Under the Centers for Medicare & Medicaid Services (CMS) guidelines, agents, brokers, and web brokers assisting consumers with the Affordable Care Act (ACA) Marketplace coverage must adhere to a critical requirement: obtaining and documenting consumer consent in two separate events. These individual events ensure that consumers are fully informed and active participants throughout the application and enrollment process.
This article will explore the specific requirements and compliance strategies for meeting this CMS rule, emphasizing the importance of capturing distinct moments in time to safeguard consumer data and ensure accuracy in the enrollment process.
Understanding the Two Separate Events
CMS mandates that agents and brokers obtain consumer consent at two specific points during the Marketplace application process. These two events must be documented, showing that each step happened separately.
Event 1: Consumer Consent Before Assistance
The first event occurs when the consumer consents to the agent, broker, or web-broker to assist them with applying for or enrolling in Marketplace coverage. This consent is necessary before any application work begins.
Key elements for Event 1 include:
- The consumer must understand what they consent to—namely, that their personal information will be used to explore coverage options or begin the application process.
- The agent must capture and document this consent before proceeding with the application or providing detailed assistance.
Event 2: Consumer Confirmation After Application Review
The second event occurs after the application has been completed. Before submitting the Marketplace application, the consumer must review the eligibility information entered and confirm that it is accurate.
Key elements for Event 2 include:
- The consumer must review all the information entered into their Marketplace application.
- They must then confirm that the data is correct and agree to apply.
- The confirmation must be recorded, ensuring the consumer actively reviewed the information and attested to its accuracy.
Using the Same Documentation for Both Events
CMS allows agents, brokers, and web brokers to use the same documentation to comply with both requirements, provided the documentation captures the two separate events.
For compliance:
- The documentation must distinguish between the two events. This means it must show that the first event (consumer consent to assist) occurred before any work on the application and that the second event (consumer confirmation of application accuracy) occurred after the application was completed but before submission.
- The documentation could be timestamped to demonstrate that the two actions happened at different times. This provides a clear record of when the consumer consented and confirmed the application details. For example, the file could include two timestamped communications:
- Consent Timestamp (Event 1): This shows when the consumer consented to the agent to assist them with the Marketplace application.
- Confirmation Timestamp (Event 2): This shows when the consumer reviewed and confirmed the accuracy of the information before submitting the application.
Best Practices for Complying with CMS Separate Events Requirement
To ensure full compliance with CMS guidelines, it’s essential to follow these best practices:
- Clearly Document Both Events
Create or use documentation systems (such as electronic records or written forms) that allow for separate time-stamped records of each event. This could be through:- Separate email confirmations.
- Recorded phone calls with distinct timestamps for consent and confirmation.
- Online forms that automatically timestamp each stage of the process.
- Use Automated Systems
Leverage technology to help capture and timestamp consumer interactions. Many online platforms (like Live-360) used by brokers and web brokers have built-in systems that track when a consumer consents and when they confirm the application’s accuracy. - Educate Consumers
Ensure that consumers understand each step. Take the time to explain why their consent is needed before you assist them and why their confirmation is required before submitting their application. This transparency builds trust and ensures they are fully informed. - Ensure Documentation Retention
CMS requires the agent, broker, or web broker to create and retain this documentation. Keep records in a secure, organized system so that if CMS requests to review compliance, you can easily provide proof of both events.
Why Compliance Matters
CMS’s requirement for obtaining consent in separate events is designed to protect consumers and agents by ensuring clarity and accountability throughout enrollment. Agents and brokers who fail to comply with this regulation may face penalties, including suspension from selling ACA plans, fines, or other legal consequences.
Documenting both the consent to assist and the confirmation of application accuracy helps ensure that:
- Consumers have control over their personal information and the enrollment process.
- Agents and brokers can verify that they acted within the scope of the consumer’s authorization, providing transparency in the enrollment process.
Conclusion
The CMS requirement for obtaining consumer consent in separate events is a critical safeguard that protects consumers and ensures the integrity of the ACA enrollment process. By using the same documentation to capture these distinct moments in time—and ensuring it includes sufficient detail—agents and brokers can stay compliant with CMS guidelines while building trust with their clients.
Remember, the key to compliance is to document the first event (consumer consent to assist) before you help with the application. The second event (consumer confirmation of application accuracy) occurs after the application has been reviewed but before it is submitted.
Disclaimer: This article does not intend to serve as legal advice or constitute legal counsel. It should not be used as a substitute for guidance or instructions provided by CMS or other regulatory bodies. For specific legal advice or compliance concerns, please consult a legal professional or seek official guidance from CMS or the relevant authorities.
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Puedes consultar FAQs for Marketplace Agents and Brokers aqui (solo en ingles)
