CMS updates guidance on Marketplace consent form requirements

Earlier this month, CMS released an eight-page FAQ on what agents and brokers need to know when complying with the new Marketplace consent requirements. Don’t have time to wade through the legalese? We’ve got you covered.

When do I have to start collecting consent and confirmation of eligibility application information?

The new rules went into effect on June 18, 2023, so you should already be documenting these two pieces – at least if you’ve done a Marketplace enrollment since then.

However, if one of your clients has an automatic renewal and no changes to their Marketplace application, you do not need to obtain consent (yet). Consent is only required when you assist the consumer with changing the plan or application information.

How can I document consumer consent?

CMS gives a lot of latitude here, and for better or worse, is not as prescriptive as Medicare’s Scope of Appointment requirements. You might:

• Capture the date consent was provided on a document (both electronic and wet signatures will work)
• Use a call recording solution to capture a verbal confirmation of consent
• Collect a written response to a communication you have sent

In short, so long as CMS can confirm that the consumer does, in fact, want to be working with you, you can document consent in any manner that fits your business practices.

Can I use the same document to record consumer consent AND consumer review and confirmation of eligibility application information?

In short, yes. The new rules outline two separate events to be documented – that the consumer gave consent for you to assist with a Marketplace application and/or enrollment, and that the consumer reviewed the information in their application before it was submitted. These events may be documented on the same sheet, or in the same electronic file, provided there’s a timestamp pointing these out.

I’ve recently become the new agent of record for someone with existing Marketplace coverage. Do I need to collect consent?

Yes. Since you’ll be updating the consumer’s Marketplace application, you’ll need a form to do so.

What changes if the business moves to another agent within my agency?

If the consumer has given their consent to an entire agency, and the consent is still in effect, a new consent form is not required if the business moves to another agent within the agency.

Do I have to collect consent and confirmation of eligibility information if the consumer uses a consumer-facing website, like CoverageForOne, to enroll in coverage?

Good news here! If you haven’t provided active assistance to the consumer (e.g. – answering questions about the application, helping them locate a best-fitting plan), you do not need to create any documentation. That’s because the consumer is completing the application independently. So, feel free to post your personalized shopping link everywhere you see fit!

What attestations do I need to explain to the consumer?

As part of their application, consumers are required to attest (or agree, in layman’s terms), that everything entered in the application is true. The attestations change based on the consumer’s circumstances: someone applying for both APTCs and CSRs will see different attestations than someone not applying for financial assistance. You’ll need to be able to explain those agreements in consumer-friendly language. And, you should be prepared to explain that the application is signed on penalty of perjury – and potential consequences for any intentionally false statements.

What tools can I use to stay in compliance?

Action’s CoverageForOne platform provides an enhanced direct enrollment pathway, including your own consumer-facing shopping link. When your clients use that link on their own, remember that you don't need to create any documentation. But if you take a more active role, we make custom-branded consent and eligibility review forms available to each of our agent partners.