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August 15, 2022 From The Field Exclusive News 2 Comments
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COMMENTARY: CMS MEDICARE RECORDING REQUIREMENT COULD RISK SENIOR DATA


By Joshua Brooker



Starting Oct. 1, the Centers for Medicare and Medicaid Services will require
health insurance agents and brokers to record all Medicare-related phone calls.
At face value, having a recording of a call sounds like a great way to catch bad
actors who misinform seniors about their options pertaining to Medicare.

Here is my question to you, though: If I were to ask you to start recording all
calls tomorrow, and do so securely as well as securely store the calls for 10
years, how would you do it? If your answer is, "I'm not sure," then we have a
problem. Because that is exactly what the government is doing. They have advised
the insurance agent and broker community, of which there are 100,000
self-employed mom-and-pop agencies across the country helping Americans, to
record all calls but provided no guidance or support to do so.




WHY IS THIS HAPPENING?

Whether an individual is nearing age 65, or already has been on Medicare for
years, there is no denying the onslaught of information they receive every day
about Medicare, the plans they have access to, and the push for them to "act
now.” According to the Federal Registry, in 2022, CMS reported 39,617
"complaints to Medicare" related to misinformation. This is out of 29 million
enrollments. This represents only 0.0013661% of the total enrollments made
during the most recent open enrollment period.



Even though the complaints represent such a small number of seniors overall, CMS
is trying to make strides toward fixing two things:

 1. Seniors regularly receive letters in the mail, they see websites providing
    "Medicare education," and they see TV commercials with renowned celebrities
    touting Medicare Advantage options. When a senior calls a company or fills
    out a form on a website, there is no disclosure to the senior as to whether
    they are getting direct help, or whether they are being referred to another
    agent.

 

The problem is that the senior may be giving their information to a third-party
company whose sole purpose is to generate leads, and then sell someone's
information to an insurance company or agent for a fee. Obviously, a consumer
looking for help wants to speak to an expert who can solve their problem, not
someone who is selling their data.

 


 2. Consumers do not know the scope of the options considered when a plan
    recommendation is made. In comparison, if you walk onto a car dealership
    lot, you can easily see what the dealer has available by taking a look
    around the lot. For health insurance and Medicare, this can be less clear.

 

The licensed professional you work with can range from: 1) A captive insurance
agent who only recommends one company, 2). A captive insurance agent who has a
few companies available to them, but a primary insurer that pays them and owns
limits the agent's options, or 3) An insurance broker who has a broad spectrum
of plans and options that they have carefully compared against your specific
needs that are untethered from any one carrier or solution.



Consumers want to know who will receive their information upon filling out a
form online or calling a toll-free number. Consumers also want to be confident
that the broadest amount of plans are considered before a recommendation is
made.


CMS SOLUTION: PROACTIVE DISCLOSURE

In an effort to address Concern No. 1, CMS is requiring all marketing companies,
as well as agents and brokers to state on their website and in the first 60
seconds of each phone call that "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."

When a senior wants a local representative who is licensed in their state,
certified to talk about Medicare, and understands the nuances of the local
health systems and insurance plan options, they are looking for a resource
beyond Medicare.gov and/or 1-800-MEDICARE. This disclosure does not address
seniors’ underlying concerns.

Another issue with this disclosure is that it doesn't tell the consumer whether
the person on the line is a tethered/captive insurance agent, a marketing/lead
generation company, or an untethered independent broker. Nor does it tell
consumers the scope of options available to the consumer.

If a given county has 70 plans available, and the person on the other end of the
line has access to three plans, I think that there is a cause for disclosure.
That said, some plans tied to special needs, only available only to captive
agents might cause someone to have 65 plans available. Both scenarios require
the same disclosure, and while the former (three plans) is alarming, the latter
(65 plans) is understandable.


CMS SOLUTION: CALL RECORDING

Although CMS is hopeful that disclosure will inform individuals about their
options, the agency also requires all tethered and untethered agents as well as
lead generation companies to record calls. Actually, tethered agents tied to
insurance company call centers, and lead generation companies already have this
requirement. The May 9, 2022, rule added independent, untethered brokers to this
recording requirement.

As we have discussed, independent brokers are untethered insurance brokers who
have the broadest plans from which to make recommendations, are licensed to
interpret insurance laws, and do not operate as middlemen who sell your
information like lead generators for other tethered or insurance companies.
Untethered brokers are small businesses entrenched in their communities whose
clients come from many sources, such as current clients, other insurance
brokers, financial advisors, employers and human resource directors.

Issue #1: small business requirements

According to the Bureau of Labor Statistics, a broker's median wage is $49,840
per year. They aren't the upper crust of the insurance industry who can receive
seven-figure salaries. Rather, as an individual in their community, they are
being required to seek and deploy software to record all calls related to
Medicare.

The government failed to consider the limited resources of these individuals,
and neither larger agencies nor insurance companies are tasked with providing
support. Instead, the burden falls on the individual broker who must find
software, set it up, record all calls, store all calls and make them available
to regulators at a moment's notice, all while being secure in the process.

When laws are passed by government agencies, if they are a burden to small
businesses, they must make accommodations for those entities that are impacted
the most. Not only are they adding a burden for the broker community to add
compliant software, but they are also requiring that same agent or broker to
tell every person they speak to on the phone to get their needs met elsewhere
(medicare.gov and 1-800-MEDICARE).

Issue #2: risking senior data

Another issue to consider is the likelihood of compromised senior data.

Alissa Knight, a partner at Knight Ink Media, is a chief information security
officer and cybersecurity expert. She was a keynote speaker at a national Health
Information and Management Systems conference. On a recent podcast, she said,
"Electronic health records are worth 1,000 times more than a U.S. credit card
number."

She went on to explain, that if your credit card is stolen, your bank can send
you a new card and you're fine. If your health history is compromised (accessed
from one of these storage sites) and put on the dark web to sell, "how easy it
is to get new health history sent to you in the mail? You can't. It's gone. If I
want to figure out how to kill Larry, I find his protected health information,
and I find out he is allergic to bee stings, I go after him with some
bumblebees."

In a phone call, not only might a recording include information about the
individual on the phone, but seniors routinely talk about their spouses, kids,
grandkids and other individuals. All of these could open up calls to not one,
but multiple data points being at risk. Knight said health data is "such a
lucrative business to be in." Obviously, she is looking at ransomware attacks.

She goes on to state, that if a hacker is "targeting something like a Cerner EHR
system [like data stored by a hospital or insurance company], that may be very
well protected and very secure." If there is a less secure system outside of
these secure programs, "where do you think I'm going to target as a hacker? I'm
going to target the less secure. I'm going after the path of least resistance."

Medicare represents more than 60 million seniors. Without defined policy and
infrastructure in place, brokers are the path of least resistance. With 100,000
agents and brokers trying to figure out how to comply, this risk for anyone is
dangerous. The current requirement to record calls is in the spirit of helping
beneficiaries. We worry that the risk of senior data being exposed egregiously
outweighs the risks of not recording calls.


RECOMMENDATIONS

First, we'd like to address the spirit of the law. As independent brokers who
have more than 50 insurance company contracts, and are entrenched in our
community, we stand by regulations that serve the consumer’s best interest. At
the end of the day, we often must address the same misinformation and complaints
that Medicare deals with directly, and we work on the front lines to get
Medicare right. This is why we are commenting on this rule. And, rather than
pointing fingers, we offer real-world solutions.

 1. Because this burden is being placed squarely on the shoulders of independent
    brokers who are focused on consumers, we need to suspend the expansion of
    including independents until Infrastructure is put in place by insurers or
    CMS to record calls compliantly without financial or security risks to small
    independent brokers and the senior community.
 2. The Department of Health and Human Services, via CMS, should conduct a
    Regulatory Flexibility Act assessment for NAICS 524210 - Insurance Agencies
    and Brokerages. While it may be prudent for larger agencies, insurance
    companies and marketing firms to record all calls, there is a significant
    impact on untethered brokers who do not have the resources to safely store
    call data per the spirit of this rule. As such, there should be a carve out
    for agents that fall under the Small Business Administration definition of a
    small business to be exempt from this requirement.
 3. Carriers should be required to monitor complaints and coordinate with CMS to
    address fraud, waste and abuse attached to agents who show a trend of
    complaints without ever having recorded data stored at the agent level with
    varying security and compliance.
 4. Instead of a blanket statement with a referral to 1-800-MEDICARE, or
    Medicare.gov, we propose institutions who discuss Medicare disclose whether
    they are a third-party marketing organization (a lead generation company), a
    tethered agent working for an insurance company or an untethered broker who
    holds appointments with many carriers. Each of these three classes can be
    further defined where, say, a broker must have 50% or more of the available
    plans in a given market available to them.

Some tethered contracts require the agent to not get appointed to plans not
available through the insurer, or their dedicated system. These clauses should
be known to help identify tethered entities. This rework would tell the consumer
who is receiving their data and which options the company is presenting against
the total options of the market.

Joshua Brooker, REBC, ABHP, ASFC, is principal at PA Health Advocates,
Lancaster, Pa. He is a member of the National Association of Health Underwriters
and Health Agents for America. He may be contacted at
Joshua.brooker@innfeedback.com.

© Entire contents copyright 2022 by InsuranceNewsNet.com Inc. All rights
reserved. No part of this article may be reprinted without the expressed written
consent from InsuranceNewsNet.com.

 

 

 

 


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