NAIC Puts Off Vote On MLR Broker Resolution

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A contentious battle over whether to endorse a motion to remove broker and agent fees from the medical loss ratio brought some drama to a relatively low-key meeting of the National Association of Insurance Commissioners this weekend.

There were strong indications that Florida Insurance Commissioner Kevin McCarty planned to force a vote on the measure, which would have urged HHS to use its authority to remove the fees from the MLR rather than waiting for Congress to act.

But by Sunday morning, the vote was off, as other insurance commissioners rebelled against the move — which caught them with no notice — and the organization’s leaders decided in a closed meeting that this was not the way to revive the issue.

Instead, they’ll take it up again on a Nov. 22 conference call among NAIC members.

“We all thought this issue had been laid to rest,” said an insurance commissioner who spoke on the condition of anonymity. “We have so many more important things to be working on right now and have spent so much time on this. But the fact that it came up again, and I’m not quite sure why, is a clear indication this is not going to go away.”

During the closing meeting of NAIC’s fall conference in National Harbor, Md., Sunday, Iowa Commissioner and NAIC President Susan Voss only briefly mentioned the proposed resolution, noting that the commissioners would discuss the issue further on the Nov. 22 call.

“We’ll have plenty of time between now and that member call to have discussions and exchange ideas. In the meantime, the NAIC staff will explore if we should present a process for presenting future resolutions” so members have time to talk about them, Voss said.

McCarty was not available to answer a reporter’s questions, and a McCarty spokesman confirmed only that there had been “discussions” about the issue.

The NAIC has explored the removal of the fees from the MLR a number of times. The group created a task force last November to study the issue, and while it voted to endorse Rep. Mike Rogers’s bill to remove agent fees from the MLR, the full NAIC punted in July on an opportunity to endorse the measure.

Consumer advocates and many insurance commissioners believed the issue to be over as far as the NAIC was concerned. But word spread Thursday that McCarty, a champion of the broker bill, was going to attempt to bring endorsement to a vote again.

Some commissioners were dismayed to hear about the move with almost no notice.

“I was very surprised to learn in a casual conversation by happenstance that a resolution was going to be proposed to the full NAIC to urge Congress and HHS to make changes to the medical loss ratio rule,” said California Insurance Commissioner Dave Jones. “There had been a task force and then a committee and a NAIC plenary phone call at which I asked specifically the question to [McCarty] whether the NAIC was taking a position on this, and the answer was ‘no.’ So that's why I was really surprised to see this emerge suddenly without any formal notice or notification.”

By Friday, consumer advocates were frantic over the potential vote, and many felt they had been “ambushed” by the news. The advocacy group Consumer Watchdog sent out an alert to supporters on Saturday to urge commissioners to vote against the measure.

A draft of the new resolution acknowledged the difficulties of getting legislation through Congress and instead urged HHS to use its authority to remove broker fees from the MLR. A copy of the draft was posted by Consumer Watchdog, and POLITICO confirmed its legitimacy with insurance commissioners who had seen the document.

“The options available to HHS include: (1) removing agent and broker commissions from the MLR calculation; (2) placing an immediate hold on implementation and enforcement of the MLR requirements relative to independent agent and broker compensation; and (3) recognizing that a significant portion of insurance producer activities are dedicated to consumer advocacy and service and therefore classifying an appropriate portion of producer compensation as a health care quality expense for purposes of Section 2718 of the PPACA,” the resolution stated.

The resolution was co-sponsored by Florida, Alabama, Arkansas, Georgia, Idaho, Kentucky, Louisiana, Indiana, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, South Carolina, Tennessee and Wisconsin.

“Clearly, some states knew this was going to come up at the meeting,” said the insurance commissioner who asked to remain anonymous. “What they are asking HHS to do, HHS most likely does not have the authority to do, and I believe asking them undermines the credibility of our organization.”

Jason Millman contributed to this report.

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