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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Proposed Rules
III. Provisions of the Proposed Rules Department of HHS
A. Part 144Requirements Relating to Health Insurance Coverage 1. Basis and Purpose 45 CFR 144.101
HHS proposes conforming amendments to 45 CFR 144.101 to reflect the proposed amendments to 45
CFR part 150, described in section III.C
of the preamble. Specifically, HHS
proposes to revise 45 CFR 144.101e 22
to include references to the enforcement-related provisions added by the No Surprises Act section 2799B
4 of the PHS Act and section 106e of the No Surprises Act, and to specify that the enforcement provisions in 45
CFR part 150 apply to the provisions of 45 CFR part 149 concerning group or individual health insurance, providers and facilities, and providers of air ambulance services.
B. Part 148Requirements for the Individual Health Insurance Market 1. Authority HHS proposes to make technical corrections to the authority listed for 45
CFR part 148. More specifically, HHS
proposes to update the list to reference the Federal insurance reforms applicable to the individual market captured in PHS Act sections 2722
through 2763, codified at 42 U.S.C.
300gg21 through 300gg63, along with PHS Act sections 2791 and 2792, codified at 42 U.S.C. 300gg91 and 300gg92. This would include new section 2746 of the PHS Act, as added by section 202c of Title II of Division BB of the CAA, in the list of authorities for 45 CFR part 148. Finally, HHS
proposes to remove the reference to PHS
Act section 2711, codified at 42 U.S.C.
300gg11, because this statutory provision is not implemented as part of the HHS regulations in 45 CFR part 148.23
2. Basis and Purpose 45 CFR 148.101
HHS proposes to amend 45 CFR
148.101 to expand the purpose of 45
CFR part 148. Specifically, HHS
proposes to add a reference to the new reporting and disclosure requirements 22 The July 2021 interim final rules redesignated paragraph d of 45 CFR 144.101 as paragraph e and further redesignated paragraph e of 45 CFR
144.101 as paragraph f. Although the effective date of the July 2021 interim final rules is not until September 13, 2021, references to paragraph e in these proposed rules are references to the newly redesignated paragraph e formerly paragraph d.
This rule also proposes a technical correction to 45
CFR 144.103e2 to correct a cross-reference that was inadvertently not updated when paragraph d was redesignated.
23 See 45 CFR 147.126. Also see 45 CFR 146.123.

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regarding agent and broker compensation that these proposed rules would add as a new subpart F to 45 CFR
part 148 to implement the requirements of section 2746 of the PHS Act, as added by section 202c of Title II of Division BB of the CAA.
3. Scope and Applicability Date 45 CFR
148.102
HHS proposes to amend 45 CFR
148.102 by adding paragraph a3 to specify that the requirements in proposed 45 CFR 148.410 would apply to health insurance issuers of individual health insurance coverage and shortterm, limited-duration insurance. HHS
also proposes to amend paragraph b by excepting 45 CFR 148.410 from the applicability dates specified in paragraph b, as these proposed rules set forth the applicability date specific to 45 CFR 148.410 in that section.
Section 2746 of the PHS Act, as added by section 202c of Title II of Division BB of the CAA, applies to grandfathered individual health insurance coverage, for the reasons set forth in section II.E.
of the preamble. Therefore, the provisions in proposed 45 CFR 148.410
that apply to individual health insurance coverage, would apply to grandfathered as well as nongrandfathered individual health insurance coverage.
4. Subpart FRequirements Related to Reporting and Disclosure HHS proposes to add a new subpart F to 45 CFR part 148 and new 45 CFR
148.410 within that subpart to implement the requirements of section 2746 of the PHS Act, as added by section 202c of Title II of Division BB
of the CAA. Section 2746 of the PHS Act requires health insurance issuers offering individual health insurance coverage or short-term, limited-duration insurance to make disclosures to enrollees and submit reports to HHS
regarding direct and indirect compensation provided by the issuer to an agent or broker associated with enrolling individuals in such coverage.
Sections 2746b and c of the PHS Act detail the specific requirements for disclosure and reporting, respectively.
HHS proposes to codify these requirements in new proposed 45 CFR
148.410.
Agents and brokers enter into appointment arrangements with health insurance issuers; these arrangements, which are generally regulated by state law, govern compensation provided to agents and brokers for assisting consumer enrollment in an issuers plans. The specific compensation arrangement between a health insurance
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issuer and the agent or broker is typically laid out in a written document such as a commission schedule.
Compensation arrangements may also include other types of compensation, such as fees and bonuses. Section 2746
of the PHS Act improves the transparency of this compensation system by requiring the disclosure of this compensation information to consumers and reporting of this information to HHS.
5. Subpart FRequirements Related to Reporting and DisclosureDisclosure of Agent and Broker Compensation to Individuals in Individual Health Insurance Coverage or Short-Term, Limited-Duration Insurance 45 CFR
148.410
a. Health Insurance Issuer Standards HHS proposes to add, in 45 CFR
148.410a, a general statement of the obligations of health insurance issuers offering individual health insurance coverage or short-term, limited-duration insurance, to disclose to policyholders and report to HHS on an annual basis direct and indirect compensation provided by the issuer to an agent or broker associated with enrolling individuals in such coverage.
HHS proposes to add, in 45 CFR
148.410b, definitions of key terms in these proposed rules. HHS proposes to define agent or broker through a cross-reference to the definition for the term in 45 CFR 155.20. Section 2746 of the PHS Act applies to both direct and indirect compensation paid to an agent or broker by a health insurance issuer offering individual health insurance coverage or short-term, limited-duration insurance, but does not define direct and indirect compensation. Therefore, HHS proposes regulatory definitions for these key terms that define direct and indirect compensation in a manner that covers all forms of consideration that might be transferred between an issuer offering individual health insurance coverage or short-term, limited-duration insurance and an agent or broker for enrollment in such coverage, regardless of the method by which that consideration is transferred.
In new proposed 45 CFR
148.410b3, direct compensation is defined as monetary amounts, including sales and base commissions, paid by an issuer that are attributable directly to the policy, certificate, or contract of insurance and that are paid to an agent or broker for the sale, placement, or renewal of individual health insurance coverage or short-term, limited-duration insurance. HHS proposes in new proposed 45 CFR 148.410b4 to define
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