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«Department of Health and Human Services has submitted this rule to the Office of the Federal Register. The official version of the rule will be ...»

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Federal requirements listed in proposed §155.210(c)(1)(iii)(A) through (F) (except for 155.210(c)(1)(iii)(D)) to prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act, when applied to nonNavigator assistance personnel subject to § 155.215. Similarly, with respect to the certified application counselor program, we proposed amending §155.225(d) to add a new paragraph (d)(8) to specify that certified application counselors must meet any licensing, certification or other standards prescribed by the State or Exchange, if applicable, so long as such standards do not prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act. We further proposed in §155.225(d)(8) to specify a non-exhaustive list of non-Federal requirements, similar to those listed in proposed §155.210(c)(1)(iii)(A) through (F) (except for 155.210(c)(1)(iii)(D)), that would prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act, when applied to certified application counselors. We explained that the proposed amendments were intended as a non-exhaustive list of certain nonFederal requirements that prevent the application of the provisions of title I of the Affordable Care Act in one or more of the following three ways: (1) on their face, they prevent Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors or their designated organizations from performing their Federally required duties; (2) on their face, they make it impossible for an Exchange to implement the consumer assistance programs it is authorized or required to operate in a manner consistent with Federal requirements; and (3) they conflict with Federal standards or requirements in specific factual circumstances based on how a non-Federal requirement is applied or implemented. In addition, we recognized that a Federal

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proposed rule to be preempted within the meaning of section 1321(d) of the Affordable Care Act.

We further explained that the proposed provisions would not preclude a State from establishing or implementing State law protections for its consumers, so long as such laws do not prevent the application of Federal requirements for the applicable consumer assistance programs. As an example, we stated that a State may require assisters to undergo fingerprinting or background checks before they can operate in a State, so long as a State’s implementation of these additional requirements does not prevent the Exchange from implementing these programs in the State consistent with Federal standards or make it impossible for the assisters to perform their Federally-required duties.

First, in proposed §§155.210(c)(1)(iii)(A) and 155.225(d)(8)(i), we proposed to specify that non-Federal requirements which require Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors to refer consumers to other entities not required to provide them with fair, accurate, and impartial information or act in the consumer’s best interests, would prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act because such non-Federal requirements would conflict with an assister’s duty to provide fair, accurate, and impartial information or to act in the consumer’s best interests. Second, we proposed to specify under §§155.210(c)(1)(iii)(B) and 155.225(d)(8)(ii) that non-Federal requirements that prevent Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors from providing services to all persons to whom they are required to provide assistance would also prevent the application of the provisions of title I of the Affordable Care Act because assisters are required to provide information and services in a fair and impartial

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they are eligible, which we have interpreted to mean that assisters must have the ability to help any individual who presents themselves for assistance. With respect to proposed §§155.210(c)(1)(iii)(A) and (B), we explained that where a State has elected to establish and operate only a SHOP Exchange pursuant to 45 CFR §155.100(a)(2), and has opted under 45 CFR §155.705(d) to permit Navigator duties at §155.210(e)(3) and (4) in the State SHOP-only Exchange to be fulfilled through referrals to agents and brokers, we would not consider the State’s exercise of this option under §155.705(d) to prevent the application of the provisions of title I of the Affordable Care Act, since that option is authorized under Federal law. Third, under §§155.210(c)(1)(iii)(C) and 155.225(d)(8)(iii), we proposed to specify that non-Federal requirements that prevent Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors from providing advice regarding substantive benefits or comparative benefits of different health plans, would also prevent the application of the provisions of title I of the Affordable Care Act because assisters are required to provide information about QHPs, and to facilitate either selection of or enrollment in a QHP, and CMS interprets these requirements to mean that assisters must be prepared to discuss the terms and features of any coverage for which a consumer is or might be eligible, consistent with each consumer’s expressed interests and needs. As proposed, these three provisions would apply to Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors (or certified application counselor designated organizations) that are operating in State Exchanges or in FFEs. Fourth, under §§155.210(c)(1)(iii)(D), we proposed that a nonFederal requirement that required a Navigator (but not a certified application counselor or nonNavigator assistance personnel) to hold an agent or broker license or to carry errors and

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would also prevent the application of the provisions of title I of the Affordable Care Act because imposing these requirements on all Navigators in a State would mean that all Navigators would fall under only one type of entity listed in §155.210(c)(2), specifically, agents and brokers, in violation of the requirement set forth under §155.210(c)(2)(i) that there be two types of Navigator entities in each Exchange, and that at least one type must be a community and consumer-focused nonprofit group. We explained that we believed that the four provisions listed above should apply in both FFEs and State Exchanges because they address requirements that, in HHS’s view, would facially conflict with Federal requirements or standards.

The proposed rule also specified two additional provisions regarding certain non-Federal requirements that would prevent the application of the provisions of title I of the Affordable Care Act with respect to FFEs only. We explained that these two provisions would not apply in State Exchanges since we had observed an enhanced ability for a State Exchange to work with other offices within the State to establish Exchange standards and coordinate the implementation of State law applicable to assisters in a manner that does not conflict with Federal standards or prevent the State Exchange from implementing consumer assistance programs consistent with Federal requirements. Under proposed §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv), we proposed to specify that non-Federal requirements that impose standards that would prohibit individuals or entities from acting as Navigators, non-Navigator assistance personnel, or certified application counselors or certified application counselor designated organizations, when they would be eligible to participate in these respective capacities under FFE standards, would prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act. We illustrated this provision in two examples.

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and individuals from receiving any consideration, directly or indirectly, from a health insurance issuer offering health insurance coverage in or outside of an Exchange, even if not in connection with the enrollment of individuals into a QHP, would not only exceed applicable Federal conflict-of-interest standards but would also render ineligible certain entities, such as hospitals and community health care clinics, that would otherwise be eligible to serve as Navigators, nonNavigator assistance personnel subject to §155.215, or certified application counselors and organizations. Second, we explained that a non-Federal law that prohibits an individual or entity from serving in an assister program on the basis that the individual or entity does not maintain its principal place of business in that State (which could include an organization that is organized in the State, but maintains its principal place of business outside of the State), would prevent the FFE from implementing consumer assistance programs that it is required or authorized to implement.22 Finally, under proposed §§155.210(c)(1)(iii)(F) and 155.225(d)(8)(v), we proposed to specify that in an FFE, non-Federal requirements that, as applied or as implemented in the State, prevent the application of Federal standards applicable to Exchanges, Navigators, non-Navigator assistance personnel subject to §155.215, or certified application counselors and certified application counselor designated organizations, would prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d). For example, with respect to the Navigator program, if a State with an FFE implemented a requirement that prevented the only Navigator entity operating in the State from continuing to perform its Federally-required duties, then such a provision, as applied, would prevent the Exchange from The preamble discussion to the proposed rule addressed only non-Federal requirements that would interpret “principal place of business” to mean that an organization could have only one principal place of business nationwide, similar to the legal concept that may be used in determining corporate citizenship for purposes of establishing diversity jurisdiction in Federal court, as required under 28 U.S.C. 1332(c).

CMS-9949-F 121 operating a Navigator program as required by section 1311(i)(1) of the Affordable Care Act and §155.210(a). As a second example, we explained that if a State imposed certain requirements as mandatory conditions for continuing to perform any applicable Federally-required duties, such as additional training or background or fingerprinting checks, which, on their face, we consider as generally permissible, but also set a deadline for compliance that made it impossible for any individual or entity approved by the FFE to comply on a timely basis, despite good faith efforts to comply, then as long as those assisters were prevented from fulfilling any of their Federallyrequired duties until they could come into compliance with the State requirements, the FFE would be prevented from operating the consumer assistance programs that it is required or authorized to implement consistent with Federal standards.

Comment: A large number of commenters commended HHS for listing specific examples of non-Federal standards that would, in HHS’s view, prevent the application of the provisions of title I of the Affordable Care Act, within the meaning of its section 1321(d). The commenters stated that the level of specificity in the proposed provisions and accompanying preamble provided important clarity regarding the types of non-Federal requirements that would prevent Navigators, non-Navigator assistance personnel and certified application counselors from performing their Federally-required duties. In expressing their support, these commenters stated that enrollment into Exchange coverage and insurance affordability programs during the initial open enrollment period was aided in significant part by assistance offered through in-person assistance programs, and that these proposed regulations should be finalized to help facilitate the continued ability of assisters to provide in-person assistance during the 2014 coverage year as

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A few commenters objected to the proposed provisions and asserted that they were overly broad, and/or exceed the authority of HHS, in violation of the Tenth Amendment of the U.S.

Constitution and the McCarran-Ferguson Act that provides, “[t]he business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.” (15 U.S.C. §1012(a) (1945)) Citing 15 U.S.C.

§1012(b), these commenters asserted that the McCarran-Ferguson Act exempts the business of insurance from most Federal regulation, providing that Federal statutes cannot be construed to invalidate, impair or supersede State insurance law unless they specifically relate to the business of insurance.

Response: We agree that Navigators, non-Navigator assistance personnel, and certified application counselors have played and will continue to play an important role in providing application assistance to consumers, with respect to enrollment in both QHPs and insurance affordability programs. It is therefore important, in the view of HHS, to provide guidance regarding which types of non-Federal laws would, within the meaning of section 1321(d) of the Affordable Care Act, prevent the application of the Federal requirements to which assisters and Exchanges are subject. The finalized provisions are a non-exhaustive list of non-Federal requirements that, in the view of HHS, prevent the application of the provisions of title I of the Affordable Care Act. We are therefore finalizing, with a few modifications, proposed §§155.210(c)(1)(iii)(A)-(D) and (F) and 155.225(d)(8)(i)-(iii) and (v).

We are not finalizing proposed §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv). The concerns raised by commenters about the breadth of these provisions, and the questions raised in comments raised about the interpretations we provided in the preamble to the proposed rule of

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