Understanding the new CMS Call Recording Changes.

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Written by Heather Woody
Contact Center Director & Complaince Officer
Oct 28, 2022 5 min. read

What are the New CMS Requirements?

The CMS Final Rule 2023 was announced in May 2022 and requires all Medicare and Medicaid marketing calls to be recorded and stored for at least 10 years.


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While no specific explanation was provided, most believe the ruling is in response to a massive increase in complaints to CMS about misleading TV commercials. These commercials are distributed by third-party marketing organizations (TPMOs) and often utilize celebrities to distract from questionable statements.


In many cases, complaints are aimed squarely at the TPMOs trying to convince beneficiaries to switch plans to one that does not meet their needs — or even match what was advertised. Regardless, CMS has still decided to expand its definition of TPMOs to include all healthcare agents and brokers.

Call Recording Requirements

The language is important here as CMS has confirmed it interprets “enrollment” as “marketing.” The call recording requirement applies to all healthcare agents who enroll beneficiaries in new plans. Healthcare agents and brokers will be required to record all “marketing” calls with beneficiaries in their entirety, including the enrollment process. This rule applies to both new and existing clients. The call recordings must then be stored in a HIPAA compliant manner for at least 10 years.


CMS considers a “marketing” call anything that falls under the “Chain of Enrollment,” which is defined as any events from the point when a beneficiary is made aware of an MA/PDP plan to the end of the enrollment process.


Some examples of what the new recording rules cover include:


Contacting potential clients

Scheduling appointments for new and current clients

Collecting drug and provider lists

Hosting informational meetings

Enrolling clients by phone


All agents will also be required to include the following disclaimer:


“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 call 1-800-MEDICARE to get information on all your options.”


The disclaimer must be included in the following places:


Verbally expressed within the first minute of a sales phone call

Electronically conveyed when communicating with a beneficiary through email, online chat, or other electronic means

Prominently displayed on the agent’s or broker’s website

Included in all marketing materials, including print collateral (12-point font)

and television advertisements

Additionally, the following requirements must be included in all call recordings and appointment forms:


Date of appointment

Beneficiary and agent contact information

Product types to be discussed

CMS has stated that there is no obligation to re-enroll current Medicare participants and their enrollment status will not be affected. Automatic enrollment will also not occur. That said, a new Scope of Appointment (SOA) is required if the beneficiary requests information about a plan not previously discussed.


NOTE: CMS has not laid out a compliance verification or auditing plan for the Final Rule 2023 changes.


Referral Fees / Marketing Gifts & Inducements.


At Agent Boost Marketing, we have been receiving some questions regarding the topic of gifts/promotional items and want to share some further guidance on these regulations. The Social Security Act prohibits offering anything of value to a Medicare beneficiary in exchange for a referral or to influence their decision to enroll into a Plan.


Let’s define a few terms first of all.


REFERRAL FEES – These fees are either cash or an item given to the source of the referral in exchange for referring a prospective insurance customer.


These fees are lawful provided that they are given for every referral and not just those that result in an insurance sale. Acceptable fees can be paid in cash, with a gift card, merchandise etc. and these payments may be made to individuals for the referral to an agent, broker, or other entity. 


The payment may not exceed $100 for a referral into a MA or MAPD plan. 

The payment may not exceed $25 for a referral into a PDP plan.


MARKETING GIFTS –  Merchandise items given to prospective and current clients or policyholders, or the public that promote and advertise the licensee or agency. 


Acceptable items include, but are not limited to:


  • Coffee mugs
  • Golf balls
  • Towels
  • Mouse pads
  • Calendars


Marketing representatives may provide gifts, prizes, or promotional items to beneficiaries for marketing purposes as long as:


The value of the item may not be worth more than $15.

The item must be provided regardless of enrollment and without discrimination.

When more than one gift is offered on one occasion, the combined value of all items must not exceed $15.

Multiple gifts given to a beneficiary on different occasions may not exceed $75, per person, per year.

Cash or monetary rebates may not be given as a nominal gift.

Meals may not be given as a nominal gift. Only light snacks and refreshments can be provided at marketing events

It’s important to know that CMS no longer includes requirements about referral fees paid to non agents or brokers in the MCMGs (Medicare Communication and Marketing Guidelines). However any such fees would still be subject to general laws. Because of this we recommend that agents refrain from offering any incentives to induce referrals to non-licensed individuals, providers, members, or consumers. Furthermore, an agent who wishes to provide an incentive should contact the Department of Insurance in their state to verify that the incentive is compliant with state laws. 


With all that said, here are a few recommendations of things you can and should do:


Leave business cards for distribution to friends and family.

Ask for and accept referrals (exp. Mailing addresses) from consumers or members

Utilize conventional mail to send approved marketing information  

Send Thank You cards or notes in a compliant business relationship building activity

 Now here are things you should NOT DO:


Be sure to not make unsolicited contact from referrals from current enrolees

Do not offer incentives to non-licensed individuals as an inducement for a referral

Do not make any unsolicited phone calls

Do not offer any item of value either up front to solicit or afterwards as a “thank you” in exchange for a referral from a provider, member, or other.

Thank you for your commitment to maintain compliance with all CMS regulations. And as always, thank you for your continued support, cooperation and business with Agent Boost Marketing


Please send all compliance related questions, concerns, marketing pieces to 


[email protected]

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