New Compliance Guidelines for 2024 AEP and OEP
The Center for Medicare and Medicaid Services (CMS) has steadily increased the level of compliance required for an agent/broker to sell both individual & family and Medicare plans. This year additional provisions are required to sell for 2024 effective dates. As your trusted partner, we’ve compiled what you need to be aware of to support your clients in making informed decisions this AEP and OEP.
Requirements for our organization:
CMS issued a new rule affective October 1, 2023, that requires Blue Cross Blue Shield of Michigan and Blue Care Network, as an MA Organization and Part D Sponsor, to establish a monitoring and oversight plan for agent and broker activities and to report non-compliance to CMS. This means that we will be monitoring for adherence to all the new provisions listed below (as well as previous rules) and agent partners may be asked to provide evidence to us as needed.
Requirements for Medicare plans:
Prohibits Marketing Unless the Names of MA Organizations or Part D Sponsors Being Advertised Are Clearly Displayed
- Prohibiting marketing of any products or plans, benefits, or costs, unless the MA organization or marketing name(s) as listed in HPMS, of the entities offering the referenced products or plans, benefits, or costs, are identified in the marketing material.
- Require MA organization or marketing names must be in 12-point font in print and may not be in the form of a disclaimer or fine print. (“fine print” means printed matter in small type or print displayed in an inconspicuous manner.)
- For television, online, or social media, the MA organization or marketing name(s) must be either read at the same pace as the phone number or must be displayed throughout the entire advertisement in a font size equivalent to the advertised phone number, contact information or benefits.
- For radio or other voice-based advertisements, MA organization or marketing names must be read at the same pace as the advertised phone numbers or other contact information.
- All organizations are permitted to change their original opt in or opt out at any time. This may be necessary in case an organization stops contracting with a specific TPMO or the organization has just decided to limit marketing by the TPMO.
Clarify Door to Door Solicitation
- Contacting a beneficiary at the individual’s home is unsolicited door-to-door contact unless an appointment at the beneficiary’s home at the applicable date and time was previously scheduled.
Prohibiting the Distribution of Scope of Appointment (SOA) and Future Marketing Appointments at Educational Events
- MA organizations holding or participating in educational events may no longer set up future personal marketing appointments or obtain Scope of Appointment forms.
- MA organizations holding or participating in educational events may permit organizations (and their agents) to make available and receive beneficiary contact information, including Business Reply Cards, but not Scope of Appointment forms.
Prohibiting Sales Events to Directly Follow Educational Events
- Marketing events are prohibited from taking place within 12 hours of an educational event, in the same location. The same location is defined as the entire building or adjacent buildings.
- CMS notes that the regulation above does not prohibit educational events or prohibit marketing events from including educational content and materials.
- - An agent or broker can hold a marketing event the same day as an educational event, provided the marketing event is in a different location. For example, if an agent wishes to have a sales event three miles from an educational event, it is permissible.
Requiring 48 Hours Between the Scope of Appointment (SOA) and a Meeting with a Beneficiary
At least 48 hours prior to the scheduled personal marketing, the MA plan (or agent or broker, as applicable) must agree upon and record the Scope of Appointment (SOA) with the beneficiary(ies), except for:
- SOAs that are completed during the last four days of a valid election period for the beneficiary. For example: the annual election period ends on December 7th of each year, so if an SOA is completed on or after December 3rd, the personal marketing appointment can occur during the period between December 3rd and December 7th. If an election period ends on the 31st of the month, the SOA must have been completed no earlier than the 27th of that month.
- Unscheduled in person meetings (walk-ins) initiated by the beneficiary. o Beneficiaries who walk into an agent’s office, a kiosk, a plan’s office, or any other walk in will not be subject to the 48-hour rule.
Limiting Scope of Appointments (SOAs) and Business Reply Cards (BRCs) to a 12-month Timeframe
MA organizations holding a personal marketing appointment may not do any of the following:
- Market any health care related product during a marketing appointment beyond the scope agreed upon by the beneficiary and documented by the plan in a SOA, business reply card or request to receive additional information, which is valid for 12 months following the date of beneficiary’s signature date or the date of the beneficiary’s initial request for information.
- Market additional health related lines of plan business not identified prior to an individual appointment without a separate Scope of Appointment, identifying the additional lines of business to be discussed; such SOA is valid for 12 months following the beneficiary’s signature date.
- MA organizations/Part D sponsors must ensure TPMOs (which includes agents and brokers) acting on their behalf adhere to any requirements that apply to the plan itself.
Effect on Current Coverage Added to the Pre-enrollment Checklist (PECL) and Review of PECL
The PECL is a standardized communications material that plans must provide to prospective enrollees with the enrollment form, so that the enrollees understand important plan benefits and rules. For telephonic enrollments the contents of the PECL must be reviewed with the prospective enrollee prior to the completion of the enrollment. It references information on the following:
- CMS will add language to the PECL that can be used as a basis for the conversation with potential enrollees regarding the effect of an enrollment choice on the potential enrollee’s current coverage. As soon as this language is released, Blue Cross will send a follow-up communication.
- All 2024 Enrollment Kits include a perforated PECL for your use.
- (i) The EOC.
- (ii) Provider directory.
- (iii) Pharmacy directory.
- (iv) Formulary.
- (v) Premiums/copayments/coinsurance.
- (vi) Emergency/urgent coverage.
- (vii) Plan-type rules.
- (viii) Effect on current coverage
CMS List of Required Elements Prior to Enrollment
- CMS doesn’t believe the Pre-Enrollment Checklist contains the level of detail required to ensure an agent receives all the information necessary to assist a beneficiary in making a decision that is best for their health care needs.
- Ensure that, prior to an enrollment, CMS’ required questions and topics regarding beneficiary needs in a health plan choice are fully discussed. Topics include information regarding primary care providers and specialists (whether the beneficiary’s current providers are in the plan’s network), regarding pharmacies (whether the beneficiary’s current pharmacy is in the plan’s network), prescription drug coverage and costs (including whether the beneficiary’s current prescriptions are covered), costs of health care services, premiums, benefits, and specific health care needs.
- - CMS will be providing sub-regulatory guidance more detailed questions and areas to be covered based on these general topics – as with the PECL language, BCBSM will send a follow-up communication when the additional guidance is released.
- - CMS is not requiring that agents or brokers read standardized questions or statements; rather that certain required topics are addressed, prior to the enrollment.
Adding State Health Insurance Program “SHIP” to the Third-Party Marketing Organization (TPMO) Disclaimer and Disclosing the Number of All Entities the TPMO Represents
- We do not offer every plan available in your area. Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. Please contact Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance Program to get information on all your options.”
- “Currently we represent [insert number of organizations] organizations which offer [insert number of plans] products in your area. You can always contact Medicare.gov, 1-800-MEDICARE, or your local State Health Insurance Program for help with plan choices.”
- The MA organization must ensure that the disclaimer is as follows:
- - Used by any TPMO that sells plans on behalf of more than one MA organization.
- - Verbally conveyed within the first minute of a sales call.
- - Electronically conveyed when communicating with a beneficiary through email online chat, or other electronic means of communication.
- - Prominently displayed on TPMO websites.
- - Included in any marketing materials, including print materials and television advertisements, developed, used, or distributed by the TPMO.
Limit Third-Party Marketing Organization (TPMO) Call Recording to Sales, Marketing, and Enrollment – Also Require Web-based Technology Meetings to be Recorded
- CMS is limiting the calls that must be recorded from all calls to only those calls regarding sales, marketing, and enrollment.
- Record all marketing, sales, and enrollment calls, including the audio portion of calls via web-based technology, in their entirety.
- - CMS considers meetings taking place on Zoom, Facetime, Skype, or other technology-based platforms to be the same as telephonic calls that present the same concerns about inappropriate marketing as has been found during telephonic calls.
- - The web-based technology requirement applies only to the audio portion of web-based calls.
Requiring Ma Organizations and Part D Sponsors Have A Monitoring And Oversight Plan And Report Agent Noncompliance To CMS
- Based on review of beneficiary complaints and audio calls between agents and beneficiaries, CMS is concerned about the level of oversight that MA organizations and Part D sponsors maintain over their contracted agents and brokers. CMS has determined that Plans appear to be reactive instead of proactive in addressing inappropriate agent and broker behavior. Therefore, CMS added a new regulation under licensing of marketing representatives and confirmation of marketing resources.
- CMS finalized that MA Organizations and Part D Sponsors establish and implement an oversight plan that monitors agent and broker activities, identifies non-compliance with CMS requirements and reports non-compliance to CMS.
- CMS does not expect organizations to report minor, insignificant issues, such as failing to go over one element in a required list of 18 elements. However, if an agent continually fails to address a significant number of elements, especially after being notified of issues or the agent’s conduct could have beneficiary impact, such as potential beneficiary harm, plans are required to report non-compliance.
Requirements for individual and family plans:
Earlier this summer two new requirements for on-marketplace enrollments were established to assist with resolving consumer complaints related to incorrect information on their eligibility applications or unauthorized enrollments as well as resolving disputes between agents and consumers, or between multiple enrolling entities.
1. New consumer consent requirements
Agents are required to obtain consent prior to assisting with or facilitating an enrollment through federally facilitated and state-based exchanges on the federal platform or assisting an individual with applying for advance premium tax credit or cost-sharing reductions.
This consent requires the consumer or authorized representative to provide a signature or record a verbal confirmation, and it must contain, at a minimum, the following information:
- A description of the scope, purpose, and duration of the consent provided by the consumer or their authorized representative
- The date the consent was given
- The name of the agent being granted consent
- A process through which the consumer or authorized representative may rescind the consent
An FAQ document created by CMS is available here: Frequently Asked Questions Regarding Enhanced Direct Enrollment Audit Submissions for 2020 (cms.gov).
2. New eligible application confirmation requirements
Agents are required to obtain documentation, such as a signature or verbal recording, that application information has been reviewed by and confirmed to be accurate by the consumer prior to application submission for coverage through federally facilitated and state-based exchanges on the federal platform.
This new step of the consumers' consenting for application accuracy requires the consumer or authorized representative to take action to produce a record (e.g., providing a signature, or recording a verbal confirmation) that must include, at a minimum, the following information:
- The date the application information was reviewed
- The name of the consumer or their authorized representative
- An explanation of the attestations at the end of the eligibility application
- The name of the agent providing the assistance
Important:
There is no standardized form or template being provided for these new requirements at this time, however our Enhanced Direct Enrollment partner, HealthSherpa, has made a generic form that is available when shopping for on-marketplace policies.
