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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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However, the rule text of the proposed rule omitted the new paragraph under §155.215. In the final rule, therefore, we are correcting this oversight, and adding this standard to §155.215 as a new paragraph §155.215(h) to specify that all non-Navigator assistance personnel subject to §155.215 who operate in FFEs must maintain a physical presence in the Exchange service area, so that face-to-face assistance can be provided to applicants and enrollees. Similarly, we are modifying this provision to add a specification that no individual or entity shall be ineligible to operate as non-Navigator assistance personnel subject to §155.215 solely because its principal place of business is outside of the Exchange service area.

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We revised §155.210(c)(1)(iii) to remove reference to “errors and omissions insurance” and replaced it with “any requirement that, in effect, would require all Navigators in the Exchange to be licensed agents and brokers.” We are not finalizing proposed §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv).

We renumbered proposed §§155.210(c)(1)(iii)(F) and 155.225(d)(8)(v) as new §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv). We modified newly renumbered §§155.210(c)(1)(iii)(E) and 155.225(d)(8)(iv) to extend these provisions to all Exchanges by removing the reference to “in a Federally-facilitated Exchange” and by specifying that nonFederal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to Navigators (or non-Navigator assistance personnel subject to §155.215), or certified application counselors or designated organizations or, as added in this final rule, “the Exchange’s implementation of the [respective assister] program” would prevent the application of the provisions of title I of the Affordable Care Act. We revise §155.215(f) to add subparagraphs (1) through (4) explicitly under that provision, rather than incorporating by reference parallel provisions in the applicable Navigator standards under §155.210(c)(1)(iii), as was proposed.

We revised §§155.210(d)(4) and 155.225(g)(2) to add that in an FFE no health care provider individual or entity shall be ineligible to operate as Navigators (or non-Navigator assistance personnel subject to §155.215), or certified application counselors or certified application counselor designated organizations solely on the basis of receiving consideration from a health insurance issuer for health care services provided.

We also revised §155.210(e)(7) to provide that in an FFE, no individual or entity shall be

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the Exchange service area. We added §155.215(h) to create a parallel provision to §§155.210(e)(7) for non-Navigator assistance personnel subject to §155.215, as was discussed in the preamble to the proposed rule. We did not finalize §155.225(b)(1)(iii), but we added a new §155.225(b)(3) to specify that in an FFE, no individual or entity shall be ineligible to operate as a certified application counselor or designated organization solely because its principal place of business is outside of the Exchange service area.

We moved §155.210(d)(6) to §155.215(i) and limited this provision, as well as §155.225(g)(3), to Navigators, non-Navigator assistance personnel, and certified application counselors operating in FFEs, including State Partnership Exchanges, and revised these provisions to specify that they do not take effect until November 15, 2014.

We renumbered proposed §155.210(d)(7) to §155.210(d)(6), and revised newly renumbered §155.210(d)(6) along with §155.225(g)(4) to clarify that gifts, gift cards, or cash, and promotional items that market or promote the products or services of a third party provided by assisters to consumers are prohibited for the purposed of inducing enrollment, and that gifts, gift cards, or cash may exceed nominal value for the purpose of providing reimbursement for legitimate expenses incurred by a consumer in effort to receive Exchange application assistance, such as (but not limited to) travel or postage expenses. We also add new §155.210(d)(7) to prohibit the use of Exchange funds to purchase gifts or gift cards, or promotional items that market or promote the products or services of a third party, that would be provided to any applicant or potential enrollee.

We revised §§155.210(d)(8) and 155.225(g)(5) to clarify that the prohibitions on door-todoor solicitation for application or enrollment assistance do not prohibit Navigators, non

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conduct general consumer education or outreach, or from soliciting consumers with whom the assister has a preexisting relationship so long as other applicable State and Federal laws are complied with.

We revised §§155.210(d)(9) and 155.225(g)(6) to clarify that the prohibitions on using an automatic telephone dialing system or an artificial or prerecorded voice to initiate a telephone call to a consumer, do not prohibit Navigators, non-Navigator assistance personnel, or certified application counselors from using those means to communicate with consumers with whom they already have a relationship, so long as other applicable State and Federal laws are complied with.

We revised §§155.210(e)(2) and 155.225(c)(1) to add that the duties of Navigators, nonNavigator assistance personnel subject to §155.215, and certified application counselors includes a duty to provide information in a fair, accurate, and impartial manner to individuals and employees about the full range of QHP options and insurance affordability programs for which they are eligible, which includes providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application, clarifying the distinctions among QHPs, and helping consumers make informed decisions during the health coverage selection process.

We made technical edits to preserve the grammatical pattern that appears in the existing list at §155.210(d)(1)-(4) and extended it through §155.210(d)(9) by placing semicolons after each subparagraph and moving the “or” following proposed §155.210(d)(5) to follow §155.210(d)(8).

We revised §§155.210(e)(6)(ii) and 155.215(g)(2) to change the word “Secretary” to “Exchange” to allow for State Exchanges to determine their own appropriate form and manner for obtaining the consumer authorization that is required for a Navigator or non-Navigator

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also specified that the Navigator and non-Navigator assistance personnel subject to §155.215 must maintain a record of the authorization provided “in a form and manner as determined by the Exchange,” and that the period is no less than six years (not three years, as proposed), unless a different and longer retention period has already been provided. In §155.210(e)(6)(iii), we removed reference to 45 CFR 92.42 and 45 CFR 74.53 and retain only “other applicable Federal law.” We also revised § 155.225(f)(2) to add parallel language to require certified application counselors to obtain and maintain record of the authorization in a form and manner as determined by the Exchange, and to specify that 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.

We revised proposed §155.225(d)(8)(i) to replace the phrase “act in the best interest of applicants” with the phrase “provide fair, accurate, and impartial information.” c. Payment of Premiums (§155.240) In order to address situations in which enrollees have mid-month changes in enrollment, we proposed in §155.240(e) standards for providing partial month premiums. First, we proposed to provide flexibility for Exchanges to establish a standardized methodology for partial month premiums or to rely on issuers to prorate premiums in accordance with State law and issuer policies. Second, we proposed in §155.240(e)(1) that, for the FFE, the premium for coverage lasting less than one month must equal the product of the premium for one month of coverage divided by the number of days in the month and the number of days for which coverage is being provided in the month.

Comment: We received several comments expressing general support for the proposed

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for partial month premiums in the Federally-facilitate Exchange. Commenters viewed the methodology proposed in §155.240(e)(1) as an equitable and beneficial solution to a common issue that consumers face with respect to their health insurance premiums. The methodology proposed for the FFE was also noted as being simple and easy for consumers to understand.

Additionally, several of these commenters requested that HHS require all Exchanges to use the partial month premium methodology originally proposed for the FFE to promote consistency across Exchanges.

Response: We appreciate the support received for the proposed provisions in §155.240(e). We maintain that Exchanges are in the best position to determine the methodology used for partial month premiums within their jurisdiction. However, in the case of the FFE, the methodology we proposed is appropriate given the Exchange’s unique circumstances.

Specifically, CMS jointly administers the FFEs currently operating in multiple States, each of which may have different rules for proration and, therefore, the administrative burden to enforce varying rules across these States would be overwhelming without the implementation of a single, standard approach. For example, in order to provide the appropriate amount of advance premium tax credit to the issuer, the issuer must inform the Exchange of the premium amount charged to each individual. Without a standardized approach in the FFE, this information would come to us in a variety of forms in accordance with various State laws and issuer practices for partial month premiums, which would be burdensome to manage. Consequently, we note that the standards for partial month premiums in the FFE apply even if State requirements in those FFE States differ from this final rule. There is also a customer service advantage to using a single methodology because it makes it easier for customer service representatives to explain one clear,

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variability across the States in the FFE, we maintain that the proposed methodology for calculating prorated premiums is the most efficient and equitable approach. We are finalizing the regulation as proposed.

Comment: A few members of the issuer community provided comment on the implementation of the proposed provision for the FFE. We received comments requesting that HHS limit premium proration to the FF-SHOP and not extend the policy to the individual market FFE. Commenters argued that current standard industry practices are simpler and more cost effective for issuers because they do not require reconciliation of daily proration. A commenter also noted that, because the Exchange will not perform premium aggregation in the individual market, there is no need to adopt a standard method for proration of premiums. Commenters noted that implementing the proposed policy would require reconfiguration of issuer information technology systems, including billing mechanisms, which takes significant time and investment;

therefore, commenters requested that implementation not occur before the 2015 benefit year.

These commenters also requested that the requirement not be implemented retroactively and, instead, for months prior to the effective date of this policy, issuers have the flexibility to use their own proration methodology or follow State law.

Response: While premium aggregation is a compelling reason to adopt premium proration, there are numerous other reasons to adopt it as noted in the comment response above and in the proposed rule’s preamble. We previously have been asked by States and issuers for guidance in this area and implementing a standard policy for the FFE will establish a clear standard with which issuers can comply and for consumers to understand. Issuers have also told us that proration of partial month premiums is a methodology that can be implemented. We

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we remain committed to working closely with issuers on implementation. In order to ensure that issuers have sufficient time to implement this proposal, the FFE will implement it effective January 1, 2015. Issuers may also choose to implement the policy immediately. We also note that, in response to the comment, we will not seek retroactive implementation of the partial month premium policy for the FFE but note that State Exchanges have flexibility to determine how to implement their policy in this area.

Comment: One commenter expressed concern that the preamble to this section specified the events for which an Exchange may require proration of premiums, such as voluntary withdrawal. The commenter believed that these policies are more suitably addressed at the State level, where they can reflect a State’s unique market dynamics.

Response: The examples used in the preamble to the proposed rule were illustrative of the policy but not intended to replace our previous guidance for partial month enrollments found at 45 CFR 155.420 and 155.430.

Comment: Finally, one commenter requested clarification as to whether a prorated premium could count as a first month’s premium (for example, in the case of a newborn) and how that would also impact the 3-month grace period provided in §156.270(d) and (e).

Response: A partial month premium does count as a first month’s premium.

Additionally, payment of a prorated premium in full can be considered payment in full for the purpose of the 3-month grace period in §156.270(d) and (e).

Summary of Regulatory Changes We are finalizing the provisions proposed in §155.240 without modification.

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We proposed amending §155.260(g) to add a reference to §155.285, which is being added as part of this final rule. Section 155.285 specifies the grounds for imposing CMPs, the notice required to be given to a person when a civil money penalty is assessed, and factors to be used to determine the amount of CMPs assessed, as well as some aspects of the process for imposing CMPs. We proposed this addition to §155.260(g) to clearly link these two regulatory provisions and to ensure that readers fully understand how CMPs will be assessed for any improper use or disclosure of information.

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