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Empire Important New CMS Requirements for Call Recording - UPDATED

September 30, 2022
Empire BlueCross BlueShield

All agencies and brokers selling Medicare Advantage and/or Part D plans should review and implement the new requirements outlined below.

CMS published their 2023 Final Rule that includes new regulatory requirements. These changes have a significant impact on all agencies and brokers selling Medicare Advantage and/or Part D plans. In keeping with Empire's requirement to ensure Third-Party Marketing Organizations (TPMOs) adhere to all applicable laws, regulations, and CMS guidelines they are sharing new requirements outlined in the recent 2023 CMS Final Rule.¹

A TPMO is anyone who is compensated directly or indirectly by the plan to perform a specific function (i.e., lead generation, marketing, sales, and enrollment related activities) and impacts all agencies and brokers selling Medicare Advantage and/or Part D plans.

The new TPMO requirements included in the 2023 CMS Final Rule are as follows:

The Third-Party Marketing Organization (TPMO) Disclaimer

“We do not offer every plan available in your area. Any information we provide is limited to those plans we do offer in your area. Please contact Medicare.gov or 1-800-MEDICARE to get information on all of your options.”

This disclaimer above must be placed on ALL TPMO materials going forward. Previously submitted 2022 materials should be refiled with the new TPMO disclaimer. Previous versions are to be marked “no longer in use” in HPMS.

The disclaimer must be verbally conveyed within the first 60 seconds of the SALES CALL and electronically conveyed when communicating with a beneficiary through email, online chat, or other electronic means of communication and must be included on TPMO consumer facing websites.

Recording Beneficiary Calls

By October 1, 2022, you MUST be prepared to record ALL calls with potential Medicare beneficiaries (prospects) and Medicare beneficiaries (current clients)in their entirety for January 1, 2023 policy effective dates. 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 from becoming aware of a Medicare plan or plans to making an enrollment decision), as well as post-enrollment telephonic discussions.

Includes both pre and post enrollment calls, inbound and outbound calls, educational and casual phone conversations with Medicare beneficiaries in addition to marketing/sales calls.  ̶F̶a̶c̶e̶-̶t̶o̶-̶f̶a̶c̶e̶ ̶v̶i̶r̶t̶u̶a̶l̶ ̶i̶n̶t̶e̶r̶a̶c̶t̶i̶o̶n̶s̶ ̶o̶n̶ ̶p̶l̶a̶t̶f̶o̶r̶m̶s̶ ̶l̶i̶k̶e̶ ̶Z̶O̶O̶M̶ ̶d̶o̶ ̶n̶o̶t̶ ̶n̶e̶e̶d̶ ̶t̶o̶ ̶b̶e̶ ̶r̶e̶c̶o̶r̶d̶e̶d̶.̶ ̶H̶o̶w̶e̶v̶e̶r̶,̶ ̶i̶f̶ ̶t̶h̶a̶t̶ ̶t̶y̶p̶e̶ ̶o̶f̶ ̶p̶l̶a̶t̶f̶o̶r̶m̶ ̶i̶s̶ ̶u̶s̶e̶d̶ ̶a̶s̶ ̶a̶ ̶p̶h̶o̶n̶e̶ ̶s̶e̶r̶v̶i̶c̶e̶ ̶o̶n̶l̶y̶,̶ ̶w̶i̶t̶h̶o̶u̶t̶ ̶f̶a̶c̶e̶-̶t̶o̶-̶f̶a̶c̶e̶ ̶i̶n̶t̶e̶r̶a̶c̶t̶i̶o̶n̶,̶ ̶t̶h̶e̶ ̶c̶a̶l̶l̶ ̶m̶u̶s̶t̶ ̶b̶e̶ ̶r̶e̶c̶o̶r̶d̶e̶d̶.̶ (see below)

A disclaimer stating that the call is being recorded must be read at the beginning of the interaction and include beneficiary acknowledgement.

  • ̶I̶f̶ ̶t̶h̶e̶ ̶b̶e̶n̶e̶f̶i̶c̶i̶a̶r̶y̶ ̶d̶o̶e̶s̶ ̶n̶o̶t̶ ̶w̶a̶n̶t̶ ̶t̶o̶ ̶b̶e̶ ̶r̶e̶c̶o̶r̶d̶e̶d̶,̶ ̶t̶h̶e̶ ̶b̶r̶o̶k̶e̶r̶ ̶i̶s̶ ̶a̶l̶l̶o̶w̶e̶d̶ ̶t̶o̶ ̶c̶o̶n̶t̶i̶n̶u̶e̶ ̶t̶h̶e̶ ̶c̶a̶l̶l̶ ̶w̶i̶t̶h̶o̶u̶t̶ ̶t̶h̶e̶ ̶r̶e̶c̶o̶r̶d̶i̶n̶g̶ (see below)
  • Call recordings must be retained in a HIPAA-compliant manner for 10 years.
  • You must be able to provide call recordings related to specific beneficiary interactions upon request

Oversight Activities

TPMOs must report to the plan, on a monthly basis, any staff disciplinary actions or violations of any requirements that apply directly to the MA/PDP plan. Actions that may be related to MA/PDP in general, but unrelated to the plan do not require reporting. TPMOs must disclose any subcontracted relationships used for marketing, lead generation, and enrollment to Empire. This includes but is not limited to ensuring that the TPMOs you contract with directly in support of lead generation, marketing, sales, and enrollment are aware of and adhere to the new requirements. This includes but is not limited to ensuring the TPMO discloses to the beneficiary either verbally, electronically or in writing, that his or her information will be provided to a licensed agent for future contact and disclose to the beneficiary that he or she is being transferred to a licensed agent who can enroll him or her into a new plan where applicable.

Contract Amendment

In order to align our contracts with the new CMS requirements, Empire will be revising the MAPD Amendment portion of your contract to include this verbiage and other pertinent language relating to the new guidance. Once updates are finalized, we will send out instructions on the actions you need to take and any applicable deadlines. Additional information will be shared when it becomes available.

Update 9/30/2022 - CORRECTED Requirements:

  • NEW - Face to face virtual interactions on platforms like Zoom MUST be recorded.
  • NEW - If the prospect or member does not want to be recorded, you should stop the recording and you MUST END the call.
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