This article covers the consent requirements agents and brokers must meet before assisting consumers with any Marketplace enrollment activity.
Key Terms
Key Terms
Consumer consent: The explicit permission an agent, broker, or web-broker must obtain from a consumer before accessing their Marketplace application, assisting with enrollment, or making updates to their coverage.
Federally-facilitated Marketplace (FFM): The health insurance Marketplace operated by the federal government through HealthCare.gov, available in states that did not set up their own State-based Exchange.
State-Based Marketplace on the Federal Platform (SBM-FP): A Marketplace operated by a state that uses the federal HealthCare.gov platform for eligibility and enrollment. FFM consent standards apply in SBM-FP states.
Enhanced Direct Enrollment (EDE): A CMS-approved process that allows agents, brokers, and web-brokers to complete Marketplace applications and enrollments directly through a partner website without sending consumers to HealthCare.gov.
Broker of Record (BOR) form: A form issued by an insurance carrier or state Department of Insurance (DOI) that an agent or broker can use to document consumer consent.
Privacy and Security Agreement: An agreement each agent, broker, and web-broker enters into at the beginning of each Open Enrollment period that governs how they handle consumer personally identifiable information.
What actions require consumer consent before I can proceed?
You must obtain consumer consent before taking any of the following actions:
Conducting a search for a consumer's Marketplace application using an approved Enhanced Direct Enrollment (EDE) website.
Helping a consumer apply for Marketplace coverage or financial assistance.
Enrolling a consumer in a Marketplace qualified health plan (QHP).
Checking the status of a consumer's coverage or making updates throughout the year via HealthCare.gov, approved EDE websites, or the Marketplace Agent/Broker Partner Line at 1-855-788-6275.
You may only access consumer information and make updates to consumer accounts with the explicit consent and direction of the consumer you are assisting. These consent requirements apply in both FFM and SBM-FP states.
How do I obtain and document consumer consent?
CMS does not require a specific format for obtaining or documenting consent. You may obtain consent verbally over the phone, electronically via email, or in person. You may also use a Broker of Record (BOR) form from an insurance carrier or state Department of Insurance (DOI) to satisfy the consent requirement.
Regardless of the method used, the consent record must include:
The name of the individual, employer, or employee giving consent.
The date consent was given.
The name of the agent, broker, or web-broker receiving consent.
If multiple agents or brokers within the same organization are authorized, all of their names should be included in the consent record.
As a best practice, obtain consent in writing and retain a record of the documentation. Written consent reduces the risk of disputes, particularly around compensation.
Can I obtain consumer consent verbally without recording it?
No. Verbal consent that is not documented does not satisfy FFM consent requirements. If you obtain consent verbally — for example, over the phone — you must document that consent in a record such as an audio recording, a text message, an email, or a signed electronic consent form.
A valid consent record must include all of the following:
A description of the scope, purpose, and duration of the consent.
The date consent was given.
The name of the consumer.
The name of the agent, broker, web-broker, or agency receiving consent.
A process through which the consumer may rescind the consent.
Simply writing a note that a consumer gave verbal consent does not satisfy these requirements unless the note includes all of the elements listed above. You must retain the consent record for a minimum of 10 years and produce it to CMS upon request during monitoring, audit, or enforcement activities.
CMS offers an optional Model Consent Form that agents, brokers, and web-brokers may use. This form is not mandatory, but whatever method you use must allow the consumer to take a clear action that produces a record CMS can review upon request. Note that the Model Consent Form does not satisfy the separate documentation requirements for consumer review and confirmation of eligibility application accuracy.
How long does consumer consent last?
Consumer consent does not have an automatic expiration date. Consent remains valid indefinitely unless the consumer revokes it. CMS does not set an expiration date because requiring frequent renewals would be burdensome for consumers who consistently work with the same agent or broker.
Even so, if you have worked with a client in the past, you must obtain fresh consent before conducting a new person search or making updates to their Marketplace application.
What happens to consent records if I sell or transfer my book of business?
If you sell or transfer your book of business to another producer, you must inform all affected consumers of the change in National Producer Number (NPN). The new agent or broker must obtain fresh consumer consent before working with those clients. Consent given to you does not automatically transfer to another agent or broker.
All consent documents must be appropriately secured and retained for 10 years.
Does consumer consent allow me to log into a consumer's HealthCare.gov account?
No. Consumer consent never authorizes an agent, broker, or web-broker to log into a consumer's HealthCare.gov account for any reason — including to enter, review, or confirm the accuracy of eligibility application information. You are also prohibited from creating a HealthCare.gov account on behalf of a consumer.
Your consent scripts, forms, and documentation must not state or imply that consumer consent allows you to log into or create a consumer's HealthCare.gov account. For full details, refer to your Privacy and Security Agreement.
Do I need permission to enroll a client?
Yes. CMS requires documented consumer consent before assisting with applications, enrollments, or plan changes. Unauthorized enrollments are prohibited and may result in penalties or termination.
Additional Resources
If you have any questions please contact Producer Support. Producer Support is available by phone at (866) 568-9649, by email at [email protected], or by chat directly from your MyMFG account.