Patient Protection and Affordable Care Act; Exchange Functions: Standards for Navigators and Non-Navigator Assistance Personnel, 20581-20597 [2013-07951]

Agencies

• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 78, Number 66 (Friday, April 5, 2013)]
[Proposed Rules]
[Pages 20581-20597]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07951]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 155

[CMS-9955-P]
RIN 0938-AR75


Patient Protection and Affordable Care Act; Exchange Functions: 
Standards for Navigators and Non-Navigator Assistance Personnel

AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of 
Health and Human Services (HHS).

ACTION: Proposed rule.

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SUMMARY: The proposed regulations would create conflict-of-interest, 
training and certification, and meaningful access standards applicable 
to Navigators and non-Navigator assistance personnel in Federally-
facilitated Exchanges, including State Partnership Exchanges, and to 
non-Navigator assistance personnel in State-based Exchanges that are 
funded through federal Exchange Establishment grants. These proposed 
standards would help ensure that Navigators and non-Navigator 
assistance personnel will be fair and impartial and will be 
appropriately trained, and that they will provide services and 
information in a manner that is accessible.
    The proposed regulations would also make two amendments to the 
existing regulation for Navigators that would apply to all Navigators 
in all Affordable Insurance Exchanges (Exchanges), including State-
based Exchanges, clarifying that any Navigator licensing, 
certification, or other standards

[[Page 20582]]

prescribed by the state or Exchange must not prevent the application of 
the provisions of title I of the Affordable Care Act; and adding to the 
list of entities ineligible to become Navigators, those entities with 
relationships to issuers of stop loss insurance, including those who 
are compensated directly or indirectly by issuers of stop loss 
insurance in connection with enrollment in Qualified Health Plans or 
non-Qualified Health Plans. The proposed regulations would also clarify 
that the same ineligibility criteria that apply to Navigators would 
also apply to non-Navigator assistance personnel providing services in 
any Federally-facilitated Exchanges, including in State Consumer 
Partnership Exchanges, and to federally funded non-Navigator assistance 
personnel in State-based Exchanges.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, no later than 5 p.m. on May 6, 2013.

ADDRESSES: In commenting, please refer to file code CMS-9955-P. Because 
of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to https://www.regulations.gov. Follow the ``Submit a 
comment'' instructions.
    2. By regular mail. You may mail written comments to the following 
address ONLY: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-9955-P, P.O. Box 8010, 
Baltimore, MD 21244-1850.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address ONLY: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-9955-P, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    4. By hand or courier. Alternatively, you may deliver (by hand or 
courier) your written comments ONLY to the following addresses prior to 
the close of the comment period: a. For delivery in Washington, DC--
Centers for Medicare & Medicaid Services, Department of Health and 
Human Services, Room 445-G, Hubert H. Humphrey Building, 200 
Independence Avenue, SW., Washington, DC 20201.
    (Because access to the interior of the Hubert H. Humphrey Building 
is not readily available to persons without federal government 
identification, commenters are encouraged to leave their comments in 
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing 
by stamping in and retaining an extra copy of the comments being 
filed.)
    b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, 7500 Security 
Boulevard, Baltimore, MD 21244-1850.
    If you intend to deliver your comments to the Baltimore address, 
call telephone number (410) 786-9994 in advance to schedule your 
arrival with one of our staff members.
    Comments erroneously mailed to the addresses indicated as 
appropriate for hand or courier delivery may be delayed and received 
after the comment period.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Joan Matlack, (888) 393-2789.

SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments 
received before the close of the comment period are available for 
viewing by the public, including any personally identifiable or 
confidential business information that is included in a comment. We 
post all comments received before the close of the comment period on 
the following Web site as soon as possible after they have been 
received: https://www.regulations.gov. Follow the search instructions on 
that Web site to view public comments.
    Comments received timely will also be available for public 
inspection as they are received, generally beginning approximately 3 
weeks after publication of a document, at the headquarters of the 
Centers for Medicare & Medicaid Services, 7500 Security Boulevard, 
Baltimore, Maryland, 21244, Monday through Friday of each week from 
8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, 
phone (800) 743-3951.

I. Background

A. Introduction

    The Patient Protection and Affordable Care Act (Pub. L. 111-148) 
was enacted on March 23, 2010; the Health Care and Education 
Reconciliation Act (Pub. L. 111-152) was enacted on March 30, 2010. 
These laws are collectively known as the Affordable Care Act.
    Beginning on October 1, 2013, individuals and small businesses will 
be able to purchase private health insurance through state-based 
competitive marketplaces called Affordable Insurance Exchanges 
(Exchanges), also known as the Health Insurance Marketplaces.
    The Exchanges will provide competitive marketplaces where 
individuals and small employers can compare available private health 
insurance options on the basis of price, quality, and other factors. 
The Exchanges, which will offer coverage that is effective beginning on 
January 1, 2014, will help enhance competition in the health insurance 
market, improve choice of affordable health insurance, and give small 
businesses the same purchasing power as large businesses.
    Pursuant to sections 1311(b) and 1321(b) of the Affordable Care 
Act, each state has the opportunity to establish an Exchange that--(1) 
Facilitates the purchase of insurance coverage by qualified individuals 
through Qualified Health Plans (QHPs); (2) assists qualified employers 
in the enrollment of their employees in QHPs; and (3) meets other 
standards specified in the Affordable Care Act. These are referred to 
as State-Based Exchanges.
    Section 1321(c)(1) of the Affordable Care Act requires the 
Secretary of HHS (``Secretary'') to establish and operate Exchanges 
within states that either: (1) do not elect to establish an Exchange, 
or (2) as determined by the Secretary on or before January 1, 2013, 
will not have an Exchange operational by January 1, 2014. These HHS-
operated Exchanges are referred to as Federally-facilitated Exchanges. 
The Secretary has also explained through sub-regulatory guidance that 
these Federally-facilitated Exchanges may include State Partnership 
Exchanges in which states may assume significant responsibility for key 
Exchange functions.\1\ Generally, a State Partnership Exchange will 
take one of two forms: a State Plan Management Partnership Exchange, or 
a State Consumer Partnership Exchange (Consumer Partnership Exchange).
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    \1\ See 77 FR 18310, 18325-26 (Mar. 27, 2012); General Guidance 
on Federally-facilitated Exchanges (May 16, 2012) at https://cciio.cms.gov/resources/files/ffe-guidance-05-16-2012.pdf; and 
Guidance on the State Partnership Exchange (Jan. 3, 2013) at https://cciio.cms.gov/resources/files/partnership-guidance-01-03-2013.pdf.
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    Consumers can receive assistance from a variety of sources when 
seeking access to health insurance coverage through an Exchange. 
Sections 1311(d)(4)(K) and 1311(i) of the Affordable Care Act, and the 
regulation implementing those provisions, 45 CFR

[[Page 20583]]

155.210, direct all Exchanges to award grants to Navigators that will 
provide fair and impartial information to consumers about health 
insurance, the Exchange, QHPs, and insurance affordability programs 
including premium tax credits, Medicaid and the Children's Health 
Insurance Program (CHIP); and that will provide referrals to consumer 
assistance programs (CAP) and health insurance ombudsmen for enrollees 
with grievances, complaints, or questions about their health plan or 
coverage. Navigators are an important resource for all consumers, 
particularly communities that are under-served by and under-represented 
in the current health insurance market. Navigators will not make 
eligibility determinations and will not select QHPs for consumers or 
enroll applicants into QHPs, but will help consumers through the 
eligibility and enrollment process. The Exchange regulations, at 45 CFR 
155.400(a), state that ``[t]he Exchange must accept a QHP selection 
from an applicant * * * and must--(1) Notify the issuer of the 
applicant's selected QHP; and (2) Transmit information necessary to 
enable the QHP issuer to enroll the applicant'' (emphasis added). 
Additionally, as articulated in 45 CFR Sec.  155.310(d), the Exchange 
is responsible for making eligibility determinations. Taken together, 
these regulations clearly mean that the Exchange, not Navigators, must 
determine eligibility and enroll applicants into QHPs. Additionally, a 
Navigator cannot make the decision for an applicant as to which QHP to 
select. That said, Navigators may play an important role in 
facilitating a consumer's enrollment in a QHP by providing fair, 
impartial, and accurate information that assists consumers with 
submitting the eligibility application, clarifying the distinctions 
among QHPs, and helping qualified individuals make informed decisions 
during the health plan selection process.
    The Exchange regulations also authorize Exchanges to perform 
certain consumer service functions in addition to the Navigator 
program. Federal regulations at 45 CFR Sec.  155.205(d) and (e) provide 
that each Exchange must conduct consumer assistance activities as well 
as outreach and education activities to educate consumers about the 
Exchange and insurance affordability programs to encourage 
participation. The activities under Sec.  155.205(d) and (e) include, 
but are not limited to, the Navigator grant program. Establishing a 
non-Navigator consumer assistance program pursuant to Sec.  155.205(d) 
and (e) will help ensure that the Exchange is providing outreach, 
education, and assistance to as broad a range of consumers as possible 
so that all consumers can receive help when accessing health insurance 
coverage through an Exchange.
    A program established to fulfill the consumer assistance, 
education, and outreach functions under Sec.  155.205(d) and (e) 
through in-person consumer support, other than a Navigator program, is 
referred to in the proposed regulation and in this preamble as a ``non-
Navigator assistance program authorized by Sec.  155.205(d) and (e)'' 
or more simply as a ``non-Navigator assistance program.'' In addition, 
we refer to persons carrying out these consumer assistance, education, 
and outreach functions under Sec.  155.205(d) and (e) as ``non-
Navigator assistance personnel carrying out consumer assistance 
functions under Sec.  155.205 (d) and (e)'' or ``non-Navigator entities 
or individuals authorized to carry out consumer assistance functions 
under Sec.  155.205 (d) and (e)'' or more simply as ``non-Navigator 
assistance personnel.'' Non-Navigator assistance programs include what 
have sometimes been referred to as ``in-person assistance programs.'' 
Similarly, non-Navigator assistance personnel include what have 
sometimes been referred to as ``in-person assistance personnel.'' 
Therefore, when references are made in this preamble or in the proposed 
regulation to non-Navigator assistance programs or non-Navigator 
assistance personnel, those references also apply to in-person 
assistance programs or in-person assistance personnel, respectively.
    State-based Exchanges may, but need not, establish non-Navigator 
assistance programs to provide consumer assistance, education, and 
outreach under Sec.  155.205(d) and (e). Additionally, as a condition 
of a state's participation in a Consumer Partnership Exchange, the 
state will establish and operate a non-Navigator assistance program in 
a way that is consistent with the policies and interpretations HHS 
adopts for Sec.  155.205(d) and (e) for the Federally-facilitated 
Exchanges. This does not affect the obligation of a Consumer 
Partnership Exchange to establish and operate a Navigator program, 
however. HHS will have responsibility for the inherently governmental 
function of awarding federal Navigator grants for the Federally-
facilitated Exchanges, including State Partnership Exchanges. 
Federally-facilitated Exchanges, other than Consumer Partnership 
Exchanges, do not anticipate including a non-Navigator assistance 
program.
    Section 1311(i)(6) prohibits Exchanges from using section 1311(a) 
grant funds to fund Navigator grants. However, section 1311(a) grant 
funds may be used to cover the Exchange's cost of administering the 
Navigator program, including, for example, the cost of Navigator 
training, grants management, and oversight.
    State-based Exchanges and state partners in Consumer Partnership 
Exchanges may use section 1311(a) Exchange Establishment grants to fund 
non-Navigator assistance programs consistent with the following 
discussion.
    Together, section 1311(a)(4)(B) and section 1311(d)(5)(A) provide 
that, as long as grant funds under section 1311(a) are available to the 
state, a State-based Exchange need not be self-sustaining during its 
initial year of operation. Accordingly, as long as section 1311(a) 
grant funds are available to the state, a State-based Exchange may not 
have sufficient funds independent of section 1311(a) grant funds during 
its initial year of operation to achieve all of the goals of the 
Navigator program. As a transitional policy in such circumstances, a 
State-based Exchange may use a non-Navigator assistance program in its 
initial year of operation to fill in any gaps in its Navigator program 
and otherwise ensure that the full range of services that its Navigator 
program will provide in subsequent years are provided during its 
initial year of operation. As the State-based Exchange becomes self-
sustaining, the roles of the non-Navigator assistance program and the 
Navigator program may change. We note that, after the State-based 
Exchange becomes self-sustaining, the State-based Exchange can choose 
to establish or continue a non-Navigator assistance program, as a 
supplement to its fully-funded Navigator program. Similarly, a State-
based Exchange that is self-sustaining from the outset, because section 
1311(a) grant funds are no longer available to the state, can make a 
similar choice. In both such circumstances, the non-Navigator 
assistance program would have to be funded through some source other 
than section 1311(a) grant funds.
    Section 1311(a) grant funds are available for non-Navigator 
assistance programs in Consumer Partnership Exchanges because the state 
has elected to establish and operate outreach, educational, and 
assistance activities to assist in its transition to a State-based 
Exchange, as a condition of its participation in the Consumer 
Partnership Exchange. Such activities do not purport to, nor do they in 
fact, supplant the obligation of the federal

[[Page 20584]]

government to establish a Navigator program. When a state partner in a 
Consumer Partnership Exchange transitions to a State-Based Exchange, 
the discussion of State-Based Exchanges above will apply.
    While section 1311(i)(1) directs that the Navigator program be a 
grant program, State-based Exchanges and state partners in a Consumer 
Partnership Exchange have the flexibility to build a non-Navigator 
assistance program through contracts, direct hiring, or grants, subject 
to state law. Utilizing funding mechanisms other than grants for non-
Navigator assistance programs may be particularly important to ensure 
that State-based Exchanges have enhanced flexibility to utilize non-
Navigator assistance personnel to fill in any gaps in their Navigator 
programs or to appropriately supplement their Navigator program, as 
described above, by, for example, serving communities that may not be 
reached by their Navigator program.

B. Legislative and Regulatory Overview

    Section 1311 of the Affordable Care Act generally establishes the 
creation of Exchanges and outlines various requirements and standards 
Exchanges must satisfy. Specifically, pursuant to sections 1311(b) and 
1321(b) of the Affordable Care Act, each state has the opportunity to 
establish an Exchange.
    Sections 1311(d)(4)(K) and 1311(i) of the Affordable Care Act 
direct each Exchange to establish a program under which it awards 
grants to Navigators who will carry out a list of required duties. A 
final rule implementing sections 1311(d)(4)(K) and 1311(i) of the 
Affordable Care Act was published on March 27, 2012 (77 FR 18310), and 
is codified at 45 CFR Sec.  155.210.
    Section 1311(i)(3) of the Affordable Care Act lists the duties 
Navigators must perform. Section 155.210(e) interprets these duties to 
include: maintaining expertise in eligibility, enrollment, and program 
specifications; conducting public education activities to raise 
awareness about the Exchange; providing information and services in a 
fair, accurate, and impartial manner, including information that 
acknowledges other health programs such as Medicaid and CHIP; 
facilitating selection of a QHP; providing referrals for consumers with 
questions, complaints, or grievances to any applicable office of health 
insurance consumer assistance or health insurance ombudsman established 
under section 2793 of the Public Health Service Act (PHS Act), or any 
other appropriate state agency or agencies; providing information in a 
culturally and linguistically appropriate manner, including to persons 
with limited English proficiency; and ensuring accessibility and 
usability of Navigator tools and functions for persons with 
disabilities.
    Section 1311(i)(4) directs the Secretary to establish standards for 
Navigators, including provisions to ensure that any entity selected as 
a Navigator is qualified, and licensed if appropriate, to engage in the 
Navigator activities required by the law and to avoid conflicts of 
interest. 45 CFR 155.210(b)(1), which interprets this provision, 
directs each Exchange to ``develop and publicly disseminate * * * [a] 
set of standards, to be met by all entities and individuals awarded 
Navigator grants, designed to prevent, minimize and mitigate any 
conflicts of interest, financial or otherwise, that may exist for an 
entity or individuals to be awarded a Navigator grant and to ensure 
that all entities and individuals carrying out Navigator functions have 
appropriate integrity.'' Additionally, 45 CFR 155.210(c)(1)(iv) 
provides that a Navigator must not have a conflict of interest during 
its term as Navigator. 45 CFR 155.210(b)(2) directs Exchanges to 
develop and disseminate a set of training standards, to be met by all 
entities and individuals carrying out Navigator functions, to ensure 
Navigator expertise in the needs of underserved and vulnerable 
populations; eligibility and enrollment rules and procedures; the range 
of QHP options and insurance affordability programs; and privacy and 
security requirements applicable to personally identifiable 
information. This proposal develops and disseminates standards under 
Sec.  155.210(b)(1) and (2) for the Federally-facilitated Exchanges, 
including State Partnership Exchanges, and for non-Navigator assistance 
personnel in State-based Exchanges that are funded through federal 
Exchange Establishment grants. These standards could also be used by 
State-based Exchanges at their discretion for their Navigator programs 
and for any non-Navigator assistance programs not funded with 1311(a) 
Exchange Establishment grants.
    45 CFR 155.210(c)(1)(iii) also interprets section 1311(i)(4), and 
directs that entities or individuals must meet any licensing, 
certification, or other standards prescribed by the state or Exchange, 
if applicable, in order to receive a Navigator grant.
    Section 1311(i)(4) of the Affordable Care Act also specifies that 
under the standards established by the Secretary, Navigators shall not 
be health insurance issuers or receive any consideration directly or 
indirectly from any health insurance issuer in connection with the 
enrollment of any qualified individuals or employees of a qualified 
employer in QHPs. 45 CFR Sec.  155.210(d), which interprets this 
provision, prohibits Navigators from being health insurance issuers. It 
also provides that Navigators should not receive any compensation 
directly or indirectly from health insurance issuers in connection with 
the enrollment of qualified individuals or employees of a qualified 
employer, whether that enrollment is in QHPs or in non-QHPs. Section 
155.210(d) further clarifies that a Navigator must not be a subsidiary 
of a health insurance issuer or be an association that includes members 
of, or lobbies on behalf of, the insurance industry.
    Section 1311(i)(5) of the Affordable Care Act directs the Secretary 
to develop standards to ensure that information made available by 
Navigators is fair, accurate, and impartial.
    Provisions of the Exchange regulations, at 45 CFR 155.210(c)(2), 
direct the Exchange to select at least two different types of entities 
as Navigators, one of which must be a community and consumer-focused 
non-profit group.
    Section 1321(a) of the Affordable Care Act provides authority for 
the Secretary to establish standards and regulations to implement the 
statutory standards related to Exchanges, QHPs, and other components of 
title I of the Affordable Care Act.
    Section 1321(c)(1) of the Affordable Care Act requires the 
Secretary to establish and operate Exchanges within states that either: 
(1) do not elect to establish an Exchange, or (2) as determined by the 
Secretary on or before January 1, 2013, will not have an Exchange 
operational by January 1, 2014. These HHS-operated Exchanges are 
referred to as Federally-facilitated Exchanges, and include State 
Partnership Exchanges.
    Section 1321(d) of the Affordable Care Act states that nothing in 
title I of that Act shall be construed to preempt any state law that 
does not prevent the application of the provisions of the title. Title 
I of the Affordable Care Act includes all provisions related to 
Exchanges, including the Navigator provisions.
    Provisions of the Exchange regulations, at 45 CFR 155.205(d), 
direct Exchanges to have a consumer assistance function that meets the 
accessibility standards set forth in Sec.  155.205(c). This consumer 
assistance function includes the Navigator program at section 1311(i) 
of the Affordable Care Act and 45 CFR 155.210, but is not limited to 
the Navigator program.

[[Page 20585]]

45 CFR 155.205(e) directs Exchanges to conduct outreach and education 
activities that also meet the accessibility standards in Sec.  
155.205(c), and to educate consumers about the Exchange and insurance 
affordability programs to encourage participation. The accessibility 
standards for Sec.  155.205(d) and (e), as detailed in Sec.  
155.205(c), include a requirement that applicants and enrollees be 
provided information in plain language and in a manner that is 
accessible and timely for persons with disabilities and individuals 
with limited English proficiency. Additionally, a notice of proposed 
rulemaking published on January 22, 2013 would amend Sec.  155.205(d) 
\2\ to require any individual providing consumer assistance under Sec.  
155.205(d) to be trained regarding QHP options, insurance affordability 
programs, eligibility, and benefits rules and regulations governing all 
insurance affordability programs operated in the state, as implemented 
in the state, prior to providing consumer assistance. Once finalized, 
that rule will apply to and require such training for non-Navigator 
assistance personnel.
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    \2\ See Notice of Proposed Rulemaking on Essential Health 
Benefits in Alternative Benefit Plans, Eligibility Notices, Fair 
Hearing and Appeal Processes for Medicaid and Exchange Eligibility 
Appeals and Other Provisions Related to Eligibility and Enrollment 
for Exchanges, Medicaid and CHIP, and Medicaid Premiums and Cost 
Sharing, 78 FR 4594, 4710 (Jan. 22, 2013).
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    HHS has also published a proposed a rule (78 FR 4594) that would 
create a new section 45 CFR Sec.  155.225, proposing to require each 
Exchange to certify staff and volunteers of Exchange-designated 
organizations and organizations designated by State Medicaid and 
Children's Health Insurance Program agencies to serve as certified 
application counselors in the Exchange.

C. Overview of Proposed Rule

    First, this proposed regulation would amend Sec.  
155.210(c)(1)(iii) to clarify that any Navigator licensing, 
certification, or other standards prescribed by the state or Exchange 
must not prevent the application of the provisions of title I of the 
Affordable Care Act. The proposed rule would also amend Sec.  
155.210(d) to clarify that a Navigator cannot be an issuer of, or a 
subsidiary of an issuer of, stop loss insurance, and cannot receive any 
consideration, directly or indirectly, from an issuer of stop loss 
insurance in connection with the enrollment of any individuals or 
employees in a QHP or a non-QHP. These proposed amendments to Sec.  
155.210 would be applicable to Navigators in all Exchanges, including 
Federally-facilitated Exchanges, State Partnership Exchanges, and 
State-based Exchanges.
    Second, this proposed rule would add a new provision at 45 CFR 
155.215 that would establish conflict-of-interest, training, and 
accessibility standards applicable to Navigators and non-Navigator 
assistance personnel in Federally-facilitated Exchanges, including 
State Partnership Exchanges. We also propose that these standards would 
apply to non-Navigator assistance programs and personnel in State-based 
Exchanges that are funded through federal section 1311(a) Exchange 
Establishment grants.
    Proposed section 155.215(a) provides details on the set of 
conflict-of-interest standards applicable to these Navigators and non-
Navigator personnel. Proposed Sec.  155.215(a)(2)(i) would also 
establish that the non-Navigator assistance personnel described above 
must comply with the same set of conflict-of-interest prohibitions that 
apply to Navigators under Sec.  155.210(d). Section 155.215(b) proposes 
standards related to training, certification, and recertification for 
these Navigators and non-Navigator personnel. These standards include 
details about the requirement to be certified, to register and receive 
training, the content required for training, and the requirement to 
receive a passing score on all HHS-approved certification examinations 
after training. Proposed Sec.  155.215(c) and (d) would establish 
standards for these Navigators and non-Navigator personnel to ensure 
meaningful access to their services by individuals with limited English 
proficiency and people with disabilities. The standards proposed at 
155.215(c) and (d) should be read together with all other applicable 
standards issued by the Secretary related to ensuring meaningful access 
by individuals with limited English proficiency and people with 
disabilities.
    State-based Exchanges would not be required to use the standards 
proposed in Sec.  155.215 for their Navigators, or for non-Navigator 
assistance programs not funded through section 1311(a) Exchange 
Establishment grants. However, we believe that State-based Exchanges 
may find the federal standards to be useful models, and could draw upon 
them as they develop and disseminate conflict-of-interest and training 
standards for Navigators pursuant to Sec.  155.210(b), or when 
establishing standards for any non-Navigator assistance program that is 
established by the State-based Exchange that is not funded by federal 
1311(a) Exchange Establishment grants.
    In addition, while the conflict-of-interest, training and 
meaningful access standards that are now being proposed would apply to 
the Navigators and non-Navigator assistance personnel described above, 
we have not proposed that the standards would also apply to certified 
application counselors. Certified application counselors have been 
proposed as an additional source of consumer assistance, required in 
every Exchange, in a separate proposed rule (78 FR 4594), but that rule 
has not yet been finalized. We are, however, requesting public comments 
regarding whether all or some of the standards being proposed for 
Navigators and non-Navigator assistance personnel in this proposed 
regulation should also apply to certified application counselors in the 
event that every Exchange is required to establish a certified 
application counselor program after publication of a final rule.

II. Provisions of the Proposed Rule

A. Navigator Program Standards (Proposed Amendments to Sec.  155.210)

    The proposed rule contains two amendments to specific provisions of 
the existing Navigator regulation, Sec.  155.210. These proposed 
amendments would apply to Navigators in all Exchanges, including 
Federally-facilitated Exchanges, State Partnership Exchanges and State-
based Exchanges.
1. Entities and Individuals Eligible to be a Navigator (Proposed 
Amendment to Sec.  155.210(c)(1)(iii))
    Section 155.210(c)(1)(iii), implementing section 1311(i)(4) of the 
Affordable Care Act, currently directs that, to receive a Navigator 
grant, an entity or individual must ``meet any licensing, certification 
or other standards prescribed by the state or Exchange, if 
applicable.'' Section 1321(d) of the Affordable Care Act provides that 
state laws that do not prevent the application of the provisions of 
title I of the Affordable Care Act are not preempted.
    The proposed rule would clarify that any Navigator licensing, 
certification, or other standards prescribed by the state or Exchange 
should not prevent the application of the provisions of title I of the 
Affordable Care Act. Thus, for example, as HHS has previously advised 
(see 77 FR 18310 at 18331-32), a requirement by a state or an Exchange 
that Navigators be agents and brokers or obtain errors and omissions 
coverage would violate the requirement at Sec.  155.210(c)(2) that at 
least two types of entities must serve as Navigators, because it would 
mean that only agents

[[Page 20586]]

or brokers could be Navigators. In addition, holding an agent or broker 
license is neither necessary, nor by itself sufficient, to perform the 
duties of a Navigator, as these licenses generally do not address areas 
in which Navigators need expertise, including the public coverage 
options that would be available to some consumers. Similarly, if a 
State or Exchange required all Navigators to hold a producer license, 
or if a producer license was required to carry out any of the required 
Navigator duties, this would also conflict with Sec.  155.210(c)(2), 
because in that event, all Navigators in the Exchange would be licensed 
agents or brokers, as defined in Sec.  155.20.
    Therefore, we propose to amend Sec.  155.210(c)(1)(iii) to clarify, 
consistent with Affordable Care Act section 1321(d), that to receive a 
Navigator grant, an entity or individual must meet any licensing, 
certification or other standard prescribed by the State or Exchange, if 
applicable, as long as such standards do not prevent the application of 
the provisions of title I of the Affordable Care Act. We solicit public 
public comments on this proposed amendment.
2. Prohibition on Navigator Conduct (Proposed Amendment to Sec.  
155.210(d))
    Under Sec.  155.210(d), a Navigator may not be a health insurance 
issuer; be a subsidiary of a health insurance issuer; be an association 
that includes members of, or lobbies on behalf of, the insurance 
industry; or receive any consideration, directly or indirectly, from 
any health insurance issuer in connection with the enrollment of any 
individuals or employees in a QHP or non-QHP. We propose to amend 
section 155.210(d) to further clarify that a Navigator must also not be 
an issuer of stop loss insurance, or a subsidiary of an issuer of stop 
loss insurance, and must not receive any consideration, directly or 
indirectly, from any issuer of stop loss insurance in connection with 
the enrollment of individuals or employers in a QHP or non-QHP.\3\
---------------------------------------------------------------------------

    \3\ HHS, jointly with the Departments of Labor and the Treasury, 
issued a Request for Information Regarding Stop Loss Insurance on 
May 1, 2012. See 77 FR 25788. In that Request for Information, we 
explained that stop loss insurance is designed to protect against 
health insurance claims that are catastrophic or unpredictable in 
nature, and that it provides coverage to self-insured group health 
plans once a certain level of risk has been absorbed by the plan.
---------------------------------------------------------------------------

    Section 1311(i)(3)(B) of the Affordable Care Act directs that a 
Navigator must distribute fair and impartial information concerning 
enrollment in QHPs. Section 1311(i)(5) of the Affordable Care Act 
further directs that the Secretary shall establish standards to ensure 
that information made available by Navigators is fair, accurate, and 
impartial. In addition, section 1311(i)(4) directs the Secretary to 
establish standards to avoid conflicts of interest by Navigators. 
Existing regulations at 45 CFR 155.210(c)(1)(iv) and (e)(2) also direct 
that Navigators must not have a conflict of interest during their term 
as a Navigator, and must provide information and services in a fair, 
accurate, and impartial manner. Taken together, these requirements 
indicate that a Navigator should not have a conflict of interest when 
presenting information or providing the range of coverage choices to 
individuals or small employers who receive the Navigator's assistance. 
Similarly, the Navigator must not have a personal interest in the 
coverage choices made by individuals or employers who receive the 
Navigator's assistance. More specifically, with respect to the 
assistance offered by a Navigator to a small employer, a Navigator 
should not have a personal interest in whether a small employer chooses 
to self-insure its employees, or chooses to enroll in fully-insured 
coverage inside or outside the Exchange.
    We believe that an issuer of stop loss insurance, a subsidiary of 
an issuer of stop loss insurance, or an individual or entity receiving 
consideration from any issuer of stop loss insurance in connection with 
enrollment in a QHP or non-QHP, would have conflicts of interest 
prohibited by Sec.  155.210(c)(1)(iv) and such conflicts of interest 
would compromise the ability of a Navigator to provide information and 
services in a fair, accurate, and impartial manner as required by Sec.  
155.210(e)(2).
    Navigators with a financial relationship with an issuer of stop 
loss insurance raise the same kinds of concerns that would be present 
for a Navigator with a relationship with a health insurance issuer (or 
an entity receiving consideration from a health insurance issuer). Such 
Navigators could have a financial incentive to encourage small 
employers towards self-funding and might not present all coverage 
options, including insured options, to small employers in a fair, 
accurate, and impartial manner. In addition, such conflicts of interest 
might interfere with a Navigator's duty to ``facilitate selection of a 
QHP,'' as required by Sec.  155.210(e)(3).
    The proposed amendments would help ensure that Navigators provide 
any small employers that request help from a Navigator with information 
and services in a fair, accurate, and impartial manner, and that such 
information facilitate small employers' selection of QHPs in Small 
Business Health Options (SHOP) Exchanges, if they choose to enroll in 
such coverage. We solicit public comments on this proposal.

B. Standards Applicable to Navigators and Non-Navigator Assistance 
Personnel Carrying Out Consumer Assistance Functions Under Sec. Sec.  
155.205(d) and (e) and 155.210 in a Federally-Facilitated Exchange and 
to Non-Navigator Assistance Personnel Funded Through an Exchange 
Establishment Grant (Proposed Sec.  155.215)

1. Conflict-of-Interest Standards (Proposed Sec.  155.215(a))
    The proposed regulation proposes conflict-of-interest standards 
that are substantially similar for both Navigators and non-Navigator 
assistance personnel. These proposed conflict-of-interest standards 
would apply to all Navigators and non-Navigator assistance personnel in 
a Federally-facilitated Exchange (including a State Partnership 
Exchange), and to federally-funded non-Navigator assistance personnel 
in a State-based Exchange.
    The standards applicable to Navigators interpret the requirements 
at section 1311(i)(4) of the Affordable Care Act and 45 CFR 
155.210(c)(1)(iv) and (d). In addition, these standards would help 
ensure that Navigators provide information in a fair, accurate, and 
impartial manner, pursuant to Affordable Care Act section 1311(i)(5) 
and 45 CFR 155.210(e)(2). These standards also follow from 45 CFR 
155.210(b), which specifies that Exchanges establish a set of conflict-
of-interest standards applicable to Navigators in the Exchange.
    We also believe that non-Navigator assistance personnel who carry 
out consumer outreach, assistance, and education in Federally-
facilitated Exchanges, including State Partnership Exchanges, and non-
Navigator assistance personnel in State-based Exchanges that are funded 
through Exchange Establishment grants should be subject to conflict-of-
interest standards. To be helpful to the public, we believe that 
services provided under Sec.  155.205(d) and (e) should be carried out 
in a fair, impartial, and unbiased manner. Applying conflict-of-
interest standards to these non-Navigator assistance personnel will 
therefore ensure that they provide services consistent with this 
interpretation of Sec.  155.205,and will minimize confusion in the 
marketplace. We solicit public comments on applying the same conflict-
of-interest standards to both

[[Page 20587]]

Navigators and non-Navigator assistance personnel.
    State-based Exchanges would not be required to adopt the conflict-
of-interest standards proposed in Sec.  155.215(a) for their Navigators 
or for their non-Navigator assistance personnel that are not funded 
through 1311(a) Exchange Establishment grants. However, State-based 
Exchanges may wish to consider using the standards proposed in Sec.  
155.215 as models when developing their own standards.
a. Conflict-of-Interest Standards for Navigators (Proposed Sec.  
155.215(a)(1))
    Section 1311(i)(4) of the Affordable Care Act directs the Secretary 
to establish standards for Navigators, including provisions to avoid 
conflicts of interest. Section 155.210(b)(1) directs all Exchanges to 
develop and publicly disseminate conflict-of-interest standards for 
Navigators. The conflict-of-interest standards proposed in Sec.  
155.215(a)(1) are intended to apply to all Navigators in Federally-
facilitated Exchanges, including State Partnership Exchanges.
    Section 155.210(c)(1)(iv) prohibits Navigators from having 
conflicts of interest during their terms as Navigators. In this 
context, we have explained that having a conflict of interest means 
having a private or personal interest sufficient to influence, or 
appear to influence, the objective exercise of a Navigator's official 
duties (77 FR 18330-18331). In addition, Sec.  155.210(d) directs that 
a Navigator must not have certain relationships with insurance issuers 
or the insurance industry. Because any individual or entity with the 
conflicts of interest listed at Sec.  155.210(d) would be barred from 
participating as a Navigator, the first proposed conflict-of-interest 
standard, as set forth in proposed Sec.  155.215(a)(1)(i), would 
require that a Navigator entity, including a Navigator grant applicant, 
submit to the Exchange a written attestation that the Navigator and its 
staff do not have any of these prohibited conflicts of interest. This 
disclosure to the Exchange will help to ensure that Navigators comply 
with the prohibitions on Navigator conduct set forth in Sec.  
155.210(d), and that individuals and entities who are ineligible under 
Sec.  155.210(d) do not apply to the Exchange for grants to serve as 
Navigators. We solicit public comments on the proposal to require 
Navigators to submit an attestation regarding eligibility.
    Proposed Sec.  155.215(a)(1)(ii) would direct that all Navigator 
entities submit to the Exchange a written plan to remain free of 
conflicts of interest during their term as a Navigator. This plan 
should ensure that the Navigator grantee, and all those individuals who 
serve as Navigators under the direction of the Navigator grantee, would 
fully comply with the prohibitions in Sec.  155.210(d), and all other 
conflict-of-interest requirements, as described below, throughout the 
term of a Navigator grant. This would be particularly important for 
those Navigator entities that may have a changing workforce, and might 
thus utilize new or different staff or employees during the term of a 
Navigator grant. We solicit public comments on the proposed requirement 
to submit a written plan to remain free of conflicts of interest, 
including comments on the form of and content for the plan.
    Proposed Sec.  155.215(a)(1)(iii) would direct that all Navigators, 
both individual Navigators and Navigator entities, and their staff, 
provide information to consumers about the full range of QHP options 
and insurance affordability programs such as premium tax credits and 
cost sharing reductions and Medicaid and CHIP, for which they are 
eligible. This proposed requirement would help ensure that consumers 
receive all of the information they need to make an informed enrollment 
decision, and that the information they receive is fair, as required by 
Sec.  155.210(e)(2).
    Lastly, the proposed conflict-of-interest standards for Navigators 
include the requirement at proposed Sec.  155.215(a)(1)(iv) that 
certain conflicts of interest, while not a bar to serving as a 
Navigator, should be disclosed to the Exchange and to each consumer 
receiving application assistance (which includes pre-enrollment and 
post-enrollment services, but does not include outreach and education 
assistance), both by the Navigator individual and the entity. In 
developing the conflict-of-interest standards in the proposed rule, we 
have been mindful that every Navigator must ``provide information and 
services in a fair, accurate and impartial manner'' under Sec.  
155.210(e)(2). We have also been mindful that each Exchange must 
develop standards ``designed to prevent, minimize and mitigate any 
conflicts of interest, financial or otherwise, that may exist for an 
entity or individuals to be awarded a Navigator grant and to ensure 
that all entities and individuals carrying out Navigator functions have 
appropriate integrity,'' Sec.  155.210(b)(1). The requirement that an 
Exchange develop standards to minimize and mitigate conflicts of 
interests suggests that some conflicts of interest would not be 
absolute bars to service as a Navigator, provided that the conflict of 
interest would not ultimately prevent the entity or individual from 
providing information and services in a fair, accurate, and impartial 
manner. Striking this balance will allow for a robust pool of 
Navigators, without sacrificing the need to ensure that all Navigators 
have the integrity, fairness, and impartiality to carry out their 
duties appropriately.
    Under the proposed rule, in order to mitigate conflicts of 
interest, there are three types of information that Navigators should 
disclose to the Exchange and to their consumers. First, Navigator and 
all Navigator staff members would be required to disclose to the 
Exchange and to each consumer who receives application assistance from 
the Navigator entity or individual, any lines of insurance business, 
other than health insurance or stop loss insurance, which the Navigator 
intends to sell while serving as a Navigator. Since Navigators must not 
sell health insurance and as we also propose, must not sell stop loss 
insurance, the proposed requirement that Navigators disclose ``any 
lines of insurance business'' is not intended to apply to the sale of 
health insurance or stop loss insurance, since these are not conflicts 
of interest that could be mitigated through disclosure (see Sec.  
155.210(d)).
    In addition, the proposed rule would require disclosure of two 
other types of indirect financial conflicts of interest. Navigators and 
their staff members would be required to disclose to the Exchange and 
each consumer receiving application assistance, any existing and former 
employment relationships they have had within the last five years with 
any issuer of health insurance or stop loss insurance, or subsidiaries 
of such issuers. It is is intended that any existing employment 
relationships disclosed would be non-prohibited relationships, because 
receipt of any consideration directly or indirectly from any health 
insurance issuer or issuer of stop loss insurance in connection with 
the enrollment of any individuals or employees in a QHP or a non-QHP 
would already be prohibited by Sec.  155.210(d)(4). They must also 
disclose any existing employment relationships between any health 
insurance issuer or stop-loss insurance issuer, or subsidiary of such 
issuers, and the individual's spouse or domestic partner. Navigators 
and their staff members would also be required to disclose to the 
Exchange and to each consumer receiving application assistance any 
existing or anticipated financial, business, or contractual 
relationships with one or more issuers of health insurance or stop loss 
insurance or subsidiaries of such

[[Page 20588]]

issuers. These types of conflict-of-interest relationships with issuers 
of health insurance or stop loss insurance should be disclosed because 
these relationships may confer benefits or indirect financial gain that 
would compromise a Navigator's objectivity. We solicit public comments 
on the proposed requirement to disclose certain types of potential 
financial conflicts of interest.
    Under existing regulations, a Navigator must not act on behalf of 
health insurance issuers, either as agents or under appointment, since 
this would violate the prohibition on conflicts of interest in Sec.  
155.210(d)(1) through (d)(3) and the prohibition at Sec.  155.210(d)(4) 
on receiving compensation from issuers in connection with enrollment. 
However, we note that agents and brokers have traditionally assisted 
consumers in obtaining health insurance. We anticipate that agents and 
brokers will continue to be an important source of assistance for many 
consumers seeking access to health insurance coverage through an 
Exchange, including those who own and/or are employed by small 
businesses. The proposed conflict-of-interest standards for Navigators 
would permit agents and brokers to serve as Navigators in an Exchange 
operated by HHS, provided that the agent or broker can satisfy the 
standards that will apply to all Navigators in the Exchange. For 
example, as stated above, all Navigators, including agents and brokers 
serving as Navigators, are prohibited from receiving consideration, 
directly or indirectly, from any health insurance issuer in connection 
with the enrollment of consumers into QHPs or non-QHPs (Sec.  
155.210(d)(4)), and we interpret that provision to apply to the receipt 
of trailer commissions. Under the proposed amendments to Sec.  
155.210(d), the same prohibition would apply to agents or brokers 
receiving consideration from stop loss insurance issuers. Agents and 
brokers who sell other lines of insurance would not be prohibited from 
receiving consideration from the sale of those other lines of insurance 
while serving as Navigators, provided they complied with the disclosure 
requirement.
    If an entity or organization is awarded a grant to be a Navigator, 
the entity as a whole is considered to be a Navigator. Therefore, the 
prohibition on receipt of compensation from certain insurance issuers 
in connection with the enrollment of consumers into QHPs or non-QHPs, 
would apply to the entire organization and its entire staff. While a 
Navigator could retain staff members who serve as agents and brokers, 
those staff members--and the organization itself--could not receive 
compensation from health insurance or stop loss insurance issuers for 
enrolling individuals or employees in QHPs or health insurance plans 
outside of the Exchange. Such staff members, however, could continue to 
be compensated for selling other insurance products (for example, auto, 
life, and homeowners' policies).
    We solicit public comments on the proposed conflict-of-interest 
standards applicable to Navigators.
b. Conflict-of-Interest Standards for Non-Navigator Assistance 
Personnel Carrying Out Consumer Assistance Functions Under Sec.  
155.205(d) and (e) (Proposed Sec.  155.215(a)(2))
    Proposed Sec.  155.215(a)(2) would establish a set of parallel 
conflict-of-interest standards that would apply in Federally-
facilitated Exchanges (including State Partnership Exchanges) to non-
Navigator assistance personnel carrying out consumer assistance 
functions under 155.205(d) and (e), and to federally-funded non-
Navigator assistance personnel in a State-Based Exchange. As discussed 
above, we believe the same conflict-of-interest considerations that 
apply to Navigators should also apply to these non-Navigator assistance 
personnel. With respect to the requirement to submit a mitigation plan 
under proposed Sec.  155.215(a)(2)(iii), consistent with the 
requirement that only a Navigator entity (not individual staff) would 
be required to submit the plan, the mitigation plan would only be 
required on an individual basis if the individual is not working for an 
entity serving as non-Navigator assistance personnel.
    In addition, the proposed rule would direct that these non-
Navigator assistance personnel adhere to and comply with the same 
restrictions on participation and prohibitions on conduct that apply to 
Navigators under Sec.  155.210(d). Therefore, like Navigators, 
individuals and entities performing non-Navigator assistance functions 
under Sec.  155.205(d) and (e) must not have any of the disqualifying 
conflicts of interest arising from being an issuer of health insurance 
or stop loss insurance, a subsidiary of such an issuer, or an 
association with members that are issuers or that lobbies for health 
insurance or stop loss issuers, or from receiving compensation from an 
issuer of health insurance or stop loss insurance in connection with 
enrollment in QHPs or non-QHPs. We solicit public comments on the 
application of these proposed standards to non-Navigator assistance 
personnel.
2. Training Standards for Navigators and Non-Navigator Assistance 
Personnel Carrying Out Consumer Assistance Functions Under Sec. Sec.  
155.205(d) and (e) and 155.210 (Proposed Sec.  155.215(b))
    Existing regulations at 45 CFR 155.210(b)(2) direct Exchanges to 
develop and disseminate a set of training standards, to be met by all 
entities and individuals carrying out Navigator functions. Under Sec.  
155.210(b)(2), the training standards developed by the Exchange must 
ensure Navigator expertise in eligibility and enrollment rules and 
procedures, the range of QHP options and insurance affordability 
programs, the needs of underserved and vulnerable populations, and 
privacy and security requirements applicable to personally identifiable 
information. In addition, to receive a Navigator grant, Sec.  
155.210(c)(1)(iii) directs that an entity or individual must meet any 
licensing, certification, or other standards prescribed by the state or 
Exchange, if applicable.
    In addition, in the proposed rule relating to Essential Health 
Benefits in Alternative Benefit Plans, Eligibility Notices, Fair 
Hearing and Appeal Processes for Medicaid and Exchange Eligibility 
Appeals and Other Provisions Related to Eligibility and Enrollment for 
Exchanges, Medicaid and CHIP, and Medicaid Premiums and Cost Sharing, 
published on January 22, 2013 (78 FR 4594, 4710), we proposed an 
amendment to Sec.  155.205(d) that would require any individual 
providing consumer assistance under that section, including Navigators, 
to ``be trained regarding QHP options, insurance affordability 
programs, eligibility, and benefits rules and regulations governing all 
insurance affordability programs operated in the state, as implemented 
in the state, prior to providing such assistance.''
    Consistent with the existing requirements in Sec.  155.210(b)(2) 
and Sec.  155.210(c)(1)(iii) and the proposed requirements at 78 FR 
4710, we now propose a specific set of training standards that would 
require up to 30 hours of training, including standards for 
certification and recertification, for all Navigators and non-Navigator 
assistance personnel in Federally-facilitated Exchanges, including 
State Partnership Exchanges, and all federally funded non-Navigator 
assistance personnel in State-based Exchanges, to ensure that these 
entities and individuals can satisfy the duties and obligations of 
serving as Navigators or non-Navigator assistance personnel. These 
proposed standards would be

[[Page 20589]]

applicable to all Navigators and non-Navigator assistance personnel in 
Federally-facilitated Exchanges, including State Partnership Exchanges, 
and to all federally funded non-Navigator assistance personnel in 
State-based Exchanges, and can be used by State-based Exchanges at 
their option for their Navigator personnel and non-federally funded 
non-Navigator assistance personnel.
a. Certification and Recertification Standards (Proposed Sec.  
155.215(b)(1))
    Section 1311(i)(4) of the Affordable Care Act directs the Secretary 
to establish standards for Navigators, including provisions to ensure 
that any private or public entity that is selected as a Navigator is 
qualified, and licensed if appropriate, to engage in Navigator 
activities and to avoid conflicts of interest. Under existing 
regulations at 45 CFR 155.210(c)(1)(iii), Navigators must meet any 
``licensing, certification or other standards prescribed by the state 
or Exchange, if applicable.'' In addition, we have previously proposed 
to amend Sec.  155.205(d) to require that any individual providing 
consumer assistance under Sec.  155.205(d) must be trained regarding 
QHP options, insurance affordability programs, eligibility, and 
benefits rules and regulations governing all insurance affordability 
programs operated in the state, as implemented in the state, prior to 
providing such assistance (78 FR 4594).
    We now propose in Sec.  155.215(b)(1) that all Navigators and non-
Navigator assistance personnel in a Federally-facilitated Exchange or 
State Partnership Exchange, and federally-funded non-Navigator 
assistance personnel in a State-Based Exchange, register with the 
Exchange and be certified by the Exchange, and prior to certification, 
complete an HHS-approved training before carrying out any consumer 
assistance functions in the Exchange. We propose in Sec.  155.215(b)(2) 
the topics about which such Navigators and non-Navigator assistance 
personnel would receive training prior to certification. The proposed 
rule would also direct that individuals and staff of Navigator entities 
and non-Navigator assistance entities receive a passing score on all 
HHS-approved examinations in order to serve as Navigators or non-
Navigator assistance personnel in a Federally-facilitated Exchange, a 
State Partnership Exchange, or as federally-funded non-Navigator 
assistance personnel in a State-based Exchange.
    The proposed recertification requirement for Navigators and non-
Navigator assistance personnel would ensure that they remain 
appropriately trained to adequately serve consumers. The rule also 
proposes that Navigators and non-Navigator assistance personnel should 
obtain continuing education and be certified and/or recertified on at 
least an annual basis.
    We also propose that these certification requirements would 
specifically direct that all Navigators and non-Navigator assistance 
personnel be prepared to serve both the individual Exchange and SHOP in 
a Federally-facilitated Exchange. Section 1311(i)(2)(A) of the 
Affordable Care Act directs that, to be eligible to receive a Navigator 
grant, an entity must demonstrate that it has existing relationships, 
or could readily establish relationships, with employers and employees. 
In addition, section 1311(i)(2)(B) directs that the types of entities 
that may be eligible for a Navigator grant include resource partners of 
the Small Business Administration. We infer from these standards that 
Navigators must be prepared to serve the needs of small businesses, and 
therefore will need to be prepared to serve the needs of both the 
individual Exchange and SHOP. We also believe that non-Navigator 
assistance personnel who carry out consumer outreach, assistance, and 
education in the Exchange and are paid for by Federal funding should be 
prepared to serve the needs of both the individual Exchange and SHOP. 
In order to be truly helpful and useful to the public, we believe that 
services provided under Sec.  155.205(d) and (e) should be available to 
all consumers, including small businesses. Directing non-Navigator 
assistance personnel in Federally-facilitated Exchanges, including 
State Partnership Exchanges, and federally funded non-Navigator 
assistance personnel in State-based Exchanges to provide assistance to 
all consumers will ensure that they provide services consistent with 
this interpretation of Sec.  155.205.
    Each Navigator and non-Navigator assistance personnel should have 
the ability to help any individual who presents him or herself for 
assistance. However, there may be some instances where a Navigator, or 
non-Navigator assistance personnel, does not have the immediate 
capacity to help an individual. In such cases, the Navigator or non-
Navigator assistance personnel should be capable of providing 
assistance in a timely manner but should also refer consumers seeking 
assistance to other Exchange resources, such as the toll-free Exchange 
Call Center, or to another Navigator or non-Navigator assistance 
personnel in the same Exchange who might have better capacity to serve 
that individual more effectively.
    We solicit public comments on these proposed training and 
certification standards, including the proposed recertification 
standards.
b. Training Module Content Standards (Proposed Sec.  155.215(b)(2))
    Each entity that serves as a Navigator, and each individual that 
will carry out Navigator functions under the terms of a Navigator grant 
in a Federally-facilitated Exchange or State Partnership Exchange, must 
receive training to perform all of the duties of a Navigator. Although 
different Navigators may perform these duties at different levels of 
effort or focus, every Navigator must be trained to perform all of the 
listed duties in section 1311(i)(3) of the Affordable Care Act and in 
Sec.  155.210(e). Therefore, in order to carry out a Navigator's duties 
to maintain expertise in eligibility and facilitate selection of QHPs, 
all Navigators will receive training so that they are equipped with the 
necessary information to help consumers apply for coverage through the 
Exchange, which will ultimately result in an eligibility determination 
for enrollment in a QHP and/or an insurance affordability program. Non-
Navigator assistance personnel must receive comparable training with 
respect to their specific responsibilities. In addition, Navigators and 
non-Navigator assistance personnel must receive training on the privacy 
and security requirements for the protection of personally identifiable 
information, including relevant state laws.
    In addition to training designed to help Navigators and non-
Navigator assistance personnel build expertise in eligibility and 
facilitating selection of QHPs, training for Navigators and non-
Navigator assistance personnel should prepare them to educate consumers 
about the advanced payments of the premium tax credit and cost-sharing 
reductions and help them submit the appropriate information to receive 
an eligibility determination for insurance affordability programs, 
including advanced payments of the premium tax credits and cost-sharing 
reductions. In addition, Navigators should be trained so that they will 
be prepared to fulfill the duty at Sec.  155.210(e)(2) to ``provide 
information and services in a fair, accurate and impartial manner,'' 
including the requirement that ``such information acknowledge other 
health programs,'' including Medicaid and CHIP. Therefore, Sec.  
155.215(b)(2) proposes a set of standards for the content of the 
training module for

[[Page 20590]]

Navigators and non-Navigator assistance personnel in a Federally-
facilitated Exchange or State Partnership Exchange, and for federally 
funded non-Navigator assistance personnel in a State-based Exchange, to 
ensure that they would be knowledgeable in these areas, and fully 
prepared to assist consumers.
    The Exchange regulations, at 45 CFR 155.260(a), establish privacy 
and security standards for Exchanges, and Sec.  155.260(b) provides 
that Exchanges must require Navigators and other non-Exchange entities 
to abide by the same or more stringent privacy and security standards 
as a condition of contract or agreement with such entities. Consistent 
with these requirements, we propose that the training for Navigators 
and non-Navigator assistance personnel must include training designed 
to ensure that they safeguard consumers' sensitive personal information 
including but not limited to health information, income and tax 
information, and Social Security number.
    Subsections 155.205(d) and (e) direct Exchanges to conduct consumer 
assistance, outreach, and education activities, including Navigator 
programs, in a way that meets the standards set forth at Sec.  
155.205(c). Section 155.205(c), in turn, directs Exchanges to provide 
information to applicants and enrollees in plain language and in a 
manner that is accessible and timely to individuals living with 
disabilities and individuals who are limited English proficient (LEP). 
Additionally, Sec.  155.210(e)(5) directs Navigators to provide 
information in a manner that is culturally and linguistically 
appropriate to the needs of the population served by the Exchange, 
including individuals with limited English proficiency, and to ensure 
accessibility and usability of Navigator tools and functions for 
individuals with disabilities. We interpret the foregoing provisions to 
require all entities and individuals carrying out activities authorized 
by Sec. Sec.   155.205(d) and (e) and155.210, including Navigators and 
non-Navigator assistance personnel, to be knowledgeable about the 
special needs of populations with limited English proficiency and 
people with a full range of disabilities, and how best to communicate 
with and assist these consumers. The rule therefore proposes that the 
training for Navigators and non-Navigator assistance personnel would 
include training designed to ensure that they will be equipped to 
provide culturally and linguistically appropriate services and ensure 
physical and other accessibility for people with disabilities. We 
solicit public comments on the proposed requirement to receive training 
regarding culturally and linguistically appropriate services as well as 
accessibility for people with disabilities.
3. Providing Culturally and Linguistically Appropriate Services (CLAS 
Standards) (Proposed Sec.  155.215(c))
    Proposed Sec.  155.215(c) and (d) detail standards for the use and 
provision of culturally and linguistically appropriate tools and 
services as well as requirements to ensure access by individuals with 
disabilities who seek assistance from Navigators and non-Navigator 
assistance personnel in Federally-facilitated Exchanges, including 
State Partnership Exchanges, and from federally-funded non-Navigator 
assistance personnel in a State-based Exchange.
    Section 1311(i)(3)(E) of the Affordable Care Act directs that 
Navigator entities have a duty to provide information in a manner that 
is culturally and linguistically appropriate to the needs of the 
population being served by the Exchange or Exchanges. According to the 
regulation implementing this provision, Navigators must ``provide 
information in a manner that is culturally and linguistically 
appropriate to the needs of the population being served by the 
Exchange, including individuals with limited English proficiency'' 
(Sec.  155.210(e)(5)). Additionally, all non-Navigator assistance 
personnel must meet the accessibility standards set forth at Sec.  
155.205(c).
    Independent of these obligations, certain Federal civil rights 
laws, such as Title VI of the Civil Rights Act of 1964 and Section 504 
of the Rehabilitation Act of 1973, also apply to Navigators in 
Federally-facilitated and State Partnership Exchanges. These laws would 
also apply to non-Navigator assistance programs in State-based and 
State Partnership Exchanges to the extent such programs receive federal 
financial assistance. These federal civil rights laws impose 
nondiscrimination obligations with respect to persons with disabilities 
and that address the communications needs of persons who have limited 
English proficiency (LEP).
    While the proposed training module content standards discussed 
earlier in this preamble include a requirement that training include 
providing culturally and linguistically appropriate services, this 
proposed rule also provides more specific standards for ensuring 
meaningful access. These proposed standards should be read together 
with all other applicable standards issued by the Secretary related to 
ensuring meaningful access by individuals with limited English 
proficiency.
    The specific standards proposed in Sec.  155.215(c) include that 
Navigators and non-Navigator assistance personnel develop, maintain, 
and regularly update general knowledge about the racial, ethnic, and 
cultural groups in their service area, including the primary languages 
spoken, and continue to use this information. The proposed requirements 
would also include that such entities and individuals provide consumers 
with information and assistance in the consumer's preferred language, 
at no cost to the consumer, which would include oral interpretation of 
non-English languages and the translation of written documents in non-
English languages when necessary to ensure meaningful access. We also 
propose that use of a consumer's family or friends as interpreters can 
satisfy the requirement to provide linguistically appropriate services 
only when requested by the consumer as the preferred alternative to an 
offer of other interpretive services. We anticipate that most 
Navigators and non-Navigator assistance personnel would use readily 
available telephonic interpretation services and other effective low-
cost services in order to meet the requirement to provide language 
access to the consumers they serve, so that it will not be costly or 
onerous.
    In addition, Sec.  155.215(c)(4) of the proposed rule would require 
that non-Navigator assistance personnel provide limited-English-
proficiency consumers with oral and written notices informing them of 
their right to receive language assistance services and how to obtain 
such services. This requirement could be satisfied using methods 
outlined in existing Sec.  155.205(c)(2), which allows for the use of 
taglines in non-English languages placed on documents or Web sites to 
indicate the availability of language services.
    Section 155.215(c)(6) of the proposed rule would also direct 
Navigator and non-Navigator assistance personnel entities to implement 
strategies to recruit and promote a staff that is representative of the 
demographic characteristics, including primary languages spoken, of the 
communities in their service area.
4. Standards Ensuring Access by Persons With Disabilities (Proposed 
Sec.  155.215(d))
    Section 155.210(e)(5) directs that an entity serving as a Navigator 
has a duty to ``ensure accessibility and usability of

[[Page 20591]]

Navigator tools and functions for individuals with disabilities in 
accordance with the Americans with Disabilities Act and Section 504 of 
the Rehabilitation Act.'' Similarly, Sec.  155.205(c) requires that 
persons providing consumer assistance pursuant to Sec.  155.205(d) and 
(e) provide individuals living with disabilities with information that 
is accessible at no cost to the individual, in accordance with the 
Americans with Disabilities Act and section 504 of the Rehabilitation 
Act.
    Additionally, independent of these obligations, certain Federal 
civil rights laws, such as Title VI of the Civil Rights Act of 1964 and 
Section 504 of the Rehabilitation Act of 1973, also apply to Navigators 
in Federally-facilitated and State Partnership Exchanges. These laws 
would also apply to non-Navigator assistance programs in State-based 
and State Partnership Exchanges to the extent such programs receive 
federal financial assistance. These federal civil rights laws impose 
nondiscrimination obligations with respect to persons with disabilities 
and that address the communications needs of persons who have limited 
English proficiency (LEP).
    In accordance with these requirements, Sec.  155.215(d)(2) of the 
proposed rule would direct that auxiliary aids and services for 
individuals with disabilities be provided at no cost where necessary 
for effective communication. The proposal specifies that the use of a 
consumer's family or friends as interpreters can satisfy the 
requirement to provide auxiliary aids and services only when requested 
by the consumer as the preferred alternative to an offer of other 
auxiliary aids and services. In addition, proposed section 
155.215(d)(3) would require Navigators and non-Navigator assistance 
personnel in a Federally-facilitated Exchange or State Partnership 
Exchange, and federally-funded non-Navigator assistance personnel in a 
State-based Exchange to provide assistance to consumers in a location 
and in a manner that is physically and otherwise accessible to 
individuals with disabilities. Proposed section 155.215(d)(1) would 
direct Navigators and non-Navigator assistance personnel to ensure that 
any consumer education materials, Web sites, or other tools utilized 
for consumer assistance purposes are accessible to people with 
disabilities.
    Section 155.215(d)(4) of the proposed rule would also require that 
legally authorized representatives be permitted to assist individuals 
with disabilities to make informed decisions. Finally, proposed Sec.  
155.215(d)(5) would direct that individuals carrying out Navigator and 
non-Navigator assistance functions have the ability to refer people 
with disabilities to local, state, and federal long-term services and 
supports programs when appropriate. We seek comment on this 
requirement.
    These proposed standards should be read together with all other 
applicable standards issued by the Secretary related to ensuring 
meaningful access by people with disabilities.
5. Monitoring (Proposed Sec.  155.215(e))
    The proposed rule indicates that Federally-facilitated Exchanges 
(including State Partnership Exchanges) will monitor compliance with 
the standards described in Sec.  155.215 and with the requirements 
described in Sec.  155.205(d) and (e) and 155.210. To the extent 
possible, these Exchanges will engage in monitoring whether Navigators 
and non-Navigator assistance personnel comply with those standards, 
including, for example, reviewing reports filed by Navigators and 
reviewing the attestations and conflict-of-interest plans required to 
be submitted to the Exchange as proposed in Sec.  155.215(a)(1)(i) 
through (ii) and (a)(2)(ii) through (iii) of the proposed regulation; 
conducting discussions with states in which Navigator grantees and non-
Navigator assistance personnel exercise their functions; and reviewing 
casework and complaints filed with the Exchange or a relevant state. We 
solicit comments on how monitoring for federally-funded non-Navigator 
assistance personnel in State-based Exchanges should be conducted.

III. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 60-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. 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 (PRA) requires that we solicit comment on the following issues:
     The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
     The accuracy of our estimate of the information collection 
burden.
     The quality, utility, and clarity of the information to be 
collected.
     Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    This proposed rule would establish conflict-of-interest and 
training standards, including standards for certification and 
recertification, for Navigators and non-Navigator assistance personnel 
in an Exchange being operated by HHS as a Federally-facilitated 
Exchange or as a State Partnership Exchange pursuant to HHS authority 
under section 1321(c)(1) of the Affordable Care Act and for non-
Navigator assistance personnel in State-based Exchanges that are funded 
through federal Exchange Establishment grants. The proposal requires 
that these Navigators and non-Navigator assistance personnel provide an 
attestation that they are not ineligible individuals or entities and 
submit a plan for mitigating conflicts of interest, register with the 
Exchange, receive training, be initially certified, and receive 
subsequent recertification with the Exchange.
    Section III.A outlines information collection requirements 
associated with disclosure of conflicts of interest. These disclosures 
include an attestation regarding eligibility to be a Navigator or non-
Navigator assistance personnel; a plan for mitigating conflicts of 
interest; a requirement to provide information to consumers about their 
coverage options; and a requirement to disclose other potential, non-
prohibited, conflicts of interest. Section III.B outlines information 
collection requirements associated with registration, certification, 
and recertification requirements. We are soliciting public comments on 
each of these issues for the following sections of the proposed rule 
that contain information collection requirements (ICRs).
    For purposes of the information collection requirements, Navigator 
personnel and non-Navigator assistance personnel are estimated to have 
a professional wage of $20 per hour.\4\ Navigator and non-Navigator 
assistance project leads are estimated to have a professional wage of 
$29 per hour.\5\ Navigator senior executives are estimated to have a 
professional wage of $48 per hour.\6\ The average professional wage for 
Navigator personnel, projects

[[Page 20592]]

leads, senior executives, and non-Navigator assistance personnel and 
project leads is estimated to be $29.20 per hour.
---------------------------------------------------------------------------

    \4\ These positions are estimated to be equivalent to a GS-9 
position with the Federal government. See https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2012/general-schedule/gs_h.pdf.
    \5\ These positions are estimated to be equivalent to a GS-12 
position with the Federal government. See https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2012/general-schedule/gs_h.pdf.
    \6\ These positions are estimated to be equivalent to a GS-15 
position with the Federal government. See https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2012/general-schedule/gs_h.pdf.
---------------------------------------------------------------------------

    At this time we are unable to estimate the number of Navigator 
grantees and applicants or the number of non-Navigator assistance 
personnel and project leads; therefore the estimates discussed below 
are on a per individual basis. Additionally, we are unable to estimate 
the number of consumers expected to receive assistance from Navigator 
grantees or non-Navigator assistance personnel; therefore estimates for 
disclosures to consumers discussed below are on a per consumer basis. 
We invite public comments on the number of Navigator grantees or the 
number of non-Navigator assistance personnel and project leads 
expected, as well as the number of consumers expected to receive 
assistance.

A. ICRs Regarding Disclosure of Conflicts of Interest (Proposed Sec.  
155.215(a))

    Pursuant to proposed Sec.  155.215(a)(1)(i) & (iv) and (a)(2)(ii) & 
(v), Navigator program grantees and other entities and individuals 
providing assistance under Sec. Sec.  155.205(d) and (e) would be 
required to disclose conflicts of interest. This disclosure would 
include an attestation that an individual or entity is not an 
ineligible entity. Additionally, pursuant to proposed Sec.  
155.215(a)(1)(ii) and (a)(2)(iii), a plan for mitigating any conflicts 
of interest would also be submitted. The cost burden associated with 
the attestation would apply to each Navigator entity and applicant, and 
to each individual or entity serving as non-Navigator assistance 
personnel. The cost burden associated with the plan for mitigating any 
conflicts of interest will apply to each Navigator program grantee and 
to each individual or entity serving as non-Navigator assistance 
personnel.\7\ The attestation and mitigation plan are one-time 
requirements.
---------------------------------------------------------------------------

    \7\ The mitigation plan is only required on an individual basis 
if the individual is not working for an entity serving as non-
Navigator assistance personnel.
---------------------------------------------------------------------------

    We estimate it will take Navigator personnel, project leads, senior 
executives, non-Navigator assistance personnel, and non-Navigator 
assistance project leads 0.25 hours (15 minutes) each to prepare and 
provide the attestation that they are an eligible entity. With a wage 
of $20 per hour for Navigator and non-Navigator personnel, $29 per hour 
for Navigator and non-Navigator project leads, and $48 per hour for 
senior executives, we estimate the cost burden per Navigator personnel 
would be $5, per Navigator project lead would be $7.25, per Navigator 
senior executives would be $12, per non-Navigator assistance personnel 
would be $5, and per non-Navigator assistance personnel would be $7.25. 
The total burden per person would be 0.25 hours and $7.30 on average.
    The plan for mitigating conflicts of interest would be required on 
a per entity basis; \8\ therefore we assume for Navigator program 
grantees, the senior executive would be responsible for developing and 
providing the plan for mitigating conflicts of interest because only 
one plan is required per grantee. For purposes of the ICR we are 
assuming burden and cost estimates based on a non-Navigator assistance 
project lead wage of $29 per hour.
---------------------------------------------------------------------------

    \8\ An individual could be serving as an entity.
---------------------------------------------------------------------------

    We estimate that for a Navigator program grantee it will take a 
senior executive up to 5 hours to prepare and provide a plan for 
mitigating conflicts of interest and a non-Navigator assistance project 
lead would also require up to 5 hours to prepare and provide a plan for 
mitigating conflicts of interest. With a wage of $48 per hour for 
senior executives and $29 per hour for non-Navigator assistance project 
leads, we estimate the total one-time annual cost burden for a 
Navigator program grantee would be $240, and for non-Navigator 
assistance project leads would be $145.
    Pursuant to proposed Sec.  155.215(a)(1)(iii) and (a)(2)(iv), 
Navigator program grantees and non-Navigator assistance personnel would 
be required to provide information to consumers about the full range of 
QHP options and insurance affordability programs for which they are 
eligible. We assume that the total time to provide this disclosure 
would be one hour per disclosure. We assume for the Navigator program 
grantee that the Navigator personnel would prepare the disclosure and 
the total burden estimated per disclosure would be 1 hour at a cost of 
$20. For non-Navigator assistance personnel we estimate the total 
burden per disclosure would be 1 hour for preparing the disclosure at a 
cost of $20. The total burden per disclosure would be 1 hour and $20 on 
average.
    Pursuant to proposed Sec.  155.215(a)(1)(iv) and (a)(2)(v), 
Navigator personnel, projects leads, senior executives, non-Navigator 
assistance personnel, and non-Navigator assistance project leads would 
be required to disclose the Exchange and to consumers: any lines of 
insurance business, not covered by the restrictions on participation 
and prohibitions on conduct in Sec.  155.210(d), which they intend to 
sell while carrying out the consumer assistance functions; any existing 
and former employment relationships within the last five years with any 
health insurance issuers or issuers of stop loss insurance or 
subsidiaries of health insurance issuers or issuers of stop loss 
insurance; any existing employment relationships between a spouse or 
domestic partner and any health insurance issuers or issuers of stop 
loss insurance or subsidiaries of health insurance issuers or issuers 
of stop loss insurance; and any existing or anticipated financial, 
business, or contractual relationships with one or more health 
insurance issuers or issuers of stop loss insurance, or subsidiaries of 
health insurance issuers or issuers of stop loss insurance. We estimate 
the total time to prepare this disclosure would be 0.16 hours (10 
minutes). The total cost estimated for preparing this disclosure per 
Navigator personnel would be $3.20, per Navigator project lead would be 
$4.64, per Navigator senior executive would be $7.68, per non-Navigator 
assistance personnel would be $3.20, and per non-Navigator assistance 
project lead would be $4.64. The total burden per person would be 0.16 
hours and $4.67 on average.

B. ICRs Regarding Training and Certification Standards (Proposed Sec.  
155.215(b))

1. Registration Prior to Training
    Pursuant to proposed Sec.  155.215(b)(1)(ii), Navigator personnel, 
project leads, senior executives, non-Navigator assistance personnel, 
and non-Navigator assistance project leads would be required to 
register prior to training. We assume that it will take Navigator 
personnel, project leads, senior executives, non-Navigator assistance 
personnel, and non-Navigator assistance project leads each 0.25 hours 
(15 minutes) to register. With a wage of $20 per hour for Navigator and 
non-Navigator assistance personnel, $29 for Navigator and non-Navigator 
assistance project leads, and $48 for senior executives, we estimate 
the total cost burden for Navigator personnel would be $5, for 
Navigator project leads would be $7.25, for Navigator senior executives 
would be $12, for non-Navigator assistance personnel would be $5, and 
for non-Navigator assistance project leads would be $7.25. The total 
burden per person would be 0.25 hours and $7.30 on average.

[[Page 20593]]

2. Certification and Recertification
    Pursuant to Sec.  155.215(b)(1), Navigator personnel, project 
leads, senior executives, non-Navigator assistance personnel, and non-
Navigator assistance project leads would be required to complete a 
training program to obtain certification consisting of up to 30 hours 
of training including any approved certification exams. There are 
recordkeeping requirements associated with the certification and 
recertification provisions. Each person who receives training would be 
expected to obtain and maintain a record of certification. Pursuant to 
Sec.  155.215(b)(1)(iv), Navigator personnel, project leads, senior 
executives, non-Navigator assistance personnel, and non-Navigator 
assistance project leads who intend to continue beyond their initial 
period of performance would be required to be recertified on an annual 
basis. Each person who receives recertification would be expected to 
obtain proof of recertification and keep it on file. It is estimated 
that the time burden associated with maintaining proof of certification 
or recertification would be 0.016 hours (1 minute); we assume proof 
will be maintained through electronic copies with minimal cost.
    The total cost estimated for maintaining proof of certification or 
recertification per Navigator would be $0.32; per Navigator project 
lead would be $0.48; per Navigator senior executive would be $0.75; per 
non-Navigator assistance personnel would be $0.32, and per non-
Navigator assistance project lead would be $0.48. In the initial year 
the requirement will be to maintain proof of initial certification; in 
subsequent years the requirement will be to maintain proof of 
recertification. Because these requirements would be the same time and 
cost burden we are categorizing them as one annual burden. The total 
annual burden estimated for maintaining proof of certification or 
recertification would be 0.016 hours and $0.47 on average.

                     Table 1--Annual Recordkeeping and Reporting Requirements, by Respondent
----------------------------------------------------------------------------------------------------------------
                                                                   Hourly labor
                                                    Burden per        cost of       Total labor   Total capital/
Proposed regulation section(s)   OMB control No.     response     reporting  ($)      cost of       maintenance
                                                      (hours)           **         reporting ($)     costs ($)
----------------------------------------------------------------------------------------------------------------
Conflict of Interest            0938-New........            0.25           29.20            7.30               0
 Attestation Sec.
 155.215(a)(1)(i) & (a)(2)(ii).
Conflict of Interest            0938-New........               5              48             240               0
 Mitigation PlanSec.
 155.215(a)(1)(ii) &
 (a)(2)(iii) Navigator Senior
 Executive.
Non-Navigator Assistance        5...............              29             145               0
 Project Lead.
Conflict of Interest            0938-New........               1              20              20               0
 Disclosure of Coverage
 Options Sec.
 155.215(a)(1)(iii) &
 (a)(2)(iv).
Conflict of Interest            0938-New........             .16           29.20            4.67               0
 Disclosure to Exchange and
 Consumers Sec.
 155.215(a)(1)(iv) & (a)(2)(v).
Training Registration Sec.      0938-New........            0.25           29.20            7.30               0
 155.215(b)(1)(ii).
Certification and               0938-New........           0.016           29.20            0.47               0
 Recertification Sec.
 155.215(b)(1).
                               ---------------------------------------------------------------------------------
    Total.....................  ................  ..............  ..............          424.27               0
----------------------------------------------------------------------------------------------------------------
** The hourly cost of $29.20 in certain rows is an average of the professional wages estimated for Navigator
  personnel, project leads, senior executives, non-Navigator assistance personnel, and non-Navigator assistance
  project leads.

IV. Regulatory Impact Statement

A. Summary

    HHS is publishing this proposed rule to implement the protections 
intended by Congress in the most economically efficient manner 
possible. HHS has examined the effects of this rule as required by 
Executive Order 13563 (76 FR 3821, January 21, 2011), Executive Order 
12866 (58 FR 51735, September 1993, Regulatory Planning and Review), 
the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-
354), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), 
Executive Order 13132 on Federalism, and the Congressional Review Act 
(5 U.S.C. 804(2)).

B. Executive Orders 12866 and 13563

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects; distributive impacts; and equity). Executive Order 13563 is 
supplemental to and reaffirms the principles, structures, and 
definitions governing regulatory review as established in Executive 
Order 12866. OMB has determined that this proposed rule is a 
``significant regulatory action'' under Executive Order 12866. 
Accordingly, OMB reviewed this proposed rule.
1. Need for Regulatory Action
    This proposed regulation would establish conflict of interest, 
training and certification, and meaningful access standards applicable 
to Navigator programs in Federally-facilitated Exchanges, including 
State Partnership Exchanges, non-Navigator assistance programs in State 
Partnership Exchanges, and non-Navigator assistance programs in State-
Based Exchanges that are funded through federal 1311(a) Exchange 
Establishment grants. The proposed rule would require that these 
Navigators and non-Navigator assistance personnel register with and be 
certified by the Exchange. In addition, the proposed rule would 
establish standards for Navigators and non-Navigator assistance 
personnel to ensure meaningful access to their services by individuals 
with limited English proficiency and individuals with disabilities.
    The proposed rule also would amend existing regulations to clarify 
that Navigators must meet any licensing, certification or other 
standards prescribed by the State or Exchange, if applicable, so long 
as such standards do not prevent the application of the provisions of 
title I of the Affordable Care Act; add entities with relationships 
with issuers of stop loss insurance, including those who are 
compensated directly or indirectly by issuers of stop loss insurance in 
connection with enrollment in QHPs or non-QHPs, to the list of entities 
ineligible to become Navigators; and clarify that the same 
ineligibility criteria that apply to

[[Page 20594]]

Navigators providing services in any Federally-facilitated Exchange, 
including State Partnership Exchanges, would also apply to non-
Navigator assistance personnel providing assistance in State 
Partnership Exchanges and federally-funded non-Navigator assistance 
personnel in State-based Exchanges.
2. Summary of Impacts
    The proposed regulations would help ensure that Navigators in 
Federally-facilitated Exchanges, non-Navigator assistance personnel in 
State Partnership Exchanges, and federally-funded non-Navigator 
assistance personnel in State-based Exchanges will be fair and 
impartial, will be appropriately trained, and will provide services and 
information in a manner that is accessible to persons with limited 
English proficiency and persons with disabilities. The proposed rule 
would also ensure that Navigators meet any licensing, certification or 
other standards prescribed by the State or Exchange, if applicable, so 
long as such standards do not prevent the application of the provisions 
of title I of the Affordable Care Act.
    Navigators and non-Navigator assistance personnel would incur costs 
in order to comply with the provisions of this proposed rule, which 
would be covered by the Navigator grants and other compensation 
provided by the Exchange to non-Navigator assistance personnel. HHS 
anticipates that the impacts of the proposed rule would not be 
economically significant.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires agencies that issue a 
regulation to analyze options for regulatory relief of small businesses 
if a rule has a significant impact on a substantial number of small 
entities. The RFA generally defines a ``small entity'' as: (1) A 
proprietary firm meeting the size standards of the Small Business 
Administration (SBA); (2) a nonprofit organization that is not dominant 
in its field; or (3) a small government jurisdiction with a population 
of less than 50,000 (states and individuals are not included in the 
definition of ``small entity''). HHS uses as its measure of significant 
economic impact on a substantial number of small entities a change in 
revenues of more than 3 to 5 percent.
    HHS anticipates that the proposed rule would not have a significant 
economic impact on a substantial number of small entities. Some of the 
entities that act as Navigators and non-Navigator assistance personnel 
may be small entities and would incur costs to comply with the 
provisions of this rule. It should be noted that serving as a Navigator 
or non-Navigator assistance personnel is voluntary, and the cost burden 
related to registering for accounts, verification of registration, 
initial online training and certification, continuing education and 
recertification, conflict of interest notification, and providing 
assistance to consumers would be covered by the Navigator grants and 
other compensation provided by the Exchange to non-Navigator assistance 
personnel. Due to lack of data, HHS is unable to estimate how many 
small entities would elect to serve as Navigators and non-Navigator 
assistance personnel. We invite public comments on this issue.
    The size threshold for ``small'' business established by the SBA is 
currently $7 million in annual receipts for insurance agencies and 
brokerages.\9\ As discussed earlier, we anticipate that agents and 
brokers will continue to be an important source of assistance for many 
consumers seeking access to health insurance coverage through an 
Exchange, including those who own and/or are employed by small 
businesses. The proposed conflict of interest standards for Navigators 
would permit agents and brokers to serve as Navigators in an Exchange 
operated by HHS, provided that the agent or broker can satisfy the 
standards that would apply to all Navigators in the Exchange. 
Additionally, we anticipate that agents and brokers will also play a 
role in educating consumers about Exchanges and insurance affordability 
programs, and in helping consumers receive eligibility determinations, 
compare plans, and enroll in coverage to the extent permitted by a 
given state.
---------------------------------------------------------------------------

    \9\ ``Table of Size Standards Matched To North American Industry 
Classification System Codes,'' effective January 7, 2013, U.S. Small 
Business Administration, available at https://www.sba.gov.
---------------------------------------------------------------------------

    In addition, section 1102(b) of the Social Security Act requires us 
to prepare a regulatory impact analysis if a rule may have a 
significant economic impact on the operations of a substantial number 
of small rural hospitals. This analysis must conform to the provisions 
of section 604 of the RFA. This proposed rule would not affect small 
rural hospitals. Therefore, the Secretary has determined that this 
proposed rule would not have a significant impact on the operations of 
a substantial number of small rural hospitals.

D. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires that agencies assess anticipated costs and benefits before 
issuing any rule that includes a federal mandate that could result in 
expenditure in any one year by state, local, or tribal governments, in 
the aggregate, or by the private sector, of $100 million in 1995 
dollars, updated annually for inflation. In 2013, that threshold level 
is approximately $141 million.
    UMRA does not address the total cost of a final rule. Rather, it 
focuses on certain categories of cost, mainly those ``Federal mandate'' 
costs resulting from--(1) imposing enforceable duties on state, local, 
or tribal governments, or on the private sector; or (2) increasing the 
stringency of conditions in, or decreasing the funding of, state, 
local, or tribal governments under entitlement programs.
    This proposed rule does not mandate expenditures by state 
governments, local governments, tribal governments, or the private 
sector, of $141 million. The cost burden for Navigators and non-
Navigator assistance personnel related to registering for accounts, 
verification of registration, initial online training and 
certification, continuing education and recertification and conflict of 
interest notification would be covered by the Navigator grants and 
other compensation provided by the Exchange to non-Navigator assistance 
personnel and would not exceed the UMRA threshold. As discussed 
previously in the preamble, state-based Exchanges and state partners in 
State Partnership Exchanges may use section 1311(a) Exchange 
Establishment grants to fund non-Navigator assistance programs. Section 
1311(i)(6) prohibits Exchanges from using section 1311(a) grant funds 
to fund Navigator grants. Section 1311(a) grant funds, however, may be 
used to cover the Exchange's cost of administering the Navigator 
program, including, for example, the cost of Navigator training, grants 
management, and oversight.

E. Federalism

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct requirement costs on state and local governments or has 
federalism implications.
    The proposed rule would clarify that any Navigator licensing, 
certification, or other standards prescribed by the state or Exchange 
should not prevent the application of the provisions of title I of the 
Affordable Care Act. An entity or individual would be required to meet 
any licensing, certification, or other standards prescribed by the 
State or

[[Page 20595]]

Exchange, if applicable, so long as such standards do not prevent the 
application of the provisions of title I of the Affordable Care Act.
    Throughout the process of developing this proposed regulation, HHS 
has attempted to balance the states' interests and Congress' intent to 
provide uniform minimum protections to consumers in every state. By 
doing so, it is HHS's view that we have complied with the requirements 
of Executive Order 13132. Pursuant to the requirements set forth in 
section 8(a) of Executive Order 13132, and by the signatures affixed to 
this regulation, the Department certifies that the Centers for Medicare 
& Medicaid Services has complied with the requirements of Executive 
Order 13132 for the proposed regulation in a meaningful and timely 
manner.

F. Congressional Review Act

    This proposed rule is subject to the Congressional Review Act 
provisions of the Small Business Regulatory Enforcement Fairness Act of 
1996 (5 U.S.C. Sec.  801, et seq.), which specifies that before a rule 
can take effect, the federal agency promulgating the rule shall submit 
to each House of the Congress and to the Comptroller General a report 
containing a copy of the rule along with other specified information.

List of Subjects in 45 CFR Part 155

    Administrative practice and procedure, Advertising, Brokers, 
Conflict of interest, Consumer protection, Grant programs-health, 
Grants administration, Health care, Health insurance, Health 
maintenance organization (HMO), Health records, Hospitals, Indians, 
Individuals with disabilities, Loan programs-health, Organization and 
functions (Government agencies), Medicaid, Public assistance programs, 
Reporting and recordkeeping requirements, Safety, State and local 
governments, Technical assistance, Women, and Youth.
    For the reasons stated in the preamble, the Department of Health 
and Human Services proposes to amend 45 CFR part 155 as set forth 
below:

PART 155--EXCHANGE ESTABLISHMENT STANDARDS AND OTHER RELATED 
STANDARDS UNDER THE AFFORDABLE CARE ACT

0
1. The authority citation for part 155 continues to read as follows:

    Authority: Title I of the Affordable Care Act, sections 1301, 
1302, 1303, 1304, 1311, 1312, 1313, 1321, 1322, 1331, 1334, 1402, 
1411, 1412, 1413.
0
2. Section 155.210 is amended by revising paragraphs (c)(1)(iii), 
(d)(1), (d)(2), and (d)(4) to read as follows:


Sec.  155.210  Navigator program standards.

* * * * *
    (c) * * *
    (1) * * *
    (iii) Meet any licensing, certification or other standards 
prescribed by the State or Exchange, if applicable, so long as such 
standards do not prevent the application of the provisions of title I 
of the Affordable Care Act;
* * * * *
    (d) * * *
    (1) Be a health insurance issuer or issuer of stop loss insurance;
    (2) Be a subsidiary of a health insurance issuer or issuer of stop 
loss insurance;
* * * * *
    (4) Receive any consideration directly or indirectly from any 
health insurance issuer or issuer of stop loss insurance in connection 
with the enrollment of any individuals or employees in a QHP or a non-
QHP.
* * * * *
0
3. Section 155.215 is added to read as follows:


Sec.  155.215  Standards applicable to Navigators and non-Navigator 
Assistance Personnel carrying out consumer assistance functions under 
Sec. Sec.  155.205(d) and (e) and 155.210 in a Federally-facilitated 
Exchange and to non-Navigator Assistance Personnel Funded Through an 
Exchange Establishment Grant.

    (a) Conflict-of-Interest Standards. The following conflict-of-
interest standards apply in an Exchange operated by HHS during the 
exercise of its authority under 45 CFR 155.105(f) and to non-Navigator 
assistance personnel funded through an Exchange Establishment Grant 
under section 1311(a) of the Affordable Care Act:
    (1) Conflict-of-Interest Standards for Navigators.
    (i) All Navigator entities, including Navigator grant applicants, 
must submit to the Exchange a written attestation that the Navigator, 
including the Navigator's staff:
    (A) Is not a health insurance issuer or issuer of stop loss 
insurance;
    (B) Is not a subsidiary of a health insurance issuer or issuer of 
stop loss insurance;
    (C) Is not an association that includes members of, or lobbies on 
behalf of, the insurance industry; and
    (D) Will not receive any consideration directly or indirectly from 
any health insurance issuer or issuer of stop loss insurance in 
connection with the enrollment of any individuals or employees in a QHP 
or non-QHP.
    (ii) All Navigator entities must submit to the Exchange a written 
plan to remain free of conflicts of interest during the term as a 
Navigator.
    (iii) All Navigator entities, including the Navigator's staff, must 
provide information to consumers about the full range of QHP options 
and insurance affordability programs for which they are eligible.
    (iv) All Navigator entities, including the Navigator's staff, must 
disclose to the Exchange and to each consumer who receives application 
assistance from the Navigator:
    (A) Any lines of insurance business, not covered by the 
restrictions on participation and prohibitions on conduct in Sec.  
155.210(d), which the Navigator intends to sell while carrying out the 
consumer assistance functions;
    (B) Any existing employment relationships, or any former employment 
relationships within the last 5 years, with any health insurance 
issuers or issuers of stop loss insurance or subsidiaries of health 
insurance issuers or issuers of stop loss insurance, including any 
existing employment relationships between a spouse or domestic partner 
and any health insurance issuers or issuers of stop loss insurance, or 
subsidiaries of health insurance issuers or issuers of stop loss 
insurance; and
    (C) Any existing or anticipated financial, business, or contractual 
relationships with one or more health insurance issuers or issuers of 
stop loss insurance, or subsidiaries of health insurance issuers or 
issuers of stop loss insurance.
    (2) Conflict-of-Interest Standards for Non-Navigator Assistance 
Personnel Carrying Out Consumer Assistance Functions Under Sec.  
155.205(d) and (e). All Non-Navigator entities or individuals 
authorized to carry out consumer assistance functions under Sec.  
155.205(d) and (e) must--
    (i) Comply with the prohibitions on Navigator conduct set forth at 
Sec.  155.210(d).
    (ii) Submit to the Exchange a written attestation that the entity 
or individual:
    (A) Is not a health insurance issuer or issuer of stop loss 
insurance;
    (B) Is not a subsidiary of a health insurance issuer or issuer of 
stop loss insurance;
    (C) Is not an association that includes members of, or lobbies on 
behalf of, the insurance industry; and
    (D) Will not receive any consideration directly or indirectly from 
any health insurance issuer or issuer of stop loss insurance in 
connection with the enrollment of any individuals or employees in a QHP 
or non-QHP.

[[Page 20596]]

    (iii) Submit to the Exchange a written plan to remain free of 
conflicts of interest while carrying out consumer assistance functions 
under Sec.  155.205(d) and (e).
    (iv) Provide information to consumers about the full range of QHP 
options and insurance affordability programs for which they are 
eligible.
    (v) Disclose to the Exchange and to each consumer who receives 
application assistance from the entity or individual:
    (A) Any lines of insurance business, not covered by the 
restrictions on participation and prohibitions on conduct in Sec.  
155.210(d), which the entity or individual intends to sell while 
carrying out the consumer assistance functions;
    (B) Any existing employment relationships, or any former employment 
relationships within the last five years, with any health insurance 
issuers or issuers of stop loss insurance, or subsidiaries of health 
insurance issuers or issuers of stop loss insurance, including any 
existing employment relationships between a spouse or domestic partner 
and any health insurance issuers or issuers of stop loss insurance, or 
subsidiaries of health insurance issuers or issuers of stop loss 
insurance; and
    (C) Any existing or anticipated financial, business, or contractual 
relationships with one or more health insurance issuers or issuers of 
stop loss insurance, or subsidiaries of health insurance issuers or 
issuers of stop loss insurance.
    (b) Training standards for Navigators and Non-Navigator Assistance 
Personnel carrying out consumer assistance functions under Sec. Sec.  
155.205(d) and (e) and 155.210. The following training standards apply 
in an Exchange operated by HHS during the exercise of its authority 
under Sec.  155.105(f), and to non-Navigator assistance personnel 
funded through an Exchange Establishment Grant under section 1311(a) of 
the Affordable Care Act.
    (1) Certification and recertification standards. All individuals or 
entities who carry out consumer assistance functions under Sec. Sec.  
155.205(d) and (e) and 155.210, including Navigators, must meet the 
following certification and recertification requirements.
    (i) Obtain certification by the Exchange prior to carrying out any 
consumer assistance functions under Sec. Sec.  155.205(d) and (e) or 
155.210;
    (ii) Register for and complete a HHS-approved training;
    (iii) Following completion of the HHS-approved training described 
in paragraph (b)(1)(ii) of this section, complete and achieve a passing 
score on all approved certification examinations prior to carrying out 
any consumer assistance functions under Sec. Sec.  155.205(d) and (e) 
or 155.210;
    (iv) Obtain continuing education and be certified and/or 
recertified on at least an annual basis; and
    (v) Be prepared to serve both the individual Exchange and SHOP.
    (2) Training module content standards. All individuals who carry 
out the consumer assistance functions under Sec. Sec.  155.205(d) and 
(e) and 155.210 must receive training in the following subjects:
    (i) QHPs (including the metal levels described at Sec.  
156.140(b)), and how they operate, including benefits covered, payment 
processes, rights and processes for appeals and grievances, and 
contacting individual plans;
    (ii) The range of insurance affordability programs, including 
Medicaid, the Children's Health Insurance Program (CHIP), and other 
public programs;
    (iii) The tax implications of enrollment decisions;
    (iv) Eligibility requirements for premium tax credits and cost-
sharing reductions, and the impacts of premium tax credits on the cost 
of premiums;
    (v) Contact information for appropriate federal, state, and local 
agencies for consumers seeking additional information about specific 
coverage options not offered through the Exchange;
    (vi) Basic concepts about health insurance and the Exchange; the 
benefits of having health insurance and enrolling through an Exchange; 
and the individual responsibility to have health insurance;
    (vii) Eligibility and enrollment rules and procedures, including 
how to appeal an eligibility determination;
    (viii) Providing culturally and linguistically appropriate 
services;
    (ix) Ensuring physical and other accessibility for people with a 
full range of disabilities;
    (x) Understanding differences among health plans;
    (xi) Privacy and security standards applicable under Sec.  155.260 
for handling and safeguarding consumers' personally identifiable 
information;
    (xii) Working effectively with individuals with limited English 
proficiency, people with a full range of disabilities, and vulnerable, 
rural, and underserved populations;
    (xiii) Customer service standards;
    (xiv) Outreach and education methods and strategies; and
    (xv) Applicable administrative rules, processes and systems related 
to Exchanges and QHPs.
    (c) Providing Culturally and Linguistically Appropriate Services 
(CLAS Standards). The following standards will apply in an Exchange 
operated by HHS during the exercise of its authority under Sec.  
155.105(f) and to non-Navigator assistance personnel funded through an 
Exchange Establishment Grant under section 1311(a) of the Affordable 
Care Act. To ensure that information provided as part of any consumer 
assistance functions under Sec. Sec.  155.205(d) and (e) or 155.210 is 
culturally and linguistically appropriate to the needs of the 
population being served, including individuals with limited English 
proficiency as required by Sec. Sec.  155.205(c)(2) and 155.210(e)(5), 
any entity or individual carrying out these functions must:
    (1) Develop and maintain general knowledge about the racial, 
ethnic, and cultural groups in their service area, including each 
group's diverse cultural health beliefs and practices, preferred 
languages, health literacy, and other needs;
    (2) Collect and maintain updated information to help understand the 
composition of the communities in the service area, including the 
primary languages spoken;
    (3) Provide consumers with information and assistance in the 
consumer's preferred language, at no cost to the consumer, including 
the provision of oral interpretation of non-English languages and the 
translation of written documents in non-English languages when 
necessary to ensure meaningful access. Use of a consumer's family or 
friends as oral interpreters can satisfy the requirement to provide 
linguistically appropriate services only when requested by the consumer 
as the preferred alternative to an offer of other interpretive 
services;
    (4) Provide oral and written notice to consumers with limited 
English proficiency informing them of their right to receive language 
assistance services and how to obtain them;
    (5) Receive ongoing education and training in culturally and 
linguistically appropriate service delivery; and
    (6) Implement strategies to recruit, support, and promote a staff 
that is representative of the demographic characteristics, including 
primary languages spoken, of the communities in their service area.
    (d) Standards ensuring access by persons with disabilities. The 
following standards related to ensuring access by people with 
disabilities will apply in an Exchange operated by HHS during the 
exercise of its authority under Sec.  155.105(f), and to non-Navigator

[[Page 20597]]

assistance personnel funded through an Exchange Establishment Grant 
under section 1311(a) of the Affordable Care Act. Any entity or 
individual carrying out any consumer assistance functions under 
Sec. Sec.  155.205(d) and (e) or 155.210, and in accordance with Sec.  
155.205(c), must:
    (1) Ensure that any consumer education materials, Web sites, or 
other tools utilized for consumer assistance purposes, are accessible 
to people with disabilities, including those with sensory impairments, 
such as visual or hearing impairments, and those with mental illness, 
addiction, and physical, intellectual, and developmental disabilities;
    (2) Provide auxiliary aids and services for individuals with 
disabilities, at no cost, where necessary for effective communication. 
Use of a consumer's family or friends as interpreters can satisfy the 
requirement to provide auxiliary aids and services only when requested 
by the consumer as the preferred alternative to an offer of other 
auxiliary aids and services;
    (3) Provide assistance to consumers in a location and in a manner 
that is physically and otherwise accessible to individuals with 
disabilities;
    (4) Ensure that legally authorized representatives are permitted to 
assist an individual with a disability to make informed decisions;
    (5) Acquire sufficient knowledge to refer people with disabilities 
to local, state, and federal long-term services and supports programs 
when appropriate; and
    (6) Be able to work with all individuals regardless of age, 
disability, or culture, and seek advice or experts when needed.
    (e) Monitoring. Any Exchange operated by HHS during the exercise of 
its authority under Sec.  155.105(f) will monitor compliance with the 
standards in this section and the requirements of Sec. Sec.  155.205(d) 
and (e) and 155.210.

    Dated: March 13, 2013.
Marilyn Tavenner,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Approved: March 25, 2013.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.
[FR Doc. 2013-07951 Filed 4-3-13; 11:15 am]
BILLING CODE 4120-01-P