America's Benefit Specialist November 2022

MEDICARE MATTERS

OVERVIEW OF THE MEDICARE

MARKETING FINAL RULE

By John Greene Vice President of Congressional Affairs NAHU jgreene@nahu.org

Everyone is familiar with the Joe Namath ads and other misleading ads exhorting Medicare beneficiaries to call now to take advantage of additional benefits they may be entitled to. NAHU and other consumer groups have complained to CMS for years about the ads, but be careful what you wish for. An SEP was created during the pandemic for COVID-affected beneficiaries to make plan changes. This allowed the ad to air on TV year-round, not just during the AEP or OEP, and resulted in a spike in complaints to CMS by beneficiaries. CMS leadership ordered new regulations to stem the tidal wave of complaints that had more than doubled between 2020 and 2021. Rather than meeting with stakeholders to identify the source of the complaints, CMS used a program of secret shoppers to hear first hand what “agents” were doing. They were

not able to distinguish between call-center or lead-generator operations and indepen dent agents. The proposed rule released in early January 2022 revised the definition of third-party marketing organization, or TPMO, to include agents and brokers for the first time. NAHU Action: The comment period ended in March. During that time, NAHU and AHIP discussed our approach to the rule, including a decision by both organi zations to request a delay of the marketing rule until stakeholders could have a deeper discussion of the problem and potential solutions. Unfortunately, the rule became final without further changes. NAHU had several calls with CMS on the issue, requesting a carve-out for current clients, a carve-out for Part D and, again, a delay in implementation because agents had not recorded in the past and had little time

to acquire the technology and prepare bene ficiaries for the change. None of the changes could be made, according to CMS, without a new rule and the rule would go into effect as planned on October 1 for all TPMOs, including independent agent and brokers. NAHU did not end its effort to affect the rule and NAHU CEO Janet Trautwein sent a letter to CMS Administrator Chiquita Brooks-LaSure and her deputies outlining our concerns for the impact to beneficiary advice and enrollment. NAHU also sent an other letter to the CMS administrator with the Agent Alliance (Big I, NAIFA, CIAB and PIA). Congress and the NAIC have separately begun to show interest in MA marketing. As a result, NAHU engaged an Operation Shout 1 to Congress to drive the narrative that there is a problem, but the problem is not independent agents. NAHU is currently

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