On April 23, 2024, the Centers for Medicare & Medicaid Services ("CMS") issued a final rule implementing one-to-one consent rules for Third Party Marketing Organizations ("TPMOs") that engage in Medicare-related advertising. CMS is a United States federal agency that administers the Medicare program and works with state governments to administer Medicaid and other health insurance programs. In response to receiving complaints from consumers that TMPOs had been aggressively selling and reselling their personal beneficiary data, CMS accelerated the effective date of marketing one-to-one consent rules (detailed below) in hopes of curtailing the practice of TMPOs selling consumer data to unrelated entities for future marketing activities.
The concerns of CMS largely mirror those of the Federal Communications Commission ("FCC") when it revised consent rules to close what it terms "the lead generator loophole." As our readers are aware, the FCC and Federal Trade Commission ("FTC") have been engaged in a campaign to crack down on the widespread sale of consumer data. Although the language of the Telephone Consumer Privacy Act ("TCPA") has not been amended, certain United States senators have already indicated that they want prompt action taken on this issue. Heeding the call, CMS, just like the FCC, decided to move forward to address what it deems to be a serious issue within its purview. It is important to note, however, that the CMS one-to-one consent rules for Medicare TMPOs take effect on October 1, 2024.
CMS' One-to-One Consent Rules
The newly-adopted CMS consent rules make unequivocally clear that:
· Lead generators must: 1) secure "one-to-one consent," or consent for one seller to contact the consumer; and 2) no longer use hyperlinked lists of sellers or "marketing partners" in their consent language;
· "One-to-one consent" must be obtained after providing the consenting consumer with a clear and conspicuous disclosure that he/she will receive calls, texts, email solicitations and/or other contacts; and
· The subject communications delivered to the consenting consumer must be "logically and topically" related to the website on which the consumer's consent was obtained.
Although CMS declined to define what constitutes "logically and topically associated;" it made clear "that sharing lead information with a daisy-chain of 'partners' is not permitted."
Important Takeaways from the CMS One-to-One Consent Rules
CMS has codified that personal beneficiary data collected by a TPMO for marketing to an individual regarding a Medicare Advantage or Part D plan may only be shared with another TPMO when prior express written consent is given by the subject individual. In addition, CMS has made clear that TPMOs operating in the Medicare marketplace must also comply with existing laws and regulations that govern information sharing, disclosure, and consent to be contacted for marketing purposes. This means that the limitations imposed by its one-to-one consent rules are meant to supplement, not replace, other applicable marketing laws and regulations.
The CMS One-to-One Consent Rules Take Effect in Under Two Months!
Countless governmental authorities and private interest groups have been asking the FCC for years to more aggressively combat unsolicited telemarketing practices. On December 13, 2023, the FCC took decisive action, implementing its one-to-one consent rules that are now slated to take effect on January 27, 2025. In contrast, as detailed herein, CMS has moved up the compliance date for businesses marketing Medicare services to October 1, 2024.
Businesses that engage in marketing must retain experienced counsel for guidance in a field where compliance becomes more nuanced every month. If you require assistance with complying with the CMS and/or FCC "one-to-one consent" rules, or TCPA compliance in general, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
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