Time for a check-up: Stay compliant with the TPMO disclaimer

In its proposed rule for CY2027, CMS offers a few adjustments to the TPMO disclaimer.  So, it seems to be here to stay. 

But, how can health insurance agents make sure they're using it in all the right times and places?

Let's do a little compliance check-up.

Are you using the right TPMO disclaimer?

For nearly all Medicare agents and brokers, their TPMO disclaimer would read like this:

We do not offer every plan available in your area. Currently, we represent (X number of) organizations which offer (X number of) products in your area. Please contact Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance Program to get information on all your options.

If you do happen to offer all plans available in your service area, you would say:

Currently, we represent (X number of) organizations which offer (X number of) products in your area. You can always contact Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance Program for help with plan choices.

Need help calculating how many organizations and plans you represent in a given area? Locate our free-to-use lookup tool inside our AEP toolkit. Better yet, bookmark it so it's readily available for when you have sales calls. 

When does the TPMO disclaimer have to be read?

The disclaimer should appear in each of the following situations:

• Verbally recited within the first minute of a sales call, whether it's a phone call or a video meeting
• On all materials that meet CMS's definition of marketing, including print and TV ads
• On your website
• Provided electronically when communicating through email, online chat, or other means

What does CMS count as a sales call?

The disclaimer must be provided within the first sixty seconds of a sales call. While there's no by-the-book definition, it's reasonable to assume any call including discussion of Medicare Advantage or Part D plan options, benefits, or anything else that may influence a beneficiary's enrollment decision would meet CMS's intent. Calls meeting CMS's definition of marketing would also require the disclaimer to be read. However, service-related calls, such as a client of yours calling to order a new ID card, would not meet this definition. But, you'll never know what direction a call will take, so it's a good practice to read it every time.

What if I don't know a client's service area?

There's no realistic way you can tell where every website visitor will come from. As such, there's no realistic way you could tailor the number of plans and counties to their service areas. In these cases, most experts agree that a good-faith compliance effort is the right move. And, be sure you have a process for updating numbers over time -- especially as plans enter or leave your service area in the lead-up to AEP.

When can I skip the TPMO disclaimer?

Aside from the service exception above, there are a few other times you can skip the disclaimer:

• If you are a captive agent representing only one carrier, you are exempt from the requirement, as you are not comparing plans
• You are producing communication material that doesn't influence enrollment or mention benefits, costs, premiums, or other plan details
• The material only lists product categories (e.g.," I offer Medicare Advantage, Medicare Supplement, and Part D plans") without mention of benefits, premiums, or plan details

That's how some agents compliantly advertise with billboards or flyers -- they simply say "I am a licensed agent offering these product lines," without mentioning any specific products.

Do I have to update my email signature with the TPMO disclaimer every time I send an email?

In short, if you are sending an email to one individual, CMS would expect you to update your email signature to be specific to that client's county or service area. If you are sending an email to multiple clients, a good-faith effort is still a good idea here. You may, for example, include a range of numbers in this case.

How can I limit the number of times I need to use the TPMO disclaimer?

You'll (probably) never be able to completely avoid using the disclaimer -- you will likely do a telephonic enrollment or email a client at some point in your Medicare career. However, there are two surefire ways to help reduce your compliance burden:

1) Use carrier-created marketing materials in the service areas where advertised benefits are actually available (and be mindful to update the TPMO disclaimer with your numbers)

2) Avoid items falling into CMS's definition of marketing, and instead focus on communications materials.

Will it be like this forever?

Well, maybe. The proposed rule for 2027 would not change your obligation to read the disclaimer. However, it would relax the requirement that it be read in the first minute, and instead require that it be read prior to any discussion of benefits. The rule would also remove the SHIP clause from both disclaimers, which relieves you of the awkward situation of being forced to refer your clients elsewhere.

We'll let you know how the proposal shakes out. In the meantime, the guidelines here will keep you selling compliantly. How strictly you decide to follow them, as taxing as it is, is ultimately up to you and/or your agency.