We want to remind you of the critical CMS regulations regarding Medicare Advantage (MA) sales and enrollment calls, as outlined in 42 CFR §§ 422.2274 (g)(2)(ii).
As of October 2022, CMS mandated that all calls with Medicare beneficiaries be recorded and stored for ten (10) years. This requirement was further revised in September 2023 to mandate that insurance agencies and brokers record ONLY marketing, sales, and enrollment calls, including the audio portion, in their entirety via web-based platforms. These recordings must continue to be stored and made available upon request for ten (10) years.
It’s crucial to understand what types of calls must be recorded. These include:
Marketing Calls: Calls to potential beneficiaries (prospects) and current clients, including those initiated from business reply cards or made to set up marketing appointments.
Sales Calls: Any calls related to the sales process.
Enrollment Calls: Calls concerning the enrollment process, including lead generation.
Calls that are not required to be recorded include:
- Calls to set up in-person meetings
- Calls to confirm a plan welcome packet
- Calls to provide non-marketing questions
- Calls for event invitations
- Calls to verify that clients have received their ID cards
- Calls to schedule appointments
Below, you will find answers to frequently asked questions that can help you remain compliant.
Who does this requirement apply to?
The requirement applies to all organizations and individuals that fall under the definition of TPMO as defined in 42 CFR §§ 422.2260 and § 423.2260. The definition of TPMO includes 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.
Does this new requirement to record calls apply only to call centers?
No. This requirement applies to all organizations and individuals that fall under the definition of TPMO as defined in 42 CFR §§ 422.2260 and § 423.2260.
Does the requirement to record calls pertain to captive agents?
Yes. Captive agents fall under the definition of a TPMO as defined in 42 CFR §§ 422.2260 and § 423.2260.
Is it now a requirement for an agent to record all calls with enrollees, even calls that are outside the scope of the chain of enrollment?
Yes. A plan must ensure that all calls between a TPMO and a beneficiary are recorded.
Does this requirement to record calls apply to both inbound and outbound calls?
Yes
Are Zoom calls and conversations through other virtual platforms required to be recorded?
Yes. Zoom calls and other calls using virtual presence technology between a Medicare beneficiary, and an organization or individual who meets the definition of a TPMO must be recorded.
Does the requirement to record calls apply to in-person interactions?
No. CMS does not require the recording of in-person interactions.
Are there exceptions to the call recording requirement if a beneficiary refuses to be recorded?
No. There are no exceptions to this requirement. If a beneficiary declines to be recorded, the call must end.
Can an agent complete a sale over the phone if the enrollee declines to be recorded?
No. If a beneficiary declines to have their call with a TPMO recorded, the sales agent must end the call.
When do we have to start recording calls between TPMOs and beneficiaries?
The recording requirement went into effect on October 1, 2022, and it applies to enrollments made for an effective date of January 1, 2023, and beyond.
What technology or mechanism should we use to record calls between TPMOs and beneficiaries?
CMS cannot recommend a particular brand or mechanism. TPMOs should work with the plans for whom they sell to determine the method/format of recording and the mechanism by which the recordings are maintained.
We never had to record calls like this before. We are not set up to record calls with beneficiaries. How does CMS expect us to do this?
The requirement to record telephonic enrollments has been in place for some time. If a TPMO engages in telephonic enrollment, they would have been required, under existing policy, to record calls with beneficiaries before the implementation of this regulatory requirement.
What flexibility do smaller agents/brokers have to adhere to the regulation?
CMS treats all agents and brokers the same. Smaller agents and brokers are not exempt from any requirement based on size.
Isn’t the recording of calls with beneficiaries prohibited by HIPAA?
Uses and disclosures of protected health information are permitted under the HIPAA Privacy Rule if they are “required by law” (45 CFR 164.103, 164.512(a)).
Do these recorded calls between TPMOs and beneficiaries fall under the ten-year storage requirements for other documentation outlined in Chapter 11 of the Medicare Managed Care Manual?
It depends on the nature of the call. The CMS requirement to maintain certain records for ten years applies to all calls between beneficiaries and plans, including TPMOs, that pertain to the sales and enrollment processes. If a recorded call does not apply to either process (e.g., the beneficiary is calling to make a sales appointment or to find out the times and locations of sales meeting events, or an enrollee is calling to update an ID card), the plan does not need to ensure that the recording is retained. If, however, such a call becomes a sales call at any point (e.g., if the beneficiary begins asking about products), the call recording would need to be retained.
Who is responsible for retaining the recordings of calls between TPMOs and beneficiaries?
Plans and TPMOs should arrange for the recording and storage of the recordings.
TPMO Disclaimer: Which Materials?
Is the TPMO disclaimer required on all materials, including tv ads, text messages, banner ads, social media, etc.?
CMS requires the disclaimer to be included “in any marketing materials, including print materials and television advertisements, developed, used, or distributed by the TPMO” (42 CFR 422.2267(e)(41)(v); 42 CFR 423.2267(e)(41)(v)). To the extent that a social media post meets the definition of “marketing” as provided in 42 CFR 422.2260 and 423.2260, the TPMO must include the disclaimer in the social media post.
Is the TPMO Disclaimer required on materials created by the plan for a broker to use and distribute to Medicare beneficiaries?
No. If the document was developed by the plan (e.g., Summary of Benefits) and the agent is using exactly as provided by the plan, the disclaimer is not required. If the agent alters the document, the disclaimer would need to appear.
Could the plan use a separate, one-page insert with the above disclaimer to meet the requirements of the TPMO disclaimer (e.g., an insert would be included as part of an enrollment kit)?
No. If the agent has modified the plan document, the disclaimer must appear on the material.
The TPMO disclaimer is effective October 1, 2022 for all materials/sales interactions for enrollment effective dates of January 1, 2023 and beyond. Since the TPMO disclaimer is standardized, CMS does not require the hours of operation for 1-800-MEDICARE to be listed.
To remain in good standing, you must comply with these regulations. If you have any questions or need further assistance, please contact Agility and our support team. We are here to help you navigate compliance requirements and will continue to provide updates from CMS to keep you informed!
