How to Comply With the New CMS Communications and Marketing Requirements for Medicare Advantage and Part D Conversations
New recording, disclosure, and compliance rules
New electronic communications recording, disclosure, and oversight rules from the Centers for Medicare &Medicaid Services (“CMS”), effective 1 October 2022, highlight the heightened scrutiny around the sale of complex healthcare products, to promote transparency and protect consumers. In a digital age where prospects are bombarded with telemarketing calls, online advertising, social media, and promotions from celebrities and influencers, it’s more important than ever that they receive accurate information about sophisticated products. Clarity is particularly critical when it relates to the purchase of essential healthcare services.
The new CMS rules can be viewed as part of a broader global trend toward increased disclosure for complex healthcare, financial, or insurance products directly marketed to customers. Complaints about misleading advertising and sales of Medicare Advantage (“MA”) plans and Part D were the key catalyst for the CMS regulatory updates. In the one year period between 2020 and 2021 the number of complaints submitted to CMS soared from less than 16,000 to over 39,000 – a staggering increase.
The new CMS obligations consist of three core components:
1. The first, and most impactful, is the requirement for third party marketing organizations (“TPMOs”) to record or capture any electronic communications of sales conversations about MA plans or Part D. This includes telephone calls and any other interactions including emails, chats, and video conferences on platforms like Microsoft Teams, Zoom, RingCentral or Webex.
2. Next, CMS mandates the provision of specific disclaimer language during the first minute of a telephone call or within the relevant electronic communication.
3. Finally, TPMOs must report monthly disciplinary actions or violations to the “first tier entities,” such as insurance providers.
The obligations are critical to ensuring the regulators and “first tier entities” can review communications with customers to determine what information and advice was given in the event of a complaint or investigation.
The challenge for TPMOs
The requirements could create significant challenges for TPMOs not previously subject to mandates to record calls or other electronic communications, provide routine disclaimers, or report on compliance issues. The basic tasks of recording, archiving, and supervising communications for compliance and disciplinary purposes are compounded by the fact that they occur across multiple modern platforms like Zoom, Slack, Microsoft Teams, RingCentral as well as mobile applications, SMS, and WhatsApp.
Here’s what you need to know about the new rules and the steps you can take to comply:
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The new rules at a glance
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How to comply
- Ensure that you are able to record all calls or electronic communications, whether they are made through platforms like Zoom, Slack, Microsoft Teams, RingCentral, mobile phones, or WhatsApp.
- You need to be able to retain the growing volumes of records for at least 10 years.
- Make sure you can easily search and retrieve records so that they can be provided without delay when requested by regulators.
- You must be able to review the conversations to identify instances of where inappropriate or non-compliant behavior occurred.
- Retaining your records in a way that meets HIPAA compliance is important to ensure that sensitive medical or personal data is protected.
- Ensure that you have a way of including the mandated disclaimer into all communications. That includes written communications like chat messages.
