Role of Agents, Brokers and Web-brokers in Exchanges

The Affordable Care Act (ACA) calls for the creation of state-based competitive marketplaces, known as Affordable Health Insurance Exchanges (Exchanges), for individuals and small businesses to purchase private health insurance. ACA requires the Exchanges to become operational in 2014, with enrollment beginning Oct. 1, 2013.

Agents and brokers, including web-brokers, will play a role in educating consumers about Exchanges and insurance affordability programs and in helping consumers receive eligibility determinations, compare plans and enroll in coverage. In particular, agents and brokers will play a critical role in helping qualified employers and employees enroll in coverage through the Small Business Health Options Programs (SHOPs).

On May 1, 2013, HHS’ Centers for Medicare & Medicaid Services (CMS) released guidance on the role that agents, brokers and web-brokers will play in the federally facilitated (FFE) and state partnership Exchanges. In this guidance, CMS also addresses common questions on the role of agents and brokers in all Exchanges, including state-based Exchanges, as well as questions specific to web-brokers.

Role of Agents and Brokers in FFEs and State Partnership Exchanges

Where permitted under state law, CMS will work with agents and brokers to assist consumers in completing the eligibility application, comparing and selecting qualified health plans (QHPs) and enrolling consumers through the Exchange. Agents and brokers intending to work with consumers in FFEs and state partnership Exchanges will be able to assist consumers in two ways:

(1)  An issuer-based pathway, where an agent or broker uses an issuer’s website to assist the consumer; or

(2)  An Exchange pathway, where an agent or broker assists the consumer using the Exchange website.

Both pathways will transmit an agent’s or broker’s identifying information to the appropriate issuer to facilitate payment, and will allow an agent or broker to assist qualified individuals and/or employers and employees with initial enrollment and changes during the coverage year, including changes that impact eligibility.

Registration with the Exchange

In states with an FFE or state partnership Exchange, all agents and brokers must register with CMS to assist qualified individuals for individual Exchange coverage. CMS also encourages agents and brokers working exclusively in SHOPs to register and complete training. An online registration process is expected to begin in thesummer of 2013, prior to open enrollment. In completing the registration process, the agent or broker will:

(1)  Confirm his or her identity by answering a number of simple questions online;

(2)  Complete an Exchange-specific online training course; and

(3)  Agree to comply with federal and state laws, rules, standards and policies, including those related to privacy and security policies, as a condition of working with consumers in the Exchange.

Once an agent or broker has registered, he or she will receive anactive FFE user ID. This user ID is the agent or broker’s unique identifier in the Exchange, and it, along with the agent’s or broker’s national producer number (NPN), will be essential for the agent or broker to receive compensation from an issuer.

Issuer-based Pathway for Assisting Consumers

Many agents and brokers already use issuer websites to assist consumers and will be able to continue using issuer websites to work with consumers in the FFEs. This issuer-based pathway will be available to agents and brokers who are assisting individual consumers starting in the fall of 2013.

As is the case today, agents and brokers will be appointed by issuers. Issuers will check the agent’s or broker’s licensure status and will verify an agent or broker’s registration with the FFE or state partnership Exchange. Agents and brokers will be required to provide copies of their FFE training certificates and user IDs to issuers.

To use this pathway, an agent or broker will first log on to the issuer’s website. Once the consumer determines that he or she would like to apply for coverage through the FFE, the agent or broker will be securely redirected from the issuer’s agent website to the Exchange website to complete the eligibility application, using his or her FFE user ID to access the Exchange website. The agent or broker will need to enter his or her FFE user ID and NPN as part of the eligibility application.

CMS expects that the agent or broker will inform the consumer that the agent or broker will provide information for certain QHPs with which he or she has a business relationship, but that the consumer could directly access the FFE website where additional QHP information and choices are available.

Once the agent or broker has completed the application with the consumer and received the consumer’s eligibility determination from the FFE, the agent or broker will be securely redirected to the issuer’s website to assist the consumer with plan comparison, plan selection and enrollment. CMS has provided a process flow illustrating the issuer-based pathway.

Exchange Pathway for Assisting Consumers

Beginning in fall 2013, an agent or broker will also be able to assist consumers directly on the FFE website using the Exchange pathway. Agents and brokers will be able to use this pathway to help enroll qualified individuals with individual Exchange options as well as qualified employers and employees with SHOP options.

In the Exchange pathway, the consumer, employer or employee will log directly into his or her own Exchange account. The agent or broker may assist the consumer in creating this account if needed, but the consumer or a legally-authorized representative must create his or her own Exchange username and password. The consumer should not share this information with third parties, including agents and brokers.

The agent or broker will then work with the consumer to complete the eligibility application. The agent or broker can assist in comparing QHPs on the Exchange website and submitting the consumer’s selection. All plan choices will be displayed. The consumer will enter the agent’s or broker’s FFE user ID and NPN both as part of the eligibility application and enrollment transaction to indicate that the agent or broker assisted the consumer with plan selection and enrollment. CMS has provided a process flow illustrating the Exchange pathway.

FAQs on the Role of Agents and Brokers in All Exchanges

1. Can a state-based Exchange establish a commission schedule or pay commissions? How will FFEs, including state partnership Exchanges, address compensation? (Compensation includes commissions, fees or other incentives as established in the agreement between an issuer and an agent or broker.)

Nothing in the Exchange final rule prohibits a state from establishing laws, regulations and standards for issuer compensation of agents or brokers, including for enrolling individuals through that state’s Exchange. Accordingly, state-based Exchanges may establish parameters for compensating agents and brokers, by direct compensation from the Exchange or by having issuers pay commissions. If issuers will be paying commissions to agents or brokers, CMS encourages state-based Exchanges to consider providing information to issuers to facilitate these transactions.

FFEs and state partnership Exchanges will not establish a commission schedule or pay commissions directly to agents or brokers. Instead, CMS expects that the amount and terms of any commission would be negotiated by the issuer and the agent or broker. However, HHS has established a QHP certification standardfor issuers seeking certification in FFEs and federally facilitated SHOPs (FF-SHOPs) that would require QHP issuers to pay the same agent and broker compensation for enrollment through the FFEs and FF-SHOPs and for enrollment in similar health plans offered outside the FFEs and FF-SHOPs. CMS will reevaluate this approach in the future. FFEs and state partnership Exchanges will transmit agent/broker identifying information to issuers to facilitate payment.

However, note that agents and brokers who are acting as Navigators may not receive compensation from issuers.

2. May a state participating in a state partnership Exchange modify processes and infrastructure for agents and brokers, including for training and registration?

For FFEs, including state partnership Exchanges, CMS will be responsible for registering agents and brokers and conducting Exchange-related training. Upon completion of the registration and training, agents and brokers will complete a privacy and security agreement and obtain an FFE user ID.

States will continue to license and regulate agents and brokers, including those who assist consumers in the Exchange. States will also continue to establish licensure and continuing education requirements for agents and brokers, and may require additional state-specific training as a condition of licensure. However, the FFE training will not include state-specific training requirements in 2014.

3. When assisting qualified individuals enrolling through an Exchange, must an agent or broker display all QHPs? Must an agent or broker be able to enroll individuals in all QHPs?

With the exception of web-brokers (who must display all QHPs available in an Exchange), the Exchange final rule does not require agents and brokers to display all QHPs or facilitate enrollment into all QHPs. State-based Exchanges have discretion to implement policies that would require agents and brokers to display all QHPs (such as additional requirements for QHP issuers under state law or as part of the state-based Exchange QHP certification process) consistent with the Exchange final rule. State-based Exchanges may also provide information to consumers on agent and broker relationships with issuers, including appointment and compensation arrangements.

In FFEs and state partnership Exchanges, CMS will not require agents and brokers to facilitate enrollment into all available QHPs. (However, agents and brokers who are acting as Navigators would be required to facilitate enrollment into all available QHPs.) If the agent or broker is using the Exchange pathway to assist consumers, all QHP choices will be displayed. All agents and brokers must comply with applicable state laws, regulations and Exchange requirements, including standards related to relationships or appointments with issuers.

4. What happens if an individual working with an agent or broker is determined to be eligible for Medicaid or CHIP?

Agents and brokers who are approached by individuals and families looking for assistance with Exchange enrollment are expected to work with all consumers, including individuals who are ultimately determined to be eligible for Medicaid or CHIP. Any individual who is working with a registered agent or broker and is determined by an Exchange to be eligible for Medicaid or CHIP will receive an appropriate notice of assessment or determination of Medicaid/CHIP eligibility from the Exchange. In these cases, CMS expects the agent or broker to refer the individual to state agency. Agent and broker training will provide information on where to direct Medicaid or CHIP-eligible individuals.

5. How will agents and brokers work with qualified employers in FF-SHOPs?

Agents and brokers who assist qualified small employers in enrolling through an FF-SHOP will use the Exchange pathway, except that agents and brokers will not be required to obtain an FFE user ID. Like in the Exchange pathway for consumers shopping for individual coverage, the SHOP application will include a field in which the employer or agent/broker can enter an FFE user ID (if applicable) and/or NPN. This information will be transmitted to the QHP issuer selected by the employer as part of the group enrollment.

6. To what extent can agents and brokers continue communicating with consumers after they have been enrolled in a QHP through an Exchange?

Agents and brokers (including web-brokers) may continue to communicate with qualified individuals after they have enrolled in a QHP to the extent that communications comply with applicable laws and regulations. This communication also must comply with the privacy and security standards adopted by the Exchange, which limit how an agent or broker may use any information gained as part of providing assistance and services to a qualified individual. CMS expects to issue additional rulemaking on privacy and security requirements for non-Exchange entities. With respect to the FF-SHOP, agents and brokers are expected to be in continual contact with employers both before and after enrollment, as they will serve as a primary contact for customer service issues for employers.

Additional Guidance for Web-Brokers

Agents or brokers who enroll consumers through public-facing websites are referred to as “web-brokers.” Web-brokers will provide another option for consumers seeking to enroll in QHPs through the individual Exchanges, alongside traditional agents and brokers who will also be assisting consumers with enrolling through the Exchange.

CMS recognizes that many consumers currently purchase insurance online from web-brokers. 45 C.F.R. 155.220(c)(3) establishes requirements that would apply when consumers in the individual Exchanges select a QHP through an agent’s or broker’s website. The following questions and answers address the role of web-brokers in Exchanges.

7. Can state-based Exchanges work with web-brokers?

Yes. In addition to operating its own Exchange website, a state-based Exchange can work with web-brokers to provide an alternate plan selection option for consumers. States may allow web-brokers to use their websites to provide consumer information for comparing and selecting QHPs, subject to the standards specified in 45 C.F.R. 155.220(c) for individual market QHPs.

State-based Exchanges must continue to perform eligibility determination functions and transmit enrollment information to QHP issuers for all individuals enrolling through the Exchange, including those who enroll through the Exchange with the assistance of web-brokers.

8. Will FFEs offer the web-broker option?

Yes. To the extent permitted by a state, beginning in October 2013, CMS intends to work with web-brokers that meet all applicable requirements to provide an alternate option to help consumers select QHPs online. CMS is developing the capability to support integration between the web-broker’s website and the FFE’s website using secure redirect and application programming interface mechanisms. This interface will allow a qualified individual to:

• Initiate his or her shopping experience on the web-broker’s website;
• Connect securely to the FFE website to complete the eligibility application and determination process; and
• Return securely to the web-broker’s site to compare plans and select a QHP.

9. How will web-brokers working with FFEs obtain consumer and QHP data?

In FFEs, the application programming interface will facilitate the secure transmission of key eligibility and enrollment information between the Exchange and the web-broker. CMS will make available to web-brokers QHP data, including premium information, provided by issuers to CMS. CMS will provide further technical guidance on how QHP data will be conveyed to web-brokers. Web-brokers will also receive consumer-specific eligibility information via a secure redirect from the Exchange, including contact information for the application, the individual or family’s eligibility determination and information on the maximum advance payment of premium tax credit (APTC) and cost-sharing reductions for which the individual or family is eligible.

After the consumer selects a QHP and the APTC amount has been determined, the web-broker will transmit the individual or family’s QHP selection and related information back to the Exchange. The Exchange will convey all enrollment information to appropriate QHP issuers. Individuals determined eligible for Medicaid and CHIP will be referred by the Exchange to the appropriate state agency.

Given the sensitive nature of personally identifiable information, web-broker websites will be required to comply with all existing and future privacy and security standards related to the use and handling of personally identifiable information obtained during the enrollment process, regardless of whether the enrollment is completed. These security standards will also require consumer authentication to prevent unauthorized access to sensitive information.

10. Under 45 C.F.R §155.220(c)(3)(iv), web-brokers must display all QHPs available through an Exchange. Is the FFE establishing standards for appointments with issuers?

Web-brokers must display all QHPs available through an Exchange, irrespective of compensation or appointment arrangements. Web-brokers must comply with all applicable state law, including state law related to appointments, as a condition of enrolling individuals through the Exchange. If a consumer intends to enroll in a QHP for which the web-broker does not hold an appointment, the web-broker should direct the consumer to the FFE.

11. In the FFE, will web-brokers be able to modify the display of QHPs presented on their websites? What consumer protections must web-brokers keep in mind?

In FFEs, CMS expects that:

• The sort order of (or sorting algorithm for) QHPs will not steer a consumer to a particular QHP based upon financial consideration to the web-broker;
• A web-broker will disclose to the consumer the specific source and nature of web-broker compensation and that the compensation does not affect the display of QHP options or the premiums charged;
• Consumers will not be charged a separate transaction or service fee for shopping or enrolling in a QHP through a web-broker’s services or website; and
• Web-brokers will display QHPs separately from non-QHPs and offer a QHP plan selection experience that is free from advertisements or information for other health insurance-related products and sponsored links advertising health insurance-related products (for example, an advertisement for a QHP issuer).

Web-brokers also may offer additional tools or decision support that the consumer can use to navigate or refine the display of QHPs. Once a consumer has completed QHP plan selection and enrollment, the web-broker may offer the consumer the ability to search for additional products or services, if desired. CMS expects that these types of offers will be made in a section of the web-broker’s website that is separate from the QHP display.

A web-broker must adhere to website disclosure and display standards specified in 45 C.F.R. 155.205(b)(1) and (c). In particular, a web-broker must make available quality information on each QHP offered through an Exchange easily accessible to consumers, including consumers with disabilities and limited English proficiency.

CMS also expects the web-broker to prominently display language explaining to consumers that the web-broker has entered into an agreement with CMS and has agreed to conform to website display and security standards. This language will also explain that the web-broker’s website is distinct from the FFE website and that consumers may opt to use the FFE website at any time. CMS will provide standard language that a web-broker may use on its website for this purpose in future guidance.

Source: Department of Health and Human Services