September 16, 2022

In This Issue
Fast Facts
CMS Provides Some Clarification on How to Comply with Medicare Marketing Final Rule
New Bill to Allow COBRA to Be Considered Creditable Coverage Introduced in House
Compliance Now: Medical Loss Ratio Rebate Guidelines
State Spotlight: Maine Merges Individual and Small-Group Markets, Reports First Small-Group Premium Decrease in 20 Years
Healthcare Happy Hour: CMS Provides Some Medicare Marketing Clarification (Plus – An Overview of the Summer’s Final Primary Elections)
HUPAC Roundup: Primary Season Ends with Delaware, New Hampshire and Rhode Island
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CMS Provides Some Clarification on How to Comply with Medicare Marketing Final Rule

CMS provided some clarification in response to a letter we submitted to the administration last week regarding the Medicare marketing final rule. Despite repeated comments and inquiries by NAHU, CMS has yet to delay the rule or to provide substantive guidance on its implementation ahead of this year’s Annual Enrollment Period (AEP). Earlier this week, however, NAHU spoke with CMS to clarify how third-party marketing organizations (TPMOs) – which still include licensed agents and brokers – can comply with this rule. NAHU is still seeking written guidance from CMS despite the telephonic conversation we had with them earlier this week. And, no, it wasn’t recorded.

Our first basic inquiry to CMS in last week’s letter was how a call should be handled if a beneficiary refuses to be recorded. CMS responded, succinctly, that the call must end if the beneficiary is not comfortable with being recorded. The agency also clarified that, while all calls must be recorded, calls in which a beneficiary is enrolled in a health plan – as well as any preliminary pre-enrollment information – must be saved and stored.

One of NAHU’s primary concerns regarding the new telephonic recording regulations is regarding HIPAA. According to CMS, all calls must comply with privacy and HIPAA rules, and it is the onus of the agent or broker to determine the best way to meet the privacy requirements. Any security breaches that may result from these calls will be handled by the HHS Office for Civil Rights; the Office for Civil Rights is also the department that will provide greater information about agent liability.  

Regarding the storage of call recordings, CMS clarified that an agent could group recordings by beneficiary instead of by date and time of all calls. If CMS requests a specific beneficiary's recordings, CMS expects the entity maintaining the call to be able to provide the applicable recording. CMS also stated that the agency plans on reviewing agent audio calls both based on consumer complaints and at random, and call centers will be audited in the same way as an independent agent.

NAHU also asked CMS if the agency will provide any further guidance for independent agents or for beneficiaries. In both cases, the answer is no. The agency is pointing to CY2021 MA Enrollment and Disenrollment Guidance (, specifically section 40.1.3 that provides rules for MA Organization telephonic recording of enrollments, for further guidance at this time. CMS plans on taking compliance action against plans, and plans would decide on how to handle an agent. The exception to this rule would be if CMS found the agent’s behavior to be worthy of state review (to potentially revoke the agent’s license). That decision would be left up to the states.

Are you a Medicare agent or broker who has questions and concerns about these new requirements? Join us on Thursday, September 22, at 1:00 p.m. ET to learn everything we currently know about the rule, with NAHU staff and NAHU Medicare Advisory Group Chair Mike Smith. Register here!

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