A Guide to CMS Call Recording Requirements for Insurance Brokers

The Contract Year for 2023 is fast approaching and the Centers for Medicare and Medicaid Services (CMS) have issued their final rule on new, third-party requirements for call recording and other marketing interactions. Does your agency know what the new requirements are?

If not, it's time to get a handle on them to protect your brokers and agents.

As the new rule went into effect on October 1, 2022, we have put together a clear guide to CMS recording requirements so you can stay safe and keep your clients' information protected.

1. Changes to 2023 CMS Recording Requirements

2. Defining TPMOs

3. What Do Agents and Brokers Need to Change?

4. More Changes for Contacting Plans

5. Review All Important Disclaimers

6. What Calls to Record?

7. Important Facts About Recording Calls

8. Q&A: How and When to Record Calls

9. How Is This New Rule HIPPA Compliant?

10. What About Recording Retention?

11. How to Become Compliant Today

Changes to 2023 CMS Recording Requirements

The 2023 CMS recording requirements and rules for sales calls, electronic communications, and marketing materials are in-depth. However, the main changes include:

  • Rolling out new standards for plans' oversight responsibilities
  • Clearly defining TPMOs and whether your business falls into that category
  • Requiring businesses to use a standard disclaimer when they are marketing fewer than all the available plans to a given geographical area

iPlum understands the importance of keeping your brokers and agents compliant with all CMS rules. We will go into detail about each of these new requirements to protect your business and ensure you're within the new CMS rules.

Defining TPMOs

First things first, the 2023 CMS rule redefines TPMOs. Here we will help you understand this standard so you can determine whether your business falls into the new definition.

CMS defines TPMOs in 42 CFR 422.2260 and 423.2260 as:

"...Organizations that are compensated to perform lead generation, marketing, sales, and enrollment-related functions as part of the chain of enrollment.

Simply put, the CMS considers all insurance brokers and agents to be TPMOs.

So, if you're an insurance broker or agent, employ insurance vendors or subcontractors, you need to understand and strictly hold fast to all CMS Third-Party Marketing Organization rules and guidelines.

A copy of the final rule, in its entirety, is downloadable from the government website.


What Do Agents and Brokers Need to Change?

As an agent or insurance broker, you can protect yourself and your business by making the following changes. These changes pertain to all communications that take place during any lead-generation conversations.

This includes telephone calls, emails, online chats, etc. As the new rule went into effect on October 1, 2022, the following changes should be made now:

  1. Publish, verbatim, the TPMO CMS disclaimer on your website
  2. Make the TPMO CMS disclaimer readily visible on all your email communications
  3. Include the exact TPMO disclaimer text in all marketing materials including print, television, radio, and other forms of marketing
  4. Record all calls, in their entirety, with beneficiaries
  5. During lead-generation calls, inform beneficiaries that their information will be given to a licensed insurance agent
  6. When speaking via phone, inform the beneficiary verbally
  7. When communicating via mail or print, include the TPMO disclosure in writing
  8. When communicating electronically via email, messenger, text, or online chats, disclose this information electronically
  9. Disclose to the beneficiary that they are being transferred to a licensed insurance agent or broker who can enroll him or her into a new insurance plan
  10. Include the TPMO CMS disclaimer verbally within the first minute of all sales calls and training scripts

More Changes for Contacting Plans

Additional changes are needed for your contacts with plans. You must ensure all plans understand and adhere to the new rule as they interact with your clients and beneficiaries.

1. Make an inventory and record of all vendors including:

  • Marketing vendors
  • Contractors
  • Subcontractors used for enrollment
  • Sales
  • Lead generation
  • Any other marketing services

2. Ensure all vendors are compliant with the new TPMO rules

3. Streamline a method for updating plans about these changes

  • Inform all plans who your vendors, contractors, and subcontractors are that participate in your lead-generation activities
  • Include in your method a plan for reporting changes to each of these organizations or individuals
  • Include information about disciplinary actions for failure to adhere to the TPMO rules

4. Establish a method for contacting plans every month

  • Include incidents of disciplinary actions for failure to disclose the TPMO disclaimer to beneficiaries
  • Include a report of any violations of requirements that apply to the plan connected with a beneficiary and their interactions associated with that particular plan

5. In your monthly communications, report to your plans:

  • Staff disciplinary actions taken in relation to beneficiary communications related to that plan
  • Any violations of CMS requirements related to that plan and the beneficiaries associated with it

6. Require all TPMOs you work with to enter into a written agreement to adhere to all TPMO CMS requirements


Review All Important Disclaimers

There are many important TPMO disclaimers to familiarize yourself with. They should be used in all your Medicare marketing materials.

Because different agents and brokers use a variety of marketing methods, we have listed the titles of each disclaimer below.

You can read the actual disclaimers and obtain their text for publication and use by visiting CMS.gov. Be sure to do your research and include the appropriate Medicare disclaimers for each type of marketing material your agency or brokers use.

They include:

  • The standard 2023 TPMO disclaimer
  • Lead generation disclaimers
  • Federal contracting statement
  • Star ratings
  • Accommodations
  • Promotional giveaways, free gifts, prizes, or drawings
  • Product endorsement or testimonials
  • Not affiliated with Medicare or the government
  • Member-facing websites
  • Providing materials in different media types (Communications and Marketing)
  • Materials that include the agent's phone number
  • Marketing Medicare supplement insurance plans

What Calls to Record?

According to the CMS official 2023 rule, all TPMOs must adhere to these new rules. However, understanding which calls to record is a bit trickier.

Here is an FAQ regarding which calls you must record as an insurance agent or broker.

When does the new TPMO call recording rule go into effect?

While the new recording requirement applies to enrollments made for a January 1, 2023, effective date and all enrollments beyond that, it is in effect as of October 1, 2022. This means the necessary changes must be implemented immediately.

Who does this new requirement apply to?

All TPMOs as newly defined by the CMS (see above).

Does the new requirement to record calls only apply to call centers?

No. It applies to all individuals and organizations that fall under the new TPMO definition (see above).

Does the requirement to record calls apply to captive agents?


Is it now required for agents to record all calls with beneficiaries? Even calls that are outside of the scope of enrollment?

Yes. A plan must ensure that all calls between a TPMO and a beneficiary are recorded.

Does this requirement to record all calls apply to both inbound and outbound calls?


Important Facts About Recording Calls

The new CMS rule for recording calls is broad. Some agents may be unsure if certain exceptions apply, but as a rule of thumb, the new CMS rule indicates that all communications with beneficiaries should be recorded.

A few other important rules and facts that fall under the new recording rule include:

1. All Zoom calls or conversations taking place between a Medicare beneficiary and TPMO (as defined) organization via virtual platforms, chats, emails, etc. must be recorded

2. If a Medicare beneficiary refuses to allow recording of the conversation, the TPMO or agent must end the call. There are no exceptions

3. The CMS does NOT require in-person conversations between a PTMO and beneficiary to be recorded

4. No sales can be completed over the phone or via a virtual platform if the beneficiary has refused for the conversation to be recorded, but instead, the call or conversation must end

Q&A: How and When to Record Calls

Now that you understand to whom this recording rule applies, here is some clarification on how and when the CMS requires calls to be recorded. Again, these rules apply to all individuals and organizations who fall under the new definition of TPMOs.

Is there a specific method or software required for recording calls?

No. TPMOs may work with vendors and agents to determine a method for recording calls as long as they are recorded in their entirety.

This new requirement to record calls is a major change, one which we are not equipped for. How does CMS expect insurance agents and brokers to follow this new rule?

The requirement to record enrollment calls has been in place for some time. Prior to this new rule, TPMOs should have been following the existing requirement to record calls that involved telephonic enrollment. Thus, the CMS expects TPMOs to leverage their existing recording process to begin recording all calls and virtual enrollments with Medicare beneficiaries.

(Fortunately, iPlum has an expert method for recording all inbound and outbound calls within the new CMS guidelines).

Many smaller agents and brokers do not have the infrastructure in place to record conversations. This places them at a serious disadvantage. What flexibility is CMS offering to smaller agents/brokers to adhere to this new standard?

CMS is treating all agents and brokers equally. As all agents and brokers, (regardless of size), have already been under the requirement to record calls related to enrollment, the CMS suggests smaller agents/brokers speak to the plans with whom they contract to get assistance in recording and maintaining calls.

How Is This New Rule HIPPA Compliant?

As an insurance broker or agent, reading these new requirements may have you wondering how the CMS rule is HIPPA compliant. What can you say to beneficiaries who are concerned when you tell them their calls or virtual conversations will be recorded?

The CMS has provided an answer to this, though it is somewhat disavowing them of responsibility for an explanation. CMS states:

"Uses and disclosures of protected health information are permitted under the HIPPA 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 US Department of Health and Human Services Office for Civil Rights ((https://www.hhs.gov/ocr/about-us/contact-us/index.html))."

While the CMS response is not detailed, utilizing a recording software that understands and complies with all HIPPA requirements will be an asset for insurance brokers and agents. By using an experienced software partner, you can rest assured that your HIPPA compliance is sound and keep your focus on generating leads and caring for clients.

What About Recording Retention?

The CMS holds TPMOs and their plans responsible for retaining recorded calls/conversations for the appropriate amount of time. Again, having a reliable recording agency to both record and store your calls will save you a world of trouble.

An iPlum CMS compliance solution for your business could be the ideal solution for storing recorded conversations.

According to the CMS, "the nature of the call" will determine the length of storage time. The CMS currently (and within the new rule), requires all phone calls dealing with enrollment and sales processes between TPMOs and Medicare beneficiaries to be stored for 10 years.

If a call does not originate as a sales call, but turns into one or leads to enrollment, it falls within this rule and brokers must store it for 10 years. You can read the storing rules outlined in Chapter 11 of the Medicare Managed Care Manual.

How to Become Compliant Today

The new CMS recording requirements set in place on October 1, 2022, may be overwhelming to insurance brokers/agents. For smaller agents/brokers, they may seem unattainable.

Fortunately, with the right help, there is hope for any sized business to adhere to the CMS rules.

iPlum offers an experienced team and the perfect App and line of products to meet all of your business phone recording, managing, and storing needs. Don't let the stresses of new regulations inhibit your ability to carry out business and thrive.

Contact us today and let us answer all your questions about how iPlum provides the perfect phone solutions for your business.

Authored by Keily Atterberg, a freelance writer specializing in content creation for mobile security. She also writes for many local & national publications.
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