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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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Comment: Commenters supported the proposed requirements that all Navigators (at §155.210(e)(6)) and the non-Navigator assistance personnel subject to §155.215 (at §155.215(g)) obtain authorization from consumers before accessing their personally identifiable information, together with our proposal in these provisions, as well as in the proposed amendment to existing §155.225(f), that the Exchange must establish a reasonable retention period for maintaining these records. In FFEs, we proposed that this period would be three years, unless a different retention period has already been provided under other applicable Federal law. Some commenters recommended that we identify a specific period of time for which the authorization will be valid, such as two years, so that the authorization will automatically expire at the end of that time frame, as well as a separate period of time after the expiration for which the assister must maintain the record of the authorization. Some commenters requested a retention period of only one year because plan years operate on a 12-month cycle.

Response: We are modifying these provisions to specify that in FFEs, the minimum retention period for the authorization form is no less than six years, unless a longer retention period has already been provided in applicable Federal law in the FFEs, including State Partnership Exchanges. The six-year minimum retention period is consistent with the statute of limitations that has been included in the CMP provisions being finalized in this rule under 45 CFR 155.206 and 155.285, because we recognize that it may be relevant to some CMP investigations whether authorization for the disclosure of a consumer’s personally identifiable information was given to an assister. We also note that there are record retention requirements already applicable to Navigators in the FFEs and State Partnership Exchanges under Federal grant laws, such as 45 CFR 92.42 and 45 CFR 74.53. Since we are specifying a minimum

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applicable Federal requirements, the six-year minimum provided in §155.210(e)(6)(ii), §155.215(g)(2), and §155.225(f)(2) will apply. We have modified these provisions to reflect this policy by indicating that in FFEs, the retention period is no less than six years, unless a different and longer retention period has already been provided under other applicable Federal law.

Because we are aligning the requirement to obtain the authorization and maintain a record of the authorization so that there are consistent requirements for Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors, we think it is appropriate to apply a consistent retention period standard to all three assister types as well and are therefore modifying the provisions for consistency across all three assister types.

We are not adding language to include an automatic expiration date for the authorization because it could become burdensome for a consumer consistently seeking services from the same assister to have to routinely fill out a new authorization form, and for the assister to have to maintain each new form for a minimum of six years. We do note, however, that consumers are allowed to revoke their authorization at any time, and may place a time restriction on the authorization, if they desire.

Comment: Many commenters requested that we create a standard authorization form for assisters to use, rather than leaving it to assisters to create their own form, which commenters believed would cause assisters to incur considerable costs. Commenters also recommended that low literacy levels should be taken into consideration when creating the form, and that the form be translated into at least the top 15 languages to meet the needs of limited English proficient consumers served in an FFE.

Response: We support the commenters’ suggestion to have a model form to use for

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creating an authorization form if there were no model form available. We note that, for Navigators in FFEs, including State Partnership Exchanges, a model form is included in the grant award materials, and for certified application counselors in FFEs and State Partnership Exchanges, a model form is among the documents provided to certified application counselor designated organizations upon designation by the Exchange; in both cases, these forms are provided in both English and Spanish versions. HHS intends to develop a model form for use by non-Navigator assistance personnel in FFEs and State Partnership Exchanges in the future. We will take into consideration the comments regarding literacy levels and language translations as we develop a model authorization form for use by non-Navigator assistance personnel subject to §155.215, and as we review the current Navigator and certified application counselor model forms for the FFEs and State Partnership Exchanges.

Comment: Some commenters requested that the disclosure to consumers include information about the permissible and impermissible ways an assister may use a consumer’s personally identifiable information, as well as how consumers may opt out of follow-up from the assister.

Response: These regulations do not require specific content in the consumer authorization form. However, we note that the model authorization form currently provided in the FFE and State Partnership Exchange Navigator grant award materials and to certified application counselor designated organizations in the FFEs, including State Partnership Exchanges, includes information about how a consumer’s personally identifiable information may be used, as well as an option for consumers to authorize follow-up contact from the

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non-Navigator assistance personnel in the FFEs and State Partnership Exchanges, we will also consider including these same content elements.

Comment: Commenters submitted several requests and recommendations regarding the form of the authorization. Many commenters requested that the authorization be allowed to be collected and maintained in electronic form to help reduce the costs and burden associated with paper forms. Some commenters also requested that a voice-recorded authorization be allowed when assisters are helping consumers over the phone. Additionally, several commenters requested that Exchanges be permitted to retain the record of authorization on behalf of the assister, noting that some State Exchanges are already doing this.

Response: We note that these regulations do not specify acceptable formats for obtaining the authorization or for maintaining its record. Additionally, to allow for the flexibility in State Exchanges requested by commenters, we have modified the proposed language specifying that the authorization be provided “in a form and manner as determined by the Secretary” to indicate that the authorization must instead be provided in a form and manner as determined by the Exchange. As a result of this change, each Exchange will have discretion to determine the appropriate form and manner for these authorizations. In response to commenters’ concerns about whether these regulations would prohibit a State Exchange from retaining these authorizations on behalf of their assisters, we have also revised the language in this provision of the final rule to indicate that the form and manner of the assistance entity’s or personnel’s maintenance of the authorization is to be determined by the Exchange. This modification will allow State Exchanges that have chosen to retain these authorizations on behalf of their assisters to continue to do so, provided it is consistent with the “form and manner as determined by the

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We acknowledge that the language regarding the form and manner of obtaining or maintaining the authorization was not included with respect to certified application counselors at proposed §155.225(f)(2). To align the provision with those provisions applicable to Navigators and non-Navigator assistance personnel subject to §155.215, we are adding this language to §155.225(f)(2).

Finally, we are deleting the cross references in proposed §155.210(e)(6)(ii) to 45 CFR

92.42 and 45 CFR 74.53 due to the potential for these cross references to become obsolete or inaccurate in the future. We believe the remaining phrase “other applicable Federal law” will capture the intent of the cross references to ensure that Navigators comply with retention periods for maintaining these records in accordance with all Federal laws that may apply. This cross reference was only included in the proposed provision applicable to Navigators; therefore no change is necessary to the provisions at §155.215(g)(2) or §155.225(f)(2).

Comment: Several commenters raised concerns about the requirement for Navigators, non-Navigator assistance entities subject to §155.215, and certified application counselor designated organizations to maintain a physical presence in their Exchange service area under proposed §155.210(e)(7) and §155.225(b)(1)(iii). Commenters claimed that this proposed provision eliminates vital flexibility for consumer assistance personnel, noting that these assistance personnel often provide effective service over the phone or internet. Commenters pointed out that in large, rural, or frontier States, consumers often rely on remote assistance.

Commenters also mentioned that some State Exchanges are working on software that would allow assistance personnel to help clients remotely, by facilitating screen sharing and split screen views for assistance personnel and clients, and these commenters expressed the concern that the

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a minimum, clarification be provided that this provision will not affect the ability of assisters to provide remote assistance to consumers. However, there were a few commenters who supported this requirement, and recommended that the provision be broadened to require Navigator organizations, non-Navigator assistance entities subject to §155.215, and certified application counselor organizations to maintain a principal place of business within their Exchange service area.

Response: The proposed requirement that Navigators, non-Navigator assistance personnel subject to §155.215, and certified application counselors maintain a physical presence in their service area so that face-to-face assistance can be provided was designed to ensure that these consumer assistance personnel understand and are able to meet the specific needs of the communities they serve, to foster trust between these consumer assistance personnel and community members, and to encourage participation in the Navigator, non-Navigator assistance, and certified application counselor programs by individuals whose backgrounds and experiences reflect those of the communities they serve.

In light of the comments we received indicating that this requirement may be too restrictive for certified application counselor organizations already providing remote assistance, we are not finalizing proposed §155.225(b)(1)(iii) which would have required certified application counselor organizations to maintain a physical presence in the Exchange service area.

We understand that unique circumstances may exist that would make remote assistance more effective or practical than face-to-face assistance, particularly when a certified application counselor is providing services to individuals or populations that might otherwise be difficult to reach. We continue to believe that face-to-face, in-person assistance is important, and we

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We will continue to evaluate the effectiveness of remote assistance offered by certified application counselors and certified application counselor organizations, to determine whether a physical presence requirement may be necessary in the future.

We are finalizing these requirements at §155.210(e)(7) and §155.215(h) that Navigators and non-Navigator assistance personnel subject to §155.215 must maintain a physical presence in the Exchange service area, so that face-to-face assistance can be provided to applicants and enrollees. We believe this provision will improve the ability of Navigators and non-Navigator assistance personnel subject to § 155.215 to provide culturally competent application and enrollment assistance. As we explained in the preamble to the proposed rule, this requirement may also facilitate State consumer protection efforts.

We agree with commenters that remote application and enrollment assistance can be extremely important and effective, especially as a way to provide this assistance to consumers in rural or remote areas. Therefore, we want to make clear that nothing in this provision prohibits Navigators or non-Navigator assistance personnel subject to §155.215 from providing assistance via the telephone, Internet, or through other remote means, as long as the organization with which they are affiliated also maintains a physical presence in the Exchange service area, consistent with §155.210(e)(7) and §155.215(h). We also clarify that Exchange service area refers to the entire area served by the Exchange, and not to smaller regions within the area served by the Exchange.

We disagree with comments suggesting that these assister organizations should be required to maintain a principal place of business within their Exchange service area. Many trusted national organizations have State or local branches that operate as Navigators, non

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partly because of their physical presence in the State, are able to provide high-quality assistance tailored to the needs of their communities. Therefore, we are finalizing §155.210(e)(7) as proposed with a modification to specify that in an FFE, no individual or entity shall be ineligible to operate as a Navigator solely because its principal place of business is outside of the Exchange service area. With respect to the certified application counselor program, we are adding a new §155.225(b)(3) to specify that in an FFE, no individual or entity shall be ineligible to operate in this program solely because its principal place of business is outside of the Exchange service area.

We indicated in the preamble to the proposed rule that we were proposing to make the same provision specifying that Navigators maintain a physical presence in their Exchange service area under §155.210(e)(7) also applicable to non-Navigator assistance personnel subject to §155.215, and we proposed adding a new paragraph under §155.215 for that purpose.



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