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We agree with the commenters who supported our view in the proposed rule that a nonFederal requirement mandating that Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors refer consumers to third parties not obligated to provide fair, accurate, and impartial information would conflict with the Federal duties required of Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors and their designated organizations under various authorities: for Navigators, sections 1311(i)(3)(B) and 1311(i)(5) of the Affordable Care Act, as well as 45 CFR 155.210(e)(2) and 155.215(a)(1)(iii); for Non-Navigator assistance personnel, 45 CFR 155.215 (a)(2)(i) and (iv);
and for certified application counselors, 45 CFR 155.225(c)(1) as amended in this final rule. In light of the regulation text changes, discussed in greater detail below, that we make under §155.225(c)(1) to align that provision more consistently with the standards that apply across Exchange consumer assistance programs, and to explicitly specify that certified application counselors must provide information “in a fair, accurate, and impartial manner,” we are clarifying the language of final §155.225(d)(8)(i). Specifically, we are finalizing
interest” of applicants assisted, as required under § 155.225(d)(4), or to a third party that is not required to provide information in a fair, accurate, and impartial manner, as required under the clarifications to §155.225(c)(1) that we make in this final rule, would prevent certified application counselors from meeting Federal standards that apply to them. To reiterate and, in recognition of the fact that a third party may be required to act in the best interest of the applicants they assist or provide information in a fair, accurate, and impartial manner to the same extent that a certified application counselor is required to, we would not construe a non-Federal requirement that required such a referral to that particular type of third party to prevent the application of the provisions of title I of the Affordable Care Act.
In addition, these comments present us with the opportunity to explain that we interpret certain Federal standards applicable to Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors and their designated organizations to prohibit these assisters from making specific plan recommendations. With respect to Navigators and the non-Navigator assistance personnel who are subject to §155.215, the recommendation of a specific plan would be inconsistent with CMS’s interpretation of 45 CFR §155.210(e)(2) and (3) (applicable to Navigators in all Exchanges) and 45 CFR §155.215(a)(1)(iii) (applicable to Navigators in an FFE) and (a)(2)(i) and (iv) (applicable to non-Navigator assistance personnel subject to §155.215, which require these assisters to provide information in a fair, accurate, and impartial manner, including by acknowledging other programs; to provide information to individuals and employees about the full range of QHP options and insurance affordability programs for which they are eligible; and to facilitate selection of a QHP. With respect to certified application counselors, the recommendation of a specific plan would violate their duties
individuals and employees about the full range of QHP options and insurance affordability programs for which they are eligible, and help to facilitate their enrollment in QHPs and insurance affordability programs (45 CFR 155.225(c)(1) and (3)). Specifically, in our view, permitting assisters to recommend a specific plan would undermine one overall purpose of consumer assistance programs, which is to provide interpretive guidance that enables consumers to become fully informed and health literate, to assess the full range of their coverage options and the strengths and weaknesses of different options or plans based on the information provided to them, and ultimately to be able to make their own informed choices about which coverage option best meets their needs and budget. Further, Federal standards require an assister to act to “facilitate” plan selection or enrollment (as applicable), which we interpret to mean that the act of plan selection and enrollment itself rests with the consumer (see our previously expressed interpretations of these requirements in preamble at 78 FR 42844-45). Consistent with these principles, we are amending §155.210(e)(2) in the final rule, to specify that in addition to the existing requirement under this provision that Navigators provide information and services in a fair, accurate, and impartial manner, 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. We are also adding these standards through amendments to §155.225(c)(1) in the final rule, to clarify the existing duty of certified application counselors to provide information to individuals and employees about the full range of QHP options and affordability programs for which they are eligible which includes providing
application; clarifying the distinctions among health coverage options, including QHPs; and helping consumers make informed decisions during the health coverage selection process.
While consumers need to make the ultimate decision regarding the type of coverage that best meets their health care needs and budget, assisters may facilitate enrollment in a QHP by providing comprehensive information about the substantive benefits and features of a plan, clarifying the similarities and distinctions among plans, and assisting consumers with making informed decisions in the plan selection process, consistent with the consumer’s expressed interests and needs. Therefore, as part of facilitating a consumer’s enrollment in a QHP, or selection of a QHP, Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors may provide information to the consumer that includes, but is not limited to, information regarding plan features such as deductibles, coinsurance and copayments, coverage limitations or exclusions, identifying plans for which an eligible consumer may receive CSRs or other Federal financial assistance (for example, Ryan White HIV/AIDS Program premium and cost-sharing assistance) and information about whether a particular provider or hospital is included within a plan’s network. Offering this type of information is particularly important for consumers, who, without such assistance, might otherwise not complete the enrollment process or might not have all of the information they need to make a plan selection.
To the extent an assister is asked by a consumer to recommend a plan, we interpret the above-cited authorities as requiring the assister to refrain from providing a recommendation or otherwise steering a consumer to a particular plan. In addition, if a consumer asks an assister to recommend a specific plan, an assister should remind the consumer that they are prohibited from making plan recommendations because Federal standards require them to remain fair and
determine that it is appropriate to inform the consumer of the general availability of licensed, Exchange-trained health insurance agents and brokers as a resource that could provide specific plan recommendations, if licensed health insurance agents or brokers are permitted to do so under State law. The assister may direct the consumer to listings of agents and brokers;
however, the assister should not make a referral to any specific agent or broker or specific set of agents or brokers.
With one limited exception,23 assisters may not fulfill their Federally-required duties through referrals to agents and brokers. As we have stated previously, Navigators subject to §155.215 (that is, Navigators in the FFEs and State Partnership Exchanges) and non-Navigator assistance personnel subject to §155.215 must be prepared to serve both SHOP and the individual market Exchange, including small businesses with SHOP (see §155.215(b)(1)(v) and 78 FR 42835-36). Certified application counselors in the FFEs are expected to assist employees with SHOP options and are permitted, but not required, to assist small employers with SHOP.24 In the event that a particular consumer’s individual needs go beyond the assister’s expertise, or the assister or entity lacks the resources to assist all individuals who present themselves for assistance, an assister may, consistent with the consumer’s expressed needs and desires, determine that it is in the consumer’s best interests to inform the consumer of the general availability of other consumer assistance entities who may possess the requisite expertise and capacity to assist them, including the Exchange Call Center, non-Navigator assistance personnel or certified application counselors. With respect to the FFEs, we note that HHS maintains on its Web site and at its Call Center a public registry of Exchange-approved consumer assistance
resources in each FFE, including Navigators, non-Navigators, and certified application counselor organizations. HHS also maintains on its website links to agent and broker trade association Web sites, which would allow a consumer to look up agents and brokers in a particular local area. We encourage State Exchanges to make consumer assistance resources publicly available in a similar manner and understand that many, if not most, State Exchanges have done so.
Comment: Many commenters indicated support for proposed §§155.210(c)(1)(iii)(B) and 155.225(d)(8)(ii) and agreed that non-Federal requirements that prevent Navigators, nonNavigator assistance personnel subject to 155.215, and certified application counselors from providing services to any individual who presents him or herself for assistance would prevent the application of the provisions of title I of the Affordable Care Act and should be interpreted as in conflict with the requirement for Navigator and non-Navigator assistance personnel subject to §155.215 to provide information and services fairly and impartially. However, a few commenters asserted that one type of non-Federal requirement discussed in the preamble to the proposed rule, which would require assisters to suggest or encourage any consumer who is insured, or previously bought insurance through the aid of an agent or broker, to consult with that agent or broker before enrolling in a plan, serves a legitimate purpose because it is designed to prevent consumers from making uninformed or impulsive decisions. These commenters asserted that these non-Federal requirements do not prevent assisters from performing their Federal obligations because they require merely “advising” an insured consumer that they should consider talking to an insurance professional before changing health plans and do not necessarily result in the assister being unable to perform application and enrollment assistance for these types of consumers, to the extent that these consumers reject the assister’s advice to consult with
strike the right balance and should not be viewed as preventing assisters from performing their Federally-mandated duties. Specifically, these commenters reasoned that although certain nonFederal requirements of this nature require an assister to advise an individual to consult first with a health insurance professional with whom they may have consulted previously, they permit an assister to continue to provide services to that insured individual if that individual expresses a preference not to consult with that health insurance professional.
Response: We are not persuaded by comments suggesting that assisters can uphold their duties to provide information in a fair and impartial manner and act in the consumer’s best interests if they are required to advise a consumer to consult with an insurance professional when they learn that the consumer is insured or previously purchased health insurance with the aid of an agent or broker. While such non-Federal requirements might be intended to prevent consumers from making impulsive or uninformed decisions, the same is true of the Federal standards for Navigators, non-Navigator assistance personnel, and certified application counselors. These Federal standards are designed to ensure that these Exchange-approved assisters help a consumer make a fully informed decision. Specifically, assisters must provide information in a fair, accurate, and impartial manner, provide information on the full range of QHP options for which they are eligible, clarify distinctions among QHPs, and act in the consumer’s best interests. Assisters must also provide fair, impartial, and accurate information that assists consumers with submitting the eligibility application; clarify the distinctions among health coverage options, including QHPs; and help consumers make informed decisions during the health coverage selection process, as specified in the modifications made to §155.210(e)(2) (which is made applicable to certain non-Navigators through reference in §155.215(a)(2)(i)) and
Further, we note that under existing regulations at §155.210(d)(4) and 155.215(a)(2)(i) and regulations finalized in this final rule at §155.225(g)(2), Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors are subject to a conflict of interest standard which prohibits them from receiving consideration, directly or indirectly, in connection with enrollment in a QHP or non-QHP; and the requirement that one of these assisters refer or direct a consumer to another individual, such as an agent or broker, who receives such consideration in connection with QHP enrollment, would be inconsistent with this conflict of interest requirement under Federal law.