Insurers Can’t Vary Commissions Based On Enrollment Timing; Idaho, Minnesota Waiver Requests

On June 7, 2022, the Centers for Medicare and Medicaid Services (CMS) issued new guidance confirming that insurers cannot vary compensation for agents or brokers based on whether the person they are helping enrolls during the open enrollment period (OEP) or a special enrollment period (SEP). Arrangements that reduce or eliminate commissions (and other forms of compensation) for agents and brokers for SEP enrollment violate the Affordable Care Act’s (ACA’s) guaranteed issue requirement under Section 2702 of the Public Health Service Act. Insurers might additionally violate federal nondiscrimination standards if these arrangements discourage agents and brokers from marketing to and enrolling consumers with significant health needs.

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