CMS proposes rule for 2024 Medicare Advantage, here's the major impacts on agents

CMS has just released a proposed rule for Medicare Advantage plan year 2024 which has many implications for independent agents and brokers. You don't have to read the 957 pages yourself and pick out the important parts, we did it for you. So buckle up, here we go...

• The new disclaimer gets longer -- you must now reference Medicare.gov and SHIP, in addition to listing all plans you sell. The proposed disclaimer would now sound like:
  • “We do not offer every plan available in your area. Any information we provide is limited to those plans we do offer in your area which are [insert list of MA organizations or Part D sponsors]. Please contact Medicare.gov, 1-800-MEDICARE, or your local state health insurance program to get information on all of your options.”
    
    
• The addition of language that states “personal beneficiary data collected by a third-party marketing organization (TPMO) may not be distributed to other TPMOs”. Lead-gen companies would be required to get permission to sell consumers' information -- or enroll the business themselves.
  
  
• The timeline for consent-to-contact has been clarified: A sales agent can call a potential enrollee no more than six months following the date the enrollee first asked for information.
  
  
• The call recording requirement for TPMOs and beneficiaries would be limited to marketing (sales) and enrollment calls. This is a good move.
  
  
• 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).
  
  
• Prohibitions on accepting SOA, collecting beneficiary contact information at educational events, and setting future marketing appointments at educational events are reinstated. Additionally, marketing events cannot take place within 12 hours of an educational event at the same location.
  
  
• Removing the “when practical” language from SOA timelines. It will now read “at least 48 hours prior to the personal marketing appointment beginning, the MA plan (or agent or broker, as applicable) must agree upon and record the Scope of Appointment with the beneficiary(ies).”
  
  
• Prohibiting marketing of benefits in a service area where those benefits are not available.
  
  
• For TPMOs that develop materials for more than one MA organization/Part D sponsor, the TPMO would submit the material directly to CMS, not through a carrier. Prior approval from the applicable MA organizations or Part D sponsors would also be required.
  
  
• Requiring MA organization and Part D sponsor names on all marketing pieces and carriers listed to opt-in to allow use for their plan. This means no more generic marketing. Additionally, they must be in 12pt font and not in the disclaimer fine print. In TV or radio ads, they must be read at the same speed as the phone number.
  
  
• CMS believes it is important to specifically prohibit the misleading use of the Medicare name, CMS logo, and products or information issued by the Federal Government (including the Medicare card image).
  
  
• Further restrict the use of superlatives by prohibiting all superlatives unless current, substantiating supporting data is also provided.
  
  
• By requiring the pre-enrollment checklist to be reviewed with prospective enrollees as part of telephonic enrollments, CMS hopes to ensure that beneficiaries are better informed about the details surrounding the plan for which they are enrolling.

So what can be done? Write your thoughts to CMS.

Comments must be received no later than 5 p.m. EST on February 13, 2023. Refer to file code CMS-4201-P with your submission. 

To submit electronically, go to www.regulations.gov and follow the "submit a comment" instructions.

To submit by regular mail, write to the following mailing address:

Centers for Medicare & Medicaid Services

Department of Health and Human Services

Attention: CMS-4201-P

P.O. Box 8013

Baltimore, MD 21244

The full proposal can be found here.