Oct. 11, 2023
Medicare Sales & Marketing FAQs: Scope of Appointment
New for the 2024 Annual Enrollment Period (AEP), the Centers for Medicare & Medicaid Services (CMS) now mandates that anyone engaged in Medicare Advantage (MA) or Part D sales and marketing activities must complete a Scope of Appointment (SOA) form at least 48 hours prior to conducting a personal marketing appointment. Our latest FAQ clarifies certain requirements and aspects of the rule.
This FAQ is being provided by Blue Cross and Blue Shield of Illinois (BCBSIL) to help clarify certain requirements for sales agents, TPMOs, and anyone engaged in Medicare Advantage (MA) and Part D sales and marketing activities on behalf of our plans. This FAQ is not a complete summary of all CMS requirements and does not change or modify any obligations set out in trainings, policies and procedures, or contracts. It is intended be read in conjunction with those items. This FAQ may be revised or updated from time to time to reflect changes in legal or regulatory requirements, CMS guidance, or BCBSIL policy.
Q.1: What is a Scope of Appointment (SOA) form and when is it required?
A: Anyone engaged in MA or Part D sales and marketing activities as defined under the CMS regulations is required to complete a Scope of Appointment (SOA) form prior to conducting a personal marketing appointment. CMS outlines the requirements in the regulations at 42 CFR §§ 422.2264(c)(3), 422.2274(b)(3), 423.2264(c)(3), and 423.2274(b)(3).
According to CMS rules, a “personal marketing appointment” is a sales or marketing appointment that is tailored to an individual or small group (for example, a married couple), and is not defined by the location.
At least 48 hours prior to meeting with a potential enrollee into any MA or Part D plan (unless one of two narrow 48-hour exceptions applies, see below), the plan or its sales representative must agree upon and record the scope of appointment with the beneficiary. The plan or its representative may not market any health care related product during the appointment beyond the scope agreed upon by the beneficiary. The SOA form is valid for 12 months following the date of the beneficiary’s signature or initial request for information.
CMS holds the MA/Part D plan responsible for overseeing all sales representatives to ensure that they appropriately complete SOA records for all marketing appointments (including telephonic and walk-in), pursuant to CMS regulations at 42 CFR §§ 422.2274(c)(9)(ii) and 423.2274(c)(9)(ii).
Q.2: What components must be documented in the SOA?
A: The SOA form must include the product types to be discussed, date of appointment, as well as beneficiary and agent contact information. It must state that there is no obligation to enroll, current or future Medicare enrollment status will not be impacted, and automatic enrollment will not occur.
CMS outlines this in the 2/9/2022 Medicare Communication and Marketing Guidelines* (MCMG) on page 33. (*CMS update pending)
Q.3: Does the SOA and 48-hour rule apply to all telephonic and electronic interactions by agents and brokers?
A: The SOA and 48-hour rule apply to any scheduled personal marketing appointments, regardless of location and mode of communication. Telephonic and electronic communications are not exempt from these rules. All personal marketing appointments, whether in-person, telephonic, or virtual/electronic, are subject to the 48-hour rule. CMS outlines this in the regulations at 42 CFR §§ 422.2264(c)(3), 423.2264(c)(3).
There are some telephonic or electronic interactions that are not considered “personal marketing appointments,” and would not need to comply with the SOA and 48-hour requirement.
For example, agents and brokers holding virtual or in-person sales/marketing events (outlined in 42 CFR § 422.2264(c)(2) and 423.2264(c)(2)) may conduct presentations to market the plans, distribute and collect plan applications from enrollees, and collect SOA forms for future personal marketing appointments. The sales/marketing event itself is not a “personal marketing appointment” and products can be discussed without a SOA.
Another example is an enrollment request which CMS allows from an incoming (in-bound) telephone call from a beneficiary. (See CMS requirements outlined in Medicare Managed Care Manual, Chapter 2, Medicare Advantage Enrollment and Disenrollment, section 40.1.3 - Enrollment via Telephone.) An in-bound phone call from a beneficiary that is specifically for making an enrollment request into a plan they have chosen prior to the call is likely not a “personal marketing appointment” in most cases, and would not fall within the SOA requirements. CMS outlines other requirements for such telephonic enrollment requests that must be met, such as inbound calls only, making an audio recording, specific verbal attestations, etc., but an SOA is not required.
Note that CMS has not yet issued its 2024 Medicare Communication and Marketing Guidelines (MCMG) or other clarification on this topic. This response is subject to change based upon further clarification from CMS.
Q.4: Does the SOA and 48-hour rule apply to outbound calls by a sales agent, such as when a beneficiary completes a business reply card or otherwise requests a call from a sales agent/broker to talk about plan options? Or an outbound call to a current client to check on their current plan, and the client wants to change plans or discuss new plan options?
A: A sales agent may rely on a properly completed business reply card as consent to contact the beneficiary, and such consent is valid for 12 months following the date of the beneficiary’s signature or initial request for information.
The SOA and 48-hour rule apply if the call is a personal marketing appointment that was scheduled with the beneficiary. “Personal marketing appointment” is as defined by CMS in the regulations described in Q.1 above. If the call is a scheduled personal marketing appointment, a SOA must be documented 48 hours in advance, unless a CMS exception to the 48-hour rule applies as outlined in Q.6 below.
Q.5. Does the SOA and 48-hour rule apply when a beneficiary makes an inbound call to a sales agent or TPMO to talk about plan options?
A: The SOA and 48-hour rule apply if the call is a personal marketing appointment that was scheduled between the sales agent or TPMO and the beneficiary. “Personal marketing appointment” is as defined by CMS in the regulations described in Q.1 above. An inbound call to a sales agent from a beneficiary, unless it is for a scheduled personal marketing appointment, would not require that a SOA be documented 48 hours in advance.
Note that CMS has not yet issued its 2024 Medicare Communication and Marketing Guidelines (MCMG) or other clarification on this topic. This response is subject to change based upon further clarification from CMS.
Q.6: What are the exceptions to the SOA 48-hour rule?
A: At least 48 hours prior to a scheduled personal marketing, the plan or its representative must agree upon and record the Scope of Appointment with the beneficiary, except for:
CMS outlines these exceptions in the regulations at 42 CFR §§ 422.2264(c)(3)(i)(A)&(B) and 423.2264(c)(3)(i)(A)&(B).
