Readers of this blog are aware of the fact that, beginning on October 1, 2024, the Medicare one-to-one consent rules will go into effect – requiring Third Party Marketing Organizations ("TPMOs") who engage in Medicare-related marketing to obtain one-to-one consent to telemarket to consumers. Following the Federal Communications Commission's ("FCC") rulemaking on one-to-one consent, the Centers for Medicare & Medicaid Services ("CMS") soon followed the FCC's lead. While the FCC's rules requiring one-to-one consent do not go into effect until January 27, 2025, CMS accelerated the effective date for one-to-one consent to October 1, 2024. If your company is a TPMO that engages in Medicare-related marketing, allow us to help you get ready with complying with the new Medicare one-to-one consent rules.
Medicare One-to-One Consent Effective October 1, 2024
Beginning October 1, 2024, Medicare TPMOs must obtain "one-to-one consent" to contact consumers for marketing purposes. This change means that the use of hyperlinks containing a list of TPMOs or "marketing partners" is insufficient to qualify as proper telemarketing. One-to-one consent must be obtained after providing consumers with a "clear and conspicuous disclosure" that they will receive calls, texts, and/or other marketing-related contacts. After obtaining one-to-one consent, communications sent to consumers must be "logically and topically associated" with the website on which the consumer's consent was obtained. Although CMS declined to define "logically and topically associated," it made clear "that sharing lead information with a daisy-chain of 'partners' is not permitted." The FCC has a similar requirement for telemarketing communications and provided the following example to help clarify what "logically and topically related" means: "if a consumer gives consent on a car loan comparison website, they should not receive communications about unrelated services like debt consolidation."
In addition, Medicare's one-to-one consent rules extend to the sharing of consumer data with third parties. This means that personal beneficiary data collected by a TPMO for Medicare marketing to a consumer may only be shared with another TPMO if the TPMO receiving the consumer's data also has prior express written consent from the consumer to market to him/her. As a reminder, TPMOs operating in the Medicare marketplace also must otherwise comply with existing federal and state regulations that govern information sharing, disclosure, and consent to be contacted for marketing purposes.
What Do Medicare's One-to-One Consent Rules Mean for Your TPMO?
With the effective date of Medicare's one-to-one consent rules rapidly approaching, it is imperative that businesses update their policies and procedures for: (1) obtaining marketing consent from consumers; and (2) the collection and sharing of consumer data. Operating in the Medicare marketing space is fraught with potential landmines, and experienced attorneys, such as those at Klein Moynihan Turco ("KMT"), have a wealth of experience advising companies on how to comply with various federal and state marketing laws, rules, and regulations. If you require assistance with complying with the CMS and/or FCC "one-to-one consent" rules, or marketing law compliance in general, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
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