Viewpoint: CMS' Medicare Advantage 3rd-party marketing rules miss the mark

There are major flaws and missed opportunities in CMS' new rules for Medicare Advantage and Part D third-party marketing organizations, according to an op-ed published July 25 in Newsweek by Justin Brock.

Mr. Brock is president and CEO of Bobby Brock Insurance, an independent Medicare agency with brokers in all 50 states.

As of June 28, CMS defines TPMOs as "organizations and individuals, including independent agents and brokers, that are compensated to perform lead generation, marketing, sales and any enrollment-related functions as part of the chain of enrollment." 

TPMOs must now display a disclaimer for individuals to call or visit Medicare's website if they do not carry all plans. If they do, they must still read that disclaimer during appointments and put it on all marketing materials for Medicare products. In addition, TPMOs must record all phone calls from where they are taking place. 

The onus is on plan sponsors to enforce these regulations. The problem with this, according to Mr. Brock, is that placing responsibility on MA carriers means admitting that if a TPMO does not have a direct contract with a carrier, it cannot face any consequences. If a TPMO advertises on Facebook, sells live international transfer calls or runs misleading television commercials through a company disconnected from the carrier, there is no one that can be held responsible for those actions. While carriers should carry some enforcement burden, the op-ed says marketing companies without a carrier contract need scrutiny as well.

Mr. Brock writes that there was a major increase in phone calls to Medicare beneficiaries in 2021 that originated in Pakistan. The intent of the calls is to find an individual that says yes to being transferred to a TPMO, which can then write and sell a MA plan. These calls are not recorded until transferred to the TPMO, and Mr. Brock says this is an ongoing strategy used to get around CMS' unsolicited contact rule for MA sales.

Mr. Brock recommends expanding the unsolicited contact rule to include a ban on "foreign-initiated outbound phone calls without proof of solicitation of that contact attempt" and potentially excluding general opt-in data from the definition of unsolicited contact.

Finally, he writes that MA advertisements are skirting a CMS rule that requires a scope of appointment before plan benefits can be discussed. Advertisements will avoid talking about specific plan benefits and instead discuss them in a broader sense of what is offered. Mr. Brock recommends a firm stance from CMS over whether discussing general benefits is in compliance with regulations.


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