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Response: In light of the numerous comments received regarding this issue, we are modifying this provision to make clear that gifts and third-party promotional items are prohibited only when they are used to induce enrollment. In other words, gifts and third-party promotional items are prohibited when they are conditioned on an applicant’s enrollment in coverage with the help of the assister or the assister’s organization. This means that while nominal gifts and thirdparty promotional items may be provided as a way of encouraging consumers to seek or receive application assistance, they cannot be conditioned on a consumer’s actually enrolling in coverage. We agree with commenters that prohibiting gifts and third-party promotional items in connection with application assistance would potentially prohibit assisters from providing items promoting other available community services, such as an item which promotes the services of a school, hospital, or clinic in the community, simply because it was provided at the same time a consumer is present for Exchange application assistance. We do not want to prohibit assisters from providing items that are inherently beneficial to consumers only because a consumer is present for Exchange application assistance and not for other services.27 Therefore, promotional items may be provided so long as they are not provided to induce enrollment.
CMS-9949-F 166 them “as an inducement for enrollment.” We have also omitted the provisions’ reference to application assistance, and only finalized the language relating to inducing enrollment.
Further, the nominal value limit does not apply to third-party promotional items, so these items may exceed $15 in value. We note that we would consider items such as diabetic testing supplies to be third-party promotional items to the extent that they have the effect of promoting the brand for the supplies that are provided. We also note that there may be other Federal laws regarding providing promotional items to consumers, and these regulations do not supersede those laws. Therefore, assisters should ensure their compliance with all applicable laws.
We are also modifying this provision to make clear that reimbursement for legitimate expenses, such as (but not limited to) expenses for travel or postage that a consumer incurs in seeking Exchange application assistance may exceed the nominal value threshold of $15. We anticipate that the circumstances where such reimbursement exceeds this amount will be rare.
However, we acknowledge that commenters have indicated there may be times when consumers might incur expenses that exceed $15 when seeking Exchange application assistance, and we would not want to prohibit a reimbursement for legitimate expenses that exceed this amount.
Because we are modifying the provisions to be less proscriptive, we are also adding a new provision at §155.210(d)(7) (applicable to non-Navigator assistance personnel to whom §155.215 applies through a cross-reference to §155.210(d) in §155.215(a)(2)(i)) to clarify that in no event is it permissible for a Navigator or for non-Navigator assistance personnel subject to §155.215 to use Exchange funds to purchase gifts or third-party promotional items for provision to applicants or potential enrollees. Pursuant to Affordable Care Act section 1311(d)(5)(B), all Exchanges, both FFEs (including State Partnership Exchanges) and State Exchanges, are
Exchange for promotional giveaways. HHS would consider any funds used by an Exchange to pay for Navigator grants, to contract with or otherwise pay non-Navigator assistance personnel subject to §155.215 carrying out the consumer assistance functions under 45 CFR 155.205(d) and (e), and any Federal Exchange Establishment grant funds used to pay for non-Navigator activities,28 to be funds intended for the administrative and operational expenses of the Exchange. Therefore, Navigators and non-Navigator assistance personnel subject to §155.215 are prohibited from using funding received from an Exchange to purchase items for promotional giveaways. In this final rule, therefore, we are also prohibiting Navigators and non-Navigator assistance personnel subject to §155.215 from using Exchange funds to purchase gifts, including gift cards and cash, and promotional items.
We are not including a provision regarding the use of Exchange funds by certified application counselors because certified application counselors generally are not expected or required to receive Exchange funds.
Comment: Commenters generally supported our proposals at §§155.210(d)(8) and 155.225(g)(5) prohibiting Navigators, certified application counselors, and non-Navigator assistance personnel subject to §155.215 (through the cross-reference in §155.215(a)(2)(i) to §155.210(d)), from soliciting any consumer for application or enrollment assistance by going door-to-door or through other unsolicited means of direct contact. However, most commenters who addressed these provisions were concerned that the proposals might also prohibit solicitation with respect to outreach and education activities. Commenters noted that the proposed language would inhibit outreach activities that have proven effective with respect to
Medicaid and CHIP outreach. Additional commenters noted that some organizations have had great success during the 2014 open enrollment with door-to-door outreach and that at times some consumers were ready to enroll and wanted immediate application assistance. These commenters are concerned that the proposed language would prohibit these methods going forward. Some commenters requested that we clarify the definitions of “application or enrollment assistance” and “unsolicited means” to help establish clear parameters of what is and is not prohibited.
Response: We agree that that door-to-door consumer education and outreach can be a useful and effective method for improving public awareness about the Affordable Care Act, insurance affordability programs, and the Exchanges. We have edited the final provisions at §155.210(d)(8) and §155.225(g)(5) to clarify that the prohibitions on door-to-door solicitation for “application or enrollment assistance” prohibit assisters from engaging in door-to-door solicitation for the purpose of offering in-home application or enrollment assistance; they do not prohibit assisters from going door-to-door to conduct general consumer education or outreach, including to let the community know that the organization is available to provide application and enrollment assistance services to the public. In final §155.210(d)(8) and §155.225(g)(5), therefore, we specified that outreach and education activities may be conducted by going doorto-door or through other unsolicited means of direct contact, including calling a consumer.
We clarify that nothing in these provisions would prohibit a Navigator, non-Navigator assistance personnel, or certified application counselor from providing in-home application assistance, if such assistance is requested by a consumer. We note that in cases where a consumer is ill or has a disability that would make meeting an assister outside of the consumer’s
appropriate. In these or other cases in which the consumer prefers in-home assistance or such assistance is appropriate for the consumer, the request for in-home assistance must come from the consumer and the consumer must give their consent. In such cases, we also recommend that two assistance personnel should go to the home, not one, because this is a best practice that promotes the safety of both the consumer and the assister.
We further explain that by “unsolicited means,” we refer to any means of contacting consumers directly to help them apply for or enroll in coverage through the Exchange, where the consumer did not initiate, request, or give prior consent to the contact, although we reiterate that this provision does not apply to public education and outreach activities. Additionally, we have added language to allow for assisters to contact consumers for application assistance in cases where the individual assister or assister entity has a relationship with the consumer, but we note that other State or Federal laws may apply with regards to these preexisting relationships, and those laws must also be complied with.
Comment: Commenters acknowledged the concerns that HHS addressed through the proposal that would prohibit Navigators (at §155.210(d)(9)), non-Navigator assistance personnel (through the cross reference to §155.210(d) in §155.215(a)(2)(i)), and certified application counselors (at §155.225(g)(6)), from making robocalls, or calls that use an automatic telephone dialing system or an artificial or prerecorded voice, when initiating contact with consumers.
However, commenters were concerned that the language of this proposal might be overly broad and might prohibit effective uses of such tools in ways that have strong benefits for consumers.
For example, some organizations have used such tools to provide notice to consumers about upcoming enrollment events, sometimes partnering with other community organizations to target
to remind consumers when it is time to re-enroll in coverage. Some commenters noted that many States already have laws that would apply to assisters to protect consumers from unwanted solicitation, and therefore further prohibitions are unnecessary. Many commenters provided recommendations for revising the proposed language and requested that certain clarifications be made if the proposed provision is finalized. For example, commenters recommended revising the language to allow the use of these tools for consumers who have previously provided contact information via an outreach or education event, or for consumers who may have a pre-existing relationship with the organization itself (for example, as a patient or a client). Health centers, in particular, requested a clarification that this provision would not prohibit their use of these tools in their capacity as a health center since, for example, automated dialing is frequently used to remind health center patients about upcoming appointments. Some commenters also noted that certain “in-reach” activities that use these types of tools are required of organizations in order for them to be eligible for HRSA grants provided in the Health Center Outreach and Enrollment Assistance program, and therefore this proposed provision could create a conflict for these organizations.
Response: We understand that many entities operating as Navigators, non-Navigator assistance entities subject to §155.215, and certified application counselors also function as other types of organizations with an existing client base, such as community health clinics, hospitals, or primary care associations. These prohibitions on assister conduct are not meant to disrupt any outreach or in-reach strategies that these organizations use to connect with their client base outside of their work as Exchange Navigators, non-Navigator assistance personnel, or certified application counselors. Therefore, we clarify that the provision prohibiting Navigators (at
in §155.215(a)(2)(i)), and certified application counselors (at §155.
225(g)(6)) from making calls using an automatic dialing system would not prohibit a health center from automatically dialing patients to remind them of upcoming health care appointments. We also appreciate commenters’ interest in using automatic calls to communicate with consumers with whom they already have a relationship. Therefore, we are finalizing §155.210(d)(9) and §155.225(g)(6) with an exception added for cases where the individual assister or assister entity has a pre-existing relationship with the consumer. Although the edited regulation text at §155.210(d)(9) refers to Navigators, we interpret the cross-reference in §155.215(a)(2)(i) to §155.210(d) mean that that provision also applies to non-Navigator assistance personnel to whom §155.215 applies. We are also noting that other State or Federal laws may apply with regards to these pre-existing relationships, and those laws must also be complied with, and have included this caveat in the final §155.210(d)(9) and §155.225(g)(6). We will monitor and evaluate this practice.
Comment: Some commenters requested that the disclosure of an assister’s functions and responsibilities required under existing §155.225(f)(1) and new §§155.210(e)(6)(i) and 155.215(g)(1) also include disclosure of the nondiscrimination requirements applicable to the assister.
Response: We agree that the nondiscrimination requirements applicable to the assister, such as those described in §155.120(c) and §155.105(f), would be appropriate information to include as part of the disclosure. While §155.210(e)(6), §155.215(g), and §155.225(f) require assisters to inform consumers about the assister’s functions and responsibilities, we have not