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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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application counselors and certified application counselor designated organizations. Further, a number of commenters recommended broadening the scope of the proposed provision to include other types of financial responsibility requirements, such as surety bond requirements or security deposits. These commenters noted that in some cases Navigators and other assisters have reported difficulty in obtaining surety bonds because issuers have been unwilling to underwrite a business service for which it is difficult to assess risk. Further, commenters described how some Navigators experienced so much difficulty in obtaining a surety bond from a vendor that they could only meet a non-Federal surety bond requirement by purchasing errors and omissions coverage. They reasoned that the potential imposition of civil money penalties for violations of privacy and security standards under §155.260 or program standards (as proposed in §§155.206 and 155.285), as well as the availability of a special enrollment period for assister misconduct in accordance with §155.420(d)(10), would be sufficient remedies in the event that an assister causes consumer harm, such that a surety bond would not be necessary to protect consumers. On the other hand, a few commenters indicated that the proposed rule’s scope was appropriate and indicated that non-Federal requirements that require some form of financial responsibility, such as a surety bond, serve as an added consumer protection to make a consumer whole in the event of fraud or some other wrongdoing on the part of the assister. These commenters further reasoned that requiring assisters to hold a surety bond or other proof of financial responsibility does not necessarily inhibit a community and consumer-focused nonprofit organization from participating in any consumer assistance program because surety bonds are generally available to all types of businesses.

Response: We are finalizing this provision as proposed, with one modification. We

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provision to non-Navigator assistance personnel subject to §155.215 and certified application counselors. At this time, however, we decline to extend this provision to these other types of consumer assistance programs because we are not able to discern a facial conflict between nonFederal requirements that would require non-Navigator assistance personnel or certified application counselors to hold an agent or broker license or carry errors and omissions insurance coverage and the Federal standards applicable to these programs. However, we recognize that within the meaning of the statutory preemption standard set forth at section 1321(d) of the Affordable Care Act and proposed §§155.210(c)(1)(iii)(F) and 155.225(d)(8)(v), there might be specific factual circumstances in which these types of non-Federal requirements would prevent these individuals or entities from fulfilling their Federally required duties or would prevent an Exchange from operating the non-Navigator or certified application counselor programs that it is required (or authorized) to implement consistent with Federal requirements. In such cases, nonFederal requirements that require non-Navigator assistance personnel subject to §155.215 or certified application counselors or their designated organizations to hold an agent or broker license or carry errors and omissions insurance or other forms of financial responsibility might prevent the application of the provisions of title I of the Affordable Care Act.

In addition, at this time, we believe it is appropriate to limit the scope of this provision so that it is directed only at non-Federal laws requiring Navigators to hold an agent or broker license and are not finalizing the reference to laws that require Navigators to carry errors or omissions insurance, as proposed. As we explained in the preamble to the proposed rule, requiring that each Navigator be a licensed agent or broker would mean, in effect, that all Navigators would be agents and brokers, and would therefore prevent the application of

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entities, including one community and consumer-focused nonprofit group, must serve as Navigators. HHS has previously advised (see 77 FR 18331-32) that such requirements would prevent the application of §155.210(c)(2). Since we understand, based on the comments, that in at least some jurisdictions, errors and omissions insurance coverage is not exclusively available to agents and brokers and other types of professionals might carry it, we cannot discern a facial conflict between a non-Federal requirement requiring errors and omissions insurance and Federal requirements applicable to Navigators or the Exchange. However, as we made clear in prior rulemaking and now make explicit here in finalizing the regulation text, any non-Federal requirement that would, in effect, require all Navigators to be licensed agents or brokers would prevent the application of the Federal standards that apply to an Exchange’s operation of the Navigator program (specifically, would prevent the application of 45 CFR 155.210(c)(2)) and therefore would prevent the application of the provisions of title I of the Affordable Care Act. By removing the reference to errors and omissions coverage, we do not intend to foreclose the possibility that there might be specific factual circumstances under which a non-Federal financial responsibility requirement that does not facially conflict with a Federal requirement might, as applied or implemented, prevent the application of Federal requirements for Navigators within the meaning of section 1321(d) of the Affordable Care Act.

Comment: Many commenters indicated support for proposed §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv) and the accompanying preamble discussion illustrating HHS’s views regarding situations in which non-Federal requirements prevent otherwise eligible and qualified Exchangeapproved assisters from operating in a State with an FFE. In particular, these commenters stated that non-Federal requirements that prohibit consumer assistance entities from receiving any

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with QHP enrollment, are unnecessary and have precluded some extremely qualified organizations from serving as an Exchange-approved assister organization. A few commenters recommended that HHS explain the interplay of this proposed provision and existing §155.210(d)(4) (applicable to Navigators and, through155.215(a)(2)(i), to non-Navigator assistance personnel subject to §155.215) and the parallel provision under proposed §155.225(g)(2) (for certified application counselors and their designated organizations) prohibiting these assisters from receiving any consideration directly or indirectly from any health insurance issuer or issuer of stop loss insurance in connection with the enrollment of any individuals (or employees, for Navigators) in a QHP or a non-QHP. The commenters explained that it appeared that these Federal standards were “somewhat in conflict” with the proposed rule’s preamble discussion which stated that in HHS’s view, a non-Federal requirement that imposes prohibitions on receiving any financial compensation from a QHP issuer even if not in connection with enrollment, would go beyond these Federal conflict-of-interest rules.

Response: As discussed above, we are not finalizing proposed §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv). We are convinced by the concerns raised by commenters that it may not be possible to specify through rulemaking where the line should be drawn between non-Federal eligibility standards that prevent the application of Federal requirements and those that do not.

These types of non-Federal requirements will likely need to be analyzed on a case by case basis.

For example, a non-Federal requirement that, in its application, effectively limits the pool of assisters in the Exchange, to such an extent that the Exchange cannot operate its consumer assistance functions effectively, might prevent the application of the provisions of title I of the

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As already addressed in detail above, we are not finalizing §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv), but have determined that the better approach is to clarify in regulation text two standards that we discussed in the preamble connected to these proposed provisions. First, we specify that in an FFE, an entity that seeks to become a Navigator entity, non-Navigator assistance personnel entity subject to §155.215, or certified application counselor organization shall not be ineligible to operate as an assister entity solely because its principal place of business is outside of the Exchange service area. Second, we specify that in an FFE, no health care provider shall be ineligible to operate as a Navigator, non-Navigator assistance personnel subject to §155.215, or a certified application counselor solely because it receives consideration from a health insurance issuer for health care services provided. We are finalizing these standards, consistent with discussions set forth in preamble discussions in the proposed rule and in prior rulemaking (78 FR 42832), through the provisions at §§155.210(e)(7), 155.215(h) and 155.225(b)(3), with respect to the principal place of business standard, and in §155.210(d)(4) (made applicable to non-Navigator assistance personnel through §155.215(a)(2)(i)) and §155.225(g)(2), with respect to the consideration standard.

Comment: We received an overwhelming number of comments that supported including proposed §§155.210(c)(1)(iii)(F) and 155.225(d)(8)(v) in the final rule because the provisions appropriately recognized that other non-Federal requirements not specified expressly in other proposed provisions might also prevent the application of title I of the Affordable Care Act, if, as implemented or applied in a State, they would prevent assisters from performing their Federally required duties or prevent the Exchange from implementing the consumer assistance programs consistent with Federal standards. A few commenters recommended that this provision apply to

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non-Federal requirements that, in the commenters’ view, should be expressly included in the finalized regulations under these provisions, such as: establishing requirements for current Navigator grantees after Navigator grants have been awarded, setting unreasonable or duplicative training requirements, setting unreasonable time limitations on meeting State standards, imposing unreasonable costs on Navigators or other assisters, imposing credit rating reporting requirements, requiring a GED or high school diploma, or implementing State requirements in a manner that is unduly burdensome for Navigators or that disadvantages certain Navigator entities.

Response: We are finalizing proposed §§155.210(c)(1)(iii)(F) and 155.225(d)(8)(v), which is now renumbered in this final rule under §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv), as proposed, with a few modifications. We agree with the commenters who found that the proposed provisions appropriately recognize that non-Federal requirements, including but not limited to registration requirements, fingerprinting or background checks, and additional training, may not be in conflict with Federal standards on their face, but nevertheless could, as implemented or applied in a State, ultimately prevent assisters from meeting the Federal standards that apply to them or interfere with the Exchange’s ability to operate the consumer assistance programs it is required (or authorized) to implement consistent with Federal requirements. In such circumstances, the non-Federal requirements would, in HHS’s view, prevent the application of the provisions of title I of the Affordable Care Act within the meaning of section 1321(d). Consistent with our approach in the proposed rule, we do not think it is necessary or appropriate to enumerate in the final regulation text every type of non-Federal requirement that would fall under this provision. We view this provision largely as interpreting

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could apply to non-Federal requirements pertaining to assister programs in an Exchange. We decline to specify every conceivable type of non-Federal requirement which would, as applied or on its face, prevent the application of Federal requirements for assisters or assister programs in an Exchange. In many cases, the identification of such non-Federal requirements will depend on highly fact-specific circumstances that would be impractical, if not impossible, to enumerate in an exhaustive list. As explained in greater detail above, we agree with the recommendation that this provision should apply to State Exchanges in addition to FFEs because the preemption standard under section 1321(d) of the Affordable Care Act is generally applicable to all types of Exchanges. Therefore, in finalizing this provision, we have removed the reference that would have limited its applicability to FFEs. In addition, we have revised the provision to incorporate language included in preamble discussion to the proposed rule to state that a non-Federal requirement would also prevent the application of the provisions of title I of the Affordable Care Act if, as applied or implemented in the State, it prevents the Exchange’s implementation of the applicable assister program consistent with Federal requirements under section 1311(i) of the Affordable Care Act, and 45 CFR 155.205, 155.210, 155.215, and 155.225. For example, if a State registration requirement is implemented in a way that makes it impossible for any individuals or entities to operate as an Exchange-approved assister, that requirement would prevent the Exchange from operating the consumer assistance program that it is required (or authorized) to implement. As such, we believe it is important to clarify this possibility explicitly in the regulation text.

Comment: A few commenters recommended that HHS specify that non-Federal requirements that prohibit certain health centers from performing voter registration activity

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Registration Act of 1993 (“NVRA”) requires States to designate all offices in the State that provide “public assistance” (which may include health centers who are Exchange-approved consumer assistance entities) as “voter registration agencies” to perform voter registration activities (42 U.S.C. §1973gg-5(a)(2)(A)).

Response: Because title I of the Affordable Care Act does not address voter registration activities, HHS expresses no view in this rulemaking regarding whether State laws regulating voter registration activities would be preempted by the NVRA.

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