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Response: We agree that, at this time, HHS should not attempt to provide an exhaustive list of provisions specifying the types of non-Federal requirements that would prevent the application of Federal requirements. We agree that continued monitoring of the passage and implementation of non-Federal requirements as they apply to Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors is critical to ensuring the implementation and ultimate success of consumer assistance functions of an Exchange to provide meaningful assistance to all consumers who seek such assistance. HHS has monitored, and will continue to monitor, new and existing non-Federal requirements as they are issued and implemented, and will continue to assess whether such laws prevent the application of the provisions of title I of the Affordable Care Act.
Comment: We received comments on whether all the proposed provisions regarding nonFederal requirements should apply in State Exchanges or whether only some of the provisions would apply to State Exchanges, as proposed. A few commenters expressed support for applying certain of the proposed provisions in all types of Exchanges, while applying other types of provisions only in FFEs (including State Partnership Exchanges). Others recommended that the provisions should apply consistently “across-the-board” to all Exchanges because doing so would create a bright line across all Exchanges and make it easier for all stakeholders to administer the various consumer assistance programs in an efficient, cohesive fashion and would minimize confusion if a State transitions from an FFE to a State Exchange.
Response: In light of the fact that we are not finalizing proposed §§155.210(c)(1)(iii)(E)
standards as they apply to assisters in the FFE, as discussed above), there are five preemption provisions being finalized in this rule under renumbered §§155.210(c)(1)(iii)(A)-(E) and four preemption provisions being finalized in both §155.215(f)(1)-(4) and §155.225(d)(8)(i)-(iv). We agree with commenters that these specific provisions, as finalized, should be directed at nonFederal requirements in all Exchanges, including State Exchanges. We continue to anticipate, based on our observations thus far, that a State Exchange would have an enhanced ability to coordinate with other State offices to ensure that State law applicable to assisters does not prevent the application of Federal requirements applicable to Navigators, non-Navigators and certified application counselors. However, we acknowledge that it is possible that a non-Federal requirement, as applied or implemented in a State, could prevent a State Exchange from operating the consumer assistance programs it is required (or authorized) to implement, or otherwise prevent the Exchange from implementing applicable consumer assistance programs consistent with Federal requirements, or could prevent consumer assistance entities or individuals in the State from performing their Federally-required duties. Rather than rule out the possibility that an “as-applied” conflict could occur with respect to a State Exchange, as captured in the provisions that were proposed at §§155.210(c)(1)(iii)(F) and 155.225(d)(8)(v) to be applicable only in an FFE, we are extending the applicability of these provisions, now renumbered as §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv), and reformatted in §155.215(f)(4), so that they apply equally to all types of Exchanges. Therefore, in finalizing these provisions, we have removed the reference to a “Federally-facilitated Exchange.” We are also amending §155.210(e)(2) in the final rule, to specify, consistent with our discussion in the preamble to the proposed rule (see, for example, 79 FR 15828-15829), that in
provide information and services in a fair, accurate, and impartial manner and must facilitate selection of a QHP, the duties of a Navigator include providing information that assists consumers with submitting the eligibility application; clarifying the distinctions among health coverage options, including QHPs; and helping consumers make informed decisions during the health coverage selection process. Under existing provisions at 45 CFR 155.215(a)(2)(i), these duties will also apply to non-Navigators subject to §155.215. In addition, in this rulemaking, we are finalizing a new §155.225(c)(1), to make certified application counselors subject to a similar set of duties.
We have also made a minor change to the parallel provisions for Navigators, nonNavigator personnel subject to §155.215, and certified application counselors that are being finalized under §155.210(c)(1)(iii)(E), §155.215(f)(4) and §155.225(d)(8)(iv). Specifically, we changed the reference to standards that would, as applied or as implemented in a State, prevent the application of Federal requirements applicable to the Exchange’s implementation of the respective Navigator, non-Navigator assistance personnel or certified application counselor program “consistent with Federal requirements,” by deleting “consistent with Federal requirements” to eliminate redundancy.
Comment: Several commenters expressed support for the clear and specific acknowledgement in proposed §155.215(f) that non-Navigator assistance personnel subject to §155.215 must meet non-Federal requirements, as applicable, except when such non-Federal requirements prevent the application of the provisions of title I of the Affordable Care Act. As originally proposed, §155.215(f) did not specify the types of non-Federal requirements which would prevent the application of title I of the Affordable Care Act, but instead incorporated them
requested that HHS, in the interest of added clarity and ease of comprehension, revise proposed §155.215(f) to spell out in the text of this provision the non-exhaustive list of non-Federal requirements that would prevent the application of the provisions of title I of the Affordable Care Act as applied to non-Navigator assistance personnel, rather than cross-referencing the applicable provisions under §155.210(c)(1)(iii), as we had originally proposed.
Response: We agree with the comment that, consistent with section 1321(d) of the Affordable Care Act, non-Navigator assistance personnel subject to §155.215 must meet any non-Federal requirements that may apply to them, so long as such requirements do not prevent the application of the provisions of title I of the Affordable Care Act. In the interest of added clarity and comprehension, we have modified this provision to add subparagraphs (1) through (4) to §155.215(f), in which we list the previously cross-referenced provisions proposed in the Navigator rule at §155.210(c)(1)(iii).
Comment: Several commenters supported the clear and specific acknowledgement in proposed § 155.225(d)(8) that certified application counselors and their designated organizations must meet non-Federal requirements, as applicable, except when such non-Federal requirements prevent the application of the provisions of title I of the Affordable Care Act. A few commenters asserted that the certified application counselor program operating in an FFE should not be subject to non-Federal requirements because, in the commenters’ view, this program was created under HHS’s regulatory authority—not by statute.
Response: We are finalizing the provisions of §155.225(d)(8) with modifications consistent with those made to the parallel Navigator and non-Navigator provisions. These
certification, or other standards prescribed by a State or Exchange, so long as they do not prevent the application of the provisions of title I of the Affordable Care Act.
It is unclear to HHS why some commenters believe that a certified application counselor program operating in an FFE should not be subject to non-Federal requirements simply because it was established through an HHS regulation implementing the Affordable Care Act, rather than being expressly provided for by the statute. As we have previously explained, the Secretary established the certified application counselor program under the authority provided in section 1321(a)(1) of the Affordable Care Act. Section 1321(a)(1) directs and authorizes the Secretary to issue regulations setting standards for meeting the requirements under title I of the Affordable Care Act, with respect to, among other things, the establishment and operation of Exchanges.
Therefore, the certified application counselor program is authorized by the statute, even if the program was established through rulemaking. Whether a certified application counselor organization should be subject to non-Federal requirements will turn on application of the preemption standard set forth in section 1321(d) of the Affordable Care Act, namely whether the non-Federal requirement prevents the application of the provisions of title I of the Affordable Care Act, regardless of whether it is operating in an FFE.
Comment: Some commenters asserted that since 45 CFR 155.225(a) established that “the Exchange must have a certified application counselor program that complies with the requirements of this section,” it follows that it is the responsibility of “the Exchange” to regulate certified application counselors, and therefore any State that has opted for HHS to operate an FFE has relinquished authority to regulate the certified application counselor program in the State. In support of this view, the commenters noted a Federal court decision at St. Louis Effort
2014) (order granting preliminary injunction). This decision is currently on appeal before the United States Court of Appeals for the Eighth Circuit, St. Louis Effort for AIDS v. Huff, No. 14th Cir. Appeal docketed Mar. 6, 2014). Accordingly, commenters recommended that proposed §155.225(d)(8) be modified to state: “meets any licensing, certification, or other standards prescribed by the State or Exchange, as applicable” (emphasis added).
Response: The issue presented in these comments is the subject of pending litigation before the United States Court of Appeals for the Eighth Circuit in St. Louis Effort for AIDS v.
Huff, No. 14-1520 (8th Cir. Appeal docketed Mar. 6, 2014). In light of that ongoing litigation, we are refraining from making the recommended change to §155.225(d)(8) of the final rule at this time. We will consider making changes in the future.
Comment: We received several comments in support of proposed §§155.210(c)(1)(iii)(A) and 155.225(d)(8)(i), with a few of these commenters noting that these provisions could bring an ancillary benefit of enhancing conflict-of-interest rules and mitigating the risk that assisters might receive “kickbacks” from entities not required to act impartially. Several of these commenters requested that we modify the provision to mirror the characterization included in the preamble by adding “insurance agents and brokers” explicitly into the rule text, in addition to retaining “other entities not required to provide fair, accurate, and impartial information.” On the other hand, a few commenters objected to the characterization in the preamble discussion of the proposed rule that, in their view, implied that licensed health insurance agents and brokers are permitted to engage in unfair acts or make false and misleading statements. The commenters explained that in most States, licensing and unfair trade practices laws require agents and brokers to refrain from engaging in deceptive behavior or making misrepresentations regarding benefits
A few commenters, while supporting the proposed provision’s specification that mandated referrals to third parties not required to provide information in a fair, impartial, accurate manner are in conflict with applicable Federal standards, also requested that we explain that this provision applies only to non-Federal requirements that mandate such referrals, and asked that we confirm that assisters would be permitted to refer consumers to agents and brokers voluntarily in specific circumstances, such as when the consumer’s needs exceed the assister’s expertise, or when the assister or entity lacks the capacity and resources to assist all individuals who seek assistance. In addition, a few commenters recommended that HHS clarify that this provision should not be construed to mean that assisters are barred from making referrals to entities not required to provide fair, accurate, and impartial information. These commenters suggested, for example, that assisters should be permitted to make such referrals when a consumer requests a specific recommendation regarding which plan to choose, because making a specific plan recommendation might violate an assister’s duties under the applicable Federal standards, and doing so might also violate certain State laws that prohibit anyone other than a licensed health insurance agent or broker from recommending a plan. In addition, a few commenters asserted that it is appropriate for Navigators to fulfill requirements to assist small employers with enrollment through referral to agents and brokers in instances where Navigators do not have expertise in small business insurance, because agents and brokers continue to be an important source of information and enrollment assistance for both individuals and for small employers.
Response: We are finalizing this provision as proposed, with one modification with respect to proposed §155.225(d)(8)(i). We do not believe that the regulation, or our discussion in
practices. We nonetheless believe that that the proposed language describing “entities not required to act in the best interests of applicants assisted” was confusing on this point, and have replaced it, consistent with the changes we are finalizing in this rule to 155.225(c)(1), with a reference to “entities not required to provide fair, accurate, and impartial information.” We decline to mention agents and brokers explicitly in the regulation text, because, as some commenters point out, agents and brokers may be required to act impartially and may be subject to standards that would require them to provide fair, accurate, and impartial information in a way that is similar to Exchange-approved consumer assistance entities and individuals.