Judge Pauses CMS Rule Capping Compensation For Medicare Advantage Brokers

Dive Brief:

• A federal judge has paused a CMS rule capping compensation for brokers that sell Medicare Advantage plans as lawsuits challenging the regulation work their way through the courts.
• Americans for Beneficiary Choice, an association that represents brokers and the organizations that employ them, and one of its members sued to stop the rule earlier this year. The order staying the government’s rule joined ABC’s case with a similar action brought by the Council for Medicare Choice and two Texas broker groups also seeking to overturn the compensation caps.
• Though U.S. District Judge Reed O’Connor’s stay is temporary, his decision published July 3 suggests the judge will overturn at least part of the rule. In it, O’Connor argues the CMS didn’t properly substantiate their caps on broker payments and restrictions to the terms of contracts between health plans and brokers and agents.

Dive Insight:

In April, the CMS finalized regulation preventing insurers from paying additional fees to brokers and third-party groups like field marketing organizations that connect America’s seniors with MA plans.

Its goal was to stop brokers from steering beneficiaries to certain plans in exchange for higher reimbursement, while giving brokers and agents more predictable compensation, regulators said.

The rule does so by broadening Medicare’s definition of compensation to include all actions associated with the sale to or enrollment of a beneficiary in an MA plan, including administration. As a result, insurers will no longer be able to pay brokers additional fees that aren’t subject to the government’s compensation cap, beginning with the upcoming annual enrollment period this fall.

Medicare will hike fixed compensation amounts by a one-time increase of $100 to account for the inclusion of administrative expenses in the cap.

Currently, brokers are paid $611 for initial sales and $306 for renewals.

The rule also restricts health plans from entering into contracts that include incentives for brokers to nudge people to their plans, such as volume-based bonuses for enrollment. It also prohibits marketing organizations from sharing beneficiary data with each other unless they receive that beneficiary’s consent.

The rule was quickly decried by the industry for threatening their business model and sparked lawsuits from brokers and field marketing groups. FMOs don’t themselves enroll beneficiaries in plans but use payments from carriers to oversee independent brokers that do.

Along with the suits filed by AMC and CMC, another FMO called AmeriLife has also filed suit in Texas seeking to roll back the regulation.

In their suits, AMC and CMC have a substantial likelihood of proving the rule’s fixed fee and contract terms restrictions are arbitrary and capricious, according to O’Connor’s ruling last week.

CMS never backed up its decision to include administrative payments in the fixed fee for brokers, O’Connor said.  That’s despite industry groups commenting the raise would be insufficient to cover their costs, since carriers typically pay above $100 per sale for actions like hiring and training agents.

Similarly, regulators didn’t provide industry enough notice of what types of things are prohibited in contracts, according to O’Connor.

However, “the Court finds that [the plaintiffs have] not demonstrated a likelihood of success regarding the Consent Requirement” prohibiting data sharing, O’Connor’s ruling states.

O’Connor still found enough evidence the rule would cause irreparable harm to the brokers’ businesses in granting the broker industry universal relief from the regulation’s fixed fee and contract terms restrictions.

“The harms ABC, CMC, and their members face by failing to maintain the status quo are substantially more severe than those faced by CMS,” O’Connor wrote. “The Court is not convinced that the current compensation framework — which has been in place for over fifteen years — is so flawed that it requires these sweeping new requirements now or that beneficiaries would be unfairly prejudiced by granting a stay pending final judgment.”

O’Connor has a history of rolling back health policy actions from liberal administrations. In 2018, the judge ruled the entire Affordable Care Act was unconstitutional, though the U.S. Supreme Court upheld the law in a 7-2 decision in 2021. And last year, O’Connor overturned the ACA’s mandate requiring insurers to cover certain preventive services for free. An appeals court recently overturned his ruling.