The TPMO disclaimer seems to be here to stay, but there's a lot of mystery surrounding it.
When exactly do you need to recite it? How do I put down how many plans are in my service area when I sell all over the country? What if I really do offer all plans in my area – do I still have to say it?
We've consulted with compliance experts in the Medicare industry and have compiled all of their insights and advice. Spoiler alert: the answers aren't always black and white.
Tip 1: Pick the right TPMO disclaimer.
For nearly all agents and brokers, the TPMO disclaimer is as follows for CY2024:
“We do not offer every plan available in your area. Currently we represent [X number of] organizations which offer [X number of] products in your area. Please contact Medicare.gov, 1‑800‑MEDICARE, or your local State Health Insurance Program to get information on all of your options.”
In the rare case that you actually offer all available plans in your service area, you'd use this disclaimer:
“Currently, we represent [X number of] organizations which offer [X number of] products in your area. You can always contact Medicare.gov, 1‑800‑MEDICARE, or your local State Health Insurance Program for help with plan choices.”
Tip 2: Understand who qualifies as a TPMO.
Third-party marketing organization (TPMO) refers to organizations and individuals, including independent agents and brokers, who are compensated to perform lead generation, marketing, sales, and enrollment related functions as a part of the chain of enrollment (the steps taken by a beneficiary from becoming aware of an MA plan or plans to making an enrollment decision).
TPMOs may be a first tier, downstream or related entity (FDRs), as defined under § 422.2, but may also be entities that are not FDRs but provide services to an MA plan or an MA plan's FDR.
Related: Top 5 MA OEP Compliance Tips
Tip 3: Know when to use the disclaimer.
The TPMO disclaimer is required for the following situations:
- Provided verbally within the first minute of a sales call
- All TPMO marketing materials, including all print materials, TV ads, that are used, created, or distributed by a TPMO and that meet the definition of “marketing”
- All TPMO websites (prominently displayed)
- Provided electronically when communicating with a beneficiary through email, online chat, or other electronic means of communication
Tip 4: Provide the TPMO within the first minute of sales calls.
You need to provide the TPMO disclaimer within the first 60 seconds of a sales call.
CMS interprets the term “sales” in this context as having its plain meaning. Arguably, a call that is purely informational, educational, and not marketing may not be a sales call. A call setting a future appointment would arguably not be a sales call.
However, the plain meaning of a “sales call” would certainly include calls that contain “marketing.” Calls that contain marketing would be a personal marketing appointment and now first require an SOA to be obtained 48 hours in advance. Sales calls will include calls made with an SOA after 48 hours.
Related: Ultimate Scope of Appointment (SOA) Guide for Medicare Agents
Tip 5: Determine the number of organizations and plans you offer.
One of the most mind-boggling parts of this disclaimer is actually including how many organizations and plans you offer in an area.
CMS hasn't given enough guidance to accurately handle this dilemma, but here is our stance on the matter.
When You Know the Client's Service Area
Sometimes, you can reasonably know the client's service area. Perhaps you're orchestrating a direct mail campaign to a certain zip code, or you're emailing your clients that live in a certain city. It could also be a phone call to a client, and you know where that client lives.
For these situations, choose the appropriate disclaimer and add in the appropriate number of carriers and plans.
When You Don't Know the Client's Service Area
There are times when you don't know where the client lives, so there's no way to accurately include the number of carriers and plans in the disclaimer.
Adding the disclaimer to your website would be one example. It's really not feasible to know the service area of all viewers of a website, much less tailor the numbers of carriers and plans to their service areas.
Our guidance is that agents/agencies be able to demonstrate a good faith attempt to comply with the requirement, including having a reasonable process in place for updating the numbers, as they can change over time. This is what carriers will look for in an audit.
Tip 6: Follow our disclaimer examples when there's a gray area with the number of organizations and plans.
Here are a couple of example options that might help you with these situations.
If the number of carriers and the number of plans is not uniform throughout the service areas you serve, then you could use number ranges for the number of carriers and the number of plans.
Here are two examples:
- If you sell only in one state but not in all service areas: Elsewhere on your website, you could make clear that you sell plans in that state, but you don't sell plans in all service areas in said state. It may then be reasonable for the TPMO Disclaimer to include a range for the number of carriers (such as “0-3”) and a range for the number of plans (such as “0-8”).
- If you sell in 48 states but not in all service areas: Elsewhere on your website, you could make clear that you sell plans in 48 states, the names of the states where you do not sell plans, and that you do not sell Plans in all service areas in the 48 states. It may then be reasonable for the TPMO Disclaimer to include a range for the number of carriers and a range for the number of plans. The lowest numbers of the ranges would be “0” for the service areas where you don't offer plans and the service area with the highest number of carriers would represent the highest number in the ranges.
The extra language about where you do and don’t sell should be used elsewhere on the website to describe and make clear the service areas where you sell plans.
It can't be added to the TPMO disclaimer, because it's a standardized disclaimer that cannot be altered.
Tip 7: Don't modify the disclaimer.
As tempting as it is to add some clarity to the disclaimer, don't change it (outside of adding a range instead of a single number).
The TPMO Disclaimer is a standardized disclaimer, so the language cannot be changed or modified in any way. You should also not add language to the TPMO disclaimer itself as that may be considered modifying the disclaimer.
Tip 8: Know when you can skip the disclaimer.
There are times when you don't have to provide the disclaimer.
Those times include:
- When meeting with a beneficiary in person
- If the TPMO only sells plans on behalf of one carrier
- If the material is communication and there's no marketing content in it
If you want to avoid calculating and including the number of Carriers represented and Plans offered on advertisements, such as mailers, billboards, banners, online ads, TV ads, and radio ads, don't include any marketing content.
As an example, say you have an advertisement that merely states that a “licensed sales agent offers Medicare Advantage, Medicare Supplement, and Medicare Part D Plans,” or “I can assist with Medicare Advantage, Medicare Supplement, and Medicare Part D Plans.” The ad does not mention any specific products, plans, benefits, or costs.
In this example, you would not need to include the disclaimer since merely listing lines of business offered does not constitute marketing.
Tip 9: Add the disclaimer to your email signature.
Client-facing correspondence can often be in email form, and the TPMO Disclaimer is required on all email communications with beneficiaries.
Remember that you will need to calculate and insert the applicable the number of carriers represented and plans offered in each email you send.
This calculation is feasible each time you send an email to an individual. For emails to multiple recipients, please refer to tips 5 and 6 for ways to calculate and insert the applicable numbers.
Tip 10: Keep your marketing simple.
Adhering to these rules can be pretty burdensome, especially for a one-man show or small agency. Unfortunately, there is no carve-out for the smaller operations – everyone has to adhere to these guidelines.
You can reduce some of the burden by choosing to use only marketing materials created and provided by the carriers.
Two things to remember if you do that:
- Only use marketing materials in the service areas where any benefits referenced on the materials are actually offered (unless the exception for local media applies).
- You still need to tailor the number of carriers represented and plans offered in the TPMO Disclaimer on the carrier‑provided material to the products that you sell in that service area.
Another way to reduce most of the burden is to avoid marketing and keep your advertising materials to communications.
Conclusion
Staying compliant has been getting harder each year, but we are here to help you!
If you have any additional questions about the TPMO disclaimer, please leave a comment below. You can also utilize the free resources in our Compliance Hub, which you can access once you register and log into our website.
We are keeping our eyes peeled for more guidance from CMS as well as any potential updates to the disclaimer for CY2025. We post all of these announcements on our Facebook page, so make sure you follow our page and stay tuned!
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