With Medicare’s open enrollment commencing on October 15, 2024, now is a good time to discuss the Centers for Medicare & Medicaid Services’ (“CMS”) marketing rule changes for the 2025 contract year. In addition to complying with the Telephone Consumer Protection Act (“TCPA”) and other applicable federal and state regulations, marketers (or Third-Party Marketing Organizations (“TPMOs”), as they are referred to in the Medicare space) must comply with the CMS marketing rule changes concerning the sharing of personal beneficiary data. Because the CMS marketing rules are effective during the current open enrollment period, it is important to now discuss the CMS marketing rule changes in further detail.
CMS Marketing and Open Enrollment
Codified at 42 C.F.R. § 422.2274(g)(4), the CMS marketing rule changes seek to limit the sale of personal beneficiary data by TPMOs. Beginning October 1, 2024, “personal beneficiary data collected by a TPMO . . . may only be shared with another TPMO when prior express written consent is given by the beneficiary.” Note, consent to share this data “must be obtained through a clear and conspicuous disclosure that lists each entity receiving the data and allows the beneficiary to consent or reject to the sharing of their data with each individual TPMO.”
Read in conjunction with 42 C.F.R. § 422.2274(g)(3), which concerns lead generation activities and disclosures that must be provided to the beneficiary, the CMS marketing rule changes permit the sharing of personal beneficiary data when the TPMO obtains consent through the same means as the method of communication (i.e., verbal when communicating through telephone, in writing when communicating through mail or other paper, or electronic when communicating through email, etc.). CMS guidance provides further clarity on this point by stating that, “[f]or example, a beneficiary may call a TPMO seeking to get information about Medicare plan options and that TPMO . . . may be able to transfer or connect that beneficiary to another TPMO . . . to provide real time assistance to the beneficiary.” Under the plain language of the rule, if the TPMO is not sharing personal beneficiary data with another TPMO, then the CMS marketing rule is inapplicable. For example, if a TPMO transfers a beneficiary to another TPMO without sharing the beneficiary’s data with the TPMO-transferee, then this CMS marketing rule does not apply. Importantly, please note that unlike the Federal Communications Commission’s (“FCC”) upcoming rule changes to the TCPA, which only pertain to automated telephone equipment, and the use of artificial or prerecorded voice, the CMS marketing rule pertains to manually dialed calls as well.
What Do the CMS Marketing Rule Changes Mean for TPMOs?
With Medicare open enrollment now in full swing, it is imperative that businesses update their policies and procedures for: (1) the collection and sharing of consumer data; and (2) obtaining marketing consent from consumers. The attorneys at Klein Moynihan Turco (“KMT”) have a wealth of experience with advising companies on how to comply with various federal and state marketing laws, rules, and regulations.
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