Insurance Agents as TPMOs: What 2023 CMS Compliance Regulations Mean for You

In their Final Rule for Contract Year 2023, the Centers for Medicare and Medicaid Services (CMS) implemented new Third-Party Marketing Organization requirements that will impact your business.

What Are Third-Party Marketing Organizations?

CMS defines Third-Party Marketing Organizations (TPMOs) as “organizations that are compensated to perform lead generation, marketing, sales, and enrollment related functions as a part of the chain of enrollment.”

By this definition, CMS considers all insurance agents and brokers to be TPMOs, meaning that insurance agents and brokers must adhere to all CMS’ TPMO rules and guidelines.

What Do Agents/Brokers Need to Do as TPMOs?

Agents/brokers should follow the checklist below.

Add the TPMO disclaimer to your website.
Add the TPMO disclaimer to your email communications.
When conducting lead-generating activities, disclose to the beneficiary that his or her information will be provided to a licensed insurance agent for future contact:
- Verbally when communicating with a beneficiary through the telephone.
- In writing when communicating with a beneficiary through mail or other paper communication.
- Electronically when communicating with a beneficiary through email, online chat, or other electronic messaging platform.
Add the TPMO disclaimer, verbatim, to all of your marketing materials, including print and TV ads.
When conducting lead-generating activities, disclose to the beneficiary that he or she is being transferred to a licensed insurance agent who can enroll him or her into a new plan.
Add the TPMO disclaimer to all sales call scripts within the first minute.
Record all calls with beneficiaries in their entirety, including the enrollment process.
Identify and make a list of all vendors, contractors, and subcontractors you use for marketing, sales, lead generation, and enrollment.
Revise your existing written agreements with all of your TPMOs (vendors, contractors, and subcontractors for marketing, sales, lead generation, and enrollment) to require your TPMOs to be compliant with TPMO requirements.
Enter into written agreements with all of your TPMOs (vendors, contractors, and subcontractors for marketing, sales, lead generation, and enrollment) with whom you have relationships but do not have written agreements that require the TPMOs to be compliant with TPMO requirements.
Develop a process for disclosing to the plans your vendors, contractors, and subcontractors you use for marketing, sales, lead generation, and enrollment. Your process should include a method for reporting changes to the list.
Disclose to the plans your vendors, contractors, and subcontractors for marketing, sales, lead generation, and enrollment.
Develop a process for reporting to plans monthly:
- Staff disciplinary actions associated with beneficiary interaction to the plan.
- Violations of any requirements that apply to the plan associated with beneficiary interaction to the plan.
Report to plans monthly:
- Any staff disciplinary actions associated with beneficiary interaction to the plan.
- Violations of any requirements that apply to the plan associated with beneficiary interaction to the plan.

Important Disclaimers for Consideration

Here are the disclaimers you must consider using for your Medicare marketing materials

Medicare Advantage & Part D
New for 2023: TPMO Disclaimer 42 CFR 422.2267(e)(41)	Standardized Content “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 Medicare.gov or 1-800-MEDICARE to get information on all of your options.” Note: Disclaimer is not required for TPMOs that truly offer every option in a service area.	Required on: All TPMO marketing materials, including all print materials and TV ads, that are used, created, or distributed by a TPMO and that meet the definition of “marketing” All TPMO websites (prominently displayed) Provided verbally within the first minute of a sales call Provided electronically when communicating with a beneficiary through email, online chat, or other electronic means of communication Not required to be conveyed during an in-person meeting	“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 Medicare.gov or 1-800-MEDICARE to get information on all of your options.”
Lead Generation Disclaimers 42 CFR 422.2274(g)(3)(i)	TPMOs conducting lead generation activities must inform the Medicare beneficiary that their information will be provided to a licensed agent for future contact, or that the Medicare beneficiary is being transferred to a licensed agent who can enroll them in a new plan. This is to be done verbally, electronically, or in writing, depending on how the TPMO is interacting with the Medicare beneficiary.	Required to clearly state on all lead generation forms that a licensed agent will be contacting the Medicare beneficiary. Required on call scripts, when transferring the call to a licensed agent, the individual speaking to the beneficiary must clearly state the call is being transferred to a licensed agent.	“Your information will be provided to a licensed insurance agent. You may be contacted by a licensed insurance agent.” For all call scripts when transferring the call to a licensed agent: “You are now being transferred to a licensed insurance agent who can enroll you in a new plan.”
Federal Contracting Statement 42 CFR 422.2267(e)(32)	Model Content Must include: Legal or marketing name Type of plan Statement that the organization has a contract with Medicare Statement that enrollment depends on contract renewal	Required on all marketing materials except banners and banner-like advertisements, outdoor advertisements, text messages, social media, and envelopes.	“< Agent/Agency > is a licensed and certified representative of Medicare Advantage organizations and stand-alone prescription drug plans. Each of the organizations they represent has a Medicare contract. Enrollment in any plan depends on contract renewal.”
Star Ratings 42 CFR 422.2267(e)(33)	Model Content Must convey that plans are evaluated yearly by Medicare and that the ratings are based on a five-star rating system.	Required on all marketing materials that mention Star Ratings. Because of space limitations with electronic media, like search ads and social media, it is acceptable to provide the Star Ratings disclaimer to the viewer when the viewer clicks on the ad.	“Every year, Medicare evaluates plans based on a five-star rating system.”
Accomodations 42 CFR 422.2267(e)(35)	Model Content Must convey that accommodations are available for persons with special needs and provide a telephone number and TTY number.	Required on all invitations to events, including educational events and market/sales events.	“For accommodations of persons with special needs, call < insert phone and TTY number >.”
Promotional Giveaways, Prizes, Free Gifts, or Drawings 42 CFR 422.2267(e)(37)	Model Content Must convey that there is no obligation to enroll in a plan.	Required when offering promotional giveaways such as drawings, prizes, or free gifts.	“Eligible for a free drawing, gift, or prizes with no obligation to enroll.” “Free gift without obligation to enroll.”
Product Endorsement or Testimonials 42 CFR 422.2262(b)	Model Content	Required to comply with the following when individuals endorse an MA organization’s product: Speaker must identify the MA organization’s product or company by name. Medicare beneficiaries endorsing or promoting MA plans must have been a member of the plan at the time the endorsement or testimonial was created. Endorsement or testimonial must clearly state that the individual was paid for the endorsement or testimonial, if applicable. If an individual is used (such as an actor) to portray a real or fictitious situation, the endorsement or testimonial must state that it is an actor portrayal.	“Paid endorsement.” “Paid actor portrayal.”
Not Affiliated With Medicare or the Government 42 CFR 422.2262(a)(1)(xi)	Model Content Must convey that that the organization or agent is not affiliated with or endorsed by any government agency.	Required on all communications and marketing materials. If a material includes the word “Medicare” in the organization’s name or logo, it must be clearly stated that this is a “non-government entity” directly below the name or logo.	“Not affiliated with or endorsed by any government agency.” “A non-government entity” directly below a name or logo that contains the word “Medicare.”
Member-Facing Websites	Model Content All member-facing websites must include non-conspicuous verbiage relating to accessibility and non-discrimination.	The following language is recommended to be added to the footer of the website, which links to a page that contains all the required information.	“The plans we represent do not discriminate on the basis of race, color, national origin, age, disability, or sex.”
Providing Materials in Different Media Types (Communications and Marketing) 42 CFR 422.2264(a)(1)	Model Content After giving consent for electronic mailings, the enrollee must be able to opt out.	Include an “Opt-Out” or “Unsubscribe” option in email communications that include instruction or a link with instruction on how to opt out. The unsubscribe link must be active and truly unsubscribe someone from the future email messages as described in the unsubscribe instructions.	“Opt-Out” or “Unsubscribe” with opt-out/unsubscribe link
Materials That Include Agent’s Phone Number 42 CFR 422.2262(c)(1)(ii)	Model Content Materials that include an agent’s phone number should clearly indicate that calling the agent’s number will direct an individual to a licensed sales agent.	Use this disclaimer when listing a number that dials a sales agent. Must include TTY: 711 next to the phone number.	Immediately prior to including the agency’s number or any number that will reach a sales agent, state that the number will dial a “licensed sales agent” or “licensed insurance agent.”

Medicare Advantage & Part D

Disclaimer

Model or Standardized Content

Applicable Content and Notes

Example

New for 2023: TPMO Disclaimer

42 CFR 422.2267(e)(41)

Standardized Content

“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 Medicare.gov or 1-800-MEDICARE to get information on all of your options.”

Note: Disclaimer is not required for TPMOs that truly offer every option in a service area.

Required on:

All TPMO marketing materials, including all print materials and TV ads, that are used, created, or distributed by a TPMO and that meet the definition of “marketing”

All TPMO websites (prominently displayed)
Provided verbally within the first minute of a sales call
Provided electronically when communicating with a beneficiary through email, online chat, or other electronic means of communication
Not required to be conveyed during an in-person meeting

Lead Generation Disclaimers

42 CFR 422.2274(g)(3)(i)

TPMOs conducting lead generation activities must inform the Medicare beneficiary that their information will be provided to a licensed agent for future contact, or that the Medicare beneficiary is being transferred to a licensed agent who can enroll them in a new plan.

This is to be done verbally, electronically, or in writing, depending on how the TPMO is interacting with the Medicare beneficiary.

Required to clearly state on all lead generation forms that a licensed agent will be contacting the Medicare beneficiary.

Required on call scripts, when transferring the call to a licensed agent, the individual speaking to the beneficiary must clearly state the call is being transferred to a licensed agent.

“Your information will be provided to a licensed insurance agent. You may be contacted by a licensed insurance agent.”

For all call scripts when transferring the call to a licensed agent:

“You are now being transferred to a licensed insurance agent who can enroll you in a new plan.”

Federal Contracting Statement

42 CFR 422.2267(e)(32)

Model Content

Must include:

Legal or marketing name
Type of plan
Statement that the organization has a contract with Medicare
Statement that enrollment depends on contract renewal

Required on all marketing materials except banners and banner-like advertisements, outdoor advertisements, text messages, social media, and envelopes.

“< Agent/Agency > is a licensed and certified representative of Medicare Advantage organizations and stand-alone prescription drug plans. Each of the organizations they represent has a Medicare contract. Enrollment in any plan depends on contract renewal.”

Star Ratings

42 CFR 422.2267(e)(33)

Model Content

Must convey that plans are evaluated yearly by Medicare and that the ratings are based on a five-star rating system.

Required on all marketing materials that mention Star Ratings.

Because of space limitations with electronic media, like search ads and social media, it is acceptable to provide the Star Ratings disclaimer to the viewer when the viewer clicks on the ad.

“Every year, Medicare evaluates plans based on a five-star rating system.”

Accomodations

42 CFR 422.2267(e)(35)

Model Content

Must convey that accommodations are available for persons with special needs and provide a telephone number and TTY number.

Required on all invitations to events, including educational events and market/sales events.

“For accommodations of persons with special needs, call < insert phone and TTY number >.”

Promotional Giveaways, Prizes, Free Gifts, or Drawings

42 CFR 422.2267(e)(37)

Model Content

Must convey that there is no obligation to enroll in a plan.

Required when offering promotional giveaways such as drawings, prizes, or free gifts.

“Eligible for a free drawing, gift, or prizes with no obligation to enroll.”

“Free gift without obligation to enroll.”

Product Endorsement or Testimonials

42 CFR 422.2262(b)

Model Content

Required to comply with the following when individuals endorse an MA organization’s product:

Speaker must identify the MA organization’s product or company by name.
Medicare beneficiaries endorsing or promoting MA plans must have been a member of the plan at the time the endorsement or testimonial was created.
Endorsement or testimonial must clearly state that the individual was paid for the endorsement or testimonial, if applicable.
If an individual is used (such as an actor) to portray a real or fictitious situation, the endorsement or testimonial must state that it is an actor portrayal.

“Paid endorsement.”

“Paid actor portrayal.”

Not Affiliated With Medicare or the Government

42 CFR 422.2262(a)(1)(xi)

Model Content

Must convey that that the organization or agent is not affiliated with or endorsed by any government agency.

Required on all communications and marketing materials.

If a material includes the word “Medicare” in the organization’s name or logo, it must be clearly stated that this is a “non-government entity” directly below the name or logo.

“Not affiliated with or endorsed by any government agency.”

“A non-government entity” directly below a name or logo that contains the word “Medicare.”

Member-Facing Websites

Model Content

All member-facing websites must include non-conspicuous verbiage relating to accessibility and non-discrimination.

The following language is recommended to be added to the footer of the website, which links to a page that contains all the required information.

“The plans we represent do not discriminate on the basis of race, color, national origin, age, disability, or sex.”

Providing Materials in Different Media Types (Communications and Marketing)

42 CFR 422.2264(a)(1)

Model Content

After giving consent for electronic mailings, the enrollee must be able to opt out.

Include an “Opt-Out” or “Unsubscribe” option in email communications that include instruction or a link with instruction on how to opt out. The unsubscribe link must be active and truly unsubscribe someone from the future email messages as described in the unsubscribe instructions.

“Opt-Out” or “Unsubscribe” with opt-out/unsubscribe link

Materials That Include Agent’s Phone Number

42 CFR 422.2262(c)(1)(ii)

Model Content

Materials that include an agent’s phone number should clearly indicate that calling the agent’s number will direct an individual to a licensed sales agent.

Use this disclaimer when listing a number that dials a sales agent.

Must include TTY: 711 next to the phone number.

Immediately prior to including the agency’s number or any number that will reach a sales agent, state that the number will dial a “licensed sales agent” or “licensed insurance agent.”

Medicare Supplement
Marketing Medicare Supplement Insurance Plans	Model Content	State requirements may vary on required content and disclaimers. At minimum, we recommend the following disclaimer: “This is a solicitation for insurance.”	“This is a solicitation for

Medicare Supplement

Disclaimer

Model or Standardized Content

Applicable Content and Notes

Example

Marketing Medicare Supplement Insurance Plans

Model Content

State requirements may vary on required content and disclaimers.

At minimum, we recommend the following disclaimer: “This is a solicitation for insurance.”

“This is a solicitation for

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