On May 9, 2022, the Center for Medicare & Medicaid Services (CMS) announced a new ruling called the CMS Final Rule 2023. Part of these CMS call recording requirements 2023 is the agents’ obligation to record and store all Medicare and Medicaid “marketing” calls. This rule was slated to go into effect on October 1, 2022.
“The recording requirement applies to all agents who enroll beneficiaries into new plans, whether they are current or new clients. The wording of the rule references “marketing” calls, but the National Association of Health Underwriters (NAHU) confirmed that CMS interprets “enrollment” as “marketing.” Online applications that agents walk through with their clients are also subject to recording.”
Medicare recording calls: Helpful Reminders
- Every single call, in which prospects and current members participate, must be recorded and stored in a HIPAA compliant manner for 10 years. You must be able to provide call recordings related to specific beneficiary interactions upon request.
- Face to face virtual interactions on platforms like Zoom need to be recorded.
- If the prospect or member does not want to be recorded, you should stop the recording and the call.
Why were Medicare requirements created?
These rules were designed to address complaints of inappropriate marketing that CMS received from beneficiaries and their caregivers. In response to a significant increase in marketing-related complaints, CMS staff reviewed numerous recordings of calls from different marketing entities, including individual agents and brokers, as well as larger call centers.
The agents failed to provide the beneficiary with the necessary information or provided inaccurate information to make an informed choice for more than 80 percent of the calls reviewed. Examples included beneficiaries being told that if their medication was not on the formulary, the doctor could tell the plan and the plan would simply add it; or incorrectly stating that “nothing would change” when beneficiaries asked if their current health coverage would stay the same.
When did Medicare requirements start?
By October 1st 2022, you had to be prepared to record all calls with potential Medicare beneficiaries (prospects), however, calls with current Medicare beneficiaries have to be recorded in their entirety as of January 1st, 2023, as it is the date on which policies are renewed.
This includes calls that are part of the chain of enrollment into a Medicare Advantage or Part D Plan (the steps taken by a beneficiary since becoming aware of a Medicare plan or plans to making an enrollment decision), as well as post-enrollment telephonic discussions.
Who does this requirement apply to?
The requirement applies to all organizations and individuals that fall under the definition of Third-Party Marketing Organization (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. TPMOs may be a first tier, downstream or related entity.
Examples of First Tier, Downstream, and Related Entities (FDRs):
- Physicians
- Hospitals
- Pharmacies
- Other Providers
- Claims Processing Vendors
- Patient Management Vendors
- Credentialing Companies
- Field Marketing Organizations
- Call Centers
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. It must be ensured 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. Both must be recorded.
Are Zoom calls and conversations through other virtual platforms required to be recorded?
Yes. Zoom calls and other calls using virtual presence technology (Webex, MS Teams, etc.) 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 recording of in-person interactions.
When a beneficiary is refusing to have the call recorded, but still wants to enroll in our plan. 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.
Medicare records retention requirements: FQA’s
Do these recorded calls between TPMOs and beneficiaries fall under the ten-year storage requirements for other documentation as 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), then the recording of the call has to be retained.
Who is responsible for retaining the recordings of calls between TPMOs and beneficiaries?
CMS holds plans responsible for making sure that the recordings of calls between TPMOs and beneficiaries are recorded and that the recordings are maintained. Plans and TPMOs should arrange for recording and storage of the recordings.
CMS Medicare call recording requirements: When and How?
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 January 1, 2023, the effective date of the policies.
What technology or mechanism should we use to record calls between TPMOs and beneficiaries?
CMS cannot recommend a particular brand or mechanism, but Recordia RTS – MediCall could be your best solution to comply with the new CMS call recording requirements 2023 from 40 US$/month. 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 prior to the implementation of this regulatory requirement. As such, we would expect TPMOs to leverage their existing process for recording telephonic enrollments when recording all calls with beneficiaries.
Many smaller agents/brokers do not have the infrastructure to record conversations, placing them at a severe disadvantage. What flexibility is there for smaller agents/brokers 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. CMS does not believe it is appropriate, or even possible, for the purpose of applying regulatory requirements, to distinguish between independent agents who work for a “large call center” versus those agents who do not, as many of these “independent” agents are associated with an FMO, which may employ hundreds or thousands of agents. And those FMOs may have contracts with both clearinghouses/lead generators as well as independent agents.
As a reminder, all agents conducting telephonic enrollments should already have had recording mechanisms in place. We recommend smaller agents/brokers that are concerned about their ability to record their calls with beneficiaries speak to the plans with whom they contract to get assistance in recording and maintaining calls.
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)). For any concerns about this requirement, CMS recommends reaching out to the U.S. Department of Health and Human Services Office for Civil Rights (https://www.hhs.gov/ocr/about-us/contact-us/index.html).
Medicare recording calls: TPMO Disclaimer, which Materials?
Is the TPMO disclaimer required on all materials, or only the same types of materials that meet the marketing requirements listed in the Medicare Communications and Marketing Guideline’s (MCMG) “Definitions (42 CFR §§ 422.2260, 423.2260)”? For example, is the disclaimer required on 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 will 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, then the disclaimer must appear on the actual material.