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Specific Privacy Standards for Agents and Brokers

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In practice, key privacy and security responsibilities and restrictions for agents and brokers will include:

  • Using and disclosing the information only for purposes of assisting with obtaining eligibility determinations and assisting with or enrolling consumer(s) in a Marketplace, and not in a discriminatory or other unauthorized manner (to the extent that they collect PII)
  • Establishing and following appropriate privacy and security standards to safeguard the PII, including preventing unauthorized or inappropriate access, use, or disclosure
  • Providing consumer(s) with guidance on where they can learn more about the privacy policies and practices of the Marketplace
  • Ensuring that consumer(s) can access their own PII, correct any errors, and make informed decisions about its use
  • Taking reasonable steps to ensure the PII is complete, accurate, and up-to-date for the consumer's intended purpose
  • Ensuring that PII is securely destroyed or disposed of in an appropriate or reasonable manner

 

Collection, Use, and Disclosure Limitations

Collection, use, and disclosure limitations set boundaries for any PII created, collected, used or disclosed as part of a Marketplace function, and also establish additional limitations for two special categories of PII: Eligibility PII and federal tax information (FTI).

The boundaries that apply to all PII are:

Additional guidance on privacy and security standards is contained in the Federally-facilitated Marketplace Agreement you must accept before assisting consumers with application and enrollment in a Federally-facilitated Marketplace. 

Eligibility PII

Eligibility PII is created or collected for determining eligibility for enrollment in a QHP, other insurance affordability programs, or exemptions from the individual shared responsibility payment.

Eligibility PII includes both information collected from applicants and information received from electronic databases, which may include state and federal databases and electronic sources. 

Eligibility PII may only be used or disclosed to carry out a very specific list of Marketplace functions, and not for any other purpose.

Agents and brokers will have access to eligibility PII through the Individual Marketplace as well as the SHOP Marketplace. Agents and brokers may only use this information for the purposes of enrolling individuals in a QHP, or assisting individuals in applying for premium tax credits and cost-sharing reductions for QHPs. Any person or entity that knowingly and willfully improperly uses or discloses eligibility PII associated with individual market health insurance coverage is subject to a civil penalty of up to $25,000 per use or disclosure.

Individual Access And Corrections

As an agent or broker assisting individuals with QHP enrollment or applying for affordability programs, it is important that you are knowledgeable of the rights that people have to access and correct their PII.

Each individual whose PII is collected as part of a Marketplace function has the right to access that information in a simple and timely manner, and in a readable form and format. He or she must also be provided with a means to have information corrected, or to have a dispute documented if their request for correction is denied.

Agents and brokers should be familiar with all of the methods available through the Marketplace for an individual to access and correct his or her PII, or to have a dispute documented.

Additionally, agents and brokers must establish their own standards to define how an individual will be allowed to access and correct any information that the agent or broker holds as part of performing a Marketplace function, or how disputes will be documented and managed.

Additional guidance on individual access and correction of PII is contained in the Federally-facilitated Marketplace Agreement you must accept before assisting with individual application and enrollment in a Federally-facilitated Marketplace.

Policy Transparency and Informed Decision Making

The purpose of policy transparency is to ensure that individuals have the information needed PRIOR to making a decision about whether to share his or her PII. Individuals should understand the following:

  • What information is being collected?
  • What will happen to it?
  • How it is being protected?
  • How long it will be kept?
  • Who it is shared with?
  • How will it be destroyed?

Agents and brokers should be familiar with all of the Marketplace resources available for individuals. Typically, multiple methods are used to provide transparency.

Additionally, agents and brokers must establish their own standards about how they will achieve policy transparency about their information handling practices.

Data Quality and Integrity

Agents and brokers must follow all Marketplace standards to ensure that PII is complete, accurate, and up-to-date, and that it has not been altered or destroyed in an unauthorized manner.

Additionally, agents and brokers must establish their own standards for ensuring PII data quality and integrity.

Accountability, Including Appropriate Monitoring and Breach Reporting

Accountability is about agents and brokers knowing whether they are in compliance with the privacy and security standards — including standards set by the health insurance issuer, the Marketplace, and in accordance with applicable state reporting requirements. 

All agents and brokers should ensure that policies and procedures are written down and address the requirements of all governing privacy laws and regulations. Agents and brokers should clearly explain how to meet those requirements, how compliance will be enforced, and identify the penalties for noncompliance.

Additionally, agents and brokers should have a plan for how they will ensure that their workforce complies with those policies and procedures.

To achieve accountability, consider using such methods as:

  • Developing an inventory of where all of the PII you are responsible for is stored
  • Developing self-assessment checklists for use by your workforce
  • Tracking any uses and disclosures of PII that occur outside of the Marketplace computer system
  • Establishing an ongoing process for identifying and addressing privacy risk areas

 

Obligating Business Partners to Follow the Same, or More Stringent, Standards

Just as when agents and brokers enter in to a relationship with a Marketplace, business partners of agents and brokers are also obligated to comply with or exceed the Marketplace’s privacy and security standards. If an agent or broker has a business partner that assists in performing Marketplace functions involving PII, then the agent or broker must legally obligate the business partner or associate to meet or exceed the same set of standards.

By law, agents and brokers may not enter into business partner agreements that authorize access to federal tax information (FTI) except in accordance with the Internal Revenue Code and Internal Revenue Service (IRS) approval.

Beyond the requirement to meet or exceed standards, you may also want to consider addressing topics like these within legal agreements with business partners:

  • Privacy and security training requirements
  • How compliance will be assessed
  • Incident response
  • Validation steps for PII handoffs to ensure data quality and integrity


Safeguards to Prevent Unauthorized Access, Use, or Disclosure

All guidance for operational, technical, administrative, and physical safeguards is found within a suite of documents called the Minimum Acceptable Risk Standards for Exchanges (MARS-E).

(Remember, Marketplaces are typically referred to as Exchanges in the Affordable Care Act and associated regulations.)

To view the MARS-E document, go to: http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Catalog-of-MinAcceptable-Risk-Controls-for-Exchanges-ERA-Supp-v-1-0-08012012-a.pdf

Other State and Federal Laws

An agent or broker must comply with all other applicable state and federal law related to the privacy and confidentiality of PII.

Certain functions of agents and brokers may be subject to the privacy standards of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

It is always up to each agent or broker to understand which privacy laws and regulations his or her functions are subject to, and to fully comply with those laws. 

Privacy Notice Standards for the Federally-facilitated Marketplaces

Privacy Notice Statement Standards for the Federally-facilitated Marketplaces Before assisting individuals with application and enrollment in coverage through a Federally-facilitated Individual Marketplace, agents and brokers must successfully complete training and execute the Federally-facilitated Marketplace Agreement. Agents and brokers assisting employers and employees with enrollment in SHOP coverage must also execute the Federally-facilitated Marketplace Agreement, and are encouraged (but not required) to complete training.

The Federally-facilitated Marketplace Agreement contains privacy and security standards, which include the requirement that agents and brokers provide consumers with a Privacy Notice Statement regarding use and disclosure of PII. This Privacy Notice must be presented to consumers prior to assisting them with application and enrollment through a Marketplace. You will need to review the Federally-facilitated Marketplace Agreement for more details about the Privacy Notice and when it is necessary to obtain affirmative consent.

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