Health Care Reform, Insurance and Employee Benefits

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HHS Rejects NAIC Broker MLR Request

Note: this should not be taken as tax or legal advice.

Last week, we mentioned that the NAIC had submitted a resolution urging HHS to remove broker commission for the medical loss ratio (MLR) requirements.  That request has been denied. 

In a final rule and interim final, HHS modified several of the MLR requirements of the Affordable Care Act, but it left agent and broker commission untouched. 

The modifications are based on public comments solicited in an earlier version of the rule published by CMS.

Click here to read the new rules.

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NAIC Urges HHS to Remove Broker Commission from MLR

Note: this should not be taken as tax or legal advice.

Today, the National Association of Insurance Commissioners (NAIC) urged Health and Human Services (HHS) to exempt agent and broker commissions from the medical loss ratio requirements (MLRs) of the Affordable Care Act.
In a resolution dated November 22, 2011, the NAIC states that it is “essential” that health insurance agents and brokers continue to provide consumers and employers information and advice on choosing the appropriate health insurance plan.

Since the implementation of the MLRs in January, agents and brokers have seen commissions decline by up to 50%.  A bill before the U.S. House of Representatives (H.R. 1206) seeks to formally exempt agent and broker compensation from the MLRs, but no action has been taken yet.

Click here to read the full NAIC resolution.


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Colorado Group Health Insurance Brokers Are Deceiving Employers

Note: None of this should be taken as legal or tax advice.

Certain group health insurance agents in Colorado are telling their clients that Colorado law prohibits small employers from switching to health reimbursement arrangements (HRAs) and defined contribution health plans. This is blatantly false.

Sadly, this is not the first time Colorado insurance agents have attempted to deceive Colorado employers. In 2009, brokers and lobbyists convinced several Colorado Department of Insurance (DOI) representatives and small group brokers into misconstruing Colorado Revised Statute (CRS) 10-16-105.2. In Bulletin No. B-4.32, the DOI representatives and brokers incorrectly maintained that CRS 10-16-105.2 prohibited a Colorado small employer from setting up an HRA that reimburses for individual health insurance premiums. In an effort to put an end to this misrepresentation, Commissioner Marcy Morrison issued Final Agency Order No O-11-064 on November 16, 2010, which:

  1. Explicitly stated that employers of any size may establish HRAs that reimburse for individual health insurance premiums.
  2. Explicitly stated that CRS 10-16-105.2 does not prohibit an employer from paying for individual insurance premiums.
  3. Explicitly stated that individual policies paid for by an employee who has an HRA are subject to individual health insurance regulations (not CRS 10-16-105.2).
  4. Repealed the 2009 Colorado Department of Insurance Bulletin No. B-4.32.

On March 29, 2011, Colorado Governor Hickenlooper signed Senate Bill (SB) 11-019 into law that added the following language to CRS-10-16-105.2:

"10-16-105.2. Small employer health insurance availability program. (1.5) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A SMALL EMPLOYER THAT DOES NOT HAVE, AND HAS NOT HAD IN THE PREVIOUS TWELVE MONTHS, A SMALL GROUP HEALTH BENEFIT PLAN PROVIDING COVERAGE TO ITS EMPLOYEES UNDER THIS ARTICLE MAY REIMBURSE AN EMPLOYEE, WHETHER THROUGH WAGE ADJUSTMENTS OR HEALTH REIMBURSEMENT ARRANGEMENTS, FOR ANY PORTION OF THE PREMIUM FOR A HEALTH COVERAGE PLAN."

The intent of the bill was to encourage small employers that do not offer group health benefits to use HRAs for individual policy premium reimbursement. In reality, the added language has no legal meaning - Colorado small employers have always been allowed to pay and reimburse employees for individual health insurance.

Federal law explicitly allows Colorado small employers to use HRAs and Section 125 (Cafeteria) Plans to reimburse employees tax free for personal health insurance premiums, similar to the way employers contribute on a tax free basis to group premiums. This has been clarified with the release of numerous U.S. Treasury and State publications spelling out how employers can use HRAs and 125 Plans for tax-free reimbursement of the premiums paid for personal health insurance policies. See "insurance Premiums" in IRS Publication 502. Also see IRS Publication 969.

However, certain group health insurance agents are now using the new language to deceive Colorado employers. For example, in a mass email distributed on May 18th, 2011, a Colorado insurance agent wrote:

"There were several Health Care related bills passed this session, but you need to be aware of one bill affecting employers who pay for or reimburse employees for individual health insurance. Senate Bill 11-019 allows employers to offer list bill individual insurance on a voluntary basis for employees who did not have access to their employers group health insurance plan. The bill specifically disallows small employer groups from canceling their group plans in favor of offering individual insurance policies to their employees."

The bolded text is blatantly false! There is nothing in the passed Senate Bill 11-019 or CRS 10-16-105.2 that "specifically" (or in any way) suggests small employers cannot cancel group health insurance plans and offer individual policies to their employees! 

Under federal law, Colorado small employers can absolutely cancel group health insurance coverage, and use an IRS, HIPAA, and ERISA-compliant platform to offer defined contribution health plans and HRAs that reimburse for premiums

Why do brokers continually misrepresent this issue? 

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NAIC Attempting to Remove Broker Commissions From MLR Calculation

This should not be taken as legal or tax advice.

The National Association of Insurance Commissioners (NAIC) is working on a draft bill that would remove broker fees from the calculation of Medical Loss Ratios (MLRs).  On Thursday, the NAIC released a first draft of the bill

The bill essentially excludes "renumeration" (defined below) paid to "independent insurance producers" (also defined below) from the MLR calculations. 

"The term ‘remuneration’ means compensation paid by or accrued from an insurance issuer or health plan for services rendered under contractual agreement which may include fees, commissions or rebates. "

"The term ‘independent insurance producer’ means an insurance agent or broker, insurance consultant, benefit specialist, limited insurance representative, and any other person required to be licensed under the laws of the particular State to sell, solicit, negotiate, service, effect, procure, renew or bind policies of insurance coverage or offer advice, counsel, opinions or services related to insurance, and who is not employed by or required by contract to represent one insurance issuer or health plan."

Click here to access the draft bill.

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Health Insurance Agents Fight For Their Future

Note: This should not be taken as tax or legal advice.

During Today's Morning Edition, NPR's Jenny Gold reviews the pros of cons of using a health insurance broker.

The pros:

"Some experts would say Debbie Stocks ought to start looking for a new career, that the new health overhaul law makes insurance brokers like her obsolete.

But Stocks, 45, isn't about to give up her calling. As the one-time high school French teacher says, "My soul loves health insurance."

Stocks argues that she offers her customers something that cannot be replicated by an online exchange. Many small businesses have complicated health needs that make buying insurance challenging, she says. Rick's Custom Frame + Gallery is one of those businesses.

Buying insurance isn't 'like buying a pair of pants,' Stocks says. 'You buy a pair of pants; you try them on; they don't fit; you send them back. You buy an insurance plan, when you try it on, if it's not right, it's too late." In addition, her firm, Your Benefits Partner, LLC, offers a continued service throughout the year by helping clients address health claims and billing concerns."


The cons:

"Health care economists and many of the lawmakers who wrote the new health law pointed to administrative costs — including broker fees — as a factor driving health insurance costs.

To their clients, brokers may seem like a free service — insurers pay broker commissions directly, usually 6 to 8 percent of premiums the first year of the health plan and 4 percent to 6 percent in subsequent years. But the cost of those commissions gets passed to everyone who buys insurance. There are currently about 434,800 brokers in the U.S., according to the Bureau of Labor Statistics, and the majority sell health insurance.

'Of course they're just middlemen,' says Paul Ginsburg, president of the nonprofit Center for Studying Health System Change. He compares them to travel agents in the pre-Internet era. 'It used to be that you paid the same amount per ticket whether you bought directly from the airline or through a travel agent, and the airline gave the travel agent a commission.'

But as the market grew more competitive, airlines began to wage price wars, and agents were one of the first cuts. The airlines set up websites, and third-party sites like Travelocity were launched. There still are travel agents, but they're often boutique shops catering to customers willing to pay for the service."


Click here to read the full article.

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Clarifying Health is a blog about health insurance, health benefits, and everything else related to how Americans pay for medical expenses.

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