CMS: New Disclaimer and Agent Call Recording Guidance

The Centers for Medicare & Medicaid (CMS) has just released a Final Rule for 2023. Included are two requirements that directly impact both brokers and independent agents who sell Medicare Advantage (MA) and/or Part D (MPD) plans.

When Do the Final Rules become effective?

They go into effect October 1, 2022. While they are technically written for 2023, their start date is intentionally scheduled to coincide with the 2023 Annual Election Period for Medicare Advantage and Medicare Part D plans.

Reasoning Behind New Final Rule Changes

CMS felt the need to intervene as a result of what they believe are misleading television commercials by third party marketing organizations (TPMOs). CMS believes the efforts of these organizations have led to an increase of customer complaints.

By implementing this final rule, the definition of TPMO was expanded to include all agents and brokers, as it has been debated that most often, customer dissatisfaction typically has little to do with their agents of record, but rather the TPMO call centers (known to solicit beneficiaries to switch their plans that don’t necessarily meet their needs). No further changes are expected, but aforementioned parties must be prepared to be compliant by October 1, 2022.

New Disclaimer & Placement Requirements

A disclaimer must be provided to beneficiaries. CMS has provided a sample that can be used.


“We do not offer every plan available in your area. Any information we provide is limited to those plans we do offer in your area. Please contact or 1-800-MEDICARE to get information on all your options.”

This disclaimer MUST be provided in ALL the following places:

  • Conveyed verbally within first minute of sales phone call
  • Conveyed electronically, when communicating with beneficiary via email, online chat, or other means of electronic communication
  • Must be displayed PROMINENTLY on your website
  • Included in ALL marketing materials (print: 12-point font & tv advertisements). The regulation does not apply to agents who offer all plans in their area.

New Call Recording Requirement

Agents and brokers must record all sales calls with beneficiaries in their entirety -this includes calls for the enrollment process. These recordings must be retained in a HIPAA compliant manner for 10 years – this includes both existing and new client contacts.

What’s Considered a Sales Call?

According to CMS, it is anything that falls under the “chain of enrollment’ or, the events beginning when a beneficiary becomes aware of an MA/PDP plan, until the end of the enrollment process. More specifically, when calling leads, scheduling appointments, collecting drug and provider lists and conducting education meetings and phone enrollments – all of these calls would fall under this guidance.

Note: Medicare Supplements are not included in the new call recording rules. However, if you are selling a Medicare Supplement in tandem with a Prescription Drug Plan, the call must be recorded as the conversation necessitates a Part D discussion.

Zoom meetings must also be recorded. Only in-person, face-to-face marketing and sales appointments are excluded. That said, any resultant sales and/or enrollment- related follow up calls would need to be recorded. This is also true for sales calls conducted on cell phones.

Call Recording Requirement FAQs

How can I record and store calls?

We recommend reaching out to your current phone provider to see if they offer call recording. If they do not, or it seems cost prohibitive, consider a VOIP phone system

that can be used in the office or the field. Some common options are RingCentral, 8×8, and Vonage. For storage, you will need to develop a process for sorting and storing the calls either on a local drive or cloud-based storage. Agents and brokers must ensure that the storage account utilized will comply with HIPAA rules since call recordings will contain sensitive data.

What about in person appointments?

In-person marketing and sales appointments do not
need to be recorded, however, calls to set appointments or follow-up calls to answer benefit questions would require recording. Servicing questions about current plan business, such as claims, billing, and requesting in force plan documents, are not sales calls and would not require recording.

I use my cell phone. Can I record calls on it?

Most VOIP services have a mobile app version that would allow calls to be recorded from your mobile device. There are also recording apps that would allow for recording calls without VOIP. Be cautioned, however, as a stand- alone recording app will not include any disclaimers that may be required by your jurisdiction before recording, whereas most VOIP systems offer/include these options.

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The information contained in this article is intended for educational purposes and to provide a general understanding of regulatory events, legislative changes and the law – not to provide specific legal advice. Employers are advised to discuss and/or receive counsel from their licensed legal or accounting professional, prior to implementing any new policy or policy change.