On October 19, 2023, CMS released FAQs on the updated marketing requirements that are in place this annual open enrollment season. CMS clarified its expectations under the regulations for third party marketing organizations (TPMOs).

CMS defined TPMO more broadly than first tier, downstream, and related entities or FDRs. TPMOs include all organizations and individuals, including independent agents and brokers, who are compensated to perform lead generation, marketing, sales, and enrollment related functions as a part of the chain of enrollment.

We hear from our Medicare-eligible friends and family that cold calls relating to MA plans, which are prohibited, are commonplace. CMS intends to hold MA plans up the chain of enrollment accountable for non-compliant behavior, even if the violations such as unsolicited calls are made by “lead generators” who are not FDRs – but who sell their leads to contracted sales agents as referrals that can be contacted on behalf of MA plans.

Here are highlights from the October 19, 2022 FAQs:

• Recording – All calls means all calls.
  • All calls between beneficiaries and TPMOs must be recorded, including inbound and outbound calls, Zoom or other virtual technology calls, and calls “outside of the scope of the chain of enrollment.”
  • The recording requirements apply to sales agencies of all sizes and to captive agents.
  • If a beneficiary refuses to be recorded, the sales agent must end the call.
• Retention – Recorded calls regarding sales or enrollment must be retained for ten years, but recordings of other calls (e.g. making an appointment, requesting a new ID card) do not have to be retained.
• MA Organizations Accountable for TPMOs – MA organizations are responsible for ensuring calls are recorded and retained by their TPMOs.
• Social Media – Posts that meet the regulatory definition of “marketing” must include the required TPMO disclaimer.

Do you know where all of your organization’s external sales agents get their leads? We recommend ensuring that your organization has processes in place to ensure that TPMOs, including all external sales agents and anyone generating leads for them, comply with the new call recording and other TPMO requirements in the marketing regulations.