Lawsuit against some insurers and brokerages

KFF Health news reported that the federal Department of Justice recently filed a lawsuit alleging that some large insurers paid large insurance brokerages inappropriate commissions to steer some patients to their plans, while discouraging some patients who needed more care. The article sheds light on various practices and raises interesting questions.

It seems unclear how much of the blame falls on insurers versus brokerages. For example, the lawsuit alleges that the brokerages required additional incentive payments per enrolled patient, beyond the allowed maximum commission, which the insurers supposedly agreed to. If true, are the insurers and the brokerages equally culpable?

There is another element where the brokerages were paid to nudge patients towards specific plans, regardless of how suitable those plans were for the patients. However, it is unclear whether this conflict of interest is actually illegal since brokerages probably do not need to disclose the commissions to begin with.

One interesting question is whether insurers are allowed to influence (and in some cases discourage) patients from signing up for one of their plans. While insurers are not allowed to deny coverage because of preexisting conditions, are they allowed to adjust the commissions they pay out to their marketing channels based on their estimates of how profitable a new customer will be?