CMS addresses agent and broker marketing reforms in ACA marketplaces

In a proposed rule for the 2027 Notice of Benefit and Payment Parameters, published on February 11, 2026, the Centers for Medicare & Medicaid Services (CMS) proposed various reforms for the Affordable Care Act (ACA) market. One aim of the reforms is to curtail what CMS characterizes as “abusive, misleading, and coercive” marketing practices by agents, brokers, and web-brokers.

According to CMS, such practices include incorrectly attesting to, or failing to ascertain, whether consumers are enrolled in other minimum essential health coverage; manipulating income projections and tax household composition to qualify consumers for qualified health plans in the federally facilitated exchanges (FFEs); enrolling consumers with inaccurate residence addresses to conceal unauthorized enrollments; and enrolling deceased consumers.

This alert surveys CMS’s proposed marketing reforms.

Separating enrollment-related conduct from marketing conduct

CMS proposes to eliminate a reference to “marketing” from current rule 45 CFR 155.220(j)(2)(i), which currently prohibits “marketing or conduct” that is misleading, coercive, or discriminatory. CMS explains that the proposal aims to separate conduct related to enrollment from conduct related to marketing, the latter of which would be addressed under newly proposed and redesignated paragraph Sec. 155.220(j)(3), discussed further below.

Narrowing bases for discrimination

While the proposed rule retains prohibitions on discriminatory actions based on race, color, national origin, disability, age, or sex, CMS proposes to eliminate language interpreting “sex” to include discrimination on the basis of sex characteristics (including “intersex traits; pregnancy or related conditions; sexual orientation; gender identity; and sex stereotypes”).

CMS explains the proposal with the below commentary.

This proposed change would recognize a person’s sex as referring to an individual’s immutable biological classification as either male or female, consistent with Executive Order 14168 (90 FR 8615) that reflects the current policy of the United States. [The Department of Health and Human Services (HHS)] is of the view that because the sexes are not changeable and one’s sex is grounded in fundamental and incontrovertible reality, it is not necessary to address ancillary issues of gender ideology in a regulation governing the activities of State-licensed agents, brokers, and web-brokers. Based on our experience overseeing agents, brokers, and web-brokers as they assist consumers with enrollment through the FFE, we do not believe this change would result in or facilitate any discrimination against consumers.

Mandating use of HHS consumer consent form

Existing rules impose requirements on agents, brokers, and web-brokers to document that a consumer or their representative “took an action” that shows they reviewed and confirmed the accuracy of the eligibility application. To meet this requirement, the agents, brokers, and web-brokers may use their own forms or an HHS-approved and -created “model” consumer consent form. In auditing documentation records, CMS concluded that “a substantial amount of this documentation lacked regulatorily required information.” CMS noted concerns that inaccurate application information could lead to incorrect eligibility determinations, affect a consumer’s tax liability, or result in “other negative consequences.” As a result, CMS proposes to allow only the use of its model consumer consent form.

Establishing marketing standards and examples of prohibited conduct

As noted above, CMS proposes marketing standards and examples of prohibited marketing conduct. With respect to standards, CMS incorporates the existing general conduct standards in paragraph (j)(2) of 45 CFR 155.220 (as proposed to be revised) and establishes an obligation to provide consumers with “correct information, without omission of material fact” regarding the FFEs, qualified health plans, and insurance affordability programs. As part of these standards, CMS includes a prohibition on marketing that is misleading, materially inaccurate, coercive, or discriminatory based on race, color, national origin, disability, age, or sex.

Examples of prohibited marketing conduct provided by CMS include:

• Providing cash, monetary rebates, gift cards, travel vouchers, or cash equivalents as an inducement for enrollment or otherwise.


• Offering gifts to consumers, unless the gifts are 1) of nominal value, 2) offered to similarly situated consumers without regard to whether or not the consumers enroll, and 3) not in the form of cash or cash equivalents. (Note: CMS’s commentary confirms that “nominal value” would have the meaning provided by the HHS Office of Inspector General and that CMS would review nominal gifts by utilizing “the same prohibitions and allowances currently used in the Medicare Advantage (MA) Program.”)


• Falsely asserting or suggesting that consumers will always qualify for zero-dollar insurance/zero-dollar premiums.


• Falsely using logos and notations identical to, or facsimiles of, government or other official logos and notations. (Note: Per CMS, this example would seek to “prevent consumers from visiting a website they believe is an official government website or is approved by the government but that, in reality, is not.” CMS expressed particular concern that consumers may mistakenly believe they are providing their personally identifiable information, or PII, to the government, when, in fact, they are submitting it to a private entity.)


• Miscommunicating enrollment timelines and deadlines.


• Misconstruing legislation, regulations, or Executive Orders, including listing fake or incorrect references or citations.


• Utilizing the image, likeness, or quoted language of a notable figure, such as a celebrity or politician, in an advertisement claiming that figure has endorsed the marketer or their agency when that endorsement is not truthful. (Note: CMS expressly states that this example includes using artificial intelligence-generated videos – e.g., deepfakes – or falsely attributing a quote to the public figure. According to CMS, “[t]his behavior may lure consumers into clicking on an advertisement or providing their PII based on a false assumption a public figure has endorsed the product or the person promoting the product.” CMS cautions that such behavior may violate other federal or state laws on using someone’s name, image, or likeness without permission.)

In addition to the above marketing reforms, CMS proposes provisions requiring agents, brokers, and web-brokers to produce marketing materials upon request for monitoring, audit, and enforcement activities. Proposed provisions would also hold those persons accountable for ensuring that all marketing-related materials adhere to the marketing standards.

Going forward

Agents, brokers, and web-brokers are encouraged to review and monitor these proposals. CMS’s commentary expressly states that it intends “to prioritize taking enforcement actions against agents, brokers, and web-brokers who engage in misleading marketing.” It will accept complaints via its Agent/Broker Helpdesk, as well as increase its monitoring of social media sites and other sources “to root out” misleading marketing. CMS cautioned that, if it believes it has discovered misleading marketing, it may begin enforcement by initiating technical assistance/education or by moving to terminate the agent, broker, or web-broker participating in the FFE.

CMS is seeking comments on each of its proposals, with comments due by March 13, 2026.

For more information or if you have any questions, please contact the author.