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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, have instead provided us with an opportunity to further define those substantive Federal requirements, consistent with our preamble discussion in the proposed rule, through the addition of language in §§155.210(d)(4) and (e)(7). and §§155.225(b)(3) and (g)(2) in the final rule.

With respect to the proposed requirement that Navigators, non-Navigator assistance personnel subject to §155.215 and certified application counselors maintain a physical presence in the Exchange service area, we are finalizing this requirement under §§155.210(e)(7) and 155.215(h) with respect to Navigators and non-Navigator assistance personnel subject to §155.215, but we are not finalizing this requirement with respect to certified application counselors under proposed §155.225(b)(1)(iii). We are also modifying the proposed regulation text in §§155.210(e)(7), 155.215(h) and are finalizing a new provision at §155.225(b)(3) to clarify that in an FFE, Navigators, non-Navigator assistance personnel subject to 155.215 and certified application counselors, respectively, are not required to maintain their principal place of business in the Exchange service area, defined as the entire area served by the Exchange. A requirement that these assister entities maintain their principal place of business within the Exchange service area for an FFE would limit the pool of entities which would be eligible to serve in this capacity, and could prevent the FFE from fully implementing the consumer assistance programs that it is required (or authorized) to implement, within the meaning of section 1321(d) of the Affordable Care Act.

With respect to the requirement under existing §§155.210(d)(4) and 155.215(a)(2)(i) (which applies §155.210(d)(4) to non-Navigator assistance personnel subject to §155.215 by cross-reference), and finalized in this rule at §155.225(g)(2), that Navigators, non-Navigator

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prohibited from receiving any consideration directly or indirectly from a health insurance issuer (or stop-loss insurance issuer) in connection with enrollment of any individuals in a QHP or nonQHP, we are modifying the text in §155.210(d)(4) and adding text in §155.225(g)(2) to clarify that in the FFE, this requirement does not mean that a health care provider shall be ineligible to operate in an assister program solely because it receives consideration from a health insurance issuer for health care services provided. We make these clarifications to make it easier for the public to understand the purpose and scope of the applicable Federal standards in the FFE and to identify circumstances in which additional non-Federal requirements would be in conflict with Federal requirements. This places in regulation text previous interpretations of these provisions, in which we have stated that “the prohibition on receiving direct or indirect consideration from a health insurance or stop loss insurance issuer [applies to] consideration received for enrolling individuals or employees in health insurance plans or stop loss insurance inside or outside the Exchanges; it does not apply to consideration received by a provider to support specific activities, such as the provision of medical services, that are not connected to the enrollment of individuals or employees in QHPs.” (78 FR 42832) In addition, this prohibition does not apply in situations where an individual or entity that is otherwise eligible to serve as a Navigator, nonNavigator assistance personnel subject to §155.215, certified application counselor or certified application counselor designated organization, in accordance with applicable Exchange standards, receives consideration from a health insurance or stop loss insurance issuer that is not in connection with the enrollment of any individual(s) in a QHP or non-QHP We do not agree that HHS is exceeding its authority in finalizing the proposed provisions. These provisions set forth HHS’s interpretation of the preemption standard

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laws that do not prevent the application of the provisions of title I of the Affordable Care Act are not preempted. This preemption standard applies to all of the Federal requirements applicable to Navigators, non-Navigator assistance personnel and certified application counselors, as well as to all of the Federal requirements that Exchanges implementing these programs must follow, as all these standards are authorized and established under title I of the Affordable Care Act. In section 1321(d) of the Affordable Care Act, therefore, in HHS’s view, Congress made clear that while States continue to have authority to enact laws that affect programs established under the provisions of title I of the Affordable Care Act, that authority is not unlimited. Rather, States do not have the authority to enact laws that prevent the application of the provisions of title I of the Affordable Care Act, including the provisions that provide authority and establish Federal requirements for the Navigator programs, non-Navigator programs, and certified application counselor programs.

Moreover, in promulgating the provisions in this final rule, HHS is simply interpreting how the preemption standard that Congress established in section 1321(d) of the Affordable Care Act applies to a non-exhaustive list of certain non-Federal requirements for these assister programs. HHS has a unique understanding of the statutes it administers and is responsible for interpreting, and Congress has expressly delegated to HHS, under section 1321(a)(1) of the Affordable Care Act, authority for issuing Federal regulations setting standards for meeting the requirements under the Affordable Care Act with respect to the establishment and operation of Exchanges, including the establishment and operation of the Navigator, non-Navigator, and certified application counselor programs. HHS expects that this final rule will provide valuable guidance to both States and assisters, as well as other stakeholders, by helping to resolve

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of the provisions of title I of the Affordable Care Act, within the meaning of section 1321(d) of the Affordable Care Act. We recognize that a Federal court might find that other non-Federal requirements not listed in this rule would prevent the application of Federal requirements within the meaning of section 1321(d).

Comment: Some commenters, while supporting the provisions generally, also expressed concerns that the proposed regulations do not address non-Federal laws that create obstacles to the implementation of the goals of Federal law. Commenters urged us to specifically address requirements that impose unreasonable burdens for assisters in the performance of their Federally-required duties and expressed concern that by not doing so, HHS could be seen as interpreting section 1321(d) of the Affordable Care Act to preempt State law only when it is impossible for an assister or an Exchange to comply with both Federal and non-Federal requirements. Some of these commenters requested that HHS clarify that it does not mean to suggest that a non-Federal requirement that imposes an unreasonable burden on assisters or serves as an obstacle to the implementation of Federal law could 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.

Response: These provisions contain a non-exhaustive list of circumstances under which HHS would consider a non-Federal requirement applicable to Navigators, non-Navigator assistance personnel, or certified application counselors to prevent the application of provisions of title I of the Affordable Care Act, within the meaning of section 1321(d) of the Affordable Care Act. There may be other types of non-Federal requirements, not specified in these provisions, that would also prevent the application of Federal requirements related to the assister

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burdens on assisters and assister entities or that create obstacles to the implementation of Federal law could not also prevent the application of title I of the Affordable Care Act within the meaning of section 1321(d) of the Affordable Care Act.

Comment: Some commenters supported the proposed regulations’ acknowledgement of the State’s role in imposing State-level registration and other reasonable consumer protections for its residents. However, a few commenters asserted that the proposed provisions would prevent States from establishing additional consumer protections and would therefore conflict with section 1321(d) of the Affordable Care Act.

Response: We clearly expressed in the preamble to the proposed rule, and reiterate here, that we do not intend the provisions regarding non-Federal requirements for assisters to suggest that a State cannot establish or implement additional State law protections for its consumers, such as requiring registration, passing fingerprinting and background checks, or completing State training, provided that its implementation of these additional requirements does not prevent the Exchange from implementing Navigator, non-Navigator and certified application counselor programs in the State consistent with Federal standards or prevent assisters in these programs from meeting Federal requirements. We acknowledge, however, that there is an apparent tension between the general permissibility of additional, non-conflicting State requirements and the language in proposed §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv), in which we proposed that non-Federal requirements that would render ineligible any assister entities or individuals that would otherwise be eligible to participate in an FFE would prevent the application of Federal requirements for assisters. Because these provisions could have been construed, contrary to our intent, as limiting the States’ authority or ability to implement reasonable consumer protection

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Instead, as we explain above, we are adding language to other provisions of the regulations governing the Navigator, non-Navigator, and certified application counselor programs to codify our interpretations of those provisions, consistent with our preamble discussion in the proposed rule and in other preambles (see 78 FR 42832), so that our existing policies related to these provisions are clarified.

First, we are adding language to current §155.210(d)(4), which applies to non-Navigator assistance personnel subject to §155.215 by cross-reference, as well as to new §155.225(g)(2) (which is being finalized in this rulemaking) to codify the principle we previously espoused in the preamble to the proposed rule: that a hospital or other health care provider shall not be ineligible to participate in the Navigator, non-Navigator assistance personnel, or certified application counselor program solely because it receives payment for health services from health insurance issuers. Our approach to finalizing this provision reflects the fact that HHS continues to have concerns regarding certain types of non-Federal requirements that were described in the preamble to the proposed rule. Specifically, we continue to have concerns about non-Federal requirements that would prohibit a hospital or other health care provider from participating in an assister program solely because it receives payment for health services from a health insurance issuer, because such non-Federal requirements could prevent the Exchange from operating an assister program that includes individuals and entities that are otherwise extremely well qualified.

We also continue to have concerns about non-Federal requirements that require Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors or certified application counselor designated organizations to maintain their principal

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directed at these types of non-Federal requirements in proposed §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv). We have therefore decided to add text to the Federal standards being finalized in this rulemaking at §§155.210(e)(7) and 155.215(h) to clarify that although Navigators and non-Navigator personnel subject to §155.215 must maintain a physical presence in the Exchange service area, they shall not be rendered ineligible to participate in the applicable assister program merely because their principal place of business is outside of the Exchange service area. While we are not finalizing the proposed requirement in §155.225(b)(1)(iii)) which would have required an organization to maintain a physical presence in the Exchange service area in order to be designated as a certified application counselor organization by an Exchange, we are finalizing in §155.225(b)(3) the clarification that an organization shall not be rendered ineligible to participate in the applicable assister program merely because its principal place of business is outside of the Exchange service area. We hope that by codifying these principles through amendments to the regulations governing these assister programs, we will resolve any confusion caused by our proposals at §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv), while at the same time addressing the concerns about non-Federal requirements that motivated these proposals and were presented in the preamble discussion related to those proposals.

Comment: Several commenters recommended that the list of provisions specifying nonFederal requirements that would prevent the application of the provisions of title I of the Affordable Care Act remain non-exhaustive and that HHS should continue to engage in monitoring of non-Federal requirements and their effects on consumer assistance functions that are required or permitted in an Exchange. A few commenters urged HHS to monitor the

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commenter suggesting that HHS be more proactive by delineating a process for how it will review non-Federal standards in the event that these provisions become finalized as proposed.



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