The Centers for Medicare & Medicaid Services (CMS) recently introduced a new requirement for agents and brokers who market Medicare Advantage and Medicare Part D plans. As of October 1, 2022, all Medicare marketing calls must be recorded and retained for ten years. This change was aimed to enhance transparency and protect beneficiaries, but it has also raised concerns among agents and the public. In this article, we’ll explore the details of this requirement, its implications for agents who market Medicare plans, and the new revised rule regarding call recordings.

Why the Change? 

According to CMS, the new call recording requirement is “designed to address complaints of inappropriate marketing that CMS received from beneficiaries and their caregivers." By requiring agents to retain these recordings, CMS aims to ensure that they are providing accurate and complete information to beneficiaries, helping them make informed decisions about their healthcare coverage.

However, the requirement has faced criticism from industry professionals. In a commentary in InsuranceNewsNet, Joshua Brooker argues that a regulation “meant to protect Medicare beneficiaries could end up hurting them” by putting their personal medical information at risk. Additionally, “this burden” of protecting seniors “is being placed squarely on the shoulders of independent brokers who are focused on consumers.”

What Agents Need to Do 

Whether they agree with the new rule or not, agents and brokers must now record all calls related to Medicare Advantage and Part D plan marketing. These recordings must be kept for a minimum of ten years, and agents may be required to submit them to CMS upon request. Failure to comply with this requirement could result in penalties, including fines and sanctions.

It’s important to note that the CMS “is treating all agents and brokers the same” and that “Smaller agents and brokers are not exempt from any requirement based on size.”

To comply with the new requirements, agents should implement processes and systems to ensure that all marketing, sales and customer support calls are recorded, stored securely, and accessible if needed for compliance purposes. Additionally, agents should review their call scripts and marketing materials to ensure they comply with CMS guidelines.

Note that the requirement does not apply to Medicare supplement plans.

Rule Change for 2024

After much backlash from the broker community and numerous organizations, CMS proposed and has now finalized some revisions to the call recording rule. The new rule, which is effective June 5, 2023, was published in the Federal Register on April 12. Basically, the rule limits “the requirement to record calls between third-party marketing organizations (TPMOs) and beneficiaries” to “only those calls regarding sales, marketing, and enrollment.”

As CMS explains, the original call recording requirement “is too broad because calls placed to merely set up an in-person meeting, or to confirm a beneficiary received a plan welcome packet, or calls to provide a beneficiary the opportunity to ask non-marketing questions, such as when the plan will be effective,” places as “unnecessary burden” on brokers and is “not aligned with our goal to obtain call recordings to ensure the marketing, sales, and enrollment activities conducted by agents, brokers and TPMOs meet the applicable regulatory requirements.”

So that’s good news; going forward, agents will still need to record marketing, sales, and enrollment calls, but not all calls with Medicare beneficiaries.

Concerns and Opposition 

As already mentioned, the new requirement has sparked concerns about data privacy, increased administrative burdens, and potential negative impacts on agent-beneficiary relationships. A Change.org petition has been launched, calling for CMS to reverse the decision, stating that "the regulations will discourage many licensed and certified agents and brokers to certify and not to represent Medicare Advantage and Prescription Drug Plans.”

Moreover, as CareValue reports, the National Association of Benefits and Insurance Professionals (NABIP) has expressed concerns about the costs associated with implementing and maintaining the call recording systems, which may be prohibitive for smaller agencies.

While the recent rule change is a step in the right direction, it does not fully address these concerns.

To Recap 

The new CMS call recording requirement for Medicare Advantage and Part D marketing, sales, and enrollment calls aims to protect beneficiaries from misleading information and abusive practices. However, concerns regarding data privacy and administrative burdens remain. Agents and brokers should take steps to ensure compliance with the new requirement while addressing potential concerns from their clients. Keep in mind that regulations frequently change, so please be on the lookout for further developments.