Understanding the ACA Consent to Contact Standards of Conduct & How to Comply

What are the Federally-Facilitated Marketplace’s (FFM) requirements for consent to contact?

On September 1, 2022, The Centers for Medicare & Medicaid Services (CMS) Understanding Marketplace Compliance Rules & Regulations presentation laid out additional requirements for ACA health insurance brokers to obtain consent to contact before providing assistance. This article will cover the verification and consent insurance brokers must obtain from their clients when assisting with Marketplace and ACA enrollments.

This requirement is different from and in addition to the requirement that consumers must provide agents and brokers their informed consent for any use or disclosure of their protected health information (PII) outside the scope of the Privacy Notice Statement and the Authorized Functions for agents and brokers in the Marketplace.

The consent to contact guidelines include: 

“Agents and brokers should only make updates to a consumer's application or policy at the direction of the consumer. The Marketplace standards of conduct specify that agents and brokers must obtain the consent of an individual, employer, or employee prior to providing assistance to Marketplace consumers. This includes but is not limited to:

1. Conducting a search for consumer applications using an approved Classic Direct Enrollment (DE) or Enhanced Direct Enrollment (EDE) website.
2. Helping the consumer apply for Marketplace coverage or financial assistance or enrolling the consumer in a Marketplace-qualified health plan (QHP).
3. Checking the status of the consumer’s coverage and making updates throughout the year via HealthCare.gov, approved DE or EDE websites, and/or the Marketplace Call Center.”

Currently, CMS does not require a standard format or process for obtaining or maintaining records of consent. Agencies and brokers can create their own form or use a Broker of Record (BOR) form from an issuer or state Department of Insurance (DOI). The record of consent should include the following information:

• The individual’s, employer’s, or employee’s name.
• The date the consent was given.
• The name of the agent(s) or broker(s) to whom consent was given.

At this time, any consent given does not expire, and the CMS shared that “the consent may last indefinitely unless the individual, employer, or employee revokes it.” Any consent documentation must be secured and retained for at least ten years.

Using an AMS to Help You Comply with ACA Consent to Contact Regulations

All health insurance brokers that anticipate selling or renewing Marketplace and ACA plans for individuals and groups must obtain consent. Brokers can obtain consent in one of three ways:

• Verbally. You can gather this consent over the phone. Using a recorded line is best practice, which will also allow your agency to comply with other CMS Final Rule 2023 regulations. CMS recommends that brokers read “a script that contains, at a minimum, the required elements, and they should memorialize that the required consent was obtained.”
• Electronically. You can gain this consent via email or through an electronically submitted form (see above for options).
• In Person. A client may verbally state their consent or sign a form. It’s best practice to record their consent (written or verbal) and retain it for your records.

Obtaining consent is one part; the other part is maintaining and managing that record of consent. Some places agencies can store these records are:

• Local filing cabinet for written records.
• Electronically-based file folders or a cloud-based file repository (i.e., Dropbox, Google Drive) for electronic files (including recordings).
• An agency management system (AMS) or CRM.

A local filing cabinet can allow easy access for your employees when they’re in the office, but they cannot be accessed on the go. Additionally, all local filings must comply with HIPAA guidelines to ensure safety and security. 

A cloud-based file repository or electronic file folder makes the recordings more accessible, but there’s no way to tie the call recordings to client records.

Using an AMS or CRM makes storage and access more secure and efficient by attaching the record of consent directly to the client’s profile. This allows you to centralize your data to one location, thus simplifying access and adding efficiencies to your customer service and data management processes.

Additionally, having consent documented and stored electronically in your AMS or CRM gives you an added layer of protection against fraud. There have been reports of agents changing the agent of record on a client’s account or enrolling them in plans without their knowledge. Having concrete proof from your client that they have consented to receive assistance from you (and you specifically) gives you peace of mind should a complaint be filed with CMS.

Obtain & Store Your Consent to Contact Records with AgencyBloc

AgencyBloc is the #1 Recommended insurance industry growth platform. Agencies, GAs, and IMO/FMOs utilize AgencyBloc’s industry-specific solutions to effectively manage their operations, including housing all of their client data and essential documents like consent to contact records. 

How to Obtain Consent to Contact from Clients Using AgencyBloc's AMS+ Solution

Gather consent from your individual and group clients electronically with AMS+:

• Use the electronic compliance management tools to quickly send compliance documents, like ACA Consent to Contact forms, for electronic signature via email or text message. Then, automatically attach the signed copy to the contact's profile. 
• Use the workflow automation tools to create tasks to remind agents to obtain consent whenever they begin working with a new individual or client. This allows your teams to integrate these new regulations into your existing processes seamlessly.
• Use the insurance-specific VoIP system to create custom playable recordings at the beginning or end of your calls to stay compliant with ACA Consent to Contact regulations. If you collect consent over the phone, AMS+ will automatically record and store your calls with the appropriate contact.
• Use the built-in video conferencing tool to meet with clients virtually while remaining compliant. Like the VoIP features, AMS+ will record and store your video calls, meaning you are always compliant.

Using AgencyBloc's AMS+ solution to obtain consent and manage your consent to contact records allows your teams to stay compliant with government regulations, provide a higher level of customer service, and add more value to your new and existing client relationships.

Posted by Sarah Rosonke on Tuesday, February 20, 2024 in Electronic Compliance Management

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