Breaking down CMS’s 2024 ACA/QHP final rule changes

The Centers for Medicare & Medicaid Services (CMS) released the Department of Health & Human Services (HHS) Notice of Benefit and Payment Parameters (NBPP) final rule for plan year 2024. Please take a moment to review the following changes that will impact the 2024 Open Enrollment Period and beyond.

Two major changes:

Agent documentation of consent from consumers

• Required prior to providing consumers assistance
  •  CMS has finalized an HHS requirement that agents must be able to provide proof they’ve received consent from a consumer, or their authorized representative, to help them with their ACA coverage decisions.

Agent documentation of consumer review of application

• Consumer must confirm all information is accurate before application submission 
  • Agents must also document that the consumer, or authorized representative, has reviewed and confirmed all eligibility application information prior to applying, such as the consent documentation.

The above documentation must include:

• Description of the scope, purpose, and duration of the consent provided by the consumer or their authorized representative
• Date consent was given
• Name of the consumer or their authorized representative
• Name of the agent, broker, web broker, or agency being granted consent
• The process by which the consumer or their authorized representative may rescind consent

Agents must retain this documentation for a minimum of 10 years and produce it upon request.

Additional items to know:

Extension of time to review suspension rebuttal evidence and termination requests

• CMS finalized to allow itself up to an additional 15 or 30 calendar days to review evidence submitted by agents, brokers, or web-brokers to rebut allegations that led to suspension of their exchange agreement(s) or to request reconsideration of termination of their exchange agreement(s), respectively.
  • This provides CMS a total of up to 45 or 60 calendar days to review such rebuttal evidence or reconsideration request and notify the submitters of its determination regarding the suspension of their exchange agreement(s) or reconsideration decision related to the termination of their exchange agreement(s), respectively.

Agent, broker, and web broker display requirements

• CMS finalized changes to require web broker websites (NOT Enhanced Direct Enrollment (‘EDE’) websites) to display a prominent and clear explanation of the rationale for explicit QHP recommendations and the methodology for default display of QHPs on their websites (for example, alphabetically based on a plan name, from lowest to highest premium, etc.) to ensure consumers are better able to make informed decisions and shop for and select QHPs that best fit their needs.
  • Additionally, CMS finalized changes that will prohibit QHP advertising, or otherwise providing favored or “preferred placement,” in the display of QHPs or on web broker websites based on compensation an agent, broker, or web broker receives from HP issuers.

Standard of conduct reminder:

An individual or entity described in paragraph (j)(1) of this section must:

1. Provide consumers with correct information, without omission of material fact, regarding the Federally-facilitated Exchanges, QHPs offered through the Federally-facilitated Exchanges, and insurance affordability programs, and refrain from marketing or conduct that is misleading (including by having a direct enrollment website that HHS determines could mislead a consumer into believing they are visiting HealthCare.gov), coercive, or discriminates based on race, color, national origin, disability, age, or sex;
2. Provide the Federally-facilitated Exchanges with correct information under section 1411(b) of the Affordable Care Act, including, but not limited to:
   • Entering only an email address on an application for Exchange coverage or an application for advance payments of the premium tax credit and cost-sharing reductions for QHPs that belongs to the consumer or the consumer’s authorized representative designated in compliance with § 155.227. A consumer’s email address may only be entered with the consent of the consumer or the consumer’s authorized representative. Properly entered email addresses must adhere to the following guidelines:
     • The email address must be accessible by the consumer, or the consumer’s authorized representative designated in compliance with § 155.227, and may not be accessible by the agent, broker, or web broker assisting the consumer; and
     • The email address may not have domains that belong to the agent, broker, or web broker or their business or agency.
   • Entering only a telephone number on an application for Exchange coverage or an application for advance payments of the premium tax credit and cost-sharing reductions for QHPs that belongs to the consumer or their authorized representative designated in compliance with § 155.227. Telephone numbers may not be the personal number or business number of the agent, broker, or web broker assisting the consumer, or their business or agency, unless the telephone number is actually that of the consumer or their authorized representative.
   • Entering only a mailing address on an application for Exchange coverage or an application for advance payments of the premium tax credit and cost-sharing reductions for QHPs that belongs to, or is primarily accessible by, the consumer or their authorized representative designated in compliance with § 155.227, is not for the exclusive or convenient use of the agent, broker, or web broker, and is an actual residence or a secure location where the consumer or their authorized representative may receive correspondence, such as a P.O. Box or homeless shelter. Mailing addresses may not be that of the agent, broker, or web broker assisting the consumer, or their business or agency, unless the address is the actual residence of the consumer or their authorized representative.
   • When submitting household income projections used by the Exchange to determine a tax filer’s eligibility for advance payments of the premium tax credit in accordance with § 155.305(f) or cost-sharing reductions in accordance with § 155.305(g), entering only a consumer’s household income projection that the consumer or the consumer’s authorized representative designated in compliance with § 155.227 has knowingly authorized and confirmed as accurate. Household income projections must be calculated and attested to by the consumer. The agent, broker, or web broker assisting the consumer may answer questions posed by the consumer related to household income projection, such as helping the consumer determine what qualifies as income.
3. Obtain the consent of the individual, employer, or employee prior to assisting with or facilitating enrollment through a Federally-facilitated Exchange, or assisting the individual in applying for advance payments of the premium tax credit and cost-sharing reductions for QHPs;
4. Protect consumer personally identifiable information according to § 155.260(b)(3) and the agreement described in § 155.260(b)(2);
5. Comply with all applicable Federal and State laws and regulations.
6. Not engage in scripting and other automation of interactions with CMS Systems or the Direct Enrollment Pathways, unless approved in advance in writing by CMS.
7. Only use an identity that belongs to the consumer when identity proofing the consumer’s account on HealthCare.gov.
8. When providing information to Federally-facilitated Exchanges that may result in a determination of eligibility for a special enrollment period in accordance with § 155.420, obtain authorization from the consumer to submit the request for a determination of eligibility for a special enrollment period and make the consumer aware of the specific triggering event and special enrollment period for which the agent, broker, or web broker will be submitting an eligibility determination request on the consumer’s behalf.

https://www.law.cornell.edu/cfr/text/45/155.220