Rule2026-19493
Patient Protection and Affordable Care Act; Temporary Moratoria on Certain Agent and Broker Registration To Participate in the Exchanges
Primary source
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Published
September 23, 2026
Effective
September 22, 2026
Issuing agencies
Health and Human Services Department
Abstract
This interim final rule with comment period (IFC) codifies the Department of Health and Human Services' (HHS) authority to impose a temporary moratorium pausing the registration of agents and brokers that do not have a current Plan Year registration with the Federally- facilitated Exchanges at the time the moratorium is effective and are seeking to enter into Exchange agreements with the Centers for Medicare & Medicaid Services (CMS) to assist consumers with enrollment through the Federally-facilitated Exchange (FFE) and State-based Exchanges that use the Federal platform (SBE-FPs) (hereinafter collectively referred to as the "Federally-facilitated Exchanges"). HHS is issuing this rule on an interim final basis. For the reasons explained in this rule, HHS finds good cause under the Administrative Procedure Act (APA) to waive prior notice and comment because providing advance notice would be contrary to the public interest and impracticable. HHS further finds good cause under the APA for this rule to become effective immediately upon publication. HHS nevertheless invites public comment and will consider comments in determining whether to retain, modify, or rescind the codified authority established by this rule. Further, CMS provides notice that, on behalf of HHS, the agency is immediately imposing a temporary moratorium to pause the registration of agents and brokers that do not have Plan Year 2026 Exchange agreements with the Federally- facilitated Exchanges and are seeking to enter into agreements with CMS to assist consumers with enrollment through the Federally-facilitated Exchanges for Plan Year 2027. This temporary moratorium does not affect registrations on the State-based Exchanges (SBEs). This moratorium will be in place while CMS implements enhanced program-integrity safeguards designed to prevent instances of noncompliance and fraud, waste, and abuse perpetrated by agents and brokers, including unauthorized enrollment activity, misuse of consumer personally identifiable information (PII), and other conduct that does not comply with Exchange standards and threatens consumers and the integrity of the Federally- facilitated Exchanges. Agents and brokers that do not have Plan Year 2026 Exchange agreements with CMS will not be able to complete registration with the Federally-facilitated Exchanges for Plan Year 2027 until the moratorium ends on February 1, 2027.
Full Text
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<title>Federal Register, Volume 91 Issue 183 (Wednesday, September 23, 2026)</title>
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[Federal Register Volume 91, Number 183 (Wednesday, September 23, 2026)]
[Rules and Regulations]
[Pages 60317-60334]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19493]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 155
[CMS-9872-IFC]
RIN 0938-AW26
Patient Protection and Affordable Care Act; Temporary Moratoria
on Certain Agent and Broker Registration To Participate in the
Exchanges
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Interim final rule with comment period.
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SUMMARY: This interim final rule with comment period (IFC) codifies the
Department of Health and Human Services' (HHS) authority to impose a
temporary moratorium pausing the registration of agents and brokers
that do not have a current Plan Year registration with the Federally-
facilitated Exchanges at the time the moratorium is effective and are
seeking to enter into Exchange agreements with the Centers for Medicare
& Medicaid Services (CMS) to assist consumers with enrollment through
the Federally-facilitated Exchange (FFE) and State-based Exchanges that
use the Federal platform (SBE-FPs) (hereinafter collectively referred
to as the ``Federally-facilitated Exchanges''). HHS is issuing this
rule on an interim final basis. For the reasons explained in this rule,
HHS finds good cause under the Administrative Procedure Act (APA) to
waive prior notice and comment because providing advance notice would
be contrary to the public interest and impracticable. HHS further finds
good cause under the APA for this rule to become effective immediately
upon publication. HHS nevertheless invites public comment and will
consider comments in determining whether to retain, modify, or rescind
the codified authority established by this rule. Further, CMS provides
notice that, on behalf of HHS, the agency is immediately imposing a
temporary moratorium to pause the registration of agents and brokers
that do not have Plan Year 2026 Exchange agreements with the Federally-
facilitated Exchanges and are seeking to enter into agreements with CMS
to assist consumers with enrollment through the Federally-facilitated
Exchanges for Plan Year 2027. This temporary moratorium does not affect
registrations on the State-based Exchanges (SBEs). This moratorium will
be in place while CMS implements enhanced program-integrity safeguards
designed to prevent instances of noncompliance and fraud, waste, and
abuse perpetrated by agents and brokers, including unauthorized
enrollment activity, misuse of consumer personally identifiable
information (PII), and other conduct that does not comply with Exchange
standards and threatens consumers and the integrity of the Federally-
facilitated Exchanges. Agents and brokers that do not have Plan Year
2026 Exchange agreements with CMS will not be able to complete
registration with the Federally-facilitated Exchanges for Plan Year
2027 until the moratorium ends on February 1, 2027.
DATES:
Effective date: This IFC is effective on September 22, 2026.
Comment date: To be assured consideration, comments must be
received at one of the addresses provided below, by November 21, 2026.
Moratorium period: This moratorium is effective on September 22,
2026. The temporary moratorium for which CMS provides notice here will
remain in effect until February 1, 2027, unless CMS lifts it earlier,
extends it further, or otherwise modifies it through subsequent notice
in the Federal Register.
ADDRESSES: In commenting, please refer to file code CMS-9872-IFC.
Comments, including mass comment submissions, must be submitted in one
of the following three ways (please choose only one of the ways
listed):
1. Electronically. You may submit electronic comments on this
regulation to <a href="https://www.regulations.gov/docket/CMS-2026-3202">https://www.regulations.gov/docket/CMS-2026-3202</a>. Follow
the ``Submit a comment'' instructions.
2. By regular mail. You may mail written comments to the following
address ONLY: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-9872-IFC, P.O. Box 8016,
Baltimore, MD 21244-8016.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-9872-IFC, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Jeff Wu by email at <a href="/cdn-cgi/l/email-protection#0c4a4a415c7e6368796f697e214d7f7f657f78697e4469607c48697f674c6f617f2264647f226b637a"><span class="__cf_email__" data-cfemail="a8eeeee5f8dac7ccddcbcdda85e9dbdbc1dbdccddae0cdc4d8eccddbc3e8cbc5db86c0c0db86cfc7de">[email protected]</span></a>, for general information.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following
website as soon as possible after they have been received: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the search instructions on that website to
view public comments. HHS will not post on <a href="http://Regulations.gov">Regulations.gov</a>public
comments that make threats to individuals or institutions or suggest
that the commenter will take actions to harm an individual. HHS
continues to encourage individuals not to submit duplicative comments.
We will post acceptable comments from multiple unique commenters even
if the content is identical or nearly identical to other comments. We
encourage commenters to include supporting facts, research, and
evidence in their comments. When doing so, commenters are encouraged to
provide citations to the published materials referenced, including
active hyperlinks. Likewise, commenters who reference materials which
have not been published are encouraged to upload relevant data
collection instruments, data sets, and detailed findings as a part of
their comment. Providing such citations and documentation will assist
us in analyzing the comments.
I. Background
A. Statutory Framework
The Patient Protection and Affordable Care Act (Affordable Care
Act) establishes a framework for the establishment and operation of
Exchanges through which qualified individuals and qualified employers
may obtain coverage under qualified health plans (QHPs). The Affordable
Care Act assigns the Secretary of HHS (Secretary) responsibility for
establishing standards governing Exchange operations and specifically
authorizes the Secretary to establish procedures governing the
participation of agents, brokers, and web-brokers in Exchange
enrollment activities. HHS also has responsibilities related to the
effective administration and operation of the Federally-facilitated
Exchanges.
1. Section 1312(e) of the Affordable Care Act
Section 1312(e) of the Affordable Care Act directs the Secretary to
establish procedures under which a State may allow agents, brokers, or
web-brokers to
[[Page 60318]]
enroll qualified individuals in QHPs offered through an Exchange and to
assist individuals in applying for advance payments of the premium tax
credit (APTC) and cost-sharing reductions (CSRs) for QHPs sold through
an Exchange.\1\
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\1\ See 42 U.S.C. 18032(e).
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Section 1312(e) of the Affordable Care Act therefore assigns the
Secretary responsibility for establishing the Federal procedures
governing agent, broker, and web-broker assistance to Exchange
consumers with submission of applications for enrollment in QHPs and to
seek Federal financial assistance. Consistent with that authority, HHS
has established requirements governing agents, brokers, and web-brokers
\2\ that seek to facilitate enrollment through an Exchange, including
requirements relating to registration, training, execution of Exchange
agreements, use of Exchange systems, protection of PII, standards of
conduct, and compliance with applicable Federal and State requirements.
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\2\ See 45 CFR 155.20. Web-broker is a subset of agents and
brokers defined as ``an individual agent, broker, or web-broker,
group of agents, brokers, or web-brokers, or business entity
registered with an Exchange under Sec. 155.220(d)(1) that develops
and hosts a non-Exchange website that interfaces with an Exchange to
assist consumers with direct enrollment in QHPs offered through the
Exchange as described in Sec. 155.220(c)(3) or Sec. 155.221. The
term also includes an agent, broker, or web-broker direct enrollment
technology provider.''
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HHS has implemented section 1312(e) primarily through 45 CFR
155.220. Section 155.220 establishes standards governing the ability of
agents, brokers, and web-brokers to assist qualified individuals,
qualified employers, and qualified employees with enrollment in QHPs
and, where applicable, to assist individuals with applications for APTC
and CSRs. The authority to establish procedures governing agent,
broker, and web-broker assistance to Exchange consumers necessarily
includes authority to establish reasonable registration, verification,
and program integrity safeguards applicable to persons seeking to
assist Exchange consumers in FFE and SBE-FP States. HHS considers such
safeguards particularly important because agents, brokers, and web-
brokers have access to sensitive consumer information, as well as
Federal Exchange systems, and facilitate transactions affecting QHP
enrollment and eligibility for Federal financial assistance.
2. Section 1321 of the Affordable Care Act: Exchange Standards and
Federal Administration
Section 1321(a) of the Affordable Care Act directs the Secretary to
issue regulations setting standards for meeting the requirements of
title I of the Affordable Care Act with respect to, among other
matters, the establishment and operation of Exchanges.\3\ Section
1321(c) of the Affordable Care Act further provides for the Secretary
to establish and operate an Exchange within a State when the State does
not elect to establish an Exchange or does not have an Exchange that
meets applicable Federal requirements.\4\ These provisions give HHS
responsibility for the effective administration and operation of the
Exchange in FFE and SBE-FP States.
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\3\ See 42 U.S.C. 18041(a).
\4\ See 42 U.S.C. 18041(c).
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In carrying out those responsibilities, HHS establishes standards
governing access to and use of Federal Exchange systems, including
standards applicable to agents, brokers, and web-brokers that seek to
conduct enrollment transactions or otherwise assist consumers
submitting applications or enrollments through those systems. Those
standards are necessary to protect consumers, safeguard PII, preserve
the integrity and security of Federal information systems, and ensure
the proper administration of Federally-facilitated Exchange enrollment
and financial-assistance functions.
3. Section 1313(a)(5)(A) of the Affordable Care Act: Fraud and Abuse
Section 1313(a)(5)(A) of the Affordable Care Act directs the
Secretary to provide for the efficient and nondiscriminatory
administration of Exchange activities and to implement measures or
procedures that the Secretary determines appropriate to reduce fraud
and abuse in the administration of title I of the Affordable Care Act.
This authority is particularly pertinent where HHS identifies
vulnerabilities related to Exchange consumers and information systems
that may facilitate fraudulent or unauthorized activity. Congress
expressly contemplated and granted broad authority to the Secretary to
establish measures and procedures to reduce fraud and abuse in the
administration of the Exchange provisions of the Affordable Care Act.
HHS therefore has authority not only to respond to particular instances
of agent, broker, or web-broker misconduct, but also to adopt
reasonable proactive safeguards designed to reduce opportunities for
fraud and abuse in administration and operation of Exchanges.
B. Executive Summary
Healthcare fraud, waste, and abuse is a pervasive issue that this
Administration is tackling in an unprecedented fashion. For example, on
March 16, 2026, President Trump issued Executive Order 14395,
establishing the White House Task Force to Eliminate Fraud. Under Sec.
3(ii) of Executive Order 14395, the Task Force shall develop
appropriate controls that operate before funds are obligated or
disbursed to prevent improper payments in Federal benefits programs,
including by coordinating agency action to determine when ongoing fraud
or potential fraud require proactively pausing certain types of funding
until such controls can be established. Consistent with the
Administration's focus on preventing and eradicating fraud from
healthcare programs, including this Program, this IFC codifies at 45
CFR 155.220(o) the authority and framework for HHS to impose temporary
moratoria on the registration of certain agents and brokers seeking to
enter into Exchange agreements \5\ with CMS to assist consumers with
submission of applications and enrollments through the Federally-
facilitated Exchanges. Concurrently, notice is also being provided that
CMS is immediately imposing a temporary moratorium on the registration
of agents and brokers that do not have Plan Year 2026 Exchange
agreements and are seeking to enter into agreements with CMS to assist
consumers with submission of applications and enrollments through
Federally-facilitated Exchanges for Plan Year 2027. The temporary
moratorium will remain in effect until February 1, 2027, unless
otherwise modified or rescinded. The authority and framework codified
in this IFC and the concurrent notice immediately imposing a temporary
moratorium do not apply to registration of web-brokers with the
Federally-facilitated Exchanges.
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\5\ Consistent with Sec. 155.220(d), there are currently three
Exchange agreements with CMS that extend to agents, brokers, and
web-brokers assisting consumers in the FFEs and SBE-FPs: (1) the
Agent Broker General Agreement for Individual Market FFEs and SBE-
FPs, (2) the Agent Broker Privacy and Security Agreement for
Individual Market FFEs and SBE-FPs, and optionally, (3) the Agent
Broker SHOP Privacy and Security Agreement.
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II. Provisions of the IFC for Agent and Broker Moratoria (Sec.
155.220) and Notice of a Temporary Moratorium
A. Imposition of Moratoria
Protecting Exchange consumers is a core responsibility of HHS as
provided for in the Affordable Care Act. Consistent with that
responsibility, we are adding 45 CFR 155.220(o) to codify
[[Page 60319]]
the process for implementing moratoria on agent and broker
registrations with the Federally-facilitated Exchanges in certain
circumstances in accordance with authority conferred by Congress under
sections 1312(e), 1321, and 1313(a)(5)(A) of the Affordable Care Act.
Current data, as discussed in more detail in section II.B of this IFC,
supports additional safeguards to codify the authority to impose a
temporary moratorium on agents and brokers is appropriate. At this
time, CMS has determined additional regulation on web-brokers is
unnecessary. Agents and brokers generally enter into 1-year Exchange
agreements with CMS that go into effect beginning with the applicable
plan year's Open Enrollment period, and those Exchange agreements
automatically terminate prior to the following plan year's Open
Enrollment Period. Prior to entering into Exchange agreements, agents
and brokers must complete annual registration, which includes creating
a CMS account, passing identity proofing,\6\ accessing and setting up a
profile for registration, completing required training, and executing
Exchange agreements for the plan year. Section 155.220(o) provides that
HHS may impose temporary moratoria on the registration of certain
agents and brokers seeking to enter into Exchange agreements when CMS
determines that certain agents' or brokers' conduct poses an
unacceptable risk to the accuracy of the Federally-facilitated
Exchanges' eligibility determinations, operations, applicants, or
enrollees, or Federally-facilitated Exchange information technology
systems, including risk related to noncompliance with the standards of
conduct under Sec. 155.220(j) and the privacy and security standards
under Sec. 155.260. Specifically, HHS may impose a temporary
moratorium pausing certain agent and broker registrations with the
Exchange under Sec. 155.220(d)(1) for agents and brokers that do not
have a current Plan Year registration with the Federally-facilitated
Exchanges at the time the moratorium is effective. Agents and brokers
that are subject to a moratorium would be prevented from completing
training and registration, including executing the Exchange agreements,
until the moratorium is lifted. A moratorium under Sec. 155.220(o)
does not prevent registration with the Federally-facilitated Exchanges
for agents and brokers that do not have a current Plan Year
registration with the Federally-facilitated Exchanges at the time a
moratorium is effective due to (1) a termination under Sec. 155.220(g)
or (2) a denial of the right to enter into Exchange agreements with the
Federally-facilitated Exchanges in future years under Sec.
155.220(k)(1)(i) when such a termination or denial is subsequently
reversed, or the agent's or broker's Exchange agreements are reinstated
while the moratorium is in place. When imposing a moratorium on
registrations with the Federally-facilitated Exchanges for agents and
brokers, CMS will publish a notice in the Federal Register indicating
the date on which the moratorium on registrations will take effect, the
reasons for imposing the moratorium on registrations, and the duration
of the moratorium.
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\6\ National Institute of Standards and Technology (NIST)
defines ``identity proofing'' as ``the process of establishing a
relationship between a subject accessing online services and a real-
life person to some degree of assurance.'' NIST Special Publication
800-63A; <a href="https://pages.nist.gov/800-63-4/sp800-63a/introduction/">https://pages.nist.gov/800-63-4/sp800-63a/introduction/</a>.
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Agents and brokers who help consumers enroll in individual QHPs
typically earn a per-member-per-month commission from health insurance
issuers for each active enrollment, meaning their compensation is tied
directly to the number of consumers they enroll in plans. Because more
enrollments and plan switches translate into more compensation
(including commission income, bonuses, etc.), some unscrupulous agents
and brokers have a financial incentive to create enrollments for
fictitious persons, enroll consumers without consent, sign them up for
coverage they did not request, or switch them between plans to generate
additional compensation.
CMS has made strides in strengthening program integrity across the
Federally-facilitated Exchanges, as discussed in detail in the Patient
Protection and Affordable Care Act, HHS Notice of Benefit and Payment
Parameters for 2027; and Basic Health Program (91 FR 29526, 29530). The
addition of Sec. 155.220(o), which establishes a process for HHS to
implement a temporary moratorium on certain agent and broker
registrations, supplements and complements HHS' existing enforcement
options under Sec. 155.220(g) to terminate Exchange agreements and
under 155.220(k)(3) to immediately suspend an individual agent's or
broker's ability to transact information with the Exchanges in certain
circumstances. Specifically, Sec. 155.220(o) authorizes HHS to
implement temporary moratoria on registration when HHS agent or broker,
or web-broker conduct systemically poses an unacceptable risk to the
accuracy of the Exchange's eligibility determinations, Exchange
operations, applicants, or enrollees, or Exchange information
technology systems. Section 155.220(g) permit HHS to address risks
presented by individual agents, brokers, or web-brokers, Sec.
155.220(o) provides a broader mechanism to temporarily restrict certain
agent and broker registrations at a systemic level when existing deemed
by HHS insufficient to address identified vulnerabilities associated
with agent and broker access to Federal Exchange systems, enrollment
functions, and consumer. This authority enables HHS to take prompt,
program-wide action, to protect applicants, enrollees, Federally-
facilitated Exchange operations, and Federal Exchange systems while the
identified vulnerabilities are addressed. As discussed in more detail
in section II.B of this IFC, even with efforts to enhance program
integrity across the Federally-facilitated Exchanges, CMS has observed
a substantial increase in allegations and confirmed instances of
unauthorized facilitated enrollments on the Federally-facilitated
Exchanges and other non-compliant practices involving agents and
brokers. From 2023 through 2025, CMS received over 624,000 consumer
complaints attesting to unauthorized enrollments or unauthorized plan
switching in the Federally-facilitated Exchanges by agents or brokers
and confirmed by issuer review; approximately 300,000 of the 624,000
consumer complaints were received in 2025 alone.\7\ We further
discussed these concerns in the 2027 Notice of Benefit and Payment
Parameters (91 FR 29526) where we stated that overall, HHS observed an
increase in the number of unauthorized enrollment complaints made in
2025 compared to 2024 while acknowledging that data from the beginning
of 2026 already demonstrates a substantial decrease. However, as
discussed throughout this IFC, we continue to be concerned about the
unauthorized enrollments and believe that more action is needed to
address the issue at this time. Federal investigations have shown that
some Federally-facilitated Exchange eligibility applications submitted
by agents and brokers include
[[Page 60320]]
income amounts that are inaccurate and avoid Medicaid and CHIP
eligibility determinations, while increasing the amount of APTC for
which a consumer is eligible.\8\
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\7\ See GAO. (2025 Dec.) Patient Protection and Affordable Care
Act: Preliminary Results from Ongoing Review Suggest Fraud Risks in
the Advance Premium Tax Credit Persist, GAO-26-108742. <a href="https://www.gao.gov/products/gao-26-108742">https://www.gao.gov/products/gao-26-108742</a> (explaining, ``Based on our
preliminary analyses, we identified at least 30,000 applications in
plan year 2023 and at least 160,000 applications in plan year 2024
that had likely unauthorized changes.''). See also GAO. (2026 July)
Health Insurance Marketplaces: CMS Needs Stronger Controls to
Prevent Unauthorized Actions by Agents and Brokers, GAO-26-108297.
<a href="https://www.gao.gov/products/gao-26-108297">https://www.gao.gov/products/gao-26-108297</a>.
\8\ See, for example, United States v. Cory Lloyd et al.
Criminal Division [verbar] United States v. Cory Lloyd et al. United
States Department of Justice. (2026, April 14). (``Defendants plead
guilty to targeting vulnerable, low-income persons and persons
experiencing homelessness, unemployment, and mental health and
substance use disorders and encouraged them to enroll in subsidized
Affordable Care Act Plans using falsified income and other
information, and resulting in restitution of 133,900,000.00.''). See
also DOJ (2026, April 7) National Partnership of Insurance Brokers
and its Former Subsidiary Agree to Pay Over $135 Million For
Affordable Care Act Enrollment Fraud Scheme. <a href="https://www.justice.gov/opa/pr/national-partnership-insurance-brokers-and-its-former-subsidiary-agree-pay-over-135-million">https://www.justice.gov/opa/pr/national-partnership-insurance-brokers-and-its-former-subsidiary-agree-pay-over-135-million</a>; DOJ (2026,
February 18) President of Insurance Brokerage Firm and CEO of
Marketing Company Sentenced in $233M Affordable Care Act Enrollment
Fraud Scheme that Preyed on Vulnerable Consumers. <a href="https://www.justice.gov/opa/pr/president-insurance-brokerage-firm-and-ceo-marketing-company-sentenced-233m-affordable-care">https://www.justice.gov/opa/pr/president-insurance-brokerage-firm-and-ceo-marketing-company-sentenced-233m-affordable-care</a>.
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CMS has been taking proactive steps using existing enforcement
authorities to terminate Exchange agreements and prohibit registrations
of non-compliant agents and brokers. For example, in July 2026, CMS
issued Notices of Intent to Terminate to the top 100 agents and brokers
whose Federally-facilitated Exchange enrollment activity shows
potential violations of Exchange standards of conduct, including
repeatedly submitting applications without required applicant
identification information, such as Social Security Numbers, at an
implausible rate.\9\ Additionally, in late August 2026, CMS issued an
additional 469 Notices of Intent to Terminate Exchange agreements to
agents and brokers that submitted statistically implausible rates of
plan year 2026 applications without identifying applicant information,
such as a Social Security Number. A retrospective approach, however, is
insufficient to address the scope and level of non-compliant practices
involving agents and brokers and identified program vulnerabilities.
While existing safeguards and enforcement efforts address many aspects
of agent and broker oversight, additional measures are needed to
address vulnerabilities associated with agents and brokers while CMS
completes implementation of enhanced identity-verification,
authentication, monitoring, and other program-integrity controls.
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\9\ CMS Administrator Dr. Oz, Facebook (July 30, 2026), <a href="https://www.facebook.com/DrOzCMS/posts/accountability-is-comingcms-is-issuing-notices-of-intent-to-terminate-to-the-top/122198741282832696/">https://www.facebook.com/DrOzCMS/posts/accountability-is-comingcms-is-issuing-notices-of-intent-to-terminate-to-the-top/122198741282832696/</a>.
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Without additional measures, consumers are at greater risk of
losing their desired coverage, having their coverage changed
inappropriately, and taxpayers are at greater risk of inappropriate
expenditures of APTC, which hinders the efficient operation of the
Federally-facilitated Exchanges. Existing enforcement tools under Sec.
155.220(g) and Sec. 155.220(k)(3) operate only after an agent or
broker is already registered and conducting transactions. Additional
safeguards are necessary as current enforcement mechanisms do not
prevent harm at the point of entry. A temporary, prospective pause on
new registrations allows CMS to enhance identity-verification,
authentication, monitoring, and other program-integrity controls before
additional agent and broker entrants begin assisting consumers.
Therefore, we are codifying at Sec. 155.220(o) the ability for HHS to
implement temporary moratoria on agent and broker registrations with
the Federally-facilitated Exchanges.
Under Sec. 155.220(o), HHS may impose a temporary moratorium
pausing registrations with the Federally-facilitated Exchanges under
Sec. 155.220(d)(1) of agents and brokers that do not have a current
Plan Year registration with the Federally-facilitated Exchanges at the
time a moratorium is effective. However, a moratorium under this
paragraph does not prevent registration with the Federally-facilitated
Exchanges for agents and brokers that do not have a current Plan Year
registration with the Federally-facilitated Exchanges at the time a
moratorium is effective due to a termination under Sec. 155.220(g) or
a denial of the right to enter into Exchange agreements with the
Federally-facilitated Exchanges in future years under Sec.
155.220(k)(1)(i), when such a termination or denial is subsequently
reversed, or the agent or, broker's Exchange agreement is reinstated
while the moratorium is in place. In balancing the need to take
immediate action to implement measures to reduce fraud, waste, and
abuse in response to identified program vulnerabilities against
allowing agents and brokers that do not have a current Plan Year
registration with the Federally-facilitated Exchanges at the time the
moratorium is effective to complete the registration process and assist
consumers, we determined it was appropriate through the notice in this
rulemaking to temporarily pause registration for certain agents and
brokers. Under Sec. 155.220(o), the current moratorium will apply to
agents and brokers that do not have current Plan Year 2026 Exchange
agreements, which includes agents and brokers who would be new entrants
for Plan Year 2027. This approach reflects the enrollment data trends
observed by CMS which demonstrate that newly registered agents and
brokers disproportionately represent agents and brokers found to have
engaged in unauthorized enrollments and other non-compliant practices
as described in section II.B of this IFC below.
Additionally, when imposing a moratorium on registrations for
agents and brokers under Sec. 155.220(o), HHS will publish a document
in the Federal Register indicating the date on which the moratorium on
registrations will take effect, the reasons for imposing the moratorium
on registrations, and the duration of the moratorium. We determined
these elements were appropriate to align with other CMS programs'
procedures related to implementing moratoria,\10\ and to provide
transparency into the circumstances HHS determined necessitated
implementing a moratorium on certain agent and broker registrations.
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\10\ See, e.g., 42 CFR 424.570 (detailing moratoria on newly
enrolling Medicare providers and suppliers).
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Concurrent with the publication in section II.B below, we are
providing notice here for the current moratorium on new agent and
broker entrants for Plan Year 2027 who do not have a Plan Year 2026
Exchange agreement.
Allowing agents and brokers subject to a reinstatement or reversal
of either (1) a termination under Sec. 155.220(g), or (2) a denial to
enter into Exchange agreements with the Federally-facilitated Exchanges
in future years under Sec. 155.220(k)(1)(i) to register during a
moratorium is appropriate as a general exception during a moratorium
because, once reinstated, these agents and brokers are again in good
standing with the Federally-facilitated Exchanges, stand in the same
position as other agents and brokers not subject to the moratorium, and
are not new entrants to the Federally-facilitated Exchanges.
B. Notice and Applicability of a Temporary Moratorium for Plan Year
2027
In accordance with the regulatory provisions described in section
II.A of this IFC, CMS is providing notice of a temporary moratorium on
registration with the Federally-facilitated Exchanges of agents and
brokers hat do not have Plan Year 2026 Exchange agreements as of the
effective date of this IFC which
[[Page 60321]]
will remain in effect until February 1, 2027. CMS has determined that
immediate action is necessary because existing safeguards do not
adequately address identified vulnerabilities associated with agent and
broker access to Federal Exchange systems, enrollment functions, and
consumer PII. Onboarding of agents and brokers new to the Federally-
facilitated Exchanges before enhanced identity-verification,
authentication, monitoring, and other program-integrity controls are
implemented would increase the risk of harm to consumers and the
efficient operation of Federally-facilitated Exchanges, and result in
improper APTC expenditures. Current trends would continue resulting in
further consumer harm, including unauthorized enrollment and changes in
coverage, which put consumers at greater risk of losing their desired
coverage. The Federally-facilitated Exchanges and issuers would need to
continue spending considerable resources investigating and reversing
unauthorized enrollments and changes in coverage. Those not discovered
would result in improper expenditures of APTC. CMS has therefore
determined it is an appropriate program integrity measure to
temporarily pause registration of agents and brokers that do not have
Plan Year 2026 Exchange agreements with CMS on the Federally-
facilitated Exchanges as of the effective date of this rule.
The moratorium does not prevent registration with the Federally-
facilitated Exchanges for agents and brokers that do not have a 2026
Plan Year agreement with the Federally-facilitated Exchanges as of the
effective date of this IFC due to (1) a termination under Sec.
155.220(g), or (2) a denial of the right to enter into Exchange
agreements with the Federally-facilitated Exchanges in future years
under Sec. 155.220(k)(1)(i), when such a termination or denial is
subsequently reversed or their Exchange agreements are reinstated while
the moratorium is in place. For example, if an agent's Plan Year 2026
Exchange agreements are terminated for cause under Sec. 155.220(g)
such that the agent or broker does not have active Plan Year 2026
Exchange agreements as of September 22, 2026, but that agent
subsequently receives a favorable decision from the CMS Administrator
following a request for reconsideration under Sec. 155.220(h), that
agent would not be prevented from registering during the imposed
moratorium. The moratorium also does not affect agents and brokers
seeking to register on the SBEs.
Agents and brokers subject to the moratorium will not be able to
complete the Federally-facilitated Exchanges registration process for
Plan Year 2027 until the moratorium expires on February 1, 2027 or is
otherwise lifted.
1. Reasons for Imposing the Moratorium on New Agent Broker
Registrations With the Federally-Facilitated Exchanges
Protecting Exchange consumers and safeguarding Exchange operations
are core responsibilities of CMS as the administrator and operator of
the Federally-facilitated Exchanges. CMS has observed a substantial
increase in allegations and confirmed instances of unauthorized
enrollments, unauthorized plan switching, and other noncompliant
practices involving newly-registered agents and brokers on the
Federally-facilitated Exchanges.
In particular, CMS data indicate that agents and brokers who first
registered with the Federally-facilitated Exchanges for Plan Year 2026
are disproportionately represented among agents and brokers whose
Federally-facilitated Exchange enrollment activity raised significant
compliance concerns. Although these newly registered agents and brokers
represent approximately 11 percent of all registered agents and brokers
with at least one active enrollment for Plan Year 2026,\11\ they
account for approximately 30 percent of the 569 agents and brokers who
received Notices of Intent to Terminate Exchange agreements in July and
August of 2026 based on their Federally-facilitated Exchange enrollment
activity showing potential violations of Exchange standards of conduct
or statistically implausible rates of plan year 2026 applications
without identifying applicant information, such as a Social Security
Number. Since newly registered agents and brokers generally constitute
about a tenth of the total agent and broker population with active
enrollments on the Federally-facilitated Exchanges in this period and
newly registered agents and brokers generally constitute more than a
quarter of the total agents and brokers found noncompliant in this
period, we conclude that newly registered agents and brokers are, on
average, about three times more likely to engage in noncompliance than
agents and brokers who registered prior to 2026 and have operated on
the Federally-facilitated Exchanges in the past. These investigations
have identified noncompliant conduct, including the submission of
applications without required applicant identification information,
such as Social Security Numbers,\12\ at rates that CMS determined were
sufficiently implausible and raise significant compliance concerns.\13\
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\11\ In Plan Year 2026, of the 84,012 total registered agents
and brokers with active enrollments in the FFE or SBE-FPs, 8,937
were agents and brokers who newly registered for Plan Year 2026 and
had an active enrollment for the Plan Year, 6,956 of whom had at
least one active enrollment during Open Enrollment.
\12\ When an agent, broker, or web-broker assists a consumer
with an Exchange application and identifies themselves by providing
their name and National Producer Number (NPN), 45 CFR
155.220(j)(2)(ii) requires that the agent, broker, or web-broker
provide the FFEs with correct information about the applicants. This
obligation includes asking for and providing each applicant's SSN,
when the applicant has one. See 45 CFR 155.310(a)(3)(i). Absent
compliant documentation that the consumer or the consumer's
authorized representative reviewed the application information
(including the applicant's SSN) and confirmed it to be accurate, an
agent, broker, or web-broker may be found noncompliant with the
standard of conduct under 45 CFR 155.220(j)(2)(ii).
\13\ Less than 1 percent of PY 2026 policies submitted through
the FFEs without the assistance of agents, brokers, or web-brokers
did not include applicant SSNs or immigration document numbers,
indicating that the overwhelming majority of applicants provided
either an SSN or an immigration document number. Against this
backdrop, it's statistically implausible that agents, brokers, and
web-brokers that submitted an unusually high rate and volume of
policies without applicant SSNs or immigration document numbers were
submitted with correct applicant information.
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Agents and brokers newly registered in Plan Year 2026 exhibited
higher rates than the general agent and broker population across
several factors tied to unauthorized enrollments or noncompliant
practices, when compared to agents and brokers registered before Plan
Year 2026 (i.e. who were not new agents or brokers), because they
indicate that the agents and brokers did not provide the Federally-
facilitated Exchanges with correct information as required under Sec.
155.220(j)(2)(ii):
<bullet> 2.8 times higher rate of enrollments with unresolved
income verification data matching issues (DMIs);
<bullet> 2.7 times higher rate of enrollments without Social
Security Numbers;
<bullet> 2.6 times higher rate of enrollments with unresolved
citizenship or immigration status verification DMIs;
<bullet> 1.6 times higher rate of enrollments that use special
enrollment periods (SEPs) that are not subject to verification;
<bullet> 1.4 times higher rate of enrollments that include Medicaid
denial attestations; and
<bullet> 1.4 times higher rate of enrollments that were matched in
Medicaid/CHIP periodic data matching that may mean individuals were
enrolled in coverage for which they were not eligible.
Each of the above factors represent a point in the enrollment
application that is self-attested or unverified, which
[[Page 60322]]
creates an opening for agents and brokers to submit or alter enrollment
data without a genuine, informed decision from the consumer. CMS tracks
patterns associated with these factors specifically because they
correlate strongly with confirmed cases of unauthorized enrollment
schemes reported through the FFE complaint and audit processes. CMS has
worked to identify noncompliant agents and brokers and bring
enforcement action against them, such as suspensions and terminations
of Exchange agreements. To date, CMS has issued final terminations to
160 agents and brokers for non-compliant behavior in Plan Year 2026,
with 11 percent of them being agents and brokers newly registered in
2026. The higher rates of noncompliance by new agents and brokers
described above put consumers at greater risk of losing their desired
coverage, having their coverage changed inappropriately, and putting
taxpayers at greater risk of inappropriate expenditures of APTC.
As a result, CMS has determined that immediate action is necessary
while CMS implements enhanced program-integrity safeguards designed to
prevent fraud, unauthorized enrollment activity, misuse of consumer
PII, and other conduct that threatens consumers and the integrity of
the Exchanges. The disproportionate representation of newly registered
agents and brokers among the agents and brokers subject to these
enforcement actions indicates that newly entering agents and brokers
present a distinct and heightened program-integrity risk. Temporarily
pausing the registration of new agents and brokers narrowly targets the
category of agents and brokers that CMS has determined warrant
additional scrutiny, while allowing CMS time to implement additional
safeguards designed to prevent unauthorized enrollments and other
noncompliant practices before new agents and brokers begin assisting
consumers on the Federally-facilitated Exchanges.
2. Applicability of Moratorium for Plan Year 2027
CMS is temporarily pausing the registration process with the
Federally-facilitated Exchanges for new agents and brokers that do not
have Plan Year 2026 Exchange agreements with the Federally-facilitated
Exchanges. During the duration of the moratorium, CMS will not execute
the applicable Plan Year 2027 Exchange agreements with these new agents
and brokers to participate in the Federally-facilitated Exchanges,
including:
<bullet> Agent Broker General Agreement for Individual Market
Federally-facilitated Exchanges and State-Based Exchanges on the
Federal Platform;
<bullet> Privacy and Security Agreement between Agent Broker and
the Centers for Medicare & Medicaid Services for Individual Market
Federally-facilitated Exchanges and State-Based Exchanges on the
Federal Platform; and/or
<bullet> Privacy and Security Agreement between Agent Broker and
the Centers for Medicare & Medicaid Services for the Small Business
Health Options Programs of The Federally-facilitated Exchanges and
State-Based Exchanges on the Federal Platform.
As such, these new agents and brokers will not be able to complete
the registration process until the moratorium ends on February 1, 2027,
or is otherwise lifted. This action reflects CMS' determination that
temporarily pausing the agent and broker registration processes for new
agents and brokers is a reasonable, appropriate, and necessary program
integrity measure to reduce fraud, waste, and abuse and support the
efficient, nondiscriminatory administration of the Federally-
facilitated Exchanges. CMS is in the process of implementing various
program integrity measures for Plan Year 2027 to address the identified
vulnerabilities associated with new agents' and brokers' access to the
Federally-facilitated Exchanges systems and enrollment functions,
however, more time is needed for full realization of these efforts.
Thus, CMS has determined that allowing new agents and brokers to assist
consumers during the upcoming 2027 Open Enrollment Period--when most
agents and brokers enrollment activity occurs--creates an unacceptable
risk of harm to consumers and the Federally-facilitated Exchanges
operations, including improper eligibility determinations, unauthorized
enrollments, and increased improper APTC payments. Further, for Plan
Year 2026, there were 84,012 total registered agents and brokers with
active enrollments in the Federally-facilitated Exchanges. While not
all of these previously registered agents and brokers will return to
register for Plan Year 2027, CMS believes that the volume of potential
returning agents and brokers will provide consumers with adequate
access to enrollment assistance. Implementing this temporary moratorium
provides CMS with the opportunity to implement enhanced program
integrity measures such as enhanced identity-proofing, strengthen
consumer authorization protocols, and take steps to respond to
anomalous enrollment activity.
3. Regulatory Impact Statement
A. Need for Regulatory Action
CMS, on behalf of HHS, is immediately imposing a temporary
moratorium to pause the registration of agents and brokers that do not
have Plan Year 2026 Exchange agreements and are seeking to enter into
agreements with CMS to assist consumers with submitting applications
and/or enrollments through the Federally-facilitated Exchanges for Plan
Year 2027. This moratorium will be in place while CMS implements
enhanced program-integrity safeguards designed to prevent fraud and
abuse, including unauthorized enrollment activity, misuse of consumer
PII, and other conduct that does not comply with Exchange standards
that threatens consumers and the integrity of the Federally-facilitated
Exchanges. These agents and brokers will not be able to complete
registration for Plan Year 2027 until the moratorium ends on February
1, 2027, unless CMS lifts it earlier or extends or modifies it through
subsequent notice.
Based on our impact estimates, the Office of Management and
Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) has
determined that this regulatory action is ``significant'' per section
3(f)(1) of Executive Order 12866 (``Regulatory Planning and Review'').
A regulatory impact statement (RIS) has been prepared for this
regulatory action in keeping with Executive Order 12866. Pursuant to
Subtitle E of the Small Business Regulatory Enforcement Fairness Act of
1996 (also known as the Congressional Review Act), OIRA has also
determined that this regulatory action is major as it meets the
criteria set forth in 5 U.S.C. 804(2). Executive Order 14192
(``Unleashing Prosperity Through Deregulation'') requires that ``any
new incremental costs associated with new regulations shall, to the
extent permitted by law, be offset by the elimination of existing costs
associated with at least 10 prior regulations.'' This regulatory action
is exempt from otherwise-applicable requirements under Executive Order
14192, per footnote 1 of OMB's Accounting Methods.\14\
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\14\ <a href="https://www.reginfo.gov/public/pdf/eo14192/Accounting_Methods_under_EO_14192.pdf">https://www.reginfo.gov/public/pdf/eo14192/Accounting_Methods_under_EO_14192.pdf</a>.
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B. Overall Impact
This regulatory action, which will impose a temporary moratorium to
pause the registration of agents and
[[Page 60323]]
brokers who do not have Plan Year 2026 Exchange agreements and are
seeking to enter into agreements with CMS to assist consumers with
submitting applications and/or enrollments through the Federally-
facilitated Exchanges for Plan Year 2027, is expected to directly
affect agents and brokers facilitating enrollment in coverage offered
through the Federally-facilitated Exchanges, individuals, employers,
and employees working with an agent or broker to enroll in coverage
offered through the Federally-facilitated Exchanges, and issuers
offering individual or small group coverage through the Federally-
facilitated Exchanges that work with agents and brokers.
Regarding the benefits (or transfers) associated with this
regulatory action, we expect that it will prevent improper expenditures
of APTC of an estimated range from approximately $48 million to $877
million annually.\15\ We further expect that it will prevent consumer
administrative burden caused by unauthorized enrollment and plan
switching of an estimated value ranging from approximately $280,000 to
$1.1 million annually.\16\ We also expect it will have several non-
quantified benefits, including promotion of the integrity of the
Federally-facilitated Exchanges.
---------------------------------------------------------------------------
\15\ See section VIII.E. of this preamble.
\16\ Id.
---------------------------------------------------------------------------
Regarding the costs associated with this regulatory action, we
expect that it will lead to a temporary reduction in agent and broker
competition and the number of agents and brokers available to enroll
consumers in coverage offered through the Federally-facilitated
Exchanges. We further expect that it could lead to potential
operational losses for agencies and brokerages and potential job losses
for the agents and brokers who do not have Plan Year 2026 Exchange
agreements.
Lastly, this regulatory action is expected to lead to a transfer
ranging in value from approximately $71 million to $98 million in
commission revenue from agents and brokers that do not have Plan Year
2026 Exchange agreements to existing agents and brokers that have Plan
Year 2026 Exchange agreements.\17\
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\17\ See section VIII.G. of this preamble.
---------------------------------------------------------------------------
We seek comment on all aspects of this RIS.
III. Good Cause for Proceeding With an IFC
The APA), at 5 U.S.C. 553(b), generally requires the agency to
publish a notice of the proposed rule in the Federal Register that
includes a reference to the legal authority under which the rule is
proposed and the terms and substance of the proposed rule or a
description of the subjects and issues involved. Section 553(c) further
requires the agency to give interested parties the opportunity to
participate in the rulemaking through public comment before the
provisions of the rule take effect. Section 553(b)(B) provides an
exception to notice-and-comment requirements, however, if the agency
finds good cause that notice-and-comment would be impracticable,
unnecessary, or contrary to the public interest and incorporates a
statement of the finding and its reasons in the rule issued.
Section 553(d) ordinarily requires a 30-day delay in the effective
date of a final rule from the date of its publication in the Federal
Register. However, similar to the good cause exception for notice-and-
comment requirements, Sec. 553(d)(3) excepts a rule from the 30-day
delay requirement if the agency finds good cause that the delay is
impracticable, unnecessary, or contrary to the public interest.
Similarly, subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (also known as the Congressional Review Act or
CRA) also allows an agency to issue a rule that would otherwise be
subject to a 60-day delayed effective date requirement for major rules
(per 5 U.S.C. 804(2)) with an immediate effective date in circumstances
where notice and public procedure thereon are impractical, unnecessary,
or contrary to the public interest (5 U.S.C. 808(2)).
Based on the totality of the circumstances described below, CMS is
forgoing the usual notice-and-comment procedures and delay in the
effective date for this rule because following such requirements would
be impracticable and contrary to the public interest. Instead, we have
determined that an IFC is the appropriate mechanism to establish the
authority for CMS to impose a temporary moratorium for agents and
brokers that do not have a current Plan Year registration with the
Federally-facilitated Exchanges, and to implement a moratorium under
this authority, effective immediately. Although this IFC is effective
immediately, comments are solicited from interested members of the
public on all aspects of the IFC. We will consider these comments in
deciding the next steps following this IFC, including whether these
regulations should be modified or rescinded.
A. Need for Prompt Action
CMS has identified an ongoing pattern of unauthorized enrollment,
unauthorized plan switching, and other fraudulent, unauthorized, or
noncompliant enrollment activity involving a subset of agents and
brokers participating in the Federally-facilitated Exchanges. While CMS
has taken a number of steps to address this conduct, the conduct has
persisted.
For example, on August 31, 2026, in accordance with CMS' processes
for unauthorized enrollments, CMS cancelled approximately 315,000 Plan
Year 2026 policies covering over 760,000 individuals that were enrolled
with agent or broker assistance without verified citizenship or
immigration documentation and for whom issuers were unable to identify
claims or establish consumer contact.\18\
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\18\ <a href="http://CMS.gov">CMS.gov</a> Newsroom. <a href="https://www.cms.gov/about-cms/contact/newsroom">https://www.cms.gov/about-cms/contact/newsroom</a>.
_____________________________________-
Similarly, since January 2026, CMS has terminated Exchange
agreements for hundreds of non-compliant agents and brokers. More
recently, in July and August 2026, CMS issued 569 Notices of Intent to
Terminate Exchange agreements to agents and brokers that submitted
statistically implausible rates of plan year 2026 applications without
identifying applicant information, such as a Social Security Number, at
an implausible rate. CMS continues to investigate and issue Notices of
Intent to Terminate Exchange agreements to agents and brokers that are
noncompliant with Exchange standards, and work with State departments
of insurance and issuers in their own efforts to identify and take
action on noncompliant agents and brokers.
In addition to the above actions, CMS is in the process of
implementing several new system changes and protections against agent
and broker fraud for Plan Year 2027 but those changes are not yet
final. First, CMS is implementing system changes that require all
agents and brokers to renew their identity proofing and use <a href="http://Login.gov">Login.gov</a>
in alignment with OMB Memorandum M-26-18 \19\ or ID.me to connect their
account to CMS systems. Second, CMS is implementing system changes
requiring that all applications involving an agent or broker must
include verifiable Social Security Numbers or immigration document
numbers that CMS can verify for all non-newborn applicants. Third, CMS
is
[[Page 60324]]
updating the system to prevent agents and brokers from being added to
applications that consumers should be completing on their own through
<a href="http://HealthCare.gov">HealthCare.gov</a>. Fourth, CMS is requiring approved Enhanced Direct
Enrollment (EDE) partners to implement changes that require electronic
consumer authorization before an agent or broker can take any action on
an application or enrollment. CMS will closely monitor agent and broker
activity to ensure these system enhancements are working as intended.
---------------------------------------------------------------------------
\19\ ``Scaling Use of <a href="http://Login.gov">Login.gov</a> to Deliver a Universal Sign-on
for Public Services;'' OMB Memorandum M-26-18; 8/31/2026; <a href="https://www.whitehouse.gov/wp-content/uploads/2026/08/M-26-18-Scaling-Use-of-<a href="http://Login.gov">Login.gov</a>-to-Deliver-a-Universal-Sign-on-for-Public-Services.pdf">https://www.whitehouse.gov/wp-content/uploads/2026/08/M-26-18-Scaling-Use-of-<a href="http://Login.gov">Login.gov</a>-to-Deliver-a-Universal-Sign-on-for-Public-Services.pdf</a>.
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While existing safeguards and CMS' enforcement actions address some
of the noncompliant enrollment activity caused by agents and brokers,
vulnerabilities associated with new agents and brokers remain,
including increased risk of unauthorized plan switching, unauthorized
enrollment, and other fraudulent, unauthorized, or noncompliant
enrollment activity. Agents and brokers terminated in a prior year may
be able to establish new corporate entities and register as new agents
and brokers. The consequences of such conduct are substantial.
Consumers remain at greater risk of losing their desired coverage or
having their coverage changed inappropriately. If an unauthorized plan
replaces or overlaps with an existing plan, the consumer could lose
active coverage they were relying on or face a gap in coverage. A
consumer's new plan may not cover the consumer's regular doctors,
specialists, or prescription drugs, leading to denied claims,
unexpected medical bills, or delayed treatment. Further, if the
unauthorized enrollment or plan switch is undiscovered, consumers may
become responsible for premium payments or cost-sharing they did not
anticipate and face unexpected tax liability for incorrect premium tax
credits.
Furthermore, fraudulent, unauthorized, and noncompliant enrollments
also impose operational and financial costs on the Federal Government
and, ultimately, taxpayers. For example, improper APTC payments to
issuers on behalf of individuals who did not authorize the coverage, or
on behalf of purported consumers who do not exist, result in Federal
expenditures that do not provide the intended benefit. When enrollments
are based on inaccurate eligibility information, the Federal Government
may also make APTC payments in amounts greater than would have been
made based on accurate information.
This conduct also interferes with the efficient operation of the
Federally-facilitated Exchanges. Both CMS and issuers expend
significant time, manpower, and resources to review and investigate the
hundreds of thousands of suspected unauthorized enrollments and
consumer complaints that result in the cancellation of these policies
associated with unauthorized enrollments \20\ and unauthorized plan
switching. Identifying and recovering improper payments from these
unauthorized enrollments consumes government and issuer resources and
may require CMS to undertake payment reconciliation, recoupment,
investigative, and other administrative activities.
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\20\ For example, from January 2024 through August 2024, CMS
received 90,863 complaints that consumers had their FFE plan changed
without their consent. CMS (2024, October). CMS Update on Action to
Prevent Unauthorized Agent and Broker Marketplace Activity. <a href="https://www.cms.gov/newsroom/press-releases/cms-update-actions-prevent-unauthorized-agent-and-broker-marketplace-activity">https://www.cms.gov/newsroom/press-releases/cms-update-actions-prevent-unauthorized-agent-and-broker-marketplace-activity</a>.
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Moreover, fraudulent, unauthorized, and noncompliant enrollments
also have negative impacts on the health insurance market, such as
increasing uncertainty around who is enrolled which undermines issuers'
ability to project future claims. This level of uncertainty will
continue to make pricing difficult, impact the stability of the risk
pool, and may ultimately lead to higher premiums. High levels of
unauthorized enrollments make it difficult for issuers to accurately
price plans, since they cannot reliably distinguish genuine risk
profiles from artificially inflated enrollment numbers when setting
premiums. This uncertainty destabilizes the risk pool by skewing the
balance of healthy and sick enrollees, and issuers typically respond to
that unpredictability by raising premiums across the board to protect
against unforeseen losses.
While CMS completes implementation of enhanced identity-
verification, authentication, monitoring, and other program-integrity
controls, many of the enforcement efforts undertaken by CMS--such as
policy cancellations and agent and broker terminations--operate only
after an agent or broker is already registered and conducting
transactions. Additional safeguards are necessary as many of these
enforcement mechanisms do not properly prevent harm at the point of
entry to protect consumers. Further safeguards are necessary to prevent
CMS and issuers from expending significant time and resources necessary
to cancel unauthorized enrollments and remove non-compliant agents and
brokers. A temporary pause on new registrations allows CMS to enhance
these program-integrity controls before additional agent and broker
entrants begin assisting consumers.
These concerns are particularly acute as CMS approaches the Plan
Year 2027 Open Enrollment Period, which begins on November 1, 2026. The
misconduct and noncompliance identified by CMS are ongoing, and the
opportunity for improper and unauthorized enrollment activity will
increase as the Open Enrollment Period approaches. Waiting to implement
the temporary moratorium until completion of notice-and-comment
rulemaking would leave the existing registration framework in place
during the Open Enrollment Period and would permit new agents and
brokers to enter into Exchange agreements and operate on the Federally-
facilitated Exchanges before CMS has fully implemented program
integrity measures to address these concerns.
B. Prior Notice and Comment Would Be Impracticable
CMS finds that providing notice and an opportunity for public
comment before implementing the temporary moratorium would be
impracticable and contrary to the public interest under the particular
circumstances presented here. The effectiveness of the moratorium
depends in substantial part on it taking effect before prospective
agents and brokers who are subject to the moratorium have an
opportunity to alter their conduct in response to advance notice of the
impending restriction. Publishing a proposed rule announcing that CMS
intends, after completion of notice and comment, to suspend new
registrations would therefore create both an incentive and an
opportunity for persons who otherwise would be subject to the
moratorium to accelerate their registrations before the restriction
takes effect. A prospective registrant who learns that registration
will soon be temporarily unavailable has an obvious reason to complete
the process while it remains open. The entire process for an agent or
broker under Sec. 155.220(d), including completing training, to
register with the Exchange takes less than 30 calendar days. Historic
data indicates there is generally a surge in new agent and broker
registration each year when plan year training and registration becomes
available (usually August or September) through October (in advance of
the November 1 beginning of Open Enrollment) and additional new agent
and broker registrations continue throughout Open Enrollment and into
February.\21\ Given
[[Page 60325]]
this trend, we would expect that, absent the temporary moratorium,
approximately 19,000 new agents and brokers would have registered
during the period of the temporary moratorium.
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\21\ In Plan Year 2024, 20,113 new agents and brokers registered
before February 2024. In Plan Year 2025, 16,479 new agents and
brokers registered before February 2025. In Plan Year 2026, 19,982
new agents and brokers registered during this period. See CMS,
Marketplace Agent/Broker Registration Completion List, available at
<a href="https://data.healthcare.gov/ab-registration-completion-list">https://data.healthcare.gov/ab-registration-completion-list</a>.
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Notice-and-comment rulemaking would not simply postpone the
benefits of the moratorium, it would affirmatively undermine the
purpose and goals of the moratorium. Registrations completed in
response to announcement of the impending moratorium would increase the
population of newly registered agents and brokers immediately before
the moratorium begins. Because the moratorium operates prospectively,
those registrations could not subsequently be prevented by the
moratorium. Thus, by the time the notice-and-comment process concluded,
the population the moratorium is intended to temporarily prevent from
entering the Exchange program could be materially larger than it was
when CMS determined that a pause in new registrations was necessary. A
notice-and-comment period, even if only 30 calendar days, would notify
prospective agents and brokers to complete the registration process
before a moratorium can become effective given that registration takes
less than the comment period. As explained in more detail in section
II.B of this IFC, in recent years, newly registered agents and brokers
have disproportionately represented agents and brokers whose Federally-
facilitated Exchange enrollment activity raised significant compliance
concerns. Therefore, by operation a notice-and-comment period would
affirmatively undermine the purpose and goals of codifying the
authority and framework for HHS to impose temporary moratoria on the
registration of certain agents and brokers. Section 155.220(o) provides
HHS with a framework to immediately implement a temporary moratorium,
pausing registration of agents and brokers that do not have a current
Plan Year registration with the Federally-facilitated Exchanges at the
time the moratorium is effective, when agent or broker conduct poses an
unacceptable risk to the accuracy of the Federally-facilitated
Exchanges' eligibility determinations, operations, applications,
enrollees, or Federal Exchange information technology systems.
Moreover, given CMS' ongoing and evolving enforcement efforts to
address unauthorized enrollments by agents and brokers, it would not
have been feasible for CMS to begin the rulemaking process earlier.
Although CMS has been addressing unauthorized enrollment and plan
switching activity for several years, the need for the temporary
moratorium adopted in this rule became apparent only after CMS had an
opportunity to assess the effectiveness of the measures previously
implemented and to analyze more recent enrollment and enforcement data.
As explained above, CMS initially responded to unauthorized activity
through measures specifically targeting the conduct that had been
identified, including enhanced monitoring and enforcement, suspension
and termination of noncompliant agents and brokers, changes to Exchange
systems designed to prevent unauthorized changes to existing
enrollments, and additional enrollment safeguards. Those measures
produced meaningful improvements and reasonably supported CMS' decision
to pursue targeted interventions rather than restrict new agent and
broker participation more broadly.
More recent experience, however, has demonstrated a remaining
vulnerability that those measures do not adequately address:
individuals who newly enter the Exchange as registered agents or
brokers may obtain access to Federally-facilitated Exchanges enrollment
functionality before CMS' monitoring and post-registration enforcement
mechanisms can identify and address problematic conduct. As detailed
earlier in this rule, when compared to agents and brokers registered
before Plan Year 2026, agents and brokers newly registered in Plan Year
2026 exhibited higher rates across several factors tied to unauthorized
enrollments or noncompliant practices. This information materially
changed CMS' understanding of both the source of the remaining risk and
the adequacy of existing safeguards. In particular, it demonstrated
that measures directed principally at addressing misconduct after
registration do not fully address the risk presented at the point of
entry.
CMS therefore determined that a temporary, prospective pause in new
registration is necessary while the agency completes the additional
identity-verification, consumer authorization, and other program
integrity controls described above. CMS did not previously impose such
a moratorium because the information then available did not establish
that temporarily barring otherwise eligible agents and brokers from
registration was necessary or appropriately tailored to address the
identified misconduct. As noted above, given the scope of unauthorized
enrollments and the recent CMS data showing that agents and brokers who
first registered for Plan Year 2026 are disproportionately represented
among agents and brokers whose Exchange enrollment activity raised
significant compliance concerns, CMS has only recently recognized the
need to adopt reasonable prospective safeguards such as a temporary
moratorium on new agent and broker registrations for Plan Year 2027.
The more recent data, considered together with the proximity of the
Plan Year 2027 Open Enrollment Period and the time required to complete
the additional system safeguards, now support that determination.
The circumstances requiring immediate action are not based solely
on the longstanding existence of unauthorized enrollment activity.
Rather, as described above, CMS' recent analysis of Plan Year 2026
enrollment and enforcement data has identified a specific vulnerability
associated with newly registered agents and brokers that is not
addressed by CMS' existing controls. That analysis, together with the
approaching Plan Year 2027 Open Enrollment Period and the fact that
CMS' additional preventive system controls will not be fully
operational before that period begins, creates a time-limited gap in
CMS' program-integrity protections. The identified pattern of
unauthorized enrollment, unauthorized plan changes, and other
noncompliant enrollment activity conducted by a subset of agents and
brokers is ongoing despite the above-referenced steps taken by the
agency to address this misconduct. Absent intervention, this activity
is likely to continue or escalate during the pendency of notice-and-
comment rulemaking, especially as the Plan Year 2027 Open Enrollment
Period is set to begin on November 1, 2026. Because the harm is active
and accruing in real time, the delay associated with pre-promulgation
notice-and-comment--which would leave the current registration and
access framework in place for the duration of that process--is
impracticable in light of the immediate risk to consumers, Federal
Exchange information systems, and the efficient operation of the
Federally-facilitated Exchanges. Accelerating the rulemaking process
was also not a viable option for CMS for the same reasons discussed
above about why it would be impracticable--namely that it would create
both an incentive and an opportunity for persons to accelerate their
registration.
Publishing this rule as a notice of proposed rulemaking and
providing
[[Page 60326]]
advance notice of the moratorium would create an incentive for bad
actors to take advantage of the notice-and-comment period and before
the measure would take effect. Such bad actors could use the additional
time to register, access training, and enter into Exchange agreements
for the upcoming plan year, use the 2027 Open Enrollment Period to
flood the Federally-facilitated Exchanges with improper, incomplete or
unauthorized enrollment applications in an attempt to collect
commission payments, and benefit from the delays in CMS' post-hoc
enforcement efforts. Advance notice would effectively provide a window
during which the very conduct this rule is designed to prevent could be
undertaken with full knowledge that the opportunity to do so was
closing. This would directly undermine the purpose of the rule and
would be contrary to the public interest in protecting consumers and
the integrity of the Federally-facilitated Exchanges' operations.
IV. Waiver of the 30-Day Effective Date
Due to the systemic nature of the agent and broker misconduct
identified by CMS, delaying the promulgation of this rulemaking and
notice outlined in this rule would prevent CMS from implementing a
program integrity tool that can significantly mitigate conduct that can
result in serious medical, financial, and administrative harm to
consumers. If an unauthorized plan replaces or overlaps with an
existing plan, the consumer could lose active coverage they were
relying on or face a gap in coverage. For example, a consumer's new
plan may not cover the consumer's regular doctors, specialists, or
prescription drugs, leading to denied claims, unexpected medical bills,
or delayed treatment. Further, if the unauthorized enrollment or plan
switch is undiscovered, consumers may become responsible for premium
payments or cost-sharing they did not anticipate and face unexpected
tax liability for incorrect premium tax credits.
Delaying the promulgation of this rule would be contrary to the
goal of protecting consumers and detrimental to both the overall
stability and premium pricing of the individual market, while CMS
implements additional safeguards to Federal Exchange systems and
enrollment functions. Moreover, if CMS were to provide advance notice
of the IFC and the concurrent temporary moratorium on registration of
new agents and brokers for Plan Year 2027, it could undermine the goal
of the temporary moratorium by allowing new agents and brokers to
complete Plan Year 2027 registrations with the Federally-facilitated
Exchanges and Exchange agreements before the rule and moratorium is
effective. Therefore, we find good cause to waive the notice of
proposed rulemaking and to issue this final rule on an interim basis,
effective immediately.
This rule is effective September 22, 2026. The APA ordinarily
requires a 30-day delay in the effective date of a final rule from the
date of its publication in the Federal Register.\22\ This 30-day delay
in effective date can be waived, however, if an agency finds good cause
to support an earlier effective date.\23\ Additionally, Subtitle E of
the Small Business Regulatory Enforcement Fairness Act of 1996 (also
known as the Congressional Review Act or CRA) requires a 60-day delay
in the effective date for major rules unless an agency finds good cause
that notice and public procedure are impracticable, unnecessary, or
contrary to the public interest, in which case the rule shall take
effect at such time as the agency determines.
---------------------------------------------------------------------------
\22\ 5 U.S.C. 553(d).
\23\ 5 U.S.C. 533(d)(3).
---------------------------------------------------------------------------
HHS has also determined that there is good cause to waive the APA's
and CRA's delayed effective date requirements for the provisions at 45
CFR 155.220(o) because delay of the effective date for such provisions
would be impracticable and contrary to public interest for the reasons
explained above.
For the foregoing reasons, HHS has found good cause to waive the
APA's and CRA's delayed effective date requirements and determined that
the provisions of 45 CFR 155.220(o) finalized in this rule are
effective as of September 22, 2026.
Pursuant to the provisions established in this IFC at Sec.
155.220(o), temporary moratorium on the registration of new agents and
brokers without Plan Year 2026 Exchange agreements seeking to enter
into Exchange agreements with CMS to assist consumers on the Federally-
facilitated Exchanges with enrollment through the Exchanges for Plan
Year 2027 is effective September 22, 2026. As such, new agents and
brokers without Plan Year 2026 Exchange Agreements will not be able to
complete the registration process until the moratorium ends on February
1, 2027, unless CMS terminates it earlier or extends or modifies it
through subsequent notice.
V. Severability
The provisions promulgated in this IFC and the various applications
thereof, are distinct and severable. If any provision of this rule or
notice or the application thereof to any person or circumstances is
held invalid, such invalidity shall not affect other provisions in this
rule or in the notice in this rule or application of such provision to
other persons or circumstances which can be given effect without the
invalid provision or application.
VI. Collection of Information Requirements
This document does not impose information collection requirements,
that is, reporting, recordkeeping or third-party disclosure
requirements. While OMB Control Number 0938-1204 covers the Agent/
Broker Data Collection in Federally-facilitated Health Insurance
Exchanges (Form CMS-10464) and OMB Control Number 0938-1463 covers
other applicable requirements for web-brokers (CMS-10877), no changes
to these information collections are necessitated by this rulemaking or
notice. Consequently, there is no need for review by the Office of
Management and Budget under the authority of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
VII. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, if we proceed with a subsequent document, we will respond to the
comments in the preamble to that document.
VIII. Regulatory Impact Analysis
A. Need for Regulatory Action
This IFC codifies the authority and framework for HHS to impose a
temporary moratorium pausing the registration of agents and brokers
that do not have a current Plan Year registration with the Federally-
facilitated Exchanges at the time the moratorium is effective that are
seeking to enter into Exchange agreements with CMS to assist consumers
with submission of Exchange applications and enrollments through FFEs
and SBE-FPs (``Federally-facilitated Exchanges'').
This IFC further provides notice that CMS, on behalf of HHS, is
immediately imposing a temporary moratorium to pause the registration
of agents and brokers that do not have Plan Year 2026 Exchange
agreements and are seeking to enter into agreements with CMS to assist
consumers with submitting
[[Page 60327]]
applications and/or enrollments through the Federally-facilitated
Exchanges for Plan Year 2027. This moratorium will be in place while
CMS implements enhanced program-integrity safeguards designed to
prevent fraud and abuse, including unauthorized enrollment activity,
misuse of consumer PII, and other conduct that does not comply with
Exchange standards that threatens consumers and the integrity of the
Federally-facilitated Exchanges. These agents and brokers will not be
able to complete registration for Plan Year 2027 until the moratorium
ends on February 1, 2027, unless CMS lifts it earlier or extends or
modifies it through subsequent notice.
We have determined that this regulatory action is necessary because
existing and new safeguards do not yet adequately address identified
vulnerabilities associated with agent and broker access to Federal
Exchange systems and enrollment functions. Continued onboarding of
additional new agents and brokers while enhanced identity-verification,
authentication, monitoring, and other program-integrity controls are
implemented would increase the risk of consumer harm, unauthorized
enrollment activity, improper changes in coverage, and improper
expenditures of APTC.
We have examined the effects of this IFC as required by Executive
Order 12866, ``Regulatory Planning and Review''; Executive Order 13132,
``Federalism''; Executive Order 13563, ``Improving Regulation and
Regulatory Review''; Executive Order 14192, ``Unleashing Prosperity
Through Deregulation''; the Regulatory Flexibility Act (RFA) (Pub. L.
96-354); section 1102(b) of the Social Security Act; section 202 of the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); and the
Congressional Review Act (5 U.S.C. 804(2)).
B. Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select those regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety, and other advantages, and distributive
impacts). Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as any regulatory action that is likely to result
in a rule that may: (1) have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, or the President's priorities.
Based on our estimates, the Office of Management and Budget's (OMB)
Office of Information and Regulatory Affairs (OIRA) has determined that
this rulemaking is ``significant'' per section 3(f)(1) of Executive
Order 12866. A regulatory impact analysis (RIA) has been prepared for
this IFC in keeping with Executive Order 12866. Pursuant to Subtitle E
of the Small Business Regulatory Enforcement Fairness Act of 1996 (also
known as the Congressional Review Act), OIRA has also determined that
this rule is major as it meets the criteria set forth in 5 U.S.C.
804(2).
We have prepared an RIA that, to the best of our ability, presents
the costs and benefits of this IFC.
C. Summary of Impacts
As required by OMB Circular A-4 (available at <a href="https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf">https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf</a>), we have
prepared an accounting statement in Table 1 showing the classification
of the impacts associated with this IFC.
Table 1--Accounting Table
----------------------------------------------------------------------------------------------------------------
Discount rate
Benefits or transfers: Estimate ($) Year dollar (%) Period covered
----------------------------------------------------------------------------------------------------------------
Annualized Monetized (/year)... 334.3 million.............. 2025 7 2027-2031
334.3 million.............. 2025 3 2027-2031
----------------------------------------------------------------------------------------------------------------
Quantified:
<bullet> Prevention of improper
expenditures of APTC of an
estimated range from
approximately 48 million to
877 million (average across
four scenarios considered:
333.6 million) annually
associated with the temporary
moratorium on the registration
of certain new agents and
brokers in place for Plan Year
2026..
<bullet> Prevention of consumer
administrative burden caused
by unauthorized enrollment and
plan switching of an estimated
value ranging from
approximately 280,000 to 1.1
million (average: 700,000)
annually associated with the
temporary moratorium on the
registration of certain new
agents and brokers in place
for Plan Year 2026..
----------------------------------------------------------------------------------------------------------------
Non-Quantified:
<bullet> Prevention of fraud
and misuse of consumer PII.
<bullet> Reduction in
unauthorized enrollment
activity.
<bullet> Prevention of improper
changes in coverage and
subsequent consumer harm.
<bullet> Promotion of the
integrity of the Federally-
facilitated Exchanges.
<bullet> Prevention of improper
expenditures of APTC
associated with moratoria on
registration of certain new
agents and brokers who do not
have current Plan Year
Exchange agreements when
future moratoria are in place.
----------------------------------------------------------------------------------------------------------------
Costs:
Annualized Monetized ($/year).. 260,156.................... 2025 7 2027-2031
[[Page 60328]]
241,962.................... 2025 3 2027-2031
----------------------------------------------------------------------------------------------------------------
Quantified:
<bullet> One-time regulatory
review costs of approximately
$1,141,359.
----------------------------------------------------------------------------------------------------------------
Non-Quantified:
<bullet> Temporary reduction in
agent and broker competition
and the number of agents and
brokers available to enroll
consumers in coverage offered
through the Federally-
facilitated Exchanges when a
moratorium on registration of
certain new agents and brokers
is in place.
<bullet> Potential operational
losses for agencies and
brokerages when a moratorium
on registration of certain new
agents and brokers is in place.
<bullet> Potential job losses
for certain new agents and
brokers when a moratorium on
registration of certain new
agents and brokers is in place.
----------------------------------------------------------------------------------------------------------------
Other Transfers:
Annualized Monetized (/year)... 19.2 million............... 2025 7 2027-2031
17.9 million............... 2025 3 2027-2031
----------------------------------------------------------------------------------------------------------------
Quantified:
<bullet> Transfer of
approximately $71 million to
$98 million (average: $84.3
million) in commission revenue
that would have been received
by agents and brokers that do
not have Plan Year 2026
Exchange agreements to
existing agents and brokers
that have Plan Year 2026
Exchange agreements associated
with the temporary moratorium
for Plan Year 2027.
----------------------------------------------------------------------------------------------------------------
Non-Quantified:
<bullet> Potential transfer of
commission revenue that would
have been received by agents
and brokers who do not have
current Plan Year Exchange
agreements to existing agents
and brokers who have current
Plan Year Exchange agreements
if and when moratoria on
registration of new agents and
brokers are in place during
Plan Years from 2028 to 2031.
----------------------------------------------------------------------------------------------------------------
D. Number of Affected Entities
This IFC is expected to affect agents and brokers facilitating
enrollment in coverage offered through the Federally-facilitated
Exchanges, individuals, employers, and employees working with an agent
or broker to enroll in coverage offered through the Federally-
facilitated Exchanges, and issuers offering individual or small group
coverage through the Federally-facilitated Exchanges that work with
agents and brokers. We seek comment on the number of entities that will
be affected by this IFC, as discussed in this section.
1. Agents and Brokers
This IFC will directly impact agents and brokers who are unable to
register with the Federally-facilitated Exchanges at the time a
moratorium is effective.
There is generally a surge in new agent and broker registration
each year when plan year training and registration becomes available
(usually August or September) through October (in advance of the
November 1 beginning of Open Enrollment) and additional new agent and
broker registrations continue throughout Open Enrollment and into
February. In Plan Year 2024, 20,113 new agents and brokers registered
before February 2024. In Plan Year 2025, 16,479 new agents and brokers
registered before February 2025. In Plan Year 2026, 19,982 new agents
and brokers registered during this period.\24\ Not all new agents and
brokers registered ultimately have active enrollments, however; in Plan
Year 2026, of the 84,012 total registered agents and brokers with
active enrollments in the Federally-facilitated Exchanges, 8,937 were
agents and brokers that newly registered for Plan Year 2026, and 6,956
of these newly registered agents and brokers with active enrollments
had at least one enrollment during Open Enrollment. In developing the
impact estimates later in this section, we use this figure (6,956
agents and brokers) as a proxy for the number of agents and brokers
that might be impacted by a temporary moratorium in effect in a given
Plan Year.
---------------------------------------------------------------------------
\24\ CMS, Marketplace Agent/Broker Registration Completion List,
available at <a href="https://data.healthcare.gov/ab-registration-completion-list">https://data.healthcare.gov/ab-registration-completion-list</a>.
---------------------------------------------------------------------------
2. Individuals, Employers, and Employees
This IFC will also impact individuals, employers, and employees
working with an agent or broker to enroll in coverage offered through
the Federally-facilitated Exchanges. As of February 2026, there are
12,406,195 enrollees with individual health insurance coverage across
the Federally-facilitated Exchanges.\25\
---------------------------------------------------------------------------
\25\ CMS, Health Insurance Exchanges Monthly Effectuated
Enrollment (as of February 2026), available at <a href="https://data.cms.gov/summary-statistics-on-beneficiary-enrollment/health-insurance-marketplace/health-insurance-exchanges-monthly-effectuated-enrollment">https://data.cms.gov/summary-statistics-on-beneficiary-enrollment/health-insurance-marketplace/health-insurance-exchanges-monthly-effectuated-enrollment</a>.
---------------------------------------------------------------------------
Due to limited data reporting, we are unable to estimate the number
of employers that provide health and/or dental insurance coverage to
their employees through the Small Business Health Options Program
(SHOP) in the FFE States.
[[Page 60329]]
3. Issuers of Individual or Group Coverage
Lastly, this IFC will impact issuers of individual or group
coverage operating in the Federally-facilitated Exchanges. As of Plan
Year 2026, there are 346 issuers in the FFE and SBE-FP States that
offer an on-Exchange qualified health plan or standalone dental
plan.\26\
---------------------------------------------------------------------------
\26\ CMS, 2026 Health Insurance Exchange Public Use Files,
available at <a href="https://www.cms.gov/marketplace/resources/data/public-use-files">https://www.cms.gov/marketplace/resources/data/public-use-files</a> and CMS, 2026 Qualified Health Plan Landscape Files,
available at <a href="https://www.healthcare.gov/plan-data/">https://www.healthcare.gov/plan-data/</a>.
---------------------------------------------------------------------------
E. Benefits or Transfers
This IFC is expected to prevent fraud and the misuse of consumer
PII, reduce the risk of consumer harm (including from loss of coverage
or having coverage changed inappropriately), reduce unauthorized
enrollment activity, prevent improper expenditures of APTC, and reduce
or prevent other conduct that threatens consumers and the integrity of
the Federally-facilitated Exchanges.
In seeking to quantify the benefits associated with curbing
improper payments incurred due to the actions of noncompliant agents
and brokers, we present two methodologies that estimate high and low
estimates for the impact of agent and broker noncompliance resulting in
unauthorized enrollments.\27\ The resulting figures are roughly $6.6
billion and $1.5 billion, respectively.\28\
---------------------------------------------------------------------------
\27\ Noncompliance includes, but is not limited to, unauthorized
enrollments. To the extent that illicit activity is addressed by
issuance of the temporary moratorium, categorizing resulting effects
as benefits, rather than as transfers (shifts of value among
individuals within society), is consistent with Zerbe, R.O. (1998),
``Is Cost-Benefit Analysis Legal? Three Rules,'' Journal of Policy
Analysis and Management 17(3): 419-456. Categorizing effects is more
ambiguous where underlying circumstances are improper but not
criminal.
\28\ We note that the average duration of unauthorized
enrollments is more likely to exceed the 8-month average cited later
in this section since the consumer is unlikely to cancel such
enrollments. This likely contributes to a tendency to underestimate
the total amount of fraud.
---------------------------------------------------------------------------
One way to calculate the scope of this issue is to look at plans
with zero utilization (that is, no claims filed across an entire plan
year). While zero utilization is not, on its face, indicative of an
unauthorized enrollment (healthy individuals may go an extended period
without filing a claim, for example), on-Exchange plans purchased
through the Federal platform were more likely (34 percent versus 23
percent) than unsubsidized, off-Exchange plans to have zero utilization
in Plan Year 2024.\29\ This 11 percentage point differential between
on-Exchange and off-Exchange zero utilization is notable and may be
indicative of unauthorized enrollment (since consumers enrolled in
plans without their knowledge or consent would not be expected to
utilize those plans). To the extent this differential applies to
enrollment in Plan Year 2026, this would mean that (on the high end)
unauthorized enrollment could result in up to $6.6 billion in improper
Federal spending.\30\ This may be an overestimate since other
differences between on-Exchange and off-Exchange enrollments may
partially explain some of this differential.\31\ Further, program
integrity measures undertaken since Plan Year 2024 have likely reduced
this differential; for example, over 550,000 enrollees had their APTC
ended in 2025 after CMS identified concurrent enrollments in
<a href="http://HealthCare.gov">HealthCare.gov</a> States.\32\ CMS expects that such improper Federal
spending will be largely prevented in future years as enhanced program-
integrity safeguards are implemented.
---------------------------------------------------------------------------
\29\ Analysis found that 34 percent (from Plan Year 2023 through
Plan Year 2024) of on-Exchange silver enrollments were associated
with no claims as compared to off-Exchange silver enrollments (18 to
23 percent from Plan Year 2019 through Plan Year 2024). This comes
to a rough differential of at least 11 percentage points. Patient
Protection and Affordable Care Act, HHS Notice of Benefit and
Payment Parameters for 2027; and Basic Health Program; 2/11/26; 91
FR 29526.
\30\ Based on the CMS Health Insurance Exchanges 2026 Open
Enrollment Report, approximately 90 percent of <a href="http://HealthCare.gov">HealthCare.gov</a>
consumers selected plans with APTC for Plan Year 2026 and the
average monthly APTC for these consumers was $674 or $5,392 for
eight months (the average duration of an on-Exchange enrollment in
the FFE based on CMS analysis of preliminary 2025 Enrollee-Level
External Data Gathering Environment (EDGE) data). 1,364,681
enrollments represent about 11 percent of the 12,406,195 FFE and
SBE-FP enrollees as of February 2026, based on the CMS Health
Insurance Exchanges Monthly Effectuated Enrollment data. This comes
to about $6.6 billion in Federal spending (calculated as 1,364,681
enrollees x 0.9 x $5,392).
\31\ These differences could include the average duration of
enrollment on-Exchange versus off-Exchange and on-Exchange plans
being more attractive for younger, healthier enrollees due to lower
premiums (as on-Exchange plans are subsidized unlike off-Exchange
plans).
\32\ See ``CMS Actions to Protect Consumers and Strengthen
Exchange Program Integrity,'' available at <a href="https://www.cms.gov/newsroom/fact-sheets/cms-actions-protect-consumers-strengthen-exchange-program-integrity">https://www.cms.gov/newsroom/fact-sheets/cms-actions-protect-consumers-strengthen-exchange-program-integrity</a>.
---------------------------------------------------------------------------
Another way to calculate the scope of this issue is to look at
GAO's July 2026 report. This report found that there were 299,604
consumer complaints tied to confirmed unauthorized enrollments and plan
switches on the Federal platform in 2025.\33\ Using this estimate as a
proxy for potential unauthorized enrollment and plan switching that
would be avoided in Plan Year 2027 through the moratorium on
registration of certain new agents and brokers in Plan Year 2026, this
would mean that (on the low end) this fraud could result in about $1.5
billion in wasteful Federal spending if unaddressed.\34\ CMS again
expects that such improper Federal spending will be largely prevented
in future years as enhanced program-integrity safeguards are
implemented.
---------------------------------------------------------------------------
\33\ GAO (2026). ``Health Insurance Marketplaces: CMS Needs
Stronger Controls to Prevent Unauthorized Actions by Agents and
Brokers,'' available at <a href="https://www.gao.gov/products/gao-26-108297">https://www.gao.gov/products/gao-26-108297</a>.
\34\ Based on the CMS Health Insurance Exchanges 2026 Open
Enrollment Report, approximately 90 percent of <a href="http://HealthCare.gov">HealthCare.gov</a>
consumers selected plans with APTC for Plan Year 2026 and the
average monthly APTC for these consumers was $674 or $5,392 for
eight months (the average duration of an on-Exchange enrollment in
the FFE based on CMS analysis of preliminary 2025 Enrollee-Level
External Data Gathering Environment (EDGE) data). For 299,604
enrollments, this comes to about $1.5 billion in Federal spending
(calculated as 299,604 enrollees x 0.9 x $5,392).
---------------------------------------------------------------------------
Since, as noted earlier in this preamble, newly registered agents
and brokers generally constitute about a tenth of the total agent and
broker population and generally constitute about a third of the total
agents and brokers found noncompliant, we conclude that newly
registered agents and brokers are, on average, about three times more
likely to engage in noncompliance than agents and brokers that have
been registered and operated on the Exchanges in the past. As a result,
we expect that this IFC will help curb the scale of improper payments
on the Federally-facilitated Exchanges.
Table 2 shows the approximate per-broker average improper Federal
spending levels that are implied by the new-to-returning improper
activity ratios of 1.4 to 2.8 discussed in section II.B. of this
preamble when combined with potential baseline Federal improper
spending, as discussed above.\35\ It additionally shows the aggregate
reduction that would be achieved if this IFC eliminates the new-to-
returning differential across the activity of roughly 6,956 avoided new
brokers with active enrollments, yielding a range of avoided improper
spending from approximately $48 million to $877 million.
---------------------------------------------------------------------------
\35\ Estimates are derived so as to satisfy the following
equations (in which I<INF>b</INF> is baseline annual improper
Federal spending; I<INF>r</INF> is average improper spending per
returning agent or broker; I<INF>n</INF> is average improper
spending per new agent or broker; AB<INF>r</INF> is the number of
returning agents or brokers; AB<INF>n</INF> is 6,956, a baseline
number of agents or brokers with active enrollments during Open
Enrollment; and k equals 1.4 or 2.8): I<INF>b</INF> = I<INF>r</INF>
x AB<INF>r</INF> + I<INF>n</INF> x AB<INF>n</INF> = I<INF>r</INF> x
AB<INF>r</INF> + (k x I<INF>r</INF>) x AB<INF>n</INF>.
[[Page 60330]]
Table 2--Approximate Ranges of Per-Broker Average Improper Federal
Spending and Aggregate Reduction That Would Be Achieved if the IFC
Eliminates the New-to-Returning Differential
------------------------------------------------------------------------
New-to-returning New-to-returning
Inputs improper activity improper activity
ratio = 1.4 ratio = 2.8
------------------------------------------------------------------------
$6.6 billion baseline annual $78,000 $70,000
improper Federal spending (returning). (returning).
(based on zero utilization $109,000 (new).... $196,000 (new).
differential). $217 million $877 million
(aggregate if (aggregate if
differential differential
eliminated). eliminated).
$1.5 billion baseline annual $17,000 $15,000
improper Federal spending (returning). (returning).
(based on unauthorized $24,000 (new)..... $43,000 (new).
enrollment/unauthorized plan $48 million $193 million
switching). (aggregate if (aggregate if
differential differential
eliminated). eliminated).
------------------------------------------------------------------------
Another benefit of this moratorium will be consumer protection.
When an agent or broker switches a consumer's plan without their
knowledge or consent, the consumer could lose active coverage they were
relying on or face a gap in coverage. A consumer's new plan may not
cover the consumer's regular doctors, specialists, or prescription
drugs, leading to denied claims, unexpected medical bills, or delayed
treatment.
When noncompliant agents and brokers enroll consumers without their
knowledge or consent, they can create unexpected tax liabilities for
consumers. This consumer risk is especially acute since Section 71305
of the Working Families Tax Cut legislation (P.L. 119-21) eliminated
the limitation on recapture of excess APTC. This means that consumers
who are enrolled without their knowledge or consent are likely to face
an unexpected tax liability as a result of agent and broker
noncompliance.
If a consumer is enrolled in an plan through the Federally-
facilitated Exchanges without their knowledge or consent by a
noncompliant agent or broker, then that consumer may only learn of this
coverage upon receipt of a Form 1095-A from the Marketplace at tax
time, or upon rejection of their federal tax return by the IRS for not
reconciling premium tax credits. At that point the consumer would need
to contact the Marketplace Call Center to report the unauthorized
enrollment, cancel the coverage, potentially initiate a CMS fraud
investigation, and request a voided or zeroed-out Form 1095-A to
include with their federal tax return. Based on our operational
experience and review of relevant information collections approved
under the Paperwork Reduction Act (for example, HHS-CMS OMB Control
Number 0938-1191 and UST-IRS OMB Control Number 1545-2232), we expect
that this process could take 1 hour.
A small portion of these affected consumers (we estimate 7 percent)
\36\ are likely to incur additional administrative burden reporting
this unauthorized enrollment through official governmental channels for
reporting identity theft, such as law enforcement or a report on the
FTC's <a href="http://IdentityTheft.gov">IdentityTheft.gov</a> website. Consumers need 15 minutes, on average,
to complete the <a href="http://IdentityTheft.gov">IdentityTheft.gov</a> reporting form, create an
<a href="http://IdentityTheft.gov">IdentityTheft.gov</a> account, and review their personalized recovery plan.
A larger portion of these affected consumers (67 percent) \37\ are
likely to report identity theft to their financial institutions. We
estimate that such reporting will also require, on average, 15 minutes.
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\36\ DOJ (2023), ``Victims of Identity Theft, 2021,'' available
at <a href="https://bjs.ojp.gov/press-release/victims-identity-theft-2021">https://bjs.ojp.gov/press-release/victims-identity-theft-2021</a>.
\37\ Id.
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Finally, some portion of these affected consumers may fail to
rectify the erroneous Form 1095-A and may incur a tax liability. If the
consumer received a PTC subsidy in line with the $674 average monthly
subsidy for 12 months \38\ and the consumer was ineligible for the
entire amount then this liability could be more than $8,000. Failure to
file the IRS Form 8962 to reconcile APTC incurred due to unauthorized
enrollment could result in the IRS withholding tax refund or trigger a
Treasury Offset Program collection. More likely, however, is that the
affected consumers in such a situation would incur the additional
paperwork burden of filing an amended tax return, which is estimated to
take 9 hours on average and could also include tax preparation service
fees and/or mailing costs.\39\ Using the $24.05 wage rate we calculate
below, such consumers who need to file an amended return could incur
$216.45 in additional administrative expense. We are unable to estimate
what portion of consumers will face these greater burdens and costs,
however.
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\38\ For <a href="http://HealthCare.gov">HealthCare.gov</a> consumers. See CMS, Health Insurance
Exchanges 2026 Open Enrollment Report, available at <a href="https://www.cms.gov/files/document/health-insurance-exchanges-2026-open-enrollment-report.pdf">https://www.cms.gov/files/document/health-insurance-exchanges-2026-open-enrollment-report.pdf</a>.
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In 2025, there were 299,604 consumer complaints tied to confirmed
unauthorized enrollments and plan switches on the Federal platform.\40\
We estimate that affected consumers would, therefore, incur 355,031
hours of administrative burden associated with unauthorized enrollments
and plan switches, as shown in Table 3.
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\39\ See IRS, ``Instructions for Form 1040-X,'' available at
<a href="https://www.irs.gov/pub/irs-pdf/i1040x.pdf">https://www.irs.gov/pub/irs-pdf/i1040x.pdf</a>.
\40\ GAO (2026). ``Health Insurance Marketplaces: CMS Needs
Stronger Controls to Prevent Unauthorized Actions by Agents and
Brokers,'' available at <a href="https://www.gao.gov/products/gao-26-108297">https://www.gao.gov/products/gao-26-108297</a>.
[[Page 60331]]
Table 3--Estimated Consumer Administrative Burden Associated With Agent
and Broker Noncompliance
------------------------------------------------------------------------
Hours per
Affected consumers respondent Total hours
------------------------------------------------------------------------
Process correction (100 percent)........ 1 299,604
Report to financial institution (67 0.25 50,184
percent)...............................
Report to enforcement institution (7 0.25 5,243
percent)...............................
-------------------------------
Total............................... .............. 355,031
------------------------------------------------------------------------
To calculate the cost of this administrative burden, we adopt an
hourly value of time based on after-tax wages to quantify the
opportunity cost of changes in time use for unpaid activities. This
approach matches the default assumptions for valuing changes in time
use for individuals undertaking administrative and other tasks on their
own time, which are outlined in an Assistant Secretary for Planning and
Evaluation (ASPE) report on ``Valuing Time in U.S. Department of Health
and Human Services Regulatory Impact Analyses: Conceptual Framework and
Best Practices.'' \41\ We started with a measurement of the usual
weekly earnings of wage and salary workers of $1,159. We divided this
weekly rate by 40 hours to calculate an hourly pre-tax wage rate of
approximately $28.98. We adjusted this hourly rate downwards by an
estimate of the effective tax rate for median income households of
about 17 percent, resulting in a post-tax hourly wage rate of
approximately $24.05. We adopt this as our estimate of the hourly value
of time for changes in time use for unpaid activities. Using this
figure, we estimate that the total value of administrative burden
caused by unauthorized enrollment is $8,538,496.
---------------------------------------------------------------------------
\41\ <a href="https://aspe.hhs.gov/reports/valuing-time-us-department-health-human-services-regulatory-impact-analyses-conceptual-framework">https://aspe.hhs.gov/reports/valuing-time-us-department-health-human-services-regulatory-impact-analyses-conceptual-framework</a>.
---------------------------------------------------------------------------
Table 4 shows the approximate consumer administrative burden caused
by unauthorized enrollment expressed as a per-broker average as implied
by new-to-returning improper activity ratios of 1.4 to 2.8 when
combined with the potential baseline value of administrative burden, as
discussed above. It additionally shows the aggregate burden reduction
that would be achieved if this IFC eliminates the new-to-returning
differential across the activity of roughly 6,956 brokers, yielding a
range of avoided consumer administrative burden from approximately
$280,000 to $1.1 million annually.
Table 4--Approximate Ranges of Per-Broker Average Consumer
Administrative Burden Caused by Unauthorized Enrollment and Aggregate
Reduction That Would Be Achieved if This IFC Eliminates the New-to-
Returning Differential
------------------------------------------------------------------------
New-to-returning New-to-returning
Inputs improper activity improper activity
ratio = 1.4 ratio = 2.8
------------------------------------------------------------------------
$8,538,496 baseline value of $100 (returning).. $90 (returning).
consumer administrative burden $140 (new)........ $250 (new).
caused by unauthorized $280,000 $1.1 million
enrollment or plan switching. (aggregate if (aggregate if
differential differential
eliminated). eliminated).
------------------------------------------------------------------------
We seek comment on the expected benefits associated with this IFC.
F. Costs
This IFC is expected to temporarily reduce competition among agents
and brokers and the total number of agents and brokers available to
enroll consumers in coverage offered through the Federally-facilitated
Exchanges when a moratorium is in place.
When a moratorium is in place, consumers will be unable to utilize
the services of agents and brokers that would otherwise have registered
during the period of the moratorium. Agents and brokers help consumers
navigate, compare, and enroll in Exchange coverage typically at no
direct extra cost to the consumer. While the loss of new agents and
brokers may affect consumers' ability to utilize these services, we
expect that overall enrollment in the Federally-facilitated Exchanges
will remain stable for Plan Year 2027. As anyone registered in Plan
Year 2026 is eligible to return, we anticipate there will be a similar
number, or potentially a slight decrease, in the number of agents and
brokers available to assist Federally-facilitated Exchanges consumers
and we do not anticipate consumers will face a shortage of service from
agents and brokers. We estimate based on historical experience that
approximately 80 percent of agents and brokers that were registered for
Plan Year 2026 will return and complete Plan Year 2027 registration and
training but note that this estimate is uncertain. Additionally, some
consumers may passively auto re-enroll into coverage or actively re-
enroll for Plan Year 2027 coverage without the assistance of an agent
or broker.
We understand that agencies and brokerages may begin hiring new
agents and brokers during the summer and fall in preparation for the
Plan Year 2027 Open Enrollment Period. We estimate that approximately
half of the estimated 19,982 new agents and brokers whose registrations
will be affected by this IFC in the first year of its implementation
might be affiliated with agencies (that is, hired by agencies in
preparation for the Plan Year 2027 Open Enrollment Period). In
anticipation of the regularly recurring Open Enrollment Period,
established agencies and brokerages have likely incurred routine
business expenses associated with building the capacity necessary to
handle the high volume of enrollments that occur during this period.
These costs can include investments in human resources such as
recruiting, hiring, training, licensing, and preparing new agents and
brokers to
[[Page 60332]]
conduct business on the Federally-facilitated Exchanges. Because the
temporary moratorium is being announced in September, these investments
have already occurred and because these new agents and brokers cannot
be registered to do business on the Federally-facilitated Exchanges for
Plan Year 2027 while the moratorium is in place, these investments by
agencies and brokerages are lost.
A temporary moratorium could also lead to job losses for agents and
brokers that do not have current Plan Year Exchange agreements, to the
extent their incomes and employment by agencies and brokerages are
primarily derived from facilitating applications and enrollment in
coverage offered through the Federally-facilitated Exchanges. Based on
the commission revenue transfer estimate in section VIII.G. of this
preamble ($71 million to $98 million in commission revenue transferred
from new agents and brokers who do not have Plan Year 2026 Exchange
agreements to existing agents and brokers that have Plan Year 2026
Exchange agreements), across the 6,956 agents and brokers that will be
affected by the temporary moratorium in the first year of
implementation of this IFC, the foregone (transferred) commission
revenue could range from approximately $10,000 to $14,000 per agent and
broker.
We seek comment on the expected costs associated with this IFC,
including the magnitude of the potential operational losses for
agencies and brokerages and the potential for job losses for agents and
brokers who do not have current Plan Year Exchange Agreements.
G. Other Transfers
The temporary moratorium is expected to lead to a transfer of
commission revenue associated with enrollment in coverage for Plan Year
2027 that would have been received by certain new agents and brokers
that do not have Plan Year 2026 Exchange agreements in the absence of
the temporary moratorium on registration to existing agents and brokers
that have Plan Year 2026 Exchange agreements.
As noted in section VIII.D.1. of this preamble, we would expect
that, absent the temporary moratorium, 19,982 agents and brokers would
have registered during the period of the temporary moratorium for Plan
Year 2027, of which 6,956 would have had active enrollments during Open
Enrollment. New agents and brokers enrolled about 490,000 total
consumers during the Plan Year 2026 Open Enrollment Period and earned
about $18 to $25 in commission per member per month (PMPM).\42\ The
average FFE and/or SBE-FP enrollee remains on their plan for about 8
months.\43\ As a result, we estimate that agents and brokers unable to
register due to the temporary moratorium will forego approximately $71
million to $98 million in commissions. However, we expect that much of
the compensation for newly registered agents and brokers, is paid
through agencies they are affiliated with and services will instead be
provided by other agents and brokers, within the agency, or by another
agent or broker. As a result, the producer surplus portion of this
aggregate commission is a transfer of value within society, rather than
a societal cost.
---------------------------------------------------------------------------
\42\ KFF, ``Broker Fees and Direct Sales by Health Insurance
Market'' (as of 2024), available at <a href="https://www.kff.org/health-costs/state-indicator/health-insurance-broker-compensation/">https://www.kff.org/health-costs/state-indicator/health-insurance-broker-compensation/</a>.
\43\ Based on CMS analysis of preliminary 2025 EDGE data.
---------------------------------------------------------------------------
This IFC could also lead to transfers of commission revenue from
certain new agents and brokers that do not have current Plan Year
Exchange agreements to existing agents and brokers who have current
Plan Year Exchange agreements if and when future moratoria on
registration of certain new agents and brokers are in place. However,
we are unable to quantify the magnitudes of these potential future
transfers due to uncertainty regarding the timing and parameters for
future moratoria.
We seek comment on the expected transfers associated with this IFC.
H. Regulatory Review Cost Estimation
Due to the uncertainty involved with accurately quantifying the
number of reviewers that will review this IFC, we use the estimated
number of reviewers of the 2027 Payment Notice final rule (14,292) as a
proxy for the approximate number of reviewers of this IFC. We
acknowledge that this assumption may understate or overstate the number
of reviewers that will actually review this IFC. Nevertheless, we view
this to be a reasonable proxy for the number of reviewers that might
review this IFC.
Using wage information from the Bureau of Labor Statistics, for
Business Operations Specialists, All Other (Code 13-1199), to account
for median labor costs (including a 100 percent increase of the median
hourly wage to account for the cost of fringe benefits and other
indirect costs), we estimate that the cost of reviewing this IFC will
be approximately $79.86 per hour.\44\ We estimate that it will take
each reviewing individual approximately 1 hour to review this IFC
assuming an average reading speed of 250 words per minute. Therefore,
we estimate that the total one-time cost of reviewing this IFC will be
approximately $1,141,359 (14,292 individuals x $79.86 per individual).
---------------------------------------------------------------------------
\44\ U.S. Bureau of Labor Statistics (2025). Occupational
Employment and Wage Statistics (OEWS) Tables, Occupational Profiles
national estimates, available at <a href="https://www.bls.gov/oes/tables.htm">https://www.bls.gov/oes/tables.htm</a>.
---------------------------------------------------------------------------
We seek comment on the estimated regulatory review costs associated
with this IFC.
I. Regulatory Alternatives Considered
In codifying at Sec. 155.220(o) the process for implementing
moratoria on agent and broker registrations, we considered creating a
provision that would place a moratorium on all agent and broker
registrations and thereby fully block all agent and broker
participation in the Federally-facilitated Exchanges in PY 2027. In
balancing the need to codify a moratorium policy that provided an
effective system and procedural safeguards against consumer support
received through agents and brokers, we determined it was appropriate
to limit agents and brokers that do not have current Plan Year
registrations with the Federally-facilitated Exchanges at the time the
moratorium is effective and does not prohibit registration for agents
and brokers. As discussed in section II.B. of this IFC, enrollment data
trends demonstrate that newly registered agents and brokers
disproportionately represent agents and brokers subject to confirmed
instances of unauthorized Federal platform enrollments and other
noncompliant practice, which indicates that newly entering agents and
brokers present a distinct and heightened program-integrity risk.
Additionally, we considered a range of different factors that HHS
could utilize to determine whether implementing a moratorium is
appropriate. For example, we considered codifying that HHS would impose
a moratorium when it identified a trend in agent or broker conduct that
could result in fraud and abuse. Such trends could include rapid
increases in, or disproportionate rates of agent and broker assisted
enrollments relative to applications submitted without the assistance
of an agent or broker, including attesting to eligibility to a special
enrollment period in accordance with using Sec. 155.420(d) as the
basis for the special enrollment period; attesting that applicants are
not eligible for Medicaid in accordance Sec. 155.305(c); or
enrollments that later result in consumer- or Exchange-initiated
terminations pursuant to Sec. Sec. 155.4300(b)(1)(iv)(B)-(C) and
155.430(b)(2)(vi). We determined,
[[Page 60333]]
however, that leveraging the existing foundation of Sec. 155.220(k)(3)
that reflects our authority to suspend an agent's or broker's ability
to transact information with the Federally-facilitated Exchanges in
certain circumstance was more appropriate, particularly since the
existing foundation of Sec. 155.220(k)(3) already reflects these types
of trend factors at an overall level.
We also considered whether a temporary moratorium on agent and
broker participation could be limited to particular geographic areas
where data indicated heightened program integrity risks. A
geographically targeted approach could, in principle, have focused
restrictions on areas experiencing disproportionate levels of suspected
fraud, unauthorized enrollments, or other problematic agent and broker
activity, while permitting new agents and brokers to continue entering
the Marketplace in other areas.
After considering this approach, HHS determined that a
geographically based moratorium would not provide an effective or
sufficiently durable means of addressing the current underlying
program-integrity concerns. Agent and broker activity in the Federally-
facilitated Exchanges is not necessarily confined to the geographic
location in which an agent or broker resides or maintains a business.
Agents and brokers may assist consumers remotely and may operate across
multiple States, subject to applicable State licensure requirements. As
a result, restricting new participation based on a particular
geographic area based on current conditions could shift noncompliant
activity to other locations rather than prevent it and could create
opportunities to circumvent the restriction.
HHS also considered the potential effect of a geographically
targeted moratorium on legitimate agents and brokers and on consumer
access to enrollment assistance. Agents and brokers play a substantial
role in helping consumers understand coverage options and enroll in
Marketplace coverage. A geographic restriction could prevent otherwise
compliant new agents and brokers from participating solely because they
operate in, or serve consumers in, an area identified as presenting
heightened program integrity concerns, even where there was no
indication that those particular individuals pose a risk. At the same
time, differences in agent availability and consume reliance on broker
assistance across markets could cause a geographically targeted
restriction to have uneven effects on consumers' access to enrollment
assistance.
In addition, determining and maintaining appropriate geographic
boundaries would present significant operational and program integrity
challenges. Patterns of suspected improper activity can change over
time and may not correspond neatly to State, county, or other
geographic boundaries. Geographic targeting therefore could require HHS
to continually reassess which areas should be subject to a moratorium
and could create arbitrary distinctions between similarly situated
agents, brokers, and consumers on opposite sides of a geographic
boundary.
We seek comment on the regulatory alternatives considered in the
course of developing this rulemaking.
J. Regulatory Flexibility Act (RFA)
The RFA requires agencies to analyze options for regulatory relief
of small entities and to prepare a regulatory flexibility analysis to
describe the impact of a rule on small entities, unless the head of the
agency can certify that the rule will not have a significant economic
impact on a substantial number of small entities. The RFA generally
defines a ``small entity'' as (1) a proprietary firm meeting the size
standards of the Small Business Administration (SBA), (2) a not-for-
profit organization that is not dominant in its field, or (3) a small
government jurisdiction with a population of less than 50,000. States
and individuals are not included in the definition of ``small entity.''
Because this IFC is not preceded by a general notice of proposed
rulemaking, the RFA does not apply to this IFC.
K. Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires that agencies assess anticipated costs and benefits and take
certain other actions before issuing a rule that includes any Federal
mandate that may result in expenditures in any 1 year by State, local,
or Tribal governments, in the aggregate, or by the private sector, of
$100 million in 1995 dollars, updated annually for inflation. Adjusted
for inflation, that threshold is approximately $193 million in 2026. As
suggested by the analysis of the impact of the temporary moratorium,
this IFC is not expected to result in expenditures by State, local, or
Tribal governments, in the aggregate, or by the private sector above
the threshold.
L. Federalism
Executive Order 13132 outlines fundamental principles of
federalism. It requires adherence to specific criteria by Federal
agencies in formulating and implementing policies that have
``substantial direct effects'' on the States, the relationship between
the national government and States, or on the distribution of power and
responsibilities among the various levels of government. Federal
agencies issuing regulations that have these federalism implications
must consult with State and local officials and describe the extent of
their consultation and the nature of the concerns of State and local
officials in the preamble to these proposed rules.
While this IFC is not expected to have federalism implications, we
seek comment on any potential federalism implications of this IFC.
M. Executive Order 14192
Executive Order 14192 entitled, ``Unleashing Prosperity Through
Deregulation,'' was issued on January 31, 2025, and requires that ``any
new incremental costs associated with new regulations shall, to the
extent permitted by law, be offset by the elimination of existing costs
associated with at least 10 prior regulations.'' This IFC is exempt
from otherwise-applicable requirements under Executive Order 14192, per
footnote 1 of OMB's Accounting Methods.\45\
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\45\ <a href="https://www.reginfo.gov/public/pdf/eo14192/Accounting_Methods_under_EO_14192.pdf">https://www.reginfo.gov/public/pdf/eo14192/Accounting_Methods_under_EO_14192.pdf</a>.
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N. Congressional Review Act
This IFC is subject to the Congressional Review Act provisions of
the Small Business Regulatory Enforcement Fairness Act of 1996 (5
U.S.C. 801 et seq.) and has been transmitted to the Congress and the
Comptroller General for review.
Mehmet Oz, Administrator of the Centers for Medicare & Medicaid
Services, approved this document on September 21, 2026.
List of Subjects in 45 CFR Part 155
Administrative practice and procedure, Advertising, Brokers,
Conflict of interests, Consumer protection, Grants administration,
Grant programs-health, Health care, Health insurance, Health
maintenance organizations (HMO), Health records, Hospitals,
Indians,Individuals with disabilities, Intergovernmental relations,
Loan programs-health, Medicaid, Organization and functions (Government
agencies), Public assistance programs, Reporting and
[[Page 60334]]
recordkeeping requirements, Technical assistance, Women and youth.
For the reasons set forth in the preamble, the Department of Health
and Human Services amends 45 CFR part 155 as set forth below:
PART 155--EXCHANGE ESTABLISHMENT STANDARDS AND OTHER RELATED
STANDARDS UNDER THE AFFORDABLE CARE ACT
0
1. The authority citation for part 155 continues to read as follows:
Authority: 42 U.S.C. 18021-18024, 18031-18033, 18041-18042,
18051, 18054, 18071, and 18081-18083.
0
2. Section 155.220 is amended by adding paragraph (o), to read as
follow:
Sec. 155.220 Ability of States to permit agents, brokers, and web-
brokers to assist qualified individuals, qualified employers, or
qualified employees enrolling in QHPs.
* * * * *
(o) Moratoria on registrations with the Federally-facilitated
Exchanges for agents and brokers. When HHS determines that agent and
broker conduct poses an unacceptable risk to the accuracy of the
Exchange's eligibility determinations, Exchange operations, applicants,
enrollees, or Exchange information technology systems, including risk
related to noncompliance with the standards of conduct under paragraph
(j) of this section and the privacy and security standards under Sec.
155.260, HHS may impose a temporary moratorium pausing agent and broker
registrations with the Federally-facilitated Exchanges under paragraph
(d)(1) of this section of agents and brokers that do not have a current
Plan Year registration with the Federally-facilitated Exchanges at the
time the moratorium is effective. A moratorium under this paragraph (o)
does not prevent registration with the Federally-facilitated Exchanges
for agents and brokers that do not have a current Plan Year
registration with the Federally-facilitated Exchanges at the time a
moratorium is effective due to a termination under paragraph (g) of
this section or a denial of the right to enter into Exchange agreements
with the Federally-facilitated Exchanges in future years under
paragraph (k)(1)(i) of this section when such a termination or denial
is subsequently reversed, or the agent's or broker's Exchange
agreements are reinstated while the moratorium is in place. When
imposing a moratorium on registrations for agents and brokers, HHS will
publish a document in the Federal Register indicating the date the
moratorium will take effect, the reasons for imposing the moratorium,
and the duration of the moratorium.
Robert F. Kennedy, Jr.,
Secretary, Department of Health and Human Services.
[FR Doc. 2026-19493 Filed 9-22-26; 8:45 am]
BILLING CODE 4169-69-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.