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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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 Adds that consumers may be solicited by going door-to-door or other unsolicited means of direct contact, including calling a consumer if there is a pre-existing relationship and other applicable laws are complied with.

 Adds that outreach and education activities may include going door-to-door or other unsolicited means of direct contact, including calling a consumer.

 Adds that automatic telephone dialing system or an artificial or prerecorded voice may be used to initiate contact consumers if there is a pre-existing relationship and other applicable laws are complied with.

 Changes the requirement to obtain authorization to access a consumer’s personally identifiable information in a form and manner determined by the Secretary to a form and manner determined by the Exchange, adds that the authorization must be retained in a form and manner determined by the Exchange, and clarifies the retention period is no less than six years. Removes explicit reference to Federal regulations at 45 CFR 92.42 and 45

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 Clarifies that the duty to provide information in a fair, accurate and impartial manner 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

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 Expressly enumerates, rather than incorporates applicable provisions under §155.210 by reference, the provisions regarding non-Federal standards that would prevent the application of the provisions of title I of the Affordable Care Act as applied to the nonNavigator assistance personnel program subject to §155.215.

 Removes the provision specifying non-Federal standards that prohibit any individual or entity from acting as non-Navigator assistance personnel subject to §155.215 that would be eligible to participate under standards applicable to the FFE.

 Extends to all Exchanges the provision regarding non-Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to non-Navigator assistance personnel subject to §155.215. Adds specification for requirements that prevent the Exchange’s implementation of the non-Navigator assistance program consistent with Federal requirements.

 Adds that in an FFE, no health care provider individual or entity shall be ineligible to operate as non-Navigator assistance personnel solely because it receives consideration from a health insurance issuer for health care services provided.

 Adds that in an FFE, no individual or entity shall be ineligible to operate as nonNavigator assistance personnel solely on the basis that it does not maintain its principal place of business in the Exchange service area.

 Adds a provision prohibiting compensation on a per-application, per-individual-assisted, or per-enrollment basis to §155.215 to apply only in the Federally-facilitated Exchange.

 Adds an effective date of November 15, 2014 for the prohibition on compensation on a

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 Changes the requirement to obtain and maintain authorization to access a consumer’s personally identifiable information in a form and manner determined by the Secretary to a form and manner determined by the Exchange, and clarifies the retention period is no

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Changes to §155.225  Adds duty to provide information 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

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 Revises provision specifying referrals to third parties not required to act in the best interest of applicants assisted to those not required to provide fair, accurate, and impartial

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 Removes the provision specifying non-Federal standards that prohibit any individual or entity from acting as certified application counselors that would be eligible to participate under standards applicable to the FFE.

 Renumbers and extends to all Exchanges the provision regarding non-Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to certified application counselors. Adds specification for requirements that prevent the Exchange’s implementation of the certified application

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 Adds that in an FFE, no health care provider individual or entity shall be ineligible to operate as certified application counselors solely because it receives consideration from a health insurance issuer for health care services provided.

 Removes proposed requirement to maintain a physical presence in the Exchange service area. Adds that in an FFE, no individual or entity shall be ineligible to operate as a certified application counselor solely on the basis that it does not maintain its principal place of business in the Exchange service area.





 Adds 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.

 Adds that consumers may be solicited by going door-to-door or other unsolicited means of direct contact, including calling a consumer if there is a pre-existing relationship and other applicable laws are complied with.

 Adds that outreach and education activities may include going door-to-door or other unsolicited means of direct contact, including calling a consumer.

 Adds that automatic telephone dialing system or an artificial or prerecorded voice may be used to initiate contact consumers if there is a pre-existing relationship and other applicable laws are complied with.

 Adds an effective date of November 15, 2014 for the prohibition on compensation on a per-application, per-individual-assisted, or per-enrollment basis, and limits the application of this provision to certified application counselors in FFEs.

 Adds a requirement to obtain and maintain authorization to access a consumer’s

–  –  –

a form and manner determined by the Exchange, and changes the retention period for the authorization to access a consumer’s personally identifiable information to no less than

–  –  –

Changes to §155.260  Inserts the numerical penalty amount instead of a reference to section 1411(h) of the Affordable Care Act where the maximum penalty is specified.

Changes to §156.265  Revises the provisions proposed in 156.265(d)(1) of the proposed rule as the entire paragraph (d), and removes all 156.265(d)(2), allowing each Exchange to establish its

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Changes to §156.270  Directs that QHP issuers must follow the transaction rules established by the Exchange in accordance with §155.430(e).

Changes to §155.285  Removes the references to sections 1411(h)(1) and (2) of the Affordable Care Act and instead inserts the numerical maximum penalty amounts.

 Adds a factor allowing HHS to take into consideration whether other remedies or penalties have been imposed for the same conduct or occurrence at §155.285(b)(1)(viii).

Changes to §155.410  Clarifies that starting in 2014, the Exchange must provide written notice of annual open enrollment to each enrollee no earlier than the first day of the month before the open enrollment period begins and no later than the first day of the open enrollment period.

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 Clarifies that later coverage effective dates for birth, adoption, placement for adoption, or placement for foster care will be effective the first of the month.

 Clarifies that earlier effective dates are allowed if all issuers in an Exchange agree to effectuate coverage only on the first day of the specified month.

 Adds that consumers may report a move in advance of the date of the move.

 Establishes a special enrollment period for individuals losing medically needy coverage.

Changes to § 155.625  Clarifies, in paragraphs (a) and (b), that the Exchange may adopt an exemption eligibility determination made by HHS for applications submitted before the start of open

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 Adds a time frame for submission of the State Insurance Commissioner’s recommendation that employee choice not be implemented and for the SHOP’s decision based on that recommendation.

 Clarifies that the transitional policy only applies in 2015.

 Revised in 155.705(b)(3)(vi) that options should be singular as one option is available for FF-SHOPs and another for State-based SHOPs Changes to §155.725  Limits the annual employer and employee election period, which begins no sooner than November 15, 2014, so that it applies only in FF-SHOPs.

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 Requires a health plan’s exception process to include the ability to expedite the reviews for exigent circumstances.

Changes to §156.130  Removes the annual limitation on deductibles for small group plans.

Changes to §156.1120 and §156.1125  Clarifies, for the QRS and the ESS, the distinction between the required level of data submission and collection by QHP issuers, specified by HHS, and the level of public reporting or display by Exchanges.

Changes to §158.243  Does not finalize requirements for distribution of de minimis rebates.

V. Waiver of Delay in Effective Date Section 553(d) of the APA (5 U.S.C. 553(d)) requires that a final rule be effective not less than 30 days from the date of its publication in the Federal Register and the Congressional Review Act (5 U.S.C. 801(a)(3)), which requires a 60-day delayed effective date for major rules.

This 30-day delay in effective date can be waived, however, if otherwise provided by an agency for good cause found and published with the rule. For the reasons set forth below, we find good cause to waive the 30-day delay in effective date in connection with the amendments made in this rule at §155.705 related to employee choice, because the delay is impracticable and contrary to the public interest.

A 30-day delay in the effectiveness of the amendments made to § 155.705 in this rule would mean that, in States with an FF-SHOP, State Insurance Commissioners could not comply with the deadline to recommend that employee choice not be implemented, and for a SHOP to

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§155.705(b)(3)(vii), HHS requires that both the State Insurance Commissioner’s recommendation and the SHOP’s decision be completed prior to the end of the window within which QHPs can submit applications for QHP certification, and that in States with an FF-SHOP, the State Insurance Commissioner’s recommendations must be submitted on or before June 2,

2014. The QHP certification application window for the FFE is expected to open on May 27, 2014, and is expected to close on June 27, 2014. This would mean that issuers would not know whether employee choice would be available in a State within an FF-SHOP prior to the close of the QHP application window. Accordingly, issuers would be unable to make fully informed decisions about SHOP participation and appropriate product pricing when compiling and submitting their QHP certification applications, including the rate information included in their applications. This uncertainty regarding implementation of employee choice potentially could result in fewer QHPs being offered in the State’s FF-SHOP or products being unnecessarily priced higher than necessary, which would negatively affect the small employers that would participate in the FF-SHOP, as well as their employees. In order to avoid these potential harms to small employers and employees, we believe the 30-day delay in the effective date of this provision would be impracticable and contrary to the public interest.

Additionally, it was impracticable for HHS to have proposed this approach sooner. The full scope of the issuer and State concerns about implementing employee choice that motivated the amendments to §155.705 were not made known to HHS until early 2014. HHS previously had anticipated that its 2013 decision not to require employee choice in SHOPs in 2014 would provide issuers of QHPs and SADPs with ample time to prepare to fully implement employee choice for plan years beginning in 2015. However, early in 2014, HHS learned that some issuers

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employee choice on State small group markets. Because employee choice is, for the most part, a relatively new concept in the small group market and because many issuers and States do not have a lot of experience in an employee choice environment, we understand that some issuers believe they do not have sufficient information to make pricing and plan design decisions for 2015 that would not adversely affect small group market consumers.

For the reasons outlined above, CMS finds good cause under the APA, 5 U.S.C.

553(d)(3) to waive the delay in effective date and proceed directly with the issuance of a final rule with an immediate effective date.

VI. Collection of Information Requirements Under the Paperwork Reduction Act (PRA) of 1995, we are required to provide 30-day notice in the Federal Register and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval. This final rule contains information collection requirements (ICRs) that are subject to review by OMB. In order to fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires that

we solicit comment on the following issues:

 The need for the information collection and its usefulness in carrying out the proper

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 The accuracy of our estimate of the information collection burden.



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