Scope of Appointment (SOA) and 48-hour rule

When is a Scope of Appointment required?

The SOA must be documented for all personal marketing appointments, regardless of location, venue or mechanism (in-person, telephonic, or electronic). The following components must be documented at least 48 hours prior to the appointment:

• Product Types to be discussed
• Date of Appointment
• Beneficiary and agent contact information
• Statement stating, no obligation to enroll, current or future Medicare enrollment status will not be impacted, and automatic enrollment will not occur.  

Are there any exceptions to the SOA 48-hour rule?

At least 48 hours prior to the scheduled personal marketing, the MA plan (or agent or broker, as applicable) must agree upon and record the SOA with the beneficiary(ies), except for:

• SOAs completed during the last four days of a valid election period for the beneficiary.
• Unscheduled in-person meetings (walk-ins) initiated by the beneficiary.
• Inbound calls.

Are call centers exempt from the SOA requirements because the calls are not considered personal meeting appointments?

Call centers are not exempt from the SOA 48-hour rule.

Does the SOA 48-hour rule apply to telephonic and electronic interactions?

Telephonic and electronic communications are not exempt from the SOA 48-hour rule; the rule applies to any personal marketing appointment, whether in person, telephonic, or virtual/electronic. In addition, to the exception outlined in the Final Rule, we have received clarification from CMS that the 48-hour rule is not applicable to inbound calls. TPMOs should still obtain an SOA for inbound sales/marketing calls and electronic communications, but the 48-hour guideline does not apply to these scenarios.

How does the SOA 48-hour rule work relative to outbound calls? 

The SOA 48-hour rule does apply to outbound calls even if the beneficiary has requested a call to discuss plans. The initial outbound call is to determine the type of plans the member would like information on and to schedule the sales call at least 48 hours after this contact.

Does the SOA 48-hour rule apply to telephonic and electronic interactions?

Telephonic and electronic communications are not exempt from the SOA 48-hour rule; the rule applies to any personal marketing appointment, whether in person, telephonic, or virtual/electronic.

Does the SOA 48-hour rule apply to contracted agents that receive Live Transfer calls?

CMS provided clarification that the 48-hour rule is not applicable to inbound calls. If the initial outreach to a beneficiary is conducted as an outbound call and then transferred to an agent, this is still considered an outbound call and the 48-hour rules apply. The agent should not discuss plans after this live transfer but rather schedule an appointment at least 48 hours after the SOA is agreed to by the beneficiary.

Is there an issue with agents taking calls and doing immediate enrollments without the 48-hour waiting period? 

As long as it is a member-initiated inbound call, the SOA 48-hour rule does not apply and agents may conduct marketing, sales, and enrollment activities during that inbound call (must be recorded).

Do you have to be licensed to take a SOA?

Based upon CMS guidelines, SOAs do not need to be completed by licensed agents (as long as the individual completing this function has completed all required Medicare training, i.e. required FDR compliance and FWA training). Third-Party Marketing Organizations (TPMOs) need to ensure no further State DOI licensure requirements apply to licensed and unlicensed prospect communication activities.

What can agents do in between the time they collect the SOA and the 48 hours?  Must they wait to complete the full consultation/needs assessment or is it solely the ENROLLMENT they cannot collect for 48 hours?

When the SOA 48-hour applies (i.e. outbound calls), the agent may not discuss any plan-level details with the beneficiary, and therefore no sales/marketing consultations regarding MA/MAPD/PDPs should be conducted until the scheduled appointment. 

Does the 48-hour rule and/or SOA, in general, apply to beneficiaries who enroll via a website?  Can they enroll same day or will there be restrictions on websites as well?

If no sales/marketing appointment takes place, (i.e. no direct interaction with an agent), then the SOA is not applicable.

How does the 48-hour rule apply when a beneficiary requests a call? 

If a beneficiary completes permission to contact or a business reply card, contact can be made immediately. Since that contact is outbound to the beneficiary, the agent may not discuss any plan-level details with the beneficiary, therefore no sales/marketing consultations regarding MA/PDPs should be conducted until an SOA is completed and an appointment is scheduled at least 48 hours after.  No enrollment should be completed on the initial outbound response to the permission to contact, unless a CMS exception applies, i.e. last four days of a valid election period.

Are agents able to do a needs analysis first and then schedule a call with the beneficiary 48 hours later to complete enrollment, or are they not allowed to discuss any MA/PDP plans at all until 48 hours?

When the SOA 48-hour rule applies (i.e. outbound calls), the agent may not discuss any plan-level details with the beneficiary, therefore no sales/marketing consultations regarding MA/MAPD/PDPs should be conducted until the scheduled appointment. A need analysis is not permissible prior to the 48-hour wait period.  

If a TPMO collects the SOA from the customer when they complete the lead form, is it acceptable to tag the lead with the date and time the SOA was completed and then call the customer after 48 hours?

The lead form must include all required elements of the SOA. This includes the date of appointment as a required field. The customer should understand and agree to when (after 48 hours) the personal marketing appointment will take place. For example, Jane Doe completed and signed an SOA on October 15th, for a telephonic appointment with an Aetna Medicare licensed insurance agent for October 18^th at 10:00 am ET. The outbound call should be made to Jane Doe on October 18^th at 10:00 a.m. ET. The SOA must be completed with the date and time of the appointment and that appointment must be at least 48 hours after completion of the SOA.   

Does the “Agent Contact Information” on an SOA need to be agent specific or can it be general at a sales agency contact information, so the prospect/member knows they will be contacted by a licensed agent from XYZ agency or an Aetna Medicare licensed agent?

General contact information for the sales agent/broker or contracted entity may be permissible, but the beneficiary must be able to contact that entity for any questions regarding the appointment. If the SOA reflects that an agent from XYZ Company will contact Jane Doe on Thursday at 3:00 p.m., the agent that ultimately conducts this appointment must be a licensed agent at XYZ Company.

TPMO contacts their current client via an outbound call to check in on the current plan. During the conversation, the member wants to discuss a new plan because they may want a PPO instead of their HMO. Does the agent need to wait 48 hours to present plan details for a plan change for a current client?

The 48-hour rule DOES apply since it is applicable to outbound calls. The fact that the client is an existing member does not waive the 48-hour wait time.

TPMO contacts a beneficiary to discuss Medicare Supplement based upon a business reply card or some other permission to contact. During the conversation, the member wants to discuss a PDP in addition to their Medicare Supplement plan. Since the 48-hour and SOA rules do not apply to Medicare Supplement and the lead was generated based on those products but turned into a discussion about MA/PDP, does the agent need to wait 48 hours to present the plan details for the PDP?  

The 48-hour rule DOES apply.  

TPMO makes an outbound call based upon permission to contact. Beneficiary states let’s review the plans now, I have time. Agent should inform the beneficiary that, due to CMS guidelines, I must schedule a future appointment at least 48 hours from now. If the beneficiary continues to want to hear about MA/PDP can the agent have the beneficiary call them back on an inbound call to waive the 48-hour rule?

No, the 48-hour rule is only waived on UNSOLICITED inbound calls. An agent should never advise a beneficiary to call them back just to avoid the 48-hour rule.

Events

What’s the difference between an educational and a marketing event?

Educational events must be advertised as such and be designed to generally inform about Medicare, Medicare Advantage, Prescription Drug Plans, or any other Medicare program. There may be NO marketing of specific MA/PDP plans or benefits or any sales/marketing presentations. Scope of Appointments CANNOT be collected and applications may not be distributed or collected.

Marketing events, regardless of the forum, are group activities that meet the CMS definition of marketing. Discussion of specific MA/PDP plans, marketing materials, Scope of Appointments, and collecting applications can take place during marketing events.

Can I schedule a marketing event at the same location as an educational event?

No, marketing events are prohibited from taking place within 12 hours of an educational event, in the same location. The same location is defined as the entire building or adjacent buildings.

Can I request the completion of an SOA at an educational event?

No, at an educational event, an agent/broker may make available and receive beneficiary contact information (may not require the beneficiary to provide their contact information), including business reply cards, but not including Scope of Appointment forms.

Does an agent need to collect an SOA for a future appointment (at least 48 hours after) at a marketing event?

Enrollment applications can be accepted at marketing events. If the beneficiary wants to schedule a separate personal marketing appointment after the marketing event, the SOA 48-hour rule would apply.    

Does an agent need to collect an SOA for a future appointment (at least 48 hours after) at a marketing event?

Enrollment applications can be accepted at marketing events. If the beneficiary wants to schedule a separate personal marketing appointment after the marketing event, the SOA 48-hour rule would apply.    

Marketing materials

What determines a material to be communication versus marketing?  Is the channel a consideration?  For example, email vs. direct mail?

The definition of marketing is determined by the intent and content of the material/activity, not necessarily the media type or distribution method (email versus direct mail). While evaluating the intent, the objective of the material must be considered as well, i.e. audience, other information contained in the communication, timing and other context. In addition, CMS recently clarified that content includes any reference to benefits, including general references to commonly offered benefits. Link to CMS definition of Marketing: https://www.ecfr.gov/on/2023-06-05/title-42/chapter-IV/subchapter-B/part-422/subpart-V#p-422.2260(Marketing)

In developing TV ads that will be used nationally, it seems virtually impossible to be able to advertise any kind of benefits or costs whatsoever, since any benefits/costs in the ad would need to be available in every service area nationwide by all carriers with whom we contract. Are there any exceptions?

There is no exception to these guidelines for national materials/communications, all materials must NOT be misleading. In order to advertise benefits at a national level, the benefits must be available from at least one plan sponsor in every service area that the TPMO represents. For example, if a marketing material/website describes plans with a $0 premium, there needs to be a plan available in all service areas that offer a $0 premium. If all plans in Montana have a premium, this material would be considered misleading to beneficiaries in Montana.  

Clarification on “medicare” being used in the URL.  

The use of the term Medicare and/or Medicare Advantage is not prohibited, but it cannot be used in a way that misleads beneficiaries.  A URL that is just “MyMedicare.com” would not be acceptable, as an individual has no way of knowing that this does not direct them to CMS/Medicare. The URL needs to be able to explicitly express that the URL will not go to a government entity. For example, “AetnaMedicareSolutions” is acceptable. Note: Additional state guidelines may also apply above and beyond the CMS requirements, TPMOs must ensure they are meeting any applicable State licensure requirements.  

If an agent creates a communication document but uses the wording Contact me for a Medicare Advantage Plan Review. Would that be compliant?

If their company name is apparent and the other verbiage makes it clear that they are not “Medicare”/ the government, the material may not be considered misleading, but the entire material and messaging should be considered, not just the statement “Medicare Advantage Plan Review”.

Can mailers, or similar types of materials use the term “Medicare Notice” or “Important Medicare Information”?

Without further explanation or description, a beneficiary may believe that these materials are from the Federal Medicare program, not a TPMO or agent/broker. Marketing materials should not mislead beneficiaries into believing the material is coming from the federal government. The term “Important Medicare Notice”, without any other information within the vicinity would be misleading.  

TPMO disclaimers

Does the disclaimer need to be on all materials or just the ones that meet the definition of “Marketing materials?”

Per regulatory rule CFR §422.2267, Required materials and content, Sec. (e)(41) (v) Third-party marketing organization disclaimer; TPMO’s must ensure disclaimers are “included in any marketing materials, including print materials and television advertisements, developed, used or distributed by the TPMO”.

The new TPMO disclaimer requires the insertion of the number of organizations and total number of plans available to the beneficiary. How should a TPMO reflect the number of organizations/plans on the website and national marketing pieces?

For materials that will have a national audience, the TPMO disclaimer should include the number of organizations and plans contracted at the national level. For materials that are distributed in select service areas, the disclaimer should reflect the organization and plans for that specific service area.

If a TPMO is unable to operationalize the number of organizations/plans at a national level on materials such as their national TPMO website, TPMO may reflect the general (CY2023 version) TPMO disclaimer on the landing page, as long as the number of organizations and plans is displayed once the beneficiary enters their zip code to view available plans.

Do agent advertisements without content regarding MAPD/PDP plan premiums, cost sharing, or benefit information still need the TPMO disclaimer?

The TPMO disclaimer applies to all materials used that meet the definition of marketing. If the material does not include MAPD/PDP content or is not intended to be used for MAPD/PDP plan marketing, then the material does not require the TPMO disclaimer.

If a member makes an inbound call to set up an appointment, is the TPMO disclaimer required to be provided in the first minute of the call?

No, the disclaimer is not required for inbound calls to set up appointments.

Are agents still required to provide beneficiaries with information for consenting to transfer?

Yes, per existing guidance in CFR and MCMG General Communications materials and Activities Requirements (42 CFR §§ 422.2262, 423.2262). Language for beneficiaries consenting to transfer is required as part of call center and agent scripts.

TPMO call recording

Who needs to follow call recording guidelines? For example, is an agent who has  ‘feet on the street’ and happens to make a sale telephonically required to follow the guidelines?

Yes, the agent is required to follow the guidelines. The regulatory requirement applies to all TPMOs, including agents/brokers or organizations that are providing TPMO services. TPMOs are defined as 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. TPMOs may be first-tier, downstream, or related entities (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.

Do all calls need to be recorded?

TPMOs must record all marketing, sales, and enrollment calls, including the audio portion of calls via web-based technology, in their entirety.

How will individual agents know to start the recording process? (E.g., Individual agents who sell plans on their cellphones)

When the telephonic conversation or the intent of the conversation includes marketing, sales, and enrollment for Medicare Advantage and/or Prescription Drug Plans, the call recording should begin.

Do Zoom and WebEx marketing, sales, and enrollment calls need to be recorded?

Yes, the audio portion of the call needs to be recorded and retained for a minimum of 10 years.

Do we have a standard request process to obtain recordings from individual field agents as well as larger brokerages? What happens if the agents retire or pass away?

Per our Producer Agreement, we reserve the right to monitor, audit, and request documentation to support compliance. Call recordings may be requested by Aetna as part of the standard investigative process of inquiries, and complaints, as well as through routine monitoring and auditing. Upon a request for a call recording, the TPMOs should respond using HIPAA-compliant transfer methods, including secure email encryption and/or the use of a secure file transfer protocol (sftp). In cases where the agent may no longer be able to respond to the request, it is the expectation that the upline maintains these records to ensure compliance with the 10-year record retention requirements.

Oversight and reporting

How does Aetna monitor agent/broker/TPMO marketing, sales, and enrollment activities?

Aetna has a robust agent oversight program that includes monitoring, auditing, and reviewing TPMO marketing, sales, and enrollment activities to ensure compliance with CMS guidelines. These activities include but are not limited to investigation of inquiries and complaints, call monitoring, secret shopping, and review of agent performance, i.e. Aetna Watch List, etc. Failure to comply with Aetna and/or CMS requirements may result in corrective actions up to and including termination.

Are there specific questions and topics that must be discussed prior to enrollment?

Yes, as outlined in the CY2024 CMS Final Rule, MA organizations, must ensure that, prior to an enrollment, CMS’ required questions and topics regarding beneficiary needs and health plan choices are fully discussed. Examples of these topics include but are not limited to information regarding primary care providers and specialists, pharmacies, prescription drug coverage, and costs, costs of health care services, premiums, benefits, and specific health care needs.

For a full list of questions and topics that must be discussed, please review CMS’ 2024 Agent and Broker Training and Testing Guidelines, specifically the new #4.

What is the Pre-Enrollment Check List (PECL) and where do I find it?

The PECL is a standardized communication material that must be provided to prospective enrollees so that the enrollees understand important plan benefits and rules. For telephonic enrollments, the contents of the PECL must be reviewed with the prospective enrollee prior to the completion of the enrollment. In addition to covering information about the Evidence of Coverage (EOC), Provider/Pharmacy Directory, Formulary, Premiums/copayments/coinsurance, Emergency/urgent coverage, and Plan-type rules, CMS added a NEW section outlining the Effect on Current Coverage.

The PECL is incorporated with the Summary of Benefits as part of the Aetna Enrollment Kit and must be included in sales and enrollment scripts.  

How do I submit marketing materials to Aetna for review prior to use and/or submission in CMS’ HPMS?

Marketing materials, both Aetna branded and Multi-Plan, must be reviewed by Aetna prior to use. Please work with your Aetna Account/Broker Manager for a review of Aetna branded/specific materials. Multi-plan materials should be sent to AgentOversight@aetna.com for pre-review. Please include the Standardized Material Identification (SMID) within the subject line and in the body of the email describe the material you are submitting as well as contact information for any concerns/questions. Materials must be submitted by approved Multi-Plan Marketing Consultants. If you are unsure whether your organization is a Multi-Plan Marketing Consultant access, please contact AgentOversight@aetna.com for assistance.   

How do I submit marketing materials to Aetna for review prior to use and/or submission in CMS’ HPMS?

Marketing materials, both Aetna branded and Multi-Plan, must be reviewed by Aetna prior to use. Please work with your Aetna Account/Broker Manager for a review of Aetna branded/specific materials. Multi-plan materials should be sent to AgentOversight@aetna.com for pre-review. Please include the Standardized Material Identification (SMID) within the subject line and in the body of the email describe the material you are submitting as well as contact information for any concerns/questions. Materials must be submitted by approved Multi-Plan Marketing Consultants. If you are unsure whether your organization is a Multi-Plan Marketing Consultant access, please contact AgentOversight@aetna.com for assistance.   

Do we have SLAs in place regarding the response time to CMS or to Aetna for requests for call recordings at the individual agent level?

Medicare guidelines state to provide to CMS timely and upon request. Section 4(B) of the Producer Agreement states, “Producer shall provide Company with copies of recorded calls within forty-eight (48) hours of Company’s request.”

If the agent does not have a recording what is the process to notify that they failed to maintain a copy of a recording? (e.g., if an agent keeps the recording on their phone and it is stolen?)

Agents should report issues of non-compliance using the Aetna reporting mechanisms (as outlined within the CVS Health Code of Conduct) including the AgentOversight@aetna.com mailbox. Call recordings may include PHI/PII or other sensitive information and, therefore should be maintained securely. Any breach or potential breach of PHI/PII must be reported to Aetna.

Do I have to report disciplinary actions to Aetna?

Effective October 1, 2022 (CY2023 Final Rule, CMS guidance § 423.2274(g)), TPMOs must submit a report to Aetna of any agent/staff disciplinary actions or violations of any requirements that apply to Aetna associated with Medicare beneficiary interaction on a monthly basis. This requirement is outlined in your Aetna Producer Agreement – Medicare Addendum with instructions for reporting found here.

Do I have to report any TPMO entities to Aetna?

Effective October 1, 2022 (CY2023 Final Rule, CMS guidance § 423.2274(i)), TPMOs must submit a report to Aetna disclosing any new, existing, or discontinued subcontracted relationships used for Medicare Advantage and Part D marketing, lead generation, and enrollment activities. This includes and is not limited to any entities that are compensated to provide these functions for their organizations and downlines, such as lead generation vendors. 

This requirement is outlined in your Aetna Producer Agreement – Medicare Addendum with instructions for reporting found here.