Medicare’s Final Rule and You

What is Medicare’s Final Rule for 2023? Medicare vigilantly protects you, the Medicare beneficiary, from bait and switch tactics and unclear or misleading information about Medicare Advantage, Part D Prescription Drug Plans, and Medicare Supplement Insurance plans. Recently, the Centers for Medicare and Medicaid (CMS) issued its Final Rule on April 12, 2023. This Final Rule is a strong step toward improving accuracy and full disclosure for beneficiaries when they are discussing Medicare Advantage and Prescription Drug Plan options and enrolling in coverage. The rule will be in effect October 1, 2023, and onward. The goal is to ensure that you, the beneficiary, receive correct and accessible information about Medicare coverage. This final rule builds on that issued in 2022 and has your consumer safety and welfare as its focus.

What caused this? In 2022 Medicare experienced a significant increase in complaints from beneficiaries about aggressive sales tactics by telemarketers. This prompted an investigation and the outcome was Medicare’s strengthening of the marketing and communications requirements for third party marketing organizations (TPMO) and individuals who must follow these regulations. The April 12, 2023 Final Rule increases the strong protections Medicare has in place. This column will touch on the changes most likely to affect you as the beneficiary.

Who must follow the Final Rule? Medicare defines third-party marketing organizations (TPMO) as “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 (the steps taken by a beneficiary from becoming aware of an MA plan or plans to making an enrollment decision).” 1.

How will this affect you? If you are calling for Medicare Advantage HMO, PPO, and stand-alone Prescription Drug Plan benefit and pricing information, your independent agent or broker must advise that the call is being recorded.

A disclaimer text or script must be read to the caller, and this text has been changed for those agents, brokers, and TPMOs that offer every plan available in the service area, and those agents, brokers, and TPMOs that do not offer every plan in the service area. For those who do not offer every plan in the service area, the disclaimer has been amended to the following: ‘‘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 or 1–800–MEDICARE, or your local State Health Insurance Program to get information on all your options.’’ Your agent or broker, or any entity you call to inquire about plans will disclose the number of organizations with whom they hold contracts, and the total number of plans the aforementioned organizations offer. Another regulatory change is that only marketing, sales, and enrollment calls will need to be recorded. The disclosure that the call is being recorded should be announced on all recorded calls.

Medicare requires the Scope of Appointment Form to be completed by you to protect you as the beneficiary. Medicare requires this form to be completed by the beneficiary before the agent is allowed to discuss plan benefits or pricing for Medicare Advantage and Prescription Drug Plans. The new ruling requires that this form be completed by you and on file with the agent or broker at least forty-eight hours before the meeting. There are exceptions to this ruling but expect your agent to ask you to complete the form electronically, by a three-way telephone call the agent or broker will start, or on paper at least 48 hours prior to meeting. You complete the form by selecting the topics for which you wish to have information. If the topic is not selected, the agent or broker is not able to discuss that benefit or provide pricing on it. While this form may appear to be daunting, it is Medicare’s protection against “bait and switch” sales tactics and in place to protect you as beneficiary.

What’s in it for you? The disclaimer about not offering every plan helps beneficiaries be aware of the scope of plans the agent, broker, or TPMO has contracts with and directs Medicare beneficiaries to see a complete list of plans offered in their state by accessing Medicare.gov or calling Medicare. The telemarketing organizations may not offer every available plan, nor do most agents or brokers. This is an extensive list for someone to cull through, but it is important that one is able to access every plan filed in Arizona.

The recording of your telephone call is a good protection for the consumer, as a record of the initial call to the enrollment. The calls that will have to be recorded will be safely stored per Medicare’s requirement for 10 years and available for Medicare to audit if Medicare considers it necessary.

The Scope of Appointment stops unwelcome or unsolicited marketing and puts you squarely in charge of what may be discussed in your meeting. Medicare’s increased protection of you as the beneficiary underscores the pluses of being a Medicare beneficiary. Enjoy your well-earned benefit, confident in Medicare’s increased protections for your wellbeing.

Source ecfr.gov/current/title-42/part-422/subpart-V#p-422.2260(Third-party%20marketing%20organization%20(TPMO))