Here’s the text of the Establishment of Exchanges and Qualified final rule, and also the text of a related interim final rule.
The U.S. Department of Health and Human Services (HHS) posted the final rule today to implement the provisions in the Patient Protection and Affordable Care Act of 2010 (PPACA) that are supposed to create a new set of state-based exchanges, or Web-based health insurance supermarkets, that individuals and small groups can use to buy health coverage.
Arthur D. Postal has posted an article about the final rule at http://www.lifehealthpro.com.
In case you would like to read an unedited version of some of the more interesting sections of the regulation, here are some of the provisions that relate to agents, brokers and Navigators.
One interesting section of the preamble to the regulations, in which HHS officials discuss the role of agents and brokers in selling exchange coverage:
Comment: With respect to proposed §155.220(a), many commenters urged us to set standards around the use of agents and brokers in order to ensure certain consumer protections.
These suggestions included having Exchanges to monitor and oversee all agents and brokers enrolling individuals and small groups in QHPs; establishing provisions to mitigate agents’ and brokers’ incentives to steer consumers to enroll in certain QHPs or to non-QHPs; setting uniform commissions for agents and brokers or establishing that issuers must compensate agents and brokers the same amount for Exchange and non-Exchange plans; prohibiting commissions for agents and brokers in the Exchange altogether; establishing certain disclosures by agents and brokers, including disclosure of their commission and whether or not the agent or broker has been the subject of any sanctions; applying privacy and confidentiality standards to agents and brokers; prohibiting Exchanges from directing individuals or small groups to enroll only through an agent or broker; prohibiting advertising by agents or brokers; or prohibiting agents and brokers from the Exchange altogether. A number of commenters also expressed concern regarding the role of third-party webbased entities enrolling individuals in QHPs.
Several commenters emphasized that such external entities should be held to the same standards as the Exchange; should not be permitted to perform eligibility determinations; or should be held to certain consumer protection standards to prevent steering.
Response: We recognize the importance of consumer protections with respect to agents and broker interactions. We also recognize the States’ role in licensing and overseeing agents and brokers and have allowed States to determine which standards would apply to agents and brokers acting in the Exchange, if the State chooses to permit agents and brokers to enroll individuals and small groups in QHPs through the Exchange.
In order to address commenters’ concerns while maintaining the State’s primary role in overseeing agents and brokers, we have added paragraph (d) to ensure that agents and brokers must comply with an agreement with the Exchange under which the agent or broker would comply with the Exchange’s privacy and security standards that are adopted consistent with §155.260 and §155.270.
We have also added paragraph (e) to ensure that agents and brokers comply with applicable State law. We also recognize that the role of web-brokers may evolve upon implementation of Exchanges, and that Exchanges may seek to involve Web-brokers in the enrollment process using a variety of technologies.
We have set forth standards in this rule to ensure that consumers enjoy a seamless experience with appropriate consumer protections if an Exchange chooses to allow Web-brokers to participate in Exchange enrollment activities.
In order to address commenters’ particular concerns around the role of Web-based entities, we note that eligibility determinations must be conducted by the Exchange and enrollment information must be transmitted to the QHP issuer by the Exchange.
We have added paragraph (c)(3) to §155.220 to ensure that Web sites used by agents or brokers to enroll individuals in a manner that constitutes enrollment through the Exchange provide consumers with access to the same information as they would if they used the Exchange Web site instead.
Based on several commenters’ suggestion that we address agents’ and brokers’ ability to steer or incentivize consumers to enroll in certain QHPs, and commenters’ general concern about the fact that the existence of such Web sites may confuse consumers, we have inserted standards under paragraph (c)(3) of this section to prevent such web-brokers from providing financial incentives and to establish that such Web sites must allow consumers to withdraw from the web-broker’s process and use the Exchange Web site instead at any time.
Furthermore, the web-brokers would also be subject to the standards inserted under paragraph (d) and (e) regarding compliance with an agreement with the Exchange and State law, respectively.
Here’s a section of the preamble in which officials talk about how often exchange managers can consult with insurers, agents and brokers:
Comment: We received a number of comments stating that HHS should limit the number
of consultations with health insurance issuers, agents, and brokers described in proposed
§155.130(j) and (k) to minimize any potential conflicts of interest. One commenter
recommended that consultation with a health insurance issuer be made fully transparent, while
several other commenters recommended that the consultation only include agents and brokers
that enroll qualified individuals, employers, or employees.
Response: We understand the concerns of commenters, but also acknowledge that health
insurance issuers and agents and brokers are likely to play a significant role in the Exchange. We
encourage Exchanges to be transparent in the consultation process. Furthermore, in States where
the Exchange is not housed in the department of insurance, we expect there to be regular
consultation between the Exchange and the department of insurance, given the need for
coordination between the two entities.
Here’s an excerpt about the licenses that the agents, brokers and “Navigators” (ombudsmen) who deal with exchanges ought to hold:
Comment: A majority of commenters proposed that Navigators should not have to hold an agent or broker license or errors and omissions liability coverage in order to be certified or licensed as a Navigator. Conversely, a small number of commenters suggested that Navigators hold an agent or broker license as well as errors and omissions coverage and that Navigators should be subject to the same licensing and education standards established for agents and brokers.
Response: We accept the commenters’ suggestion that States and Exchanges should not be able to stipulate that Navigators hold an agent or broker license, and we clarify that States or Exchanges are prohibited from adopting such a standard, including errors and omissions coverage. “Agent or broker” is defined in §155.20 as “a person or entity licensed by the State as an agent, broker, or insurance producer.”
Thus, establishing licensure standards for Navigators would mean that all Navigators would be agents and brokers, and would violate the standard set forth §155.210(c)(2) of the final rule that at least two types of entities must serve as Navigators