As number of HealthCare.gov brokers dwindles, Georgia passes bill to protect their commissions

(Updated on April 3) Georgia's Legislature passed a bill late last week that requires health insurers to pay commissions to agents and brokers for almost all policies sold if the insurer included commissions in its rate filings. The bill is meant to protect insurance brokers at a time when health plans across the nation are slashing or eliminating commissions for sales of Affordable Care Act-compliant individual health policies. The legislation—House Bill 64—requires that health insurance companies pay commissions consistent with those included in their official state rate filings, though it did not declare a specific amount. Insurers have often outlined agent commissions in official rate filings only to stop paying that amount later, sources said. However, under a compromise that some brokers are not happy about, the bill would allow insurers to stop paying commissions for individual coverage sold during an Affordable Care Act special enrollment period. The bill, which was stalled in the Georgia Senate last year, comes as many health insurers have quit paying broker commissions for new individual members who enroll in any ACA-compliant plans as a way to stymie financial losses. That's a major reason why the number of registered brokers for HealthCare.gov has plummeted since 2015. Data from the CMS shows that there are just under 52,000 brokers registered for HealthCare.gov for 2018 as of April, down 31% from about 75,600 last year and down 50% from just over 103,000 in 2015. Registered brokers have fallen below 2014 levels, when the number was about 59,500. Brokers, which help ACA enrollees navigate complicated coverage options, historically have signed up 50% of ACA exchange enrollees. Their dwindling presence is likely one reason enrollment on the marketplaces has declined over the years. Enrollment in 2018 was 11.8 million, down from 12.2 million in 2017. "We get two or three calls a week from somebody coming off of group coverage, and we don't have anyone to refer them to," said Elena Merino, president and CEO of the Meridian Group, an employee benefits agency in Alpharetta, Ga., that advises on benefits for employer-sponsored group coverage. Insurance brokers are split on the Georgia bill, which has gone through multiple revisions and has lead to confusion among stakeholders. An earlier version of the bill would have required insurers to pay a minimum commission rate to agents. Ronnell Nolan, CEO of Health Agents for America, which represents independent brokers, said making it lawful for insurance companies to stop paying brokers' commissions at certain times, even if only for the special enrollment period, makes it even more difficult for her organization to fight back against the insurance companies' non-payment practices. "We didn't want any legislation on the state level saying insurance companies did not have to pay agents and brokers. We're struggling to have them pay anyway," Nolan said. "What other profession—an engineer, a doctor, a plumber—would do work and not be paid?" Her organization and others for years have pushed the CMS to enforce rules requiring insurers to be consistent in paying commissions for ACA plans in any metal tier or to pay them for special enrollment sign-ups, to little avail. The CMS in December 2016 issued guidance instructing health plans to be consistent in how they pay commissions across all metal tiers, effective January 2018. That guidance did not address commissions for sign-ups during a special enrollment period. Special enrollment periods allow people to enroll in health coverage outside of the yearly open enrollment if they have some kind of major life event, such as having a child, moving or getting married. People who sign up during a special enrollment period often have higher medical costs. Eliminating commissions for special enrollment periods is one way insurers could avoid higher-cost enrollees. Merino said she is concerned that insurers would neglect to pay a commission to an agent who helps a consumer who previously got coverage during a special enrollment period to later compare options during the regular open enrollment. But just a fraction of people sign up during a special enrollment period, said Annette Bechtold, president of the Georgia Association of Health Underwriters and national legislative chair for the National Association of Health Underwriters. Most people get coverage during the ACA's annual open enrollment period, so the benefits of the legislation outweigh any costs, she said. Bechtold is hopeful the law could help bring brokers back to selling ACA plans. Other states' exchanges have implemented rules requiring insurers to pay commissions for plans sold on the insurance exchanges. Connecticut's health exchange, Access Health CT, last year voted to require exchange plans to pay commissions to brokers during the 2018 enrollment period. California's exchange, Covered California, also requires health plans to pay brokers' commissions and requires insurers to pay the same commissions in the open enrollment period as the special enrollment period, according to a Covered California spokeswoman. Correction: This story was updated to clarify when insurers would be required to pay commissions.