FAQs on CY2024 Final Rule for Marketing and Communication

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.”

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 that are 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.

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

Yes, it does. 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.

However, in addition to the exceptions outlined in the Final Rule and noted in the previous question, CMS has clarified that the 48 hour rule is not applicable to inbound calls. TPMOs should still obtain a SOA for inbound sales/marketing calls and electronic communications, but the 48 hour guideline does not apply to these scenarios

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 hour after this contact.

CMS clarified 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.

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, but it must be recorded.

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, including required FDR compliance and FWA training). However, Third Party Marketing Organizations (TPMOs) need to ensure they meet any additional state DOI licensure requirements for licensed and unlicensed prospect communications activities, if they exist.

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.

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

If a beneficiary completes a permission to contact or business reply card, you can contact them 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 a 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).

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.

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 completes and signs a SOA on October 15th, for a telephonic appointment with an Aetna Medicare licensed insurance agent for October 18 10 AM ET. The outbound call should be made to Jane Doe on October 18 at 10 AM 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.

General contact information for the sales agent/broker or the contracted entity may be permissible, so long as the beneficiary can contact the entity listed for any questions regarding the appointment. If the SOA reflects that the general contact information for XYZ Company, the agent who ultimately conducts this appointment must be a licensed agent at XYZ Company.

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.

The 48 hour rule DOES apply.

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.

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. You are allowed to discuss specific MA/PDP plans, hand out marketing materials and Scope of Appointments and collect applications during marketing events.

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.

No. At an educational event, an agent/broker cannot provide Scope of Appointments. However, they may make available business cards and business reply cards and receive beneficiary contact information from those who fill them out. Agents/brokers cannot require beneficiaries to provide their contact information.

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.

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 references 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)

There is no exception to these guidelines for national materials/communications. All materials must NOT be misleading. 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 $0 premium, there needs to be a plan available in all service areas that offer $0 premium. If all plans in Montana have a premium, this material would be considered misleading to beneficiaries in Montana.

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 this site does not direct them to CMS/Medicare. The URL needs 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 meet any applicable state licensure requirements.

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”.

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 to believe the material is coming from the federal government. The term “Important Medicare Notice”, without any other information within the vicinity would be misleading.

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

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 services 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, the 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.

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.

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