following CMS regulations. Compliance doesn’t have to be complicated, but it does require diligence and ongoing research. If you ever have questions or concerns, don’t hesitate to reach out to Essential Care for guidance!
Not affiliated with or endorsed by Medicare or any government agency.
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