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2. Navigator, Non-Navigator Assistance Personnel, and Certified Application Counselor Program Standards (§§155.210, 155.215, and 155.225) In the proposed rule, we also proposed a number of provisions to bring the standards for Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors into alignment. Specifically, with respect to Navigators and non-Navigator assistance personnel subject to §155.215, we proposed that they must obtain consumer authorization before accessing an applicant’s personally identifiable information (PII), and that a record of authorization be provided, just as is already the case for certified application counselors under §155.225(f). In addition, we proposed that Navigators and non-Navigator assistance personnel subject to §155.215 must not charge any applicant or enrollee, or request or receive any form of remuneration from or on behalf of an applicant or enrollee, for application or other assistance related to the applicable assister’s duties, just as is already the case for certified application counselors under §155.225(g). With respect to the certified application counselor program, we proposed that certified application counselors must be recertified on at least an annual basis and complete Exchange-required training, just as is already the case for Navigators in FFEs and State
§155.215(b). Further, we proposed that certified application counselors and their organizations would be prohibited from receiving consideration, directly or indirectly, from health insurance issuers or stop loss issuers in connection with the enrollment of any individuals in a QHP or a non-QHP, just as is already the case for all Navigators and for non-Navigator assistance personnel subject to §155.215, under §§155.210(d)(4) and 155.215(a)(2)(i).
We also proposed a number of new standards for Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors. First, we proposed to require that these entities and individuals maintain a physical presence in their Exchange service area.
We also proposed the following prohibitions on their conduct: providing compensation to individual Navigators, non-Navigator assistance personnel subject to §155.215, or certified application counselors on a per-application, per-individual assisted, or per-enrollment basis;
providing gifts, including gift cards or cash, unless they are of a nominal value, or providing promotional items that market or promote the products or services of a third party, to any applicant or potential enrollee in connection with or as an inducement for application assistance or enrollment; soliciting any consumer for application or enrollment assistance by going door-todoor or through other unsolicited means of direct contact, including calling a consumer to provide application or enrollment assistance without the consumer initiating the contact; and initiating any telephone call to a consumer using an automatic telephone dialing system, or an artificial or prerecorded voice.
Comment: Commenters generally supported the alignment of provisions applicable to Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors. However, some commenters raised concerns that applying the newly proposed
be overly burdensome and would discourage individuals and organizations from serving as certified application counselors or certified application counselor entities.
Response: We understand the concerns raised by commenters about potential burdens that the new provisions might place on certified application counselors. However, we are finalizing the certified application counselor provisions consistent with the finalization of parallel provisions for Navigators and the non-Navigator assistance personnel that are subject to §155.215. The purpose of aligning these provisions is to ensure that consumers are all afforded the same protections, no matter which type of assister they seek services from. As a result, we are not modifying the provisions specifically applicable to certified application counselors, except to bring them generally into alignment with the way we have finalized the parallel provisions for Navigators and the non-Navigator assistance personnel subject to §155.215.
There are two instances where the provisions are not parallel because it is not appropriate due to fundamental differences between the certified application counselor program and the Navigator and non-Navigator assistance personnel programs. We are not finalizing any restriction for certified application counselors regarding the use of Exchange funds to purchase gifts and promotional items because certified application counselors are generally not expected to receive Exchange funds. These distinctions are further discussed below.
Comment: Commenters agreed with and supported the proposal at §155.210(d)(5) prohibiting Navigators and non-Navigator assistance personnel subject to §155.215 (applicable through a cross-reference to §155.210(d) in §155.215(a)(2)(i)) from charging for application assistance services. Some commenters requested clarification that this does not otherwise prohibit an assister from charging for other services the assister might provide, such as clinical or
Response: Given support from commenters for the provision prohibiting Navigators and non-Navigator assistance personnel from charging consumers for application or other assistance services, we are finalizing this provision without change. We note that the language in the provision specifically limits this prohibition to charging for application assistance or other assistance provided as part of Navigator duties. We interpret the cross-reference in §155.215(a)(2)(i) to this provision in §155.210(d) to similarly limit the prohibition to charging for application assistance or other assistance provided as part of the duties of non-Navigator assistance personnel who are subject to §155.215. We also note that this provision would not prohibit Navigators or non-Navigator assistance personnel subject to §155.215 from charging consumers for services, such as clinical health care services or legal aid services, that are not provided as part of their duties as Navigators or non-Navigator assistance personnel.
Comment: We requested comment on the proposal to prohibit compensation paid to Navigators (proposed at §155.210(d)(6)), non-Navigators subject to §155.215 (applicable through a cross-reference to §155.210(d) in §155.215(a)(2)(i)), or certified application counselors (at §155.225(g)(3)) on a per-application, per-individual-assisted, or per-enrollment basis. We also asked whether there might be other alternatives for building rewards for performance without creating adverse incentives. Several commenters agreed that compensation paid to individual assistance personnel on a per-application, per individual-assisted, or perenrollment basis could provide adverse incentives and invite behavior that is not in the best interest of consumers. These commenters recommended, for the same reasons, that we extend the prohibition so that Exchange-funded assister entities, and not just individual assisters, should not be compensated on a per-application, per individual-assisted, or per-enrollment basis. Other
using compensation models that would be prohibited by the proposed rule, and recommending that these States should be allowed to continue using their current compensation models. These commenters requested that, at a minimum, States currently using these compensation models be given an adequate transition period, with one recommendation being that this standard not become effective before the start of open enrollment for 2016 coverage in the individual market Exchanges. In general, commenters opposed to this prohibition recommended that HHS further evaluate these compensation models, and assess their effects in States using them, prior to regulating their use.
Response: We appreciate the concerns raised by commenters regarding this provision.
We are finalizing these provisions, but have edited them to apply only to Navigators, nonNavigator assistance personnel, and certified application counselors in FFEs. We moved proposed §155.210(d)(6) to §155.215(i) and specified that it is applicable only to Navigators in FFEs, including State Partnership Exchanges, and to non-Navigator assistance personnel in FFEs and State Partnership Exchanges, by indicating that it applies only to Navigators and nonNavigator assistance personnel operating in an Exchange operated by HHS during the exercise of its authority under §155.105(f). This provision is not applicable to Navigators and nonNavigator assistance personnel in State Exchanges, even if those non-Navigator assistance personnel are funded with Exchange Establishment Grants. We have made a similar edit to §155.225(g)(3), by indicating that this provision applies only beginning November 15, 2014, and only to certified application counselors operating in an FFE, including a State Partnership Exchange.
We are making these modifications in an effort to balance the interests of the FFEs and
of compensation models for Navigators, non-Navigator assistance personnel, and/or certified application counselors. These States have noted successful enrollment efforts with these compensation models, and it is not our intent to disrupt compensation practices that are currently used or authorized by State Exchanges. However, for assisters operating in the FFEs, including State Partnership Exchanges, we have an interest and a concern in ensuring that they are not incentivized to hurry through an assistance session with a consumer, and possibly to avoid assisting those consumers who may have complex situations that require them to have extra time for completing an application. Additionally, these compensation structures create an incentive for Navigators, non-Navigator assistance personnel, and certified application counselors to focus primarily on facilitating enrollment in or selection of a QHP, as applicable, which is only one of the several duties required of Navigators and certified application counselors, and is not a required duty under Federal regulations for non-Navigator assistance personnel (although nonNavigator assistance personnel subject to §155.215 may provide this assistance).26 We will continue to evaluate and monitor the use of these compensation models in State Exchanges, while we give further consideration to whether the proposed prohibitions should apply to all Navigators, non-Navigator assistance personnel, and certified application counselors in all Exchanges.
For all assisters to whom the final provisions will apply, the provisions prohibiting compensation on a per-application, per-individual-assisted, or per-enrollment basis will become applicable November 15, 2014 to coincide with the beginning of the 2015 open enrollment period for the individual market Exchanges.
Non-Navigator assistance personnel subject to §155.215 are only required to carry out one of the Navigator duties set forth at §155.210(e), the duty at §155.210(e)(2) to provide fair, accurate, and impartial information and services that acknowledge other health programs; however non-Navigator assistance personnel subject to §155.215 are not prohibited from carrying out the other duties outlined for Navigators at §155.210(e).
CMS-9949-F 164 Comment: Commenters generally supported the principle behind prohibiting Navigators (at proposed §155.210(d)(7)), non-Navigator assistance personnel subject to §155.215 (through the cross reference to §155.210(d) in §155.215(a)(2)(i)), and certified application counselors (at §155.225(g)(4)) from providing gifts, unless they are of nominal value, or providing promotional items that market or promote the products or services of a third party to applicants or potential enrollees as an inducement for application assistance or enrollment. However, most commenters who responded to this proposal raised concerns that the proposed language was too broad and would prohibit creative outreach and education strategies both relating to the FFE and to other community services. For example, some commenters raised a concern about whether this provision would prohibit an organization from reimbursing travel costs for consumers traveling long distances to receive application assistance, or from providing supplies or materials for legitimate care purposes (for example, diabetic testing supplies or medication samples) which in many cases would exceed $15. One commenter, on the other hand, raised a concern that this provision expressly allows the provision of gifts up to $15 in value, since we defined nominal value in the proposed rule as a cash value of $15 of less, or an item worth $15 or less, based on the retail purchase price of the item regardless of the actual cost. In addition, commenters worried that the third-party promotional item prohibition would prevent assisters from providing promotional materials about the Exchange or other community resources, noting that promotional materials about other community resources can help connect consumers with additional supportive services. Commenters indicated that the use of gifts and promotional items have helped them successfully encourage individuals to seek application assistance, and therefore that a prohibition on using these tools in connection with application assistance would
education activities from the prohibition on third-party promotional items. Commenters also requested clarification about parameters regarding the provision of gifts and third-party promotional items.