Patient Protection and Affordable Care Act; Exchange Functions: Standards for Navigators and Non-Navigator Assistance Personnel; Consumer Assistance Tools and Programs of an Exchange and Certified Application Counselors, 42823-42862 [2013-17125]

Agencies

• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 78, Number 137 (Wednesday, July 17, 2013)]
[Rules and Regulations]
[Pages 42823-42862]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17125]



[[Page 42823]]

Vol. 78

Wednesday,

No. 137

July 17, 2013

Part II





Department of Health and Human Services





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45 CFR Part 155





Patient Protection and Affordable Care Act; Exchange Functions: 
Standards for Navigators and Non-Navigator Assistance Personnel; 
Consumer Assistance Tools and Programs of an Exchange and Certified 
Application Counselors; Final Rule

Federal Register / Vol. 78 , No. 137 / Wednesday, July 17, 2013 / 
Rules and Regulations

[[Page 42824]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 155

[CMS-9955-F; CMS-2334-F2]
RIN 0938-AR75; 0938-AR04


Patient Protection and Affordable Care Act; Exchange Functions: 
Standards for Navigators and Non-Navigator Assistance Personnel; 
Consumer Assistance Tools and Programs of an Exchange and Certified 
Application Counselors

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

ACTION: Final rule.

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SUMMARY: This final rule addresses various requirements applicable to 
Navigators and non-Navigator assistance personnel in Federally-
facilitated Exchanges, including State Partnership Exchanges, and to 
non-Navigator assistance personnel in State Exchanges that are funded 
through federal Exchange Establishment grants. It finalizes the 
requirement that Exchanges must have a certified application counselor 
program. It creates conflict-of-interest, training and certification, 
and meaningful access standards; clarifies that any licensing, 
certification, or other standards prescribed by a state or Exchange 
must not prevent application of the provisions of title I of the 
Affordable Care Act; adds entities with relationships to issuers of 
stop loss insurance to the list of entities that are ineligible to 
become Navigators; and clarifies that the same ineligibility criteria 
that apply to Navigators apply to certain non-Navigator assistance 
personnel.
    The final rule also directs that each Exchange designate 
organizations which will then certify their staff members and 
volunteers to be application counselors that assist consumers and 
facilitate enrollment in qualified health plans and insurance 
affordability programs, and provides standards for that designation.

DATES: Effective Date: These regulations are effective on August 12, 
2013.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On January 22, 2013, CMS issued a proposed rule which, among other 
things, proposed standards to ensure the availability of certified 
application counselors in the Exchange and proposed to clarify the 
training requirements under Sec.  155.205(d) and (e), which govern the 
consumer assistance functions of the Exchange.\1\ Certified application 
counselors were proposed as a type of assistance personnel to help 
individuals in each Exchange apply for enrollment in a qualified health 
plan (QHP) and in insurance affordability programs, which include 
Medicaid, Children's Health Insurance Program (CHIP), and advance 
payments of the premium tax credit and cost-sharing reductions in 
connection with QHPs offered through the Exchange. Subsequently, on 
April 5, 2013, CMS issued a proposed rule to 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 Exchanges that are 
funded through federal Exchange Establishment grants.\2\ We are 
finalizing both proposals in this document to make it easier to 
understand these three types of assistance programs, the role each 
program plays, and the standards that are applicable to each program.
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    \1\ Medicaid, Children's Health Insurance Programs, and 
Exchanges: 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 (proposed Jan. 22, 
2013).
    \2\ Patient Protection and Affordable Care Act; Exchange 
Functions: Standards for Navigators and Non-Navigator Assistance 
Personnel, 78 FR 20581 (proposed April 5, 2013).
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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, families, and small 
businesses will be able to purchase private health insurance through 
competitive marketplaces called Affordable Insurance Exchanges 
(Exchanges), also known as 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 as 
early as 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 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 any required Exchange operational by January 1, 2014. 
These HHS-operated Exchanges are referred to as Federally-facilitated 
Exchanges. The Secretary has also explained through guidance that these 
Federally-facilitated Exchanges may include State Partnership Exchanges 
in which states may assume significant responsibility for key Exchange 
functions.\3\ 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). States 
may also assume both of these types of responsibilities.
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    \3\ See 77 FR 18310, 18325-26 (Mar. 27, 2012); General Guidance 
on Federally-facilitated Exchanges (May 16, 2012) at https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/ffe-guidance-05-16-2012.pdf; and Guidance on the State Partnership 
Exchange (Jan. 3, 2013) at https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/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 155.210, direct all 
Exchanges to award grants to Navigators to conduct public education 
activities to raise awareness about the Exchange; provide fair, 
accurate, 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); facilitate enrollment in QHPs; to provide 
referrals to consumer assistance programs (CAPs) and health insurance 
ombudsmen for enrollees with

[[Page 42825]]

grievances, complaints, or questions about their health plan or 
coverage; and provide information in a manner that is culturally and 
linguistically appropriate. Navigators can 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. 45 CFR 155.205(d) provides that each Exchange must conduct 
consumer assistance activities, and Sec.  155.205(e) provides that each 
Exchange must conduct outreach and education activities to inform 
consumers about the Exchange and insurance affordability programs to 
encourage participation. The consumer assistance function authorized by 
Sec.  155.205(d) includes the Navigator grant program established under 
section 1311(i) of the Affordable Care Act and Sec.  155.210. Section 
155.205(d) and (e) also allow for the establishment of a non-Navigator 
consumer assistance program. The non-Navigator assistance program 
authorized by 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. Non-
Navigator assistance programs include what have sometimes been referred 
to as ``in-person assistance programs.'' State Exchanges may, but need 
not, establish non-Navigator assistance programs. However, a state that 
voluntarily participates in a State Partnership Exchange focusing on 
consumer assistance functions (also known as a Consumer Partnership 
Exchange) will be expected to establish and operate a non-Navigator 
assistance program as a condition of participation in the State 
Partnership Exchange, and will be expected to do so 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.
    Section 1311(i)(6) prohibits Exchanges from using section 1311(a) 
grant funds to fund Navigator programs. However, State 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 discussion of this policy that can be 
found at 78 FR 20583 through 20584 (April 5, 2013).
    Section 1413 of the Affordable Care Act directs the Secretary to 
establish, subject to minimum requirements, a streamlined enrollment 
system for QHPs and all insurance affordability programs, which include 
the Medicaid and CHIP programs. The January 22, 2013 proposed rule 
noted that State Medicaid and CHIP agencies have a long history of 
offering application assistance programs through which application 
counselors have had a key role in promoting enrollment for low-income 
individuals seeking coverage, and we believe that making such 
assistance available for the Exchange will be critical to achieving a 
high rate of enrollment. The January 22, 2013 proposed rule also stated 
that section 1321(a) of the Affordable Care Act provides broad 
authority for the Secretary to establish standards and regulations to 
implement the statutory standards related to Exchanges, QHPs, and other 
standards of title I of the Affordable Care Act. Accordingly, the 
proposed rule proposed the establishment of the certified application 
counselor program for the Exchanges. The certified application 
counselor program makes available through the Exchange another type of 
assistance personnel to provide information to consumers and facilitate 
their enrollment in QHPs and insurance affordability programs. This 
will help streamline the enrollment system for QHPs and all insurance 
affordability programs.
    As we proposed in the January 22, 2013 proposed rule, certified 
application counselors will provide information to individuals and 
employees about insurance affordability programs and coverage options; 
assist individuals and employees in applying for coverage in a QHP 
through the Exchange and in insurance affordability programs; and help 
facilitate enrollment in QHPs and insurance affordability programs. 
Unlike Navigators and non-Navigator assistance personnel to which Sec.  
155.215 applies--who have a duty to provide referrals to offices of 
health insurance consumer assistance or health insurance ombudsman 
established under section 2793 of the Public Health Service (PHS) Act, 
or any other appropriate State agency or agencies, and to assist an 
enrollee with a grievance, complaint, or question regarding their 
health plan, coverage, or a determination under such plan or coverage--
certified application counselors are not expected to have the knowledge 
to make these types of referrals since their role is limited to 
providing enrollment assistance to consumers.
    Certified application counselors can provide skilled application 
assistance in entities such as community health centers, health care 
providers, social service organizations, and local governmental 
entities that do not otherwise serve as Navigators. An organization 
that applies for and has been designated by the Exchange for this work 
must ensure that those staff members and volunteers it certifies as 
application counselors meet and comply with the application counselor 
certification and other requirements.
    We do not expect Exchanges to fund certified application counselors 
or certified application counselor organizations. State Exchanges may 
use their section 1311(a) Establishment grants on costs incurred by the 
Exchange in establishing a training program for certified application 
counselors. State Exchanges may not, however, use section 1311(a) 
Establishment grant funds to pay certified application counselors or 
certified application counselor organizations. No section 1311(a) 
funding is available for certified application counselor training 
program costs in Federally-facilitated or State Partnership Exchanges, 
because the federal government is responsible for and states will not 
be involved in implementing the certified application counselor 
training program in those Exchanges. Nothing in the final rule 
prohibits certified application counselors from being funded through 
other sources, including applicable private, state, or federal 
programs.
    The January 22, 2013 proposed rule proposed standards for 
certification of individuals as certified application counselors, 
including training requirements; disclosure to the Exchange and 
applicants of any financial or other relationships, either of the 
individual application counselor or of the sponsoring organization; and 
compliance with confidentiality requirements. We also proposed 
requiring certified application counselors to provide information with 
reasonable accommodations for people with disabilities when providing 
in-person assistance. The proposed certified application counselor 
standards were less extensive than the standards for Navigators and 
non-Navigator assistance programs proposed for certain Exchanges in the 
April 5, 2013 proposed rule, because certified application counselors 
will have a more limited role.

[[Page 42826]]

    The April 5, 2013 proposed rule sought comments on whether the 
broader standards for Navigators and non-Navigator assistance programs 
to which Sec.  155.215 applies should apply to certified application 
counselors. We have not applied all these standards to certified 
application counselors, but have applied to certified application 
counselors certain elements from Sec. Sec.  155.210 and 155.215 that we 
believe are consistent with the goals of the certified application 
counselor program. For example, in Sec.  155.225(c)(1), we have added 
the requirement that all certified application counselors must provide 
information to consumers about the full range of QHP options and 
insurance affordability programs for which they are eligible, as 
certain Navigators and non-Navigator assistance personnel are required 
to do under Sec. Sec.  155.215(a)(1)(iii) and 155.215(a)(2)(iv). We 
have also added a training examination requirement to Sec.  
155.225(d)(1) that is similar to the one in Sec.  155.215(b)(1)(iii).
1. Overview of Program Differences
    Navigators, non-Navigator assistance personnel, and certified 
application counselors all will provide consumer-focused assistance 
with applications for and enrollment in QHPs and insurance 
affordability programs. Navigators and certified application counselors 
will perform these functions in all Exchanges.
    The primary differences between the standards for Navigator and 
non-Navigator assistance programs and the standards for certified 
application counselors that we finalize in this rule relate to conflict 
of interest standards, eligibility requirements and prerequisites, and 
culturally and linguistically appropriate services (CLAS) and 
disability access standards. For example, this rule, at 45 CFR 
155.225(d)(4) requires certified application counselors ``to act in the 
best interest of the applicants and enrollees assisted.'' In contrast, 
45 CFR 155.210(e)(2), which applies to Navigators in all Exchanges, 
requires them to ``[p]rovide information and services in a fair, 
accurate and impartial manner.'' This rule extends the same requirement 
to non-Navigator assistance programs in State Partnership Exchanges, 
and to non-Navigator assistance programs in State Exchanges funded by 
federal Exchange Establishment grant funds. Navigators and non-
Navigator assistance programs must provide culturally and 
linguistically appropriate services, but we are not requiring certified 
application counselors to comply with CLAS standards beyond any 
existing obligations they may have. We do, however, encourage certified 
application counselors to utilize the CLAS standards as a resource. 45 
CFR 155.210(e)(5) and 155.205(d) and (e) require Navigators and non-
Navigator assistance programs to provide meaningful access to people 
with disabilities, and we proposed a similar requirement for certified 
application counselors. We are modifying that provision to allow 
certified application counselors to provide information with reasonable 
accommodations for those with disabilities through referrals to 
Navigators, non-Navigator assistance personnel, and/or the Exchange 
call center.
    Additionally, Navigators and non-Navigator assisters are both 
required to conduct consumer education and outreach activities under 
Sec.  155.205(e) and Sec.  155.210(e)(1). Certified application 
counselors will provide information about QHPs and insurance 
affordability programs as well as application and enrollment assistance 
but are not required to conduct outreach activities.
    A broad range of entities are eligible to become Navigators, 
including community and consumer-focused nonprofits, tribes and tribal 
organizations, local human service agencies, and agents and brokers. A 
similar range of groups is likely to become non-Navigator assistance 
personnel, although that determination will be up to each Exchange. In 
all Exchange models, entities ineligible to become Navigators include 
health insurance issuers and their subsidiaries, issuers of stop loss 
insurance and their subsidiaries, associations that include members of 
or that lobby on behalf of the insurance industry, and entities that 
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 
insurance product. This same ineligibility provision applies to non-
Navigator assistance personnel in the Federally-facilitated Exchange, 
including State Partnership Exchanges, as well as non-Navigator 
assistance personnel in State Exchanges if funded by section 1311(a) 
Exchange Establishment grant funds. Certified application counselors 
are not barred from becoming a certified application counselor because 
of potential conflicts of interest, but must disclose potential 
conflicts of interest to applicants they seek to assist.
    In this final rule, we amend what we proposed in the proposed rule, 
and provide that Exchanges may designate organizations to certify their 
staff members and volunteers who meet all of the requirements to be 
certified application counselors, rather than the Exchanges directly 
certifying individual application counselors. However, Exchanges may 
certify individual application counselors directly if they choose.

B. Legislative and Regulatory Overview

1. Consumer Assistance Tools and Programs of an Exchange (Sec.  
155.205)
    Section 1321(a)(1) of the Affordable Care Act directs the Secretary 
to issue regulations that set standards for meeting the requirements of 
title I of the Affordable Care Act, with respect to, among other 
things, the establishment and operation of Exchanges. Pursuant to this 
authority, the Secretary issued Sec.  155.205(d) and (e) which 
establishes the consumer assistance function of the Exchange.\4\ This 
section directs that the Exchange conduct outreach and education 
activities to educate consumers about the Exchange and encourage 
participation and that the Exchange have a consumer assistance 
function, including but not limited to a Navigator program as described 
in Sec.  155.210.
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    \4\ Patient Protection and Affordable Care Act; Establishment of 
Exchanges and Qualified Health Plans; Exchange Standards for 
Employers, 77 FR 18310 (Mar. 27, 2012).
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2. Navigators and Non-Navigator Assistance Personnel (Sec. Sec.  
155.210 & 155.215)
    Section 1311(d)(4)(K) and 1311(i) of the Affordable Care Act 
directs each Exchange to establish a program under which it awards 
grants to Navigators who will carry out the listed, required duties. A 
final rule implementing section 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 155.210.
    Section 1311(i)(3) of the Affordable Care Act lists the duties 
Navigators must perform. Section 155.210(e), which implements this 
provision, provides that these duties include the following: 
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

[[Page 42827]]

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 implements 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 publicly 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 regulation 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 Exchanges that are funded through federal Exchange 
Establishment grants. These standards could also be used by State 
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 implements section 1311(i)(4) of the 
Affordable Care Act, and directs that, in order to receive a Navigator 
grant, entities or individuals must meet any licensing, certification, 
or other standards prescribed by the state or Exchange. We amend this 
provision in this final rule to provide that it applies so long as such 
standards do not prevent the application of the provisions of title I 
of the Affordable Care Act.
    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 155.210(d), which implements this provision, 
prohibits Navigators from being health insurance issuers. It also 
provides that Navigators must not receive any compensation directly or 
indirectly from health insurance issuers in connection with the 
enrollment of individuals or employees, 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. In this final rule we amend Section 155.210(d) to 
include a prohibition on most of these same relationships with stop 
loss insurance issuers.
    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.
    45 CFR 155.210(c)(2) directs 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.
    45 CFR 155.205(d) directs 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 provided for by section 1311(i) of the Affordable Care Act and 
45 CFR 155.210, but is not limited to the Navigator program. 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. We are finalizing here portions of 
the January 22, 2013 proposed rule regarding training requirements 
under Sec.  155.205(d),\5\ and amend Sec.  155.205(d) to require both 
Navigators and non-Navigator assistance personnel 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.
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    \5\ See the proposed rule 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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3. Certified Application Counselors
    Section 1321(a)(1) of the Affordable Care Act directs and 
authorizes the Secretary to issue regulations setting standards for 
meeting the requirements under title I of the Affordable Care Act, with 
respect to, among other things, the establishment and operation of 
Exchanges. Pursuant to this authority, the Secretary is issuing Sec.  
155.225, which establishes the certified application counselor program 
as a consumer assistance function of the Exchange separate from and in 
addition to the functions described in Sec. Sec.  155.205(d) and (e), 
155.210, and 155.215. Section 155.225 specifies that certified 
application counselors will provide information to consumers about 
health coverage options and assist them with applying for and enrolling 
in QHPs and insurance affordability programs.

C. Overview of Final Rule

1. Consumer Assistance Tools and Programs of an Exchange (Sec.  
155.205)
    This final regulation amends Sec.  155.205(d) by separating it into 
subparagraphs (d)(1) and (d)(2), and clarifying in new subparagraph 
(d)(1) that, prior to providing the consumer assistance specified in 
paragraph (d), an individual 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. New subparagraph (d)(2) 
specifies that the Exchange must provide referrals to any applicable 
office of health insurance consumer assistance or health insurance 
ombudsman established under section 2793 of the PHS Act, or any other 
appropriate State agency or agencies, for any enrollee with a 
grievance, complaint, or question regarding their health plan, 
coverage, or a

[[Page 42828]]

determination under such plan or coverage.
2. Navigators and Non-Navigator Assistance Personnel (Sec. Sec.  
155.210 & 155.215)
    This final regulation amends 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. In addition, the 
final rule amends Sec.  155.210(d), which provides, among other things, 
that a Navigator cannot be an issuer nor receive compensation from an 
issuer related to enrollment in a QHP or non-QHP, to provide 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 amendments to Sec.  155.210 are applicable to Navigators in all 
Exchanges, including Federally-facilitated Exchanges, State Partnership 
Exchanges, and State Exchanges.
    This final rule also adds a new provision at 45 CFR 155.215 that 
establishes conflict of interest, training, and accessibility standards 
applicable to Navigators and non-Navigator assistance personnel in 
Federally-facilitated Exchanges, including State Partnership Exchanges. 
These standards also apply to non-Navigator assistance personnel in 
State Exchanges that are funded through federal section 1311(a) 
Exchange Establishment grants. For the remainder of this preamble, we 
will refer to these types of entities collectively as ``Navigators and 
non-Navigator assistance personnel to which Sec.  155.215 applies.''
    Section 155.215(a) provides details on the conflict of interest 
standards applicable to the Navigators and non-Navigator assistance 
personnel to which Sec.  155.215 applies. Section 155.215(a)(2)(i) 
establishes that the non-Navigator assistance personnel to which Sec.  
155.215 applies must comply with the same set of conflict of interest 
prohibitions that apply to all Navigators under Sec.  155.210(d), as 
well as the same fair and impartial standard that applies to all 
Navigators under Sec.  155.210(e)(2). Section 155.215(b) sets forth 
standards related to training, certification, and recertification for 
the Navigators and non-Navigator assistance personnel to which Sec.  
155.215 applies. These standards include details about the requirement 
to be certified, to register and receive HHS-approved training, the 
content required for training, and the requirement to receive a passing 
score on all approved certification examinations after training. For 
non-Navigator assistance programs in State Exchanges to which Sec.  
155.215 applies, the State Exchange may use the Federally-facilitated 
Exchange training or may use training developed by the State Exchange 
and approved by HHS.
    Section 155.215(c) and (d) establishes standards for the Navigators 
and non-Navigator assistance personnel to which Sec.  155.215 applies, 
to ensure meaningful access to their services by individuals with 
limited English proficiency and people with disabilities. The standards 
we are finalizing at 155.215(c) and (d) should be read together with 
other applicable standards issued by the Secretary related to ensuring 
meaningful access by individuals with limited English proficiency and 
people with disabilities.
    State Exchanges will not be required to use the standards being 
finalized 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 Exchanges may find 
the federal standards to be useful models, and we encourage them to 
draw upon these standards 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 Exchange and is not 
funded by federal 1311(a) Exchange Establishment grants. This final 
rule establishes different conflict of interest and HHS-approved 
training standards for certified application counselors. As discussed 
elsewhere in this final rule, unlike Navigators, which will receive 
Exchange grants as set forth in section 1311(i) of the Affordable Care 
Act, and non-Navigator assistance personnel, which we expect will be 
funded by all Consumer Partnership Exchanges and some State Exchanges, 
we do not expect Exchanges to pay designated organizations to certify 
application counselors or to pay individual certified application 
counselors for the enrollment assistance they will provide to 
consumers.
3. Certified Application Counselors (Sec.  155.225)
    In finalizing Sec.  155.225, we establish certified application 
counselors as another type of assistance personnel available to provide 
information to consumers and facilitate their enrollment in QHPs and 
insurance affordability programs, such as premium tax credits and cost 
sharing reductions, Medicaid, and CHIP, for which they are eligible. 
Every Exchange will have a certified application counselor program, as 
provided in Sec.  155.225(a). An Exchange may designate organizations, 
including organizations designated by a state Medicaid or CHIP agency, 
that meet the requirements and standards in Sec.  155.225 to certify 
the organization's staff members and volunteers to serve as certified 
application counselors. As proposed in the proposed rule, an Exchange 
may opt to certify these organizations' staff members and volunteers 
directly if those staff members and volunteers meet the certification 
standards, rather than designating organizations that may certify their 
staff members and volunteers. An Exchange may also opt both to 
designate organizations and to certify directly an organization's 
individual certified application counselors. We intend that the 
Federally-facilitated Exchanges including State Partnership Exchanges 
will choose to designate organizations to certify the organization's 
staff members and volunteers as application counselors. We expect to 
publish guidance to establish a process for designating organizations 
in Federally-facilitated Exchanges, including State Partnership 
Exchanges, to certify their staff members and volunteers as application 
counselors.
    Section 155.225(c) describes the duties of certified application 
counselors. These duties include providing information about the 
coverage options available to consumers through the Exchange, and 
assisting consumers with selecting and applying for coverage from QHPs 
and enrollment in insurance affordability programs.
    Section 155.225(d) outlines the standards that must be met by any 
individual seeking to be certified as an application counselor. These 
standards include: Completing Exchange approved training and 
examinations; disclosing potential conflicts of interest; complying 
with applicable privacy and security standards; agreeing to act in the 
best interest of applicants and enrollees assisted; providing 
information in a manner that is accessible to persons with 
disabilities; and entering into an application counselor agreement with 
their designated organization. In Sec.  155.225(d)(5), the final rule 
clarifies that certified application counselors may satisfy the 
requirement that they provide information in a manner that is 
accessible to individuals with disabilities either directly or through 
referral to Navigators, non-Navigator

[[Page 42829]]

assistance personnel, and/or the Exchange call center.
    Section 155.225(e) directs the Exchange to establish procedures to 
withdraw its designation from noncompliant designated organizations, 
or, if an Exchange directly certifies individual application 
counselors, from noncompliant application counselors. It also directs 
designated organizations to establish procedures to withdraw 
certification from their noncompliant certified application counselors.
    Section 155.225(f) directs designated organizations to establish 
procedures to ensure that applicants are informed of the functions of 
certified application counselors, as well as procedures to ensure that 
applicants provide authorization for the disclosure of applicant 
information to the application counselor. Such authorizations may be 
revoked by the applicant at any time.
    Finally, Sec.  155.225(g) prohibits certified designated 
organizations and their certified application counselors from imposing 
any charge on applicants or for the certified application counseling 
services they provide.

II. Provisions of the Proposed Rule and Analysis and Responses to 
Public Comments

A. General Comments

    In response to both the January 22, 2013 and the April 5, 2013 
proposed rules, we received the following comments that have general 
applicability to our rulemaking process.
    Comment: Several commenters asked us to release the final certified 
application counselor rule as soon as possible. One commenter suggested 
that we consolidate pending rules about consumer assistance programs 
and standards into one set of rules to provide greater clarity about 
which entities can perform which functions, and which standards apply 
to each type of assister.
    Response: We agree that addressing the standards governing 
Navigators, non-Navigator assistance personnel, and certified 
application counselors in the same final rule provides greater clarity, 
and we have adopted this recommendation. We are therefore finalizing 
the amendments to Sec. Sec.  155.205(d) and 155.210, and newly proposed 
Sec. Sec.  155.215 and 155.225, together in this final rule.

B. Consumer Assistance Tools and Programs of an Exchange (Sec.  
155.205)

    Proposed amendments to Sec.  155.205(d) were published as part of 
the January 22, 2013 proposed rule (78 FR 4594).
1. General Comments
    We received the following general comments on Navigator, non-
Navigator assistance, and certified application counselor programs 
under this provision:
    Comment: A few commenters requested clarification regarding the 
distinctions among Navigators, non-Navigator assistance personnel 
(which includes what have sometimes been referred to as ``in-person 
assistance personnel''), and certified application counselors with 
regard to topics such as funding, training requirements, and scope of 
responsibilities.
    Response: Navigators, non-Navigator assistance personnel, and 
certified application counselors all will provide consumer-focused 
assistance with applications for and enrollment in QHPs and insurance 
affordability programs. In addition, certified application counselors 
cannot charge consumers for their services, as provided in this final 
rule. Similarly, HHS does not believe that it would be consistent with 
the purpose of the Navigator program or the consumer assistance, 
education, and outreach functions under Sec.  155.205(d) and (e) for 
Navigators or non-Navigator assistance personnel to charge consumers 
for their services.
    The primary differences between the existing and proposed standards 
for Navigators and non-Navigator assistance programs, and the proposed 
standards for certifying certified application counselors in all 
Exchanges, which we finalize in this rulemaking, relate to the 
requirement that Navigators and non-Navigator assistance personnel 
perform public outreach and comply with detailed conflict of interest 
standards, eligibility requirements and prerequisites, as well as CLAS 
and disability access standards.
    Comment: A number of commenters requested that HHS clarify in the 
regulations that the nondiscrimination provisions applicable to the 
Exchanges apply to all consumer assistance programs, including 
Navigators, non-Navigator assistance personnel, and certified 
application counselors.
    Response: Exchanges are expected to comply with the 
nondiscrimination provisions in Sec.  155.120(c) when carrying out the 
requirements of 45 CFR part 155. We note that HHS recently proposed to 
correct the inadvertent omission of the nondiscrimination requirements 
of Sec.  155.120(c) from Sec.  155.105(f), which lists the regulatory 
provisions that apply in a Federally-facilitated Exchange (see 78 FR 
37032 (June 19, 2013)). Each of the assistance programs addressed in 
this rulemaking, including Navigators, the consumer assistance 
functions authorized under Sec.  155.205(d) and (e), and the certified 
application counselor program, are required functions of the Exchange 
under 45 CFR part 155. Therefore, in order for an Exchange to comply 
with these nondiscrimination provisions, it must ensure that its 
Navigators, any activities authorized under 155.205(d) and (e), 
including the operations of non-Navigator assistance personnel, 
organizations designated to certify staff or volunteers, and certified 
application counselors comply with Sec.  155.120(c). Additionally, the 
preamble to the final rule publishing Sec.  155.120(c) clarified that 
the nondiscrimination provisions apply not only to the Exchange itself 
but also to Exchange contractors and all Exchange activities, including 
but not limited to marketing, outreach, and enrollment. (See 77 FR at 
18319-18320.) The preamble to final Sec.  155.210 also clarified that 
Navigators, as third parties under agreement with the Exchange, are 
subject to the Exchange's nondiscrimination requirements under Sec.  
155.120(c). (See 77 FR at 18332.) Navigators, non-Navigator assistance 
personnel authorized under Sec.  155.205(d) and (e), organizations 
designated to certify their staff members and volunteers as application 
counselors, and certified application counselors certified directly by 
the Exchange perform functions of the Exchange and will be under 
agreement with the Exchange, and would therefore be subject to Sec.  
155.120(c) in all Exchanges if the amendments to Sec.  155.105(f) are 
finalized as proposed.
    Comment: One commenter explained that it is critical that no 
barriers are imposed that would disrupt the enrollment assistance 
relationships that Indian health providers have with consumers, and 
urged us not to create standards so onerous that they cannot be met by 
volunteers.
    Response: Nothing in this final rulemaking requires Indian health 
providers to change their current relationships with the consumers they 
serve. This regulation does not require them to be trained or 
registered as non-Navigator assistance personnel, Navigators, or 
certified application counselors in order to continue their existing 
work.
    Comment: Some commenters observed that general rules regarding non-
discrimination are often translated into a requirement to serve anyone 
who seeks the service. These commenters expressed the opinion that, 
because the Indian Health Service, tribes and tribal organizations, and 
urban Indian organizations (I/T/U) often serve only

[[Page 42830]]

American Indians and Alaska Natives (AI/AN), they cannot agree to such 
a requirement. The commenters suggested that the rules should clearly 
address this issue so that it does not become a barrier to 
participation by employees and volunteers of I/T/U.
    Response: Indian health programs and benefits are generally not 
available to the public because they were established to serve AI/AN. 
However, Exchange Navigator, non-Navigator assistance, and certified 
application counselor services are not Indian health programs or 
benefits authorized by the Indian Health Care Improvement Act, so the 
same limitation does not apply to them. Accordingly, if I/T/U health 
care programs wish to become Navigators, non-Navigator assistance 
personnel, or certified application counselors, they must provide those 
services consistent with the requirements we have established for those 
programs, including nondiscrimination requirements. Additionally, to 
the extent that an I/T/U receives any federal funds to support 
provision of Navigator, non-Navigator assistance, or certified 
application counselor services, it is subject to certain federal 
nondiscrimination statutes, including but not limited to Title VI of 
the Civil Rights Act of 1964.
    As we stated in the preamble to the proposed rule, while Navigators 
and non-Navigator assistance personnel should have the ability to help 
any individual who presents him or herself for assistance, there may be 
some instances where a Navigator or non-Navigator assistance personnel 
lacks 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 must 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. The same principle 
would apply to certified application counselor services. Indian health 
providers also have specific independent authority under section 404 of 
the Indian Health Care Improvement Act to assist AI/ANs in enrolling in 
health benefits coverage, and may provide outreach and education in the 
provision of such assistance.
    Comment: A number of commenters requested that all individuals 
providing consumer assistance be required to provide equal access to 
individuals with limited English proficiency and individuals with 
disabilities.
    Response: Sections 155.205(c) and 155.210(e)(5) require Navigators 
and non-Navigator assistance personnel to provide applicants and 
enrollees with information that is accessible to individuals with 
disabilities and individuals with limited English proficiency. Section 
155.215(c) and (d) provides standards for providing equal access to 
individuals with limited English proficiency and individuals with 
disabilities. These standards will apply to Navigators and non-
Navigator assistance personnel in all Federally-facilitated Exchanges, 
including State Partnership Exchanges, and to non-Navigator assistance 
personnel in State Exchanges that are funded with 1311(a) Exchange 
Establishment grants. Certified application counselors perform a 
separate Exchange function, authorized by Sec.  155.225, and are 
required to provide information in a manner that is accessible to 
individuals with disabilities, either directly or through appropriate 
referral to a Navigator, non-Navigator assistance personnel authorized 
under Sec.  155.205(d) and (e), and/or the Exchange's call center.
    Comment: One commenter asked that consumer assistance be available 
to those who wish to apply via paper application rather than 
electronically.
    Response: While we strongly encourage all types of assistance 
personnel to help consumers apply for and enroll in coverage 
electronically, we also expect all types of assistance personnel to 
help consumers who wish to apply on paper.
    Comment: Several commenters asked HHS to encourage states to have a 
single training program for all Exchange consumer assistance programs, 
with one commenter recommending that HHS clarify that states may 
develop a single set of training materials for Navigators, non-
Navigator assistance personnel, and certified application counselors, 
as stated in the preamble to the proposed certified application 
counselor rule.
    Response: Section 155.215(b)(2) includes training standards that 
apply to Navigators and non-Navigator assistance personnel in Federally 
Facilitated Exchanges, including State Partnership Exchanges, and to 
non-Navigator assistance programs and personnel in State Exchanges that 
are funded through federal section 1311(a) Exchange Establishment 
grants. These standards do not apply to certified application 
counselors. State Exchanges may, at their option, base their own 
training programs for Navigators, for other kinds of non-Navigator 
assistance personnel and for certified application counselors on these 
standards, or they may adopt the Federal standards and training 
materials. State Exchanges may use their Navigator training for non-
Navigator personnel funded through 1311(a) grants if the training meets 
the standards in the final rule. State Exchanges are encouraged to have 
the same training across all of their programs.
2. Comments Related to the Amendments to Sec.  155.205(d)
    Comment: Several commenters expressed general support for our 
proposed amendments to Sec.  155.205(d), including support for our 
recognition that consumer assistance functions must meet certain 
standards. One commenter asked that HHS issue regulations specifying 
the standards and duties of individuals carrying out the functions 
described at Sec.  155.205(d).
    Response: In Sec.  155.215, we establish standards and duties for 
certain Navigators and non-Navigator assistance personnel.
    Comment: Many commenters asked that the training requirements under 
Sec.  155.205(d) be strengthened and that specific topics be required, 
including advance payments of premium tax credits (APTCs), cost-sharing 
subsidies (CSRs), comparing qualified health plan and pediatric dental 
benefits and costs, how to provide accessible services to individuals 
with disabilities and culturally and linguistically appropriate 
services, documentation requirements for immigrants, reporting changes 
in consumer or enrollee circumstances, qualifying for a special 
enrollment period, complaint and referral processes, the tax 
reconciliation process, how to refer individuals to services and 
programs not offered through the Exchange that help consumers afford 
the cost of their medical expenses, and information about programs 
authorized under the Ryan White Comprehensive AIDS Resources Emergency 
(CARE) Act and subsequent reauthorizations of that Act (Ryan White 
programs). A few commenters suggested that non-Navigator assistance 
personnel be trained on how to address the concerns of mixed-status 
immigrant families to encourage enrollment by eligible members of those 
families. One commenter suggested that we require preference to be 
given to any individual who is culturally and linguistically competent, 
including individuals with bilingual language skills and/or bicultural 
background or experience. One recommended that assistance

[[Page 42831]]

personnel under Sec.  155.205(d) receive both initial and ongoing 
training.
    Response: Section 155.215 establishes training standards for 
Navigators and non-Navigator assistance personnel in certain Exchanges. 
The training module content requirements established in Sec.  
155.215(b) cover a broad range of subjects, and we expect that training 
developed consistent with those requirements will encompass many of the 
specific training content suggestions made by commenters, including 
eligibility and referral services. We clarify here that by ``insurance 
affordability programs,'' we refer to the definition of ``insurance 
affordability programs'' at 42 CFR 435.4 (as amended at 77 FR 17203 
(Mar. 23, 2012)), which includes Medicaid, CHIP, and QHPs offered 
through the Exchange together with advance payments of the premium tax 
credit and/or cost-sharing reductions. However, we encourage 
knowledgeable assistance personnel to help consumers access other 
programs, such as drug assistance programs and Ryan White programs.
    Comment: Most commenters who addressed Sec.  155.205(d)(2), which 
requires referrals to consumer assistance programs when available and 
appropriate, expressed support for the proposed provision. Some 
additionally noted that the Exchange must not consider organizations to 
be ``available and appropriate'' unless the organization has indicated 
willingness and capacity to provide such assistance to consumers.
    Response: To clarify the kinds of available and appropriate 
entities to which we expect Navigators and non-Navigator assistance 
personnel to refer consumers, we amend the final Sec.  155.205(d)(2) to 
reflect the similar referral language in the Navigator final rule at 
Sec.  155.210(e)(4). This amendment clarifies that Consumer Assistance 
Programs established under section 2793 of the Public Health Service 
Act are an available and appropriate resource in many states to which 
Navigators, non-Navigator assistance programs, and certified 
application counselors can refer consumers for additional assistance. 
Because Navigator programs are one example of a program authorized 
under Sec.  155.205(d), we also believe this change will help 
streamline the requirements. Moreover, we expect that the entities 
specified in this provision are able and willing to provide assistance 
and accept referrals.
3. Summary of Changes
    We are finalizing the proposed amendments to Sec.  155.205 of the 
proposed rule, with one modification. We replaced the referral language 
in paragraph (d)(2) with similar language from Sec.  155.210(e)(4).

C. Navigators and Non-Navigator Assistance Personnel (Sec. Sec.  
155.210 & 155.215)

    The provisions and amendments discussed in this section were 
proposed in the April 5, 2013 proposed rule (78 FR 20581).
1. Navigator Program Standards (Sec.  155.210)
a. Entities and Individuals Eligible To Be a Navigator (Sec.  
155.210(c)(1)(iii))
    Section 155.210(c)(1)(iii), implementing section 1311(i)(4) of the 
Affordable Care Act, directs that, in order 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 
nothing in title I of the Affordable Care Act shall be construed to 
preempt any state laws that do not prevent the application of the 
provisions of title I of the Affordable Care Act.
    We proposed to amend Sec.  155.210(c)(1)(iii) to clarify that, 
consistent with Affordable Care Act section 1321(d), 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. For example, as HHS has previously 
advised (see 77 FR 18310, 18331 through 18332), a requirement by a 
state or an Exchange that Navigators be agents and brokers or obtain 
errors and omissions coverage would prevent the application of 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 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 will be available to some consumers.
    Comment: Generally, commenters supported the proposed amendment to 
45 CFR 155.210(c)(1)(iii). Some commenters requested additional 
guidance on what types of state requirements would and would not be 
preempted under this provision; for example, whether a state 
requirement that Navigators obtain a surety bond would be preempted by 
this provision. Other commenters requested we extend this provision to 
apply to non-Navigator assistance personnel as well.
    Response: Determining under Sec.  155.210(c)(1)(iii) whether a 
particular state requirement would prevent the application of the 
provisions of title I of the Affordable Care Act would require an 
analysis of the specific facts and circumstances. We are monitoring 
relevant state legislation and will work with states to help ensure 
that state legislation does not prevent the application of a provision 
of title I of the Affordable Care Act and the federal regulations 
implementing it. We are adopting the proposed amendment without 
modification. While we are not including parallel provisions applicable 
to non-Navigator assistance personnel and certified application 
counselors in this final rule, we note that Affordable Care Act section 
1321(d) also applies to those programs.
    Comment: Some commenters raised concerns about the impact of 
Navigator and non-Navigator assistance programs on the business of 
licensed agents and brokers. Some commenters believed the requirements 
for these programs would prevent agents and brokers from participating.
    Response: Licensed agents or brokers are eligible to serve as 
Navigators or non-Navigator assistance personnel as long as they meet 
the applicable requirements; however, during their term as Navigators 
or non-Navigator assistance personnel, they would not be permitted to 
receive any direct or indirect consideration from a health insurance or 
stop loss insurance issuer in connection with the enrollment of any 
individuals or employees in QHPs or non-QHPs. In addition, subject to 
applicable state law, agents and brokers are not otherwise prohibited 
from assisting consumers with enrollment both inside and outside of the 
Exchanges. We expect that agents and brokers will continue to play an 
important role in educating consumers about their health coverage 
options and, unlike Navigators and non-Navigator assistance personnel, 
will also be able to sell consumers health insurance coverage. In 
addition, many states are expecting that small businesses seeking 
enrollment assistance in the Small Business Health Options (SHOP) 
Exchange will continue to use agents and brokers as their primary 
resource, subject to applicable state law.
b. Prohibition on Navigator Conduct (Sec.  155.210(d))
    Section 155.210(d) states that a Navigator may not be a health 
insurance

[[Page 42832]]

issuer, a subsidiary of a health insurance issuer, 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 proposed to amend section 
155.210(d) to provide 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 employees in a QHP or non-QHP.
    Section 1311(i) of the Affordable Care Act requires a Navigator to 
distribute fair and impartial information concerning enrollment in 
QHPs, to be free from conflicts of interest, and directs that standards 
be established to ensure that those requirements are met. Existing 
regulations at 45 CFR 155.210(c)(1)(iv) and (e)(2) also implement those 
requirements. Taken together, these provisions indicate that, 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 employee health plan, or chooses to 
enroll in fully-insured coverage inside or outside the Exchange.
    In the proposed rule, we explained that these amendments would help 
ensure that Navigators provide any small employer that requests help 
from a Navigator with information and services in a fair, accurate, and 
impartial manner, as such information would facilitate small employers' 
selection of QHPs in Small Business Health Options (SHOP) Exchanges, if 
they choose to enroll in such coverage. We solicited public comments on 
this proposal.
    Comment: CMS received comments supporting the addition of stop loss 
insurance issuers and their subsidiaries to the provisions at 45 CFR 
155.210(d)(1), (2), and (4). One commenter requested clarification 
regarding the definition of stop loss insurance.
    Response: The proposed rule did not define stop loss insurance or 
stop loss insurance issuer and we are not adding a definition of stop 
loss insurance or stop loss insurance issuer to the final rule. The 
proposed rule cross-references the description of stop loss insurance 
in a Request for Information (RFI) published by the Departments of HHS, 
Labor, and the Treasury on May 1, 2012. See 77 FR 25788. That RFI 
describes stop loss insurance as designed to protect against health 
insurance claims that are catastrophic or unpredictable in nature, and 
as providing coverage to self-insured group health plans once a certain 
level of risk has been absorbed by the plan. For purposes of this final 
rule, we continue to interpret the terms stop loss insurance and stop 
loss insurance issuer as having meanings consistent with the discussion 
in the RFI.
    Comment: A few commenters requested guidance on whether selling 
other insurance products, such as Medicare health plans, accident 
plans, cancer-only or other dread disease plans, hospital expense, or 
critical illness plans, would be a prohibited conflict of interest 
making someone ineligible to be a Navigator or non-Navigator assistance 
personnel.
    Response: We are adopting the proposed Sec.  155.215(a)(2)(i), 
which extends to certain non-Navigator assistance personnel the 
provisions of 45 CFR 155.210(d). As a result, non-Navigator assistance 
personnel subject to Sec.  155.215, like Navigators, are prohibited 
from having the relationships with health insurance issuers or stop 
loss issuers described at Sec.  155.210(d).
    45 CFR 155.20 and 144.103, implementing section 2791(b)(2) of the 
Public Health Service Act (PHS Act), defines a health insurance issuer 
as ``. . . an insurance company, insurance service, or insurance 
organization (including an HMO) that is required to be licensed to 
engage in the business of insurance in a State and that is subject to 
State law that regulates insurance (within the meaning of section 
514(b)(2) of ERISA). Such term does not include a group health plan.'' 
\6\ Consistent with this definition, in this context, whether an entity 
is a health insurance issuer is generally determined according to state 
law.
---------------------------------------------------------------------------

    \6\ See 26 CFR 54.9801-2, 29 CFR 2590.701-2, and 45 CFR 144.103, 
which states that the term ``health insurance issuer'' or ``issuer'' 
means ``an insurance company, insurance service, or insurance 
organization (including an HMO) that is required to be licensed to 
engage in the business of insurance in a State and that is subject 
to State law that regulates insurance (within the meaning of section 
514(b)(2) of ERISA). The term does not include a group health 
plan.''
---------------------------------------------------------------------------

    If an entity or one of its corporate affiliates is required to be 
licensed to engage in the business of insurance in a state and is 
subject to state law that regulates insurance, it might be a health 
insurance issuer or stop loss issuer or have a relationship with a 
health insurance issuer or stop loss issuer that would prohibit it from 
becoming non-Navigator assistance personnel. Within the Federally-
facilitated Exchanges, CMS will evaluate specific corporate structures 
on a case by case basis.
    Comment: Commenters requested clarification that a health care 
provider's contract with a health plan (including a QHP) to provide 
health services as part of the plan network would not preclude the 
provider from being eligible to be a Navigator or non-Navigator 
assistance personnel. Some commenters noted that this relationship 
should still be disclosed as a non-prohibited conflict of interest. 
Commenters also requested clarification that a grant offered by a plan 
for a restricted purpose, such as in support of providing services to 
the uninsured or to help finance a program or capital project, does not 
constitute consideration directly or indirectly for enrollment of 
individuals into a QHP or non-QHP. Commenters also noted that some 
health centers may receive federal grants under section 330 of the 
Public Health Service Act that can be used to plan and develop a 
managed care network plan.
    Response: We are finalizing without change the proposed amendment 
to 45 CFR 155.210(d)(4) and the proposed provision at Sec.  
155.215(a)(2)(i). We interpret the prohibition on receiving direct or 
indirect consideration from a health insurance or stop loss insurance 
issuer to apply to consideration received for enrolling individuals or 
employees in health insurance plans or stop loss insurance inside or 
outside the Exchanges; it does not apply to consideration received by a 
provider to support specific activities, such as the provision of 
medical services, that are not connected to the enrollment of 
individuals or employees in QHPs. The preamble to the Exchange Final 
Rule explains that we interpret ``consideration'' to include financial 
compensation, including monetary or in-kind compensation of any type, 
including grants, as well as any other types of influence a health 
insurance or stop loss insurance issuer could use, including but not 
limited to things such as gifts and free travel, which may result in 
steering individuals to particular QHPs offered in the Exchange or 
plans outside of the Exchange (77 FR 18333). It is possible that a 
provider would be required to disclose to the Exchange and consumers 
receiving application assistance from staff serving as Navigators or 
non-Navigator assistance personnel, the fact that it receives issuer 
funds that are unrelated to the enrollment of individuals or employees 
into health insurance plans, but this would not be a bar to serving as 
a Navigator or non-Navigator assistance personnel. Such disclosure 
would not

[[Page 42833]]

include proprietary information about reimbursements received from 
issuers.
    Similarly, an entity that receives a grant or other funding from a 
health insurance or stop loss insurance issuer would not be prohibited 
from serving as a Navigator or non-Navigator assistance personnel 
unless such grant or funding is related to the enrollment of 
individuals or employees in a QHP or non-QHP. However, the entity would 
need to disclose the receipt of the grant or funding from the issuer to 
the Exchange and consumers receiving application assistance.
    With respect to health centers that may receive federal grants 
under section 330 of the Public Health Service Act that can be used to 
plan and develop a managed care network plan, as stated earlier, 
whether or not an entity is or is not a health insurance issuer is 
determined by state law. If these health centers would not be required 
to be licensed to engage in the business of insurance in a state or 
subject to state law that regulates insurance, then the health center 
would not be ineligible to serve as a Navigator or non-Navigator 
assistance personnel, assuming all other eligibility criteria are also 
satisfied.
    Comment: Some commenters requested guidance regarding the situation 
where a large organization, such as a hospital, has some but not all 
employees serving as Navigators or non-Navigator assistance personnel. 
In this situation, commenters requested clarification about whether all 
employees of the organization need to be free of prohibited conflicts 
of interest, or whether only the employees providing Navigator or non-
Navigator assistance personnel services need to be free of prohibited 
conflicts of interest.
    Response: Only the Navigator grantee and the staff members and 
volunteers who work on the Navigator program or perform Navigator 
services under the grant are required to be free of prohibited 
conflicts of interest. Therefore, staff or employees of a Navigator 
grantee who are in no way involved in the Navigator program are not 
required to comply with the conflict of interest standards that are 
applicable to the Navigator program staff.
2. Summary of Changes
    The amendments to Sec.  155.210(d) are being finalized as proposed, 
with no changes. 2. Standards applicable to Navigators and non-
Navigator Assistance Personnel carrying out consumer assistance 
functions under 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 (Sec.  155.215).
a. Conflict-of-Interest Standards for Navigators (Sec.  155.215(a)(1)) 
and for Non-Navigator Assistance Personnel Carrying Out Consumer 
Assistance Functions Under Sec.  155.205(d) and (e) (Sec.  
155.215(a)(2))
    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) were 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. 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 
through 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, we first proposed in Sec.  
155.215(a)(1)(i) that a Navigator entity, including a Navigator grant 
applicant, must submit to the Exchange a written attestation that the 
Navigator entity and its staff do not have any of these prohibited 
conflicts of interest. This disclosure to the Exchange will help 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 solicited public comments on the 
proposal to require Navigators to submit an attestation regarding 
eligibility.
    At Sec.  155.215(a)(1)(ii), we proposed to direct that all 
Navigator grantees 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. We stated that this would be particularly 
important for those Navigator grantees that may have a changing 
workforce, and might thus utilize new or different staff or employees 
during the term of a Navigator grant. We solicited 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.
    At Sec.  155.215(a)(1)(iii), we proposed to direct that all 
Navigators, including the Navigator's 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. We 
stated that 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 and impartial, 
as required by Sec.  155.210(e)(2).
    Lastly, under the proposed conflict-of-interest standards for 
Navigators, we proposed a requirement at 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 
were mindful that every Navigator must ``[p]rovide information and 
services in a fair, accurate and impartial manner'' under Sec.  
155.210(e)(2). We were also 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,'' as we provided in 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 while ensuring all Navigators have the

[[Page 42834]]

integrity, fairness, and impartiality to carry out their duties 
appropriately.
    In order to mitigate conflicts of interest, we proposed three types 
of information that Navigators, including Navigator staff, must 
disclose to the Exchange and to their consumers. First, Navigators 
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 or, as we also proposed, 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, we proposed to require disclosure of two other types 
of indirect financial conflicts of interest. We stated that 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 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). We specified that Navigators and their staff must also 
disclose any existing employment relationships between any health 
insurance issuer or stop-loss insurance issuer, or subsidiary of such 
issuers, and the Navigator or staff member'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 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 solicited public comments on the proposed 
requirement to disclose certain types of potential financial conflicts 
of interest.
    At Sec.  155.215(a)(2), we proposed to 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 non-Navigator assistance 
personnel in a State Exchange funded through federal Exchange 
Establishment grants. We explained that we believe the same conflict-
of-interest considerations that apply to Navigators should also apply 
to these non-Navigator assistance personnel. We solicited public 
comments on the application of these proposed standards to non-
Navigator assistance personnel. The comments received did not 
distinguish between the application of these standards to Navigators or 
non-Navigator assistance personnel, and therefore we address comments 
for Sec.  155.215(a)(2) and the comments for Sec.  155.215(a)(1) 
together.
    Comment: Commenters generally supported the conflict of interest 
standards. Most said that the standards appropriately balance 
protection for consumers with burdens on potential Navigators and non-
Navigator assistance personnel. Some commenters requested that CMS 
provide a model form for the attestation and the mitigation plan 
requirements. One commenter recommended that CMS develop a script for 
making disclosures of non-prohibited conflicts to consumers and that 
these disclosures be made orally to ensure they are not just written 
and posted without being discussed. Another commenter requested that 
CMS require the disclosures about conflicts to consumers be in plain 
language so that consumers will fully understand them. A few commenters 
questioned the usefulness of disclosing non-prohibited conflicts of 
interest to consumers, however these commenters noted that the 
disclosure to the Exchange is necessary.
    Response: We appreciate the comments supporting the conflict of 
interest standards in the proposed rule. At this time we do not 
anticipate developing a model form for the attestation and mitigation 
plan or a script for making disclosures of non-prohibited conflicts to 
consumers. The disclosure would likely vary depending on the 
circumstances of the Navigator or non-Navigator assistance personnel 
providing it, and therefore a uniform script would be difficult to 
develop. Additionally, the final rule does not specify whether this 
disclosure to consumers should be written or oral. Navigators and non-
Navigators should use their discretion to determine which form of 
disclosure is most appropriate for a particular consumer receiving 
application assistance. For example, if a Navigator or non-Navigator is 
serving a community known to have low rates of literacy, an oral 
disclosure would likely be more appropriate than a written disclosure. 
We agree with the comment recommending the disclosure to consumers be 
made in plain language, which is consistent with the requirements under 
Sec.  155.205(c), and have modified the language of Sec.  
155.215(a)(1)(iv) and (a)(2)(v) accordingly.
    Comment: Commenters generally supported what they referred to as 
``strong conflict of interest standards.'' Many commenters stated 
appreciation for applying the same standards to both Navigators and 
non-Navigator assistance personnel to which Sec.  155.215 applies. 
However one commenter requested that we ensure that non-Navigator 
assistance personnel (as well as certified application counselors and 
Navigators), be prohibited from limiting the information they give to 
consumers based on that individual assister's personal beliefs or an 
institutional assister's beliefs. Another commenter requested that the 
provisions governing non-Navigator assistance personnel should mirror 
the Navigator requirements that Navigators not have a conflict of 
interest and that they provide information and services in a fair, 
accurate, and impartial manner.
    Response: We agree that the conflict of interest standards for non-
Navigators should mirror the conflict of interest standards for 
Navigators, which are a type of consumer assistance personnel. We 
therefore proposed, and now finalize in Sec.  155.215(a)(2)(i), that 
the same prohibitions on Navigator conduct set forth at Sec.  
155.210(d) also apply to non-Navigators in the Exchanges and 
circumstances to which 155.215 applies. We also proposed, and now 
finalize in Sec. Sec.  155.215(a)(1)(iii) and 155.215(a)(2)(iv), the 
requirement that the Navigators and non-navigator Navigator assistance 
personnel to which 155.215 applies provide information to consumers 
about the full range of QHP options and insurance affordability 
programs for which they are eligible. We note that one commenter 
correctly observed that the requirement to provide information in a 
fair, accurate, and impartial manner, a requirement for Navigators 
under section 1311(i)(5) of the Affordable Care Act and 45 CFR 
155.210(e)(2), was not specifically

[[Page 42835]]

extended to the non-Navigator assistance personnel to whom 155.215 
applies in our proposed rule. We did explain in the preamble to the 
proposed rule (at 78 FR 20586), however, that non-Navigator assistance 
personnel who carry out consumer assistance and outreach and education 
authorized under Sec.  155.205(d) and (e) in Federally-facilitated 
Exchanges, including State Partnership Exchanges, and non-Navigator 
assistance personnel in State Exchanges that are funded through 
Exchange Establishment grants, should be subject to conflict of 
interest standards; and that we believe that in order to be helpful to 
the public, the services provided under Sec.  155.205(d) and (e) should 
be carried out in a fair, accurate, and impartial manner. It was 
therefore our intent that this duty apply to both Navigators and non-
Navigator assistance personnel to which Sec.  155.215 applies. We are 
therefore amending Sec.  155.215(a)(2)(i) to add the requirement that 
non-Navigator assistance personnel in the Exchanges and circumstances 
to which 155.215 applies, like all Navigators, have a duty to provide 
information in a fair, accurate, and impartial manner. This amendment 
ensures that there will be parallel conflict of interest standards 
between Navigators and non-Navigator assistance personnel to which 
Sec.  155.215 applies.
    With respect to certified application counselors, Sec.  
155.225(d)(4) imposes a standard different from the ``fair and 
impartial'' standard discussed above. Instead, certified application 
counselors must act in the best interest of the applicants they assist. 
Section 155.225(c)(1) does specify that all certified application 
counselors must provide information to consumers about the full range 
of QHP options and insurance affordability programs for which they are 
eligible. However, as discussed elsewhere in this preamble, we are not 
extending any prohibition on being a certified application counselor 
based on conflicts of interest that apply to Navigators and non-
Navigator assistance personnel to which Sec.  155.215 applies, although 
we are requiring certified application counselors to disclose conflicts 
of interest to consumers.
    Comment: A number of commenters thought health insurance issuers, 
plans, and their agents should be barred explicitly from serving as 
non-Navigator assistance personnel.
    Response: We are finalizing Sec.  155.215(a)(2)(i), with the 
amendment mentioned above, which prohibits certain persons and entities 
from being non-Navigator assistance personnel in the contexts and 
Exchanges to which Sec.  155.215 applies, including a health insurance 
issuer or its subsidiary; an issuer of stop-loss insurance or its 
subsidiary; an association that includes members of or lobbies on 
behalf of the insurance industry; or a recipient of any direct or 
indirect consideration 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. The inclusion of an 
association that includes members of or lobbies on behalf of the 
insurance industry as a prohibited non-Navigator assistance program is 
not meant to prohibit associations, such as a bona fide Chamber of 
Commerce, which a wide variety of businesses join in connection with 
civic and community matters unrelated to the nature of their business, 
from having a non-Navigator assistance program.
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 (Sec.  155.215(b))
i. Certification and Recertification Standards (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. Additionally, 45 CFR 
155.210(b)(2) directs the Exchange to develop and publicly 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. 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''; this final rule amends these regulations 
to add, ``so long as such standards do not prevent the application of 
the provisions of title I of the Affordable Care Act.'' In addition, we 
finalize in this rulemaking the proposed 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.''
    At Sec.  155.215(b)(1), we proposed that all Navigators and non-
Navigator assistance personnel in a Federally-facilitated Exchange or 
State Partnership Exchange, and all non-Navigator assistance personnel 
in a State Exchange that are funded through a grant under section 
1311(a) of the Affordable Care Act, must 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 proposed in Sec.  155.215(b)(2) the broad 
topic areas about which Navigators and non-Navigator assistance 
personnel to which Sec.  155.215 applies would receive training prior 
to certification. The proposed rule would also require 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 
non-Navigator assistance personnel in a State Exchange funded through 
federal Exchange Establishment grants.
    The rule also proposed that Navigators and non-Navigator assistance 
personnel to which Sec.  155.215 applies should obtain continuing 
education and be certified and/or recertified on at least an annual 
basis. The proposed recertification requirement for Navigators and non-
Navigator assistance personnel to which Sec.  155.215 applies would 
ensure that they remain appropriately trained to adequately serve 
consumers.
    We also proposed at 45 CFR 155.215(b)(1)(v) that these 
certification requirements would specifically direct that all 
Navigators and non-Navigator assistance personnel to which Sec.  
155.215 applies be prepared to serve both the individual Exchange and 
SHOP. 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 (among other groups). In 
addition, section 1311(i)(2)(B) of the Affordable Care Act 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

[[Page 42836]]

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 to which Sec.  155.215 applies should be 
prepared to serve the needs of both the individual Exchange and SHOP. 
We solicited public comments on these proposed training and 
certification standards, including the proposed recertification 
standards.
    Comment: CMS received numerous comments from a broad range of 
commenters regarding the requirement that all Navigators and non-
Navigator assistance personnel to which Sec.  155.215 applies be 
prepared to serve both the individual market and SHOP Exchanges. These 
commenters generally recommended that Navigators and non-Navigator 
assistance personnel to which Sec.  155.215 applies should not be 
required to serve the SHOP Exchange. Some commenters suggested that 
some Navigators and non-Navigator assistance personnel to which Sec.  
155.215 applies could specifically serve the individual Exchange while 
others could specifically serve the SHOP. Other commenters suggested 
that Navigators and non-Navigator assistance personnel to which Sec.  
155.215 applies should be trained to have general knowledge of the SHOP 
to be able to provide appropriate assistance to individuals seeking 
coverage, particularly where SHOP eligibility may vary among family 
members. Commenters pointed to states that intend to establish and 
operate only a State SHOP Exchange, while the federal government 
operates the individual market Exchange for that state, and that intend 
to use certified agents, or brokers, or producers to assist small 
businesses with enrolling in coverage through the State SHOP. Others 
indicated that some community based organizations serving underserved 
populations may be dissuaded from applying to be Navigator entities 
because they have no or limited connections with small businesses.
    Response: We are finalizing proposed Sec.  155.215(b)(1)(v) without 
change. However, we do not interpret the provision as meaning that the 
Navigators and non-Navigator assistance personnel to which Sec.  
155.215 applies must actively seek out small businesses and employers 
to assist, unless that is the community the Navigator or non-Navigator 
assistance personnel is intending to target in its service delivery.
    Training regarding the SHOP will be required to ensure that persons 
seeking assistance with SHOP coverage from a Navigator or non-Navigator 
assistance personnel can receive assistance. In some circumstances, the 
assistance may be provided through referral 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, through reasonable efforts by the Navigator or non-Navigator, has 
been identified as having the capacity to serve that individual or 
employer more effectively.
    Additionally, we have proposed amendments to the existing Exchange 
regulations that would permit states to establish and operate only a 
State SHOP Exchange, while the federal government operates an 
individual market Exchange for that state. One of those proposed 
amendments is a provision that would permit SHOPs in states that opt to 
establish and operate a SHOP independently of a Federally-facilitated 
individual market Exchange to focus the SHOP Navigator program on 
outreach and education to small employers.\7\ If this proposal is 
finalized, in states that take this option, SHOP Navigators would be 
able to fulfill their statutory and regulatory obligations under 
section 1311(i) of the Affordable Care Act and 45 CFR 155.210 to 
facilitate enrollment in QHPs, and to refer consumers with complaints, 
questions, and grievances to applicable offices of health insurance 
consumer assistance or ombudsmen, by referring small businesses to 
agents and brokers for these types of assistance, so long as State law 
permits agents and brokers to carry out these functions.
---------------------------------------------------------------------------

    \7\ Patient Protection and Affordable Care Act; Program 
Integrity: Exchange, SHOP, Premium Stabilization Programs, and 
Market Standards, 78 FR 37032, 37052 and 37082 (June 19, 2013).
---------------------------------------------------------------------------

    Comment: Some commenters raised concerns regarding the security of 
consumer's personally identifiable information and requested that CMS 
specify how this information will be protected. In addition a few 
commenters asked questions regarding minimum eligibility criteria and 
background checks for Navigators and non-Navigator assistance personnel 
to which Sec.  155.215 applies.
    Response: We are committed to ensuring consumer privacy. Navigators 
and non-Navigator assistance personnel to which Sec.  155.215 applies, 
as part of their certification requirements, receive training on the 
privacy and security standards applicable under 45 CFR 155.260, which 
requires compliance with those standards. In addition, we do not expect 
that Navigators and non-Navigator assistance personnel will retain any 
personally identifiable information (PII). They will assist consumers 
in completing the enrollment application, which requires entry of some 
PII into either a computer-based or paper application; however, once 
the application is completed, Navigator or non-Navigator assistance 
personnel should not retain any of the information entered onto the 
application. With respect to electronic applications, the consumer will 
be logged on to a personal account, to which the Navigator or non-
Navigator assistance personnel generally will not have access without 
the consumer present. Federal Navigator grantees will have been 
screened by a thorough grant application process prior to being 
determined eligible for an award, and will be subject to a rigorous 
oversight process. States may choose to require minimum eligibility 
criteria and background checks for Navigators and non-Navigator 
assistance personnel, so long as such requirements do not prevent the 
application of title I of the Affordable Care Act. CMS, as the operator 
of the Federally-facilitated Exchange, will be monitoring Navigators 
and non-Navigator assistance personnel to which Sec.  155.215 applies 
under Sec.  155.215(e) and will take appropriate action if complaints 
of fraud and abuse arise. In addition, Sec.  155.260 provides for civil 
monetary penalties for violations of legal requirements to protect the 
privacy and security of personally identifiable information. Other 
federal laws regarding privacy and security may be applicable as well 
and provide sanctions for violations.
    Finally, as a measure to ensure that Navigators are able to carry 
out consumer assistance functions in Federally-facilitated Exchanges, 
the final rule establishes training and certification standards which 
include the requirement that Navigators and non-Navigator assistance 
personnel to which Sec.  155.215 applies 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.
    Comment: CMS received several comments requesting the creation of a 
dedicated portal for Navigators and non-Navigator assistance personnel 
within the online enrollment portal for submission of applications on 
behalf of consumers, with the consumer's permission. In addition to the 
portal, commenters also requested the establishment of a dedicated 
technical assistance unit and helpline in the Federally-facilitated 
Exchange to support Navigators and non-Navigator assistance personnel 
to which Sec.  155.215 applies.

[[Page 42837]]

    Response: At this time, we do not anticipate that a dedicated 
portal will be available for the use of Navigators and non-Navigator 
assistance personnel (or for certified application counselors) in the 
Federally-facilitated Exchanges. However, we will continue to consider 
and explore this option for future years. Navigators and non-Navigator 
assistance programs in the Federally-facilitated Exchanges will receive 
technical assistance from various sources, including CCIIO project 
officers for Navigator grantees, state resources for non-Navigator 
assistance programs, and the toll-free Federally-facilitated Exchange 
Call Center.
    Comment: Commenters urged HHS to adequately fund and support 
consumer assistance functions of an Exchange. Several requested 
clarification from CMS about whether private support can be used to 
leverage federal Medicaid matching funds to provide enrollment 
assistance. Commenters also requested CMS to allow section 1311(a) 
Exchange Establishment grant funds to be used to provide consumer 
assistance in full Federally-facilitated Exchange states that are not a 
State Partnership Exchange.
    Response: A discussion of the appropriate sources of the non-
federal share of Medicaid expenditures is outside the scope of this 
rulemaking. With regard to the use of section 1311(a) Exchange 
Establishment funding for consumer assistance and outreach, we direct 
commenters to the FAQ issued on April 23, 2013, https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/marketplace-funding-marketing-faq.html, and to the FAQs issued on May 13, 2013, https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/ca-spm-funding.html, and https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/spm-ffm-funding.html. 
Finally, with regard to the comment about adequate assistance for 
Exchange consumer assistance functions, we note that HHS has issued a 
funding opportunity announcement for the Navigator program in the 
Federally-facilitated Exchanges and State Partnership Exchanges, and is 
providing section 1311(a) Exchange Establishment Grants to states that 
may be used to fund non-Navigator assistance programs to carry out 
functions authorized by Sec.  155.205(d) and (e) consistent with the 
discussion in the preamble to the April 5, 2013 proposed rule (78 FR at 
20583 through 20584).
ii. Training Module Content Standards (Sec.  155.215(b)(2))
    In Sec.  155.215(b)(2), we proposed a set of standards for the 
content of the training modules for 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 Exchange, to ensure that they would be 
knowledgeable in the areas described in the statute and existing 
regulations and that they would be fully prepared to assist consumers.
    Navigators and non-Navigator assistance personnel to which Sec.  
155.215 applies will receive training in many areas including QHPs, the 
range of insurance affordability programs, eligibility requirements for 
premium tax credits and cost-sharing reductions, eligibility and 
enrollment rules and procedures, providing culturally and 
linguistically appropriate services, ensuring physical and other 
accessibility for individuals with disabilities, and privacy and 
security standards for handling and safeguarding consumers' personally 
identifiable information. It is expected that this assistance would 
accommodate the full range of disabilities. The complete list of 
required training module content standards is set forth in Sec.  
155.215(b)(2).
    Comment: CMS received numerous comments recommending that specific 
topics be included in the training for Navigators and non-Navigator 
assistance personnel to which Sec.  155.215 applies. Recommended topics 
include pediatric dental benefits; privacy standards for mixed 
immigration status households; the appropriate handling and 
safeguarding of consumer information; working with specific 
populations, including transgender individuals, the LGBT community, 
people of color, households that are experiencing mental illness, 
people with substance use disorders, people experiencing homelessness, 
and people with low health literacy; insurance affordability programs, 
particularly in states that have chosen not to expand their Medicaid 
program; and the individual responsibility requirement and other tax 
consequences.
    Response: We are finalizing the language of the training module 
content standards in Sec.  155.215(b)(2) without modification. The 
language of this provision is broadly written so that it can include 
many discrete topics, including many of those recommended by 
commenters. We specifically note that the proposed rule already 
includes training on privacy and security, on linguistic and cultural 
competence, and on ensuring access for people with disabilities. By 
defining the training modules broadly, we will be able to modify the 
specific training content each year so that it is tailored to the 
specific circumstances of the federal Exchanges and provides effective 
assistance to consumers.
    Comment: Multiple comments were received regarding the number of 
hours of training for Navigators and non-Navigator assistance personnel 
to which Sec.  155.215 applies. Some commenters suggested expanding the 
number of hours. Several commenters asked for clarification of the 
circumstances under which a state may require additional training 
beyond the number of hours discussed in the preamble to the proposed 
regulation. Some commenters stated that non-Navigator assistance 
personnel should not be required to take all 30 hours of Navigator 
training. Other commenters expressed concern that Navigators and non-
Navigator assistance personnel to which Sec.  155.215 applies will not 
receive enough training to be able to adequately assist consumers.
    Response: Under the final rule, Navigators and non-Navigator 
assistance personnel to which Sec.  155.215 applies will receive 
extensive training covering many broad content categories to prepare 
them to assist consumers competently. This training is designed to 
ensure that Navigators and non-Navigator assistance personnel to which 
Sec.  155.215 applies are knowledgeable about QHPs, insurance 
affordability programs, tax implications of enrollment decisions, 
eligibility for premium tax credits and cost-sharing reductions, and 
other topics. In addition, prior to being certified, Navigators and 
non-Navigator assistance personnel to which Sec.  155.215 applies will 
be required to take and pass a test ensuring their competence in each 
of the training content categories. We believe that up to 30 hours of 
training, as stated in the proposed rule, is sufficient for Navigators 
and non-Navigator assistance personnel in Federally-facilitated 
Exchanges and State Partnership Exchanges to perform their duties and 
is in keeping with the number of hours of training many states require 
for individuals seeking licensure as an agent or broker. We also note 
that State Exchanges using 1311(a) Establishment funds for their non-
Navigator assistance programs, such as in-person assistance programs, 
may choose to require additional hours of training.
    In addition, with regard to state law training requirements, 45 CFR 
155.210(c)(1)(iii) requires Navigators to meet state licensing, 
certification and

[[Page 42838]]

other requirements, if applicable. We are amending that provision in 
this rule to require that those standards must be met so long as they 
do not prevent the application of the provisions of title I of the 
Affordable Care Act.
    Comment: One commenter sought confirmation that the HHS approved 
training does not apply to State Exchanges.
    Response: State Exchanges must develop their own training and 
certification programs for Navigators and non-Navigator assistance 
personnel, and, as explained earlier in this rule, may use section 
1311(a) Exchange Establishment grant funds to cover the administrative 
costs associated with this requirement. If a State Exchange uses 
section 1311(a) Exchange Establishment grant funds for this purpose, it 
must comply with the training standards set forth in this rule.
    Comment: Several comments suggested that training content should be 
made available to all who are interested, including individuals who are 
not seeking to be certified application counselors or to serve as 
Navigators or non-Navigator assistance personnel, but who will work 
with consumers by providing education or problem-solving, such as 
people who work for legal-services organizations.
    Response: We understand there may be individuals who are not 
Navigators, non-Navigator assistance personnel or certified application 
counselors, but who are interested in assisting consumers with applying 
for and enrolling in QHPs and insurance affordability programs. While 
we intend to make the training available online only those individuals 
who are certified can act as certified application counselors, 
Navigators, or non-Navigator assistance personnel by Federally-
facilitated Exchanges.
c. Providing Culturally and Linguistically Appropriate Services (CLAS 
Standards) (Sec.  155.215(c))
    At Sec.  155.215(c), we proposed standards for the use and 
provision of culturally and linguistically appropriate tools and 
services for those who seek assistance from Navigators and non-
Navigator assistance personnel in a Federally-facilitated Exchange or 
State Partnership Exchange, and for non-Navigator assistance personnel 
in a State Exchange that are funded with section 1311(a) Exchange 
Establishment grants.
    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. Section 
155.210(e)(5) requires Navigators to ``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 also 
apply to non-Navigator assistance programs in State Exchanges 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 included a requirement that training include 
providing culturally and linguistically appropriate services, the 
proposed rule also provided 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 to information by individuals with limited 
English proficiency, as required under Sec. Sec.  155.210(e)(5) and 
155.205(c) (as applied to Navigators and non-Navigators by Sec.  
155.205(d) and (e)).
    At Sec.  155.215(c), we proposed that Navigators and non-Navigator 
assistance personnel to which Sec.  155.215 applies should develop, 
maintain, and regularly update their general knowledge about the 
racial, ethnic, and cultural groups in their service area, including 
the primary languages spoken, and continue to use this information. We 
specified that the proposed requirements would also include that such 
entities and individuals provide consumers with information and 
assistance in the consumer's preferred language, 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 proposed 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 
by the Navigator or non-Navigator assistance personnel to which Sec.  
155.215 applies.
    At Sec.  155.215(c)(4), we proposed to require that the Navigators 
and non-Navigator assistance personnel to which Sec.  155.215 applies 
provide limited-English-proficient consumers with oral and written 
notices informing them of their right to receive language assistance 
services and how to obtain such services. We explained in the preamble 
to the proposed rule that 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 assistance services.
    At 155.215(c)(6), we proposed to direct the Navigator and non-
Navigator assistance programs to which Sec.  155.215 applies 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.
    Comment: Many commenters recommended that CMS interpret the 
requirements of the proposed rule consistently with the Enhanced 
National Standards for Culturally and Linguistically Appropriate 
Services (CLAS) in Health and Health Care (National CLAS Standards) 
published by the HHS Office of Minority Health (``OMH'') on April 23, 
2013, available at https://www.thinkculturalhealth.hhs.gov/Content/clas.asp. Some comments suggested that Sec.  155.215(c) should be split 
into two parts, one focused on culture and one on language access. A 
few other commenters encouraged CMS to define what is included in 
providing culturally and linguistically appropriate services.
    Response: We agree that the National CLAS Standards provide 
guidance for best practices in providing culturally and linguistically 
appropriate services and encourage all entities providing outreach and 
enrollment assistance to refer to that document as a resource, as well 
as the accompanying Blueprint for Advancing and Sustaining CLAS Policy 
and Practice, a new guidance document for the National CLAS Standards 
that discusses implementation strategies for each standard, in addition 
to Sec. Sec.  155.205(c), (d), (e), 155.210(e)(5), and 155.215(c). We 
do not believe, however, that it is necessary to divide Sec.  
155.215(c) into subsections, as cultural competency

[[Page 42839]]

and language access are intertwined in the context of a consumer's 
experience.
    Comment: Many commenters recommended adding more specificity to the 
requirement for cultural competency, suggesting that various 
communities be identified in the regulation, including communities 
based on immigration status, disability, gender identity, and sexual 
orientation. They also recommended that CMS require the collection of 
specific demographic data to ensure various communities are served.
    Response: Although we are modifying other aspects of paragraph 
(c)(3), we are not modifying it to add specificity to the requirement 
of cultural competency. Navigators and non-Navigator assistance 
programs to which Sec.  155.215 applies must provide services that are 
appropriate to all of the cultures of the communities they serve. We 
want to ensure we do not limit the requirement by including a detailed 
list of communities, and so are not amending the proposal to include 
such a requirement. We also want to ensure that Navigators and non-
Navigator assistance programs to which Sec.  155.215 applies have the 
flexibility to determine what information is most relevant to the 
communities they serve.
    Comment: We received numerous comments concerning the provision of 
translation services, including when it is appropriate to rely on a 
consumer's family or friends to provide oral interpretations. In 
particular, some commenters encouraged CMS to amend Sec.  155.215(c)(3) 
to require translated services ``when requested by the consumer to 
ensure effective communication,'' rather than ``where necessary for 
meaningful access.'' Some commenters also wanted clarification on the 
relationship between the duty to provide culturally and linguistically 
appropriate services and the duty to make appropriate referrals.
    Response: In response to commenters' concerns, we have amended 
Sec.  155.215(c)(3) to read ``when necessary or when requested by the 
consumer to ensure effective communication,'' rather than ``where 
necessary for meaningful access.'' While Navigators and non-Navigator 
assistance personnel are required to provide information in a manner 
that is culturally and linguistically appropriate to the needs of the 
population being served, a referral may be the most appropriate method 
for complying with that requirement in some circumstances. For example, 
a Navigator or non-Navigator assistance personnel to which may not have 
the resources to serve directly someone who speaks a language spoken by 
a specific individual within their service area and may need to refer 
the individual to another program. In such circumstances, the Navigator 
or non-Navigator assistance personnel should make reasonable efforts to 
make an appropriate referral for the consumer, with the goal of helping 
them find assistance with a minimum of effort and disruption. We remind 
Navigators and non-Navigator assistance programs receiving federal 
financial assistance of their independent obligations to comply with 
Title VI of the Civil Rights Act of 1964. Title VI prohibits 
discrimination on the basis of national origin, among other bases, and 
may require the provision of language assistance services.
    Comment: Some commenters recommended that the notice provided to 
consumers informing them of their right to language access services 
should be required to be provided in the consumer's preferred language.
    Response: We agree that it makes the most sense to require the 
notice of language access services be provided in a consumer's 
preferred language. Therefore we are amending Sec.  155.215(c)(4) to 
require, ``notice to consumers with limited English proficiency, in 
their preferred language, informing them of their right to receive 
language assistance services and how to obtain them.''
d. Standards Ensuring Access by Persons With Disabilities (Sec.  
155.215(d))
    Existing regulation Sec.  155.210(e)(5) directs that an entity 
serving as a Navigator has a duty to ``ensure accessibility and 
usability of 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), 
which applies to persons providing consumer assistance pursuant to 
Sec.  155.205(d) and (e), requires that persons carrying out those 
assistance functions 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 and to non-
Navigator assistance programs in State Exchanges 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, with respect to Navigators 
and non-Navigator assistance personnel in a Federally-facilitated 
Exchange or State Partnership Exchange, and for non-Navigator 
assistance personnel in a State Exchange that are funded with section 
1311(a) Exchange Establishment grants, we proposed in Sec.  
155.215(d)(2) that auxiliary aids and services for individuals with 
disabilities be provided where necessary for effective communication 
and discussed when a consumer's family or friends can provide 
interpretation services. In addition, we proposed at Sec.  
155.215(d)(3) to require Navigators and non-Navigator assistance 
personnel to which Sec.  155.215 applies to provide assistance to 
consumers in a location and in a manner that is physically and 
otherwise accessible to individuals with disabilities. We proposed at 
Sec.  155.215(d)(1) that Navigators and non-Navigator assistance 
personnel to which Sec.  155.215 applies should ensure that any 
consumer education materials, Web sites, or other tools utilized for 
consumer assistance purposes are accessible to people with 
disabilities.
    We proposed at Sec.  155.215(d)(4) that legally authorized 
representatives be permitted to assist individuals with disabilities to 
make informed decisions. We proposed in Sec.  155.215(d)(5) that 
individuals carrying out Navigator and non-Navigator assistance 
functions to which Sec.  155.215 applies should have the ability to 
refer people with disabilities to local, state, and federal long-term 
services and supports programs when appropriate. Finally, we proposed 
at Sec.  155.215(d)(6) that Navigators and non-Navigator assistance 
personnel to which Sec.  155.215 applies be able to work with all 
individuals regardless of age, disability, or culture, and seek advice 
or experts when needed.
    Comment: A few commenters suggested that CMS should include more 
specific references to the Americans with Disabilities Act (ADA) and 
the Department of Justice's updated standards, section 508 of the 
Rehabilitation Act, and to the Navigators' other obligations under 
federal law to provide reasonable accommodations, as well as policy 
modifications when needed to ensure equally effective access to the 
Navigator program. Some commenters suggested that we clarify what is 
meant by ``meaningful access.''

[[Page 42840]]

    Response: We are adopting the proposed regulation without including 
more specific references to the ADA or the Rehabilitation Act. Section 
155.210(e)(5) and Sec.  155.205(c), (d) and (e) require Navigators and 
non-Navigator assistance personnel to ensure that persons with 
disabilities can access and use Navigator and non-Navigator assistance 
services in accordance with the ADA and section 504 of the 
Rehabilitation Act. We also believe that the proposed rule and other 
applicable standards issued by the Secretary \8\ adequately describe 
meaningful access.
---------------------------------------------------------------------------

    \8\ Examples include: National Standards for Culturally and 
Linguistically Appropriate Services in Health and Health Care: A 
Blueprint for Advancing and Sustaining CLAS Policy and Practice, 
Office of Minority Health, U.S. Department of Health and Human 
Services, April 2013, https://www.thinkculturalhealth.hhs.gov/GUIs/GUI_TCHRegister.asp?mode=new&clas=yes; Language Access Plan, U.S. 
Department of Health and Human Services, 2013, https://www.hhs.gov/open/execorders/2013-hhs-language-access-plan.pdf.
---------------------------------------------------------------------------

    Comment: Many commenters recommended that the requirement to 
provide auxiliary aids and services ``when necessary'' should be 
changed to ``when requested.'' They stated that Navigators or non-
Navigator assistance personnel should not have discretion to determine 
if the services are ``necessary.'' A few commenters recommended that 
CMS require the use of an interpreter for persons with disabilities, 
even in instances where a family member is used, to ensure 
comprehensive, objective information is provided to the consumer. Some 
commenters believed that family members and friends are not qualified 
to interpret information of this nature.
    Response: We agree that the term ``when necessary'' may not be 
sufficient to ensure that persons with disabilities receive the 
assistance they require. We also believe that the term ``when 
requested,'' on its own, may be insufficient to ensure the appropriate 
assistance. Some persons with disabilities may not have the capacity to 
effectively communicate a request for an auxiliary aid or service, such 
as a person who is deaf or hard of hearing, and some persons with 
disabilities may not know that they may have a right to an auxiliary 
aid or service. Additionally, the term ``when necessary'' allows the 
Navigators and non-Navigator assistance personnel to which Sec.  
155.215 applies to provide auxiliary aids and services when these may 
be obviously needed but when the person with a disability is not able 
to effectively communicate a request for an auxiliary aid or service. 
We have therefore modified Sec.  155.215(d)(2) to state ``when 
necessary or when requested by the consumer to ensure effective 
communication'' We disagree, however, that use of an interpreter should 
be required. Giving an individual the opportunity to request that a 
friend or family member serve as an interpreter, as an alternative to 
an auxiliary aid, allows the individual to choose to receive assistance 
in a manner that is most comfortable to that individual.
    Comment: Several commenters recommended that CMS provide 
information about commonly needed auxiliary aids and services and about 
accessibility features of different qualified health plans, including 
information about plan and provider accessibility, depending on the 
needs of the person with a disability.
    Response: HHS training modules for the Navigators and non-Navigator 
assistance personnel to which Sec.  155.215 applies will include 
content on accessibility needs and how to provide for them. Providing 
information about specific auxiliary aids and services and about plan 
and provider accessibility is beyond the scope of the duties of the 
Navigator and non-Navigator assistance programs.
    Comment: Many commenters recommended that the word ``legally'' 
should be deleted from the authorized representative provision because 
the streamlined application allows designation of a representative 
without a legal determination and many persons with disabilities have 
an authorized representative that has not been legally determined.
    Response: We agree with the comments and have modified Sec.  
155.215(d)(4) accordingly.
    Comment: Several commenters generally requested that CMS provide 
more specific protocols regarding referrals. A few commenters 
recommended that CMS clarify the requirement in paragraph (d)(5) to 
``acquire sufficient knowledge to refer people with disabilities to 
local, state, and federal long-term services and support programs,'' to 
clearly state that these referrals would be made to facilitate consumer 
access to additional services, not for assistance with enrollment in 
coverage.
    Response: We agree that Navigators and non-Navigator assistance 
personnel to which Sec.  155.215 applies should have sufficient 
knowledge to be able to refer individuals with disabilities to 
additional assistance personnel to facilitate consumer access to 
additional services. As stated in paragraph (d)(5), these referrals 
should be made to local, state, and federal long-term services and 
supports programs when appropriate. The final rule will not be modified 
to specify the entities to which referrals must be made as such 
referrals will vary based on the needs of the individual and the 
available resources in each community.
e. Monitoring (Sec.  155.215(e))
    We proposed in Sec.  155.215(e) 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. Sec.  155.205(d) and (e) and 155.210. To 
the extent possible, these Exchanges will engage in monitoring whether 
the Navigators and non-Navigator assistance personnel serving their 
consumers comply with the applicable standards, including, for example: 
Reviewing reports filed by Navigators and reviewing the attestations 
and conflict-of-interest plans that are required to be submitted to the 
Exchange, under Sec.  155.215(a)(1)(i) through (ii) and (a)(2)(ii) 
through (iii) of this 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 solicited comments on how 
monitoring for non-Navigator assistance personnel in State Exchanges 
funded through federal Exchange Establishment grants should be 
conducted.
    Comment: The majority of comments received on the monitoring 
provisions requested that CMS provide more guidance about how 
monitoring will be conducted. Some commenters provided suggestions 
about how to conduct monitoring. Recommendations include establishing a 
Navigator portal, conducting consumer experience surveys, secret 
shoppers, data collection activities, coordination with issuers, and 
reviewing consumer complaints.
    Response: We will monitor Navigators in the Federally-facilitated 
Exchanges and State Partnership Exchanges in a manner consistent with 
the HHS regulations at 45 CFR parts 74 and 92 that apply to grants and 
cooperative agreements. Under this authority, we will monitor Navigator 
grantees for compliance with the terms of the program, including review 
of documents created and retained by the grantees, such as financial 
reports and performance reports. As appropriate, we may also conduct 
site visits or audits of Navigator programs. In addition to monitoring 
grantees under these provisions, we plan to work closely with states, 
consumer groups and issuers as part of our monitoring

[[Page 42841]]

activities to help ensure compliance with the standards applicable to 
Navigators and non-Navigator assistance programs to which Sec.  155.215 
applies. We will also review consumer complaints received by HHS and 
the Exchange that relate to Navigators and non-Navigators to help 
identify possible compliance issues.
    If a Navigator or non-Navigator is suspected of fraud or violations 
of other applicable federal laws, we will work closely with the 
appropriate federal agencies to ensure that the matter is fully 
investigated and addressed in a manner consistent with federal law.
    Comment: Several commenters had specific recommendations about data 
collection for oversight purposes, including specific data points that 
should be collected as part of monitoring activities.
    Response: Navigator grantees have data collection requirements 
specific to their grants. Similarly, non-Navigator assistance programs 
may have data collection requirements set by the states in which they 
are operating. In addition, if states use federal grant funds to 
establish and run non-Navigator assistance programs, HHS will monitor 
the use of those federal grant funds in a manner consistent with the 
HHS regulations at 45 CFR part 92 that apply to grants to states. We 
are currently reviewing data collection by Exchanges and will take the 
comments under consideration.
f. Summary of Changes
    We are finalizing new Sec.  155.215 with minor changes. First, 
Sec.  155.215(a)(1)(iv) and (a)(2)(v) are being revised to include a 
requirement that disclosures to consumers of non-prohibited conflicts 
of interest must be in plain language. Second, Sec.  155.215(a)(2)(i) 
is being amended to require the non-Navigator assistance personnel to 
whom the rule applies to comply with Sec.  155.210(e)(2), which 
requires providing information to consumers in a fair, accurate, and 
impartial manner. Third, Sec.  155.215(c)(3) is being amended to 
require Navigators and non-Navigator assistance personnel to which 
Sec.  155.215 applies to provide language access services to consumers 
when requested or necessary to ensure effective communication. A 
similar revision is also made with respect to the availability of 
auxiliary aids and services for individuals with disabilities in Sec.  
155.215(d)(2). Section 155.215(c)(4) is being amended to require the 
notice to LEP consumers regarding the availability of language access 
services, must be in the consumer's preferred language. Lastly, Sec.  
155.215(d)(4) is being revised to remove the term ``legally'' from the 
phrase ``legally authorized representative.''

C. Certified Application Counselors (Sec.  155.225)

    The provisions of this section were proposed as part of the January 
22, 2013 proposed rule (78 FR 4594).
1. General Rule and Standards of Certification (Proposed Sec.  
155.225(a) and (b)--Renumbered as Sec.  155.225(a), (b), (c), & (d)).
    In paragraph (a), we proposed that each Exchange must certify staff 
and volunteers of both Exchange-designated organizations and 
organizations designated by state Medicaid and CHIP agencies to act as 
certified application counselors. We also proposed the minimum duties 
of certified application counselors, including providing consumers with 
information about insurance affordability programs and coverage 
options, assisting them with applications, and facilitating their 
enrollment in QHPs and insurance affordability programs.
    In paragraph (b), we proposed certification standards for certified 
application counselors, including registering with the Exchange, 
completing required training, disclosing conflicts of interest, 
complying with the privacy and security standards of the Exchange, 
acting in the best interest of the applicants assisted, complying with 
applicable state law, providing reasonable accommodations for people 
with disabilities, and entering into an agreement with the Exchange to 
comply with the standards in this paragraph. In the preamble to the 
proposed rule, we noted that an Exchange could develop a single set of 
core training materials that can be used by Navigators, agents and 
brokers, and certified application counselors, and that federal 
training and support materials would be made available for use by State 
Exchanges. We sought comment on whether State Exchanges should have the 
authority to create additional standards for certification or otherwise 
limit eligibility of certified application counselors beyond what we 
proposed.
    Comment: We received many comments from a wide variety of entities, 
including state agencies, medical and health care trade associations, 
health insurers and insurance trade associations, and consumer advocacy 
organizations, supporting the need for certified application 
counselors. Other commenters objected to the program or asked that it 
be optional. Reasons commenters offered for objecting to the program or 
asking that it be optional included their belief that other entities 
will already provide the assistance that certified application 
counselors are designed to provide, wanting increased flexibility for 
State Exchanges, and the challenges of implementing a new application 
assistance program so close to its required implementation.
    Response: Exchanges are required by Sec.  155.205(d) and (e) to 
provide consumer assistance, outreach, and education, and we believe a 
variety of assistance options can most efficiently connect consumers 
with affordable and appropriate health insurance coverage through the 
Exchanges. We note that, since each Exchange is responsible for 
establishing its own certified application counselor program, the 
program's scope can vary based on each Exchange's needs and market 
features. States operating a State Exchange will have the flexibility 
to determine the size and scope of their certified application 
counselor program in order to meet the needs of consumers in the state.
    We also understand commenters' concerns about the challenges faced 
by Exchanges when directly overseeing each individual certified 
application counselor. To help address these concerns, we are amending 
the proposed Sec.  155.225(a) and (b). Instead of the Exchange 
certifying each individual application counselor, and in order to allow 
Exchanges flexibility, the final rule provides that each Exchange may 
either designate organizations to certify their staff members and 
volunteers as application counselors, certify individual application 
counselors directly, as provided in the proposed rule, or do both. We 
intend that Federally-facilitated Exchanges will designate 
organizations to certify application counselors. We are allowing State 
Exchanges to choose among these options. Designated organizations will 
be required to enter into an agreement with the Exchange and must enter 
into an agreement with each of their certified application counselors 
regarding compliance with the requirements of Sec.  155.225. Certified 
application counselors must enter into an agreement with the applicable 
certifying entity and comply with all of the standards set forth in 
paragraphs (d), (f), and (g) (renumbered from paragraphs (b), (d), and 
(e) in the proposed rule). We believe that offering this modified 
structure will help simplify the implementation of a certified 
application counselor program. We also believe that, by retaining the 
option of using a direct certification model as proposed in the 
proposed rule and finalized as an option under Sec.  155.225(b)(2), the 
final regulation will

[[Page 42842]]

not disrupt any State Exchange efforts already underway to implement 
the certified application counselor program.
    In addition to creating efficiencies and flexibility for Exchanges, 
we think that designating organizations to certify their staff members 
and volunteers as application counselors will result in closer 
supervision and monitoring of the certified application counselors. 
Designated organizations already oversee their employees and volunteers 
and will be organizations that have processes in place to ensure 
compliance with security and privacy concerns, and are in a better 
position to ensure that their staff and volunteers comply with the 
certified application counselor standards set forth in this rule. Each 
organization designated by an Exchange to certify application 
counselors must maintain a registration process and method to track the 
performance of certified application counselors.
    HHS will address in guidance the process that the Federally-
facilitated Exchanges will follow when designating organizations to 
certify staff and volunteers as application counselors. As specified in 
paragraph (b)(1), this process will include an agreement between the 
designated organization and the Exchange which will direct the 
designated organization to certify only staff and volunteers who comply 
with the requirements of Sec.  155.225.
    Comment: Some commenters requested clarification regarding the 
types of organizations that, under the proposed rule, could be 
designated to have their staff and volunteers serve as certified 
application counselors, and several appreciated HHS's recognition that 
health care providers, community-based organizations, and community 
health centers play an important role in providing application 
assistance. Various commenters proposed that staff and volunteers of 
many types of organizations should be allowed to be certified 
application counselors, including hospitals, vendors who assist 
providers with eligibility and enrollment, non-profit patient advocacy 
organizations, community based organizations, integrated delivery 
systems, health insurance issuers, and multi-employer associations.
    Response: We believe that it is important to engage organizations 
that have long played a vital role in facilitating enrollment for 
individuals seeking coverage, already have processes in place to ensure 
that their staff and volunteers have been screened, and already have 
systems in place for protecting personally identifiable information. In 
order to ensure that organizations designated to certify their staff 
members and volunteers as application counselors have these types of 
safeguards in place, we expect the types of organizations the 
Federally-facilitated Exchanges will designate will be limited to 
community health centers such as Federally Qualified Health Centers 
(FQHCs); hospitals; health care providers (including Indian Health 
Services, Indian tribes and Urban Indian organizations that provide 
health care); behavioral health or mental health providers; Ryan White 
HIV/AIDS providers; agencies which have experience providing social 
services to the community, such as Supplemental Nutrition Assistance 
Program (SNAP) outreach, energy assistance, or tax assistance, that are 
either non-Federal governmental entities or organized under section 
501(c) of the Internal Revenue Code; or other local governmental 
agencies that have similar processes and protections in place, which 
may include organizations such as other health care providers, health 
departments, and local libraries. Since these types of organizations 
already have many of the processes in place that are necessary to meet 
the standards in Sec.  155.225(b)(1) and to ensure that their staff and 
volunteers meet the standards of certification in Sec.  155.225(d) 
(renumbered from subparagraph (b) in the proposed rule), we anticipate 
that the burden on these organizations to certify their staff members 
and volunteers as certified application counselors will be minimal. 
Furthermore, no organization is required to certify its staff members 
and volunteers as application counselors; the program is completely 
voluntary. The Federally-facilitated Exchange will list on its Web site 
the organizations that apply and it designates to provide certified 
application counselors as a resource for consumers.
    Comment: Several commenters expressed support for the proposed 
requirement that certified application counselors disclose potential 
conflicts of interest. Many commenters suggested that health insurance 
issuers, their subsidiaries, and agents and brokers should not be 
allowed to serve as certified application counselors due to conflicts 
of interest. Several commenters asked us to clarify the legal and 
liability rules for staff of health insurance issuers acting as 
certified application counselors when the entity offers insurance 
coverage.
    Response: We are finalizing the proposal that certified application 
counselors must disclose conflicts of interest. To accommodate the 
Exchanges designating organizations to certify individual application 
counselors and the State Exchanges, if they choose, to certify 
individual application counselors directly, the final rule provides 
that this disclosure should be to the Exchange-designated organization 
and to potential applicants, or if an Exchange directly certifies 
individual application counselors, to the Exchange and to potential 
applicants. As proposed, we do not think that any conflict of interest 
should prohibit certified application counselors from helping consumers 
apply for and enroll in coverage. In Sec.  155.225(d)(2) (renumbered 
from paragraph (b)(3) in the proposed rule), we finalize the proposal 
that the potential conflicts of interest that certified application 
counselors must disclose include, but are not limited to, any 
relationships with QHPs or insurance affordability programs, such as 
Medicaid plans and Medicaid managed care organizations. We believe this 
approach balances the goal of allowing a wide range of certified 
application counselors to assist consumers while providing them the 
information that will help them understand whether the certified 
application counselor has any conflicts or potential conflicts of 
interest that may color the information being provided.
    Comment: A commenter proposed that anyone seeking to serve as a 
certified application counselor should have Medicaid/CHIP experience or 
experience with underserved communities.
    Response: To encourage participation from organizations, we have 
not amended the final rule to require this experience. Section 
155.225(d) requires certified application counselors to be trained on 
the benefits, rules, and regulations governing all insurance 
affordability programs operated in the state, prior to functioning as a 
certified application counselor. Therefore, all certified application 
counselors will have the knowledge and skills necessary to assist 
consumers with Medicaid and CHIP.
    Comment: A large number of commenters expressed concerns about the 
fact that certified application counselors would not be funded through 
the Exchange. Several commenters feared that taking on an unfunded 
assistance role would stretch the already slim resources of community-
based organizations. Commenters offered a variety of solutions, 
including allowing Exchanges, states, or Medicaid programs to fund 
certified application counselors; HHS providing information about 
possible funding streams; making funds

[[Page 42843]]

available for safety-net providers; and funding through Exchange user 
fees.
    Response: Although we do not expect or require that certified 
application counselors be funded by Exchanges, nothing in the proposed 
or final rule prohibits organizations with certified application 
counselor programs from obtaining funding from other sources, including 
applicable private, state and federal programs. Section 1311(a) 
Establishment grant funds are available for the costs incurred by the 
State Exchange for establishing the certified application counselor 
training program and to cover administrative costs associated with the 
certified application counselor program. However, we expect that such 
costs, beyond training, will be minimal.
    Nothing in Sec.  155.225 prevents or interferes with a State 
Exchange operating other Exchange-funded application assistance 
programs, including a Navigator program under 45 CFR 155.210 or a non-
Navigator assistance program carrying out activities under Sec.  
155.205(d) and (e). No organization is required to apply to become or 
to become a designated organization; the program is completely 
voluntary for organizations. Finally, the rule does not prevent 
certified application counselors from being paid by their employer for 
their labor, for example, as a hospital employee, as long as any 
financial relationship that creates a potential conflict of interest 
under Sec.  155.225(d)(2) is disclosed to potential applicants. As 
previously discussed, conflicts will not disqualify an individual from 
serving as a certified application counselor but must be disclosed.
    We are also finalizing Sec.  155.225(g) (renumbered from paragraph 
(e) in the proposed rule), which prohibits certified application 
counselors from imposing any charge on the applicants they assist.
    Comment: Several commenters supported our proposed language in 
Sec.  155.225(a) requiring the Exchange to certify staff and volunteers 
of both Exchange-designated organizations and organizations designated 
by state Medicaid and CHIP agencies to act as certified application 
counselors. However, a number of commenters were concerned about the 
inconsistencies between the Medicaid certified application counselor 
provision proposed at 42 CFR 435.908(c) and the Exchange certified 
application counselor provision proposed at Sec.  155.225. Some 
commenters were confused about whether certification by one program 
might permit or require certification by the other. Some supported 
complete reciprocity, but because the Medicaid proposed rule at 42 CFR 
435.908(c) allows the state to authorize certified application 
counselors to do one, some, or all of the assistance activities, 
several commenters recommended that the Exchange only certify Medicaid 
certified application counselors authorized to provide the full scope 
of activities or require them to receive additional training. Some 
commenters asked us to streamline the two rules.
    Response: In finalizing the provision that designated organizations 
will include organizations designated by state Medicaid and CHIP 
agencies, we have deleted the reference to 42 CFR 435.908 (the Medicaid 
certified application counselor program). We recognize that staff and 
volunteers of a wide range of organizations provide Medicaid and CHIP 
application assistance in many states through a variety of formal and 
informal processes, including but not limited to those under 42 CFR 
435.908. By removing the reference to 42 CFR 435.908, we allow 
organizations designated by state Medicaid and CHIP agencies under 
their processes to certify their staff members and volunteers to serve 
as certified application counselors. However, such organizations must 
enter into an agreement with the Exchange and their application 
counselors must enter into an agreement with the organization and 
comply with the requirements of Sec.  155.225.
    We note that, as in the Medicaid certified application counselor 
program, Exchange certified application counselors may, but are not 
required to, assist consumers with gathering required documentation, 
interacting with the Medicaid or CHIP agency or the Exchange on the 
status of such applications and renewals, responding to any requests 
from the Medicaid or CHIP agency or the Exchange, and following or 
managing their status between the eligibility determination and 
regularly scheduled renewals.
    Comment: A number of commenters requested clarification regarding 
what triggers the need for certification of application counselors and 
expressed concern that the certification requirement would preclude 
non-certified individuals, such as health insurance issuers and 
Medicaid application counselors, and organizations from providing 
assistance. Some commenters proposed that tribal application counselors 
serving American Indians and Alaska Natives be exempt from 
certification requirements.
    Response: Individuals and entities providing application and 
enrollment assistance related to health insurance or insurance 
affordability programs are not required to be certified application 
counselors, whether by the Exchange, state Medicaid or CHIP agencies, 
or to be organizations designated by the Exchange in order to continue 
providing those services or communicating with consumers. The certified 
application counselor program is not designed to limit existing or 
potential application assistance programs. Rather, the certification of 
an individual as a certified application counselor provides an 
assurance to consumers that they are receiving assistance from persons 
trained by the Exchange and overseen by organizations that protect 
personally identifiable information. Individuals who are not certified 
application counselors may take the certified application training, 
which we intend to make available to the general public and which we 
expect would help many types of organizations and assistance personnel 
provide Exchange-related education and application and enrollment 
assistance; however, they may not present themselves to the general 
public as certified application counselors.
    Comment: Several commenters requested that the Indian Health 
Service, tribes and tribal organizations, and urban Indian 
organizations (I/T/Us) be given the option to develop a certification 
program under which the I/T/Us can certify that the individuals they 
sponsor meet all the relevant criteria, and that such certification be 
required to be accepted by state Medicaid/CHIP programs and all 
Exchanges.
    Response: Exchanges that include one or more federally recognized 
tribes within their geographic area must engage in regular and 
meaningful consultation and collaboration with the tribes in accordance 
with Sec.  155.130(f). Development of the certified application 
counselor program should be an element of Exchanges' consultation with 
tribal governments. We anticipate that the certified application 
counselor program will help ensure that American Indians and Alaska 
Natives are able to access and enroll in QHPs and insurance 
affordability programs offered through the Exchanges. We recognize that 
the American Indian and Alaska Native population can receive or 
continue to receive services from the Indian Health Service, tribal 
organizations, or urban organizations. In addition, we recognize that 
the Indian health system will continue to be a resource for educating 
and providing

[[Page 42844]]

information to the tribal community. As discussed above, the types of 
organizations that the Federally-facilitated Exchange will be likely to 
designate to certify their staff members and volunteers as application 
counselors include Indian Health Services, Indian tribes and Urban 
Indian organizations that provide health care, and behavioral health or 
mental health services. The Indian Health Service facilities and staff 
will have a critical role in educating American Indians and Alaska 
Natives about the special protection afforded to this population under 
the Affordable Care Act and facilitating the enrollment of the tribal 
community in Medicaid, CHIP, and QHPs available through the Exchanges. 
We therefore expect that Exchanges and States will maximize the 
opportunity for I/T/Us to participate in certification application 
counselor programs.
    Comment: Many commenters recommended that all of the standards in 
Sec.  155.215 applicable to Navigators and certain non-Navigator 
assistance personnel carrying out consumer functions under Sec.  
155.205(d) and (e) in specified Exchanges should also apply to 
certified application counselors to ensure consistent information and 
consumer protection across all assistance personnel types. Other 
commenters did not want HHS to apply these standards to certified 
application counselors.
    Response: We agree that it is not appropriate to apply the 
standards in Sec.  155.215 to certified application counselors without 
modification due to basic program differences between Navigator 
programs, non-Navigator assistance programs, and certification 
application counselor programs. In particular, we do not believe it is 
appropriate to apply all of the standards in Sec.  155.215 to certified 
application counselors or to organizations designated to certify 
application counselors, since these individuals and entities will be 
expected to provide a more limited range of services. Throughout this 
preamble we discuss commenters' specific suggestions regarding the 
incorporation of Navigator and non-Navigator assistance personnel 
standards into the certified application counselor program.
    Comment: Several commenters asked us to specify whether and how 
Exchanges are required to inform consumers of available assistance 
resources. Numerous commenters thought certified application counselors 
should have access to population-level data to help determine the needs 
of the population to be served, and several commenters suggested that 
certified application counselors conduct needs assessments.
    Response: We encourage but do not require certified application 
counselors to conduct community outreach activities. While HHS does not 
intend to distribute population-level data to certified application 
counselors, HHS has made U.S. Census data about the demographics of 
uninsured populations available online at: https://marketplace.cms.gov/exploreresearch/census-data.html.
    Comment: A number of organizations asked HHS to incorporate the 
nondiscrimination requirements of Sec.  155.120 into the standards 
applicable to certified application counselors, while other commenters 
requested that HHS clarify that this requirement does not apply to 
tribal entities.
    Response: HHS recently proposed to correct the inadvertent omission 
of the nondiscrimination requirements of Sec.  155.120(c) from Sec.  
155.105(f), which lists the regulatory provisions that apply in a 
Federally-facilitated Exchange. (See 78 FR 37032.) Navigators, the 
assistance functions authorized under Sec.  155.205(d) and (e), and the 
certified application counselor program are required functions of the 
Exchange under 45 CFR part 155. In order for any Exchange to comply 
with these nondiscrimination provisions, the Exchange must ensure that 
its Navigators, any activities authorized under Sec.  155.205(d) and 
(e), including non-Navigator assistance personnel, organizations it 
designates to certify application counselors and certified application 
counselors, comply with Sec.  155.120(c). Therefore, Navigators, non-
Navigator assistance personnel authorized under Sec.  155.205(d) and 
(e), organizations designated to certify staff or volunteers, and 
certified application counselors, as functions of the Exchange, must 
comply with the provisions of Sec.  155.120(c) in any Exchange subject 
to that provision. Additionally, the preamble to final Sec.  155.120(c) 
clarified that the nondiscrimination provisions apply not only to the 
Exchange itself but also to contractors with the Exchange and all 
Exchange activities, including but not limited to marketing, outreach, 
and enrollment. (See 77 FR at 18319 through 18320.) The preamble to 
final Sec.  155.210 also clarified that Navigators, as third parties 
under agreement with the Exchange, are subject to the Exchange's 
nondiscrimination requirements under Sec.  155.120(c). (See 77 FR 
18332.)
    Comment: A number of commenters proposed that certified application 
counselors provide applicants with information on all the QHPs, and not 
just some subset, available to them, such as those QHPs with whom the 
certified application counselor has a financial relationship, or those 
QHPs that may be consistent with the personal or religious beliefs of 
the certified application counselor or the designated organization with 
which he or she is affiliated. One commenter also expressed concern 
that certified application counselors might steer consumers to specific 
plans based on the consumer's stated health care and treatment needs, 
which could result in certain QHPs attracting a disproportionate number 
of very high risk individuals that might not be fully offset by the 
risk mitigation programs in the Affordable Care Act.
    Response: We agree that it is in consumers' best interest to be 
informed about all QHPs and insurance affordability programs for which 
they are eligible. Therefore, we have amended Sec.  155.225(c)(1) 
(renumbered from paragraph (a)(1) in the proposed rule) to clarify that 
certified application counselors are certified to provide information 
to individuals and employees about the full range of QHP options and 
insurance affordability programs for which they are eligible. In 
addition, Sec.  155.225(d)(4) (renumbered from paragraph (b)(5) in the 
proposed rule) requires certified application counselors to act in the 
best interest of the applicants assisted and we have modified Sec.  
155.225(d)(2) (renumbered from paragraph (b)(3) in the proposed rule) 
to require disclosure to the designated organization, not the Exchange, 
when the organization is the certifying entity, or to the State 
Exchange if they are directly certified by the Exchange, and to 
potential applicants. We believe that these provisions protect against 
certified application counselors steering individuals to particular 
issuers, plans, or policies based on any self-interest or bias. We note 
that helping an individual make an informed decision based on their 
health care needs and the available coverage options is within the 
scope of certified application counselors' responsibilities and does 
not constitute steering. We believe certified application counselors 
will be able to provide information about the full range of QHP options 
and insurance affordability programs for which applicants are eligible 
since the Exchange plan comparison Web site is already required to 
display all QHPs for which the consumer is eligible.
    Comment: We received a number of comments seeking clarification 
regarding what it means to ``facilitate enrollment'' under proposed 
Sec.  155.225(a)(3) (renumbered as paragraph (c)(3) in this final 
rule).

[[Page 42845]]

Commenters requested that we add ``including assistance with advance 
payments of the premium tax credit, cost-sharing reductions, and tax 
reconciliation,'' and that we make explicit that ``facilitate 
enrollment'' includes providing assistance with plan comparison and 
selection.
    Response: Helping to facilitate enrollment involves assisting the 
consumer with submitting the eligibility application, helping clarify 
distinctions among QHPs, and helping a qualified individual make an 
informed decision during the plan selection process. Making eligibility 
determinations and enrolling applicants into QHPs are Exchange 
functions, pursuant to Sec.  155.400(a) and Sec.  155.310(d). 
Accordingly, certified application counselors will not be making 
eligibility determinations, and will not be enrolling applicants into 
QHPs. They will also not be selecting QHPs for applicants. By ``help to 
facilitate enrollment . . . in QHPs and insurance affordability 
programs,'' we refer to the definition of ``insurance affordability 
programs'' at 42 CFR 435.4 (as amended at 77 FR 17203 (Mar. 23, 2012)) 
and mean that certified application counselors must at a minimum help 
consumers through the process of applying for and enrolling in QHPs 
through the Exchange, Medicaid, CHIP, and advance payments of the 
premium tax credit and cost-sharing reductions. However, nothing in 
this rule would prevent a certified application counselor from helping 
consumers access other health coverage programs, such as drug 
assistance programs and programs funded under the Ryan White program.
    Comment: One commenter requested that HHS identify resources, such 
as Navigators or certified application counselors, which can provide 
consumers assistance with obtaining exemptions.
    Response: While certified application counselors may provide 
assistance with exemptions, it is not required.
    Comment: Many commenters responding to whether an Exchange should 
be able to create additional standards, or limit eligibility of 
certified application counselors beyond what HHS establishes, supported 
giving states the flexibility to add standards, such as licensure 
requirements and stronger consumer protection standards. Other 
commenters, however, opposed permitting states to impose additional 
certification standards, expressing concerns that additional 
requirements might be burdensome and could limit the number of 
certified application counselors or favor some health insurance issuers 
over others. Several commenters thought the provision in proposed Sec.  
155.225(b)(6) requiring certified application counselors to comply with 
state law applicable to application counselors was too vague. Some 
noted that any additional standards should be consistent with those for 
other types of assistance (for example, Navigators).
    Response: We understand that some states have their own standards 
for areas such as privacy and security of consumers' personally 
identifiable information (PII) and conflicts of interest. However, we 
have not finalized the proposed requirement that certified application 
counselors must comply with applicable state law related to certified 
application counselors as a condition of certification, because some 
state laws may limit the organizations and individuals that are 
eligible to be designated organizations and certified application 
counselors. We note that 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.
    Comment: Several commenters requested clarification regarding how 
this rule interacts with state insurance and other regulation.
    Response: Section 1321(d) of the Affordable Care Act specifies that 
state law that does not prevent the application of the provisions of 
title I of the Affordable Care Act will not be preempted.
    Comment: A commenter asked about the role of the Exchange in 
training and oversight of certified application counselors and about 
indemnification of certified application counselors.
    Response: This final rule, in Sec.  155.225(e) (renumbered from 
paragraph (c) of the proposed rule) requires the Exchange to perform 
certain oversight duties, such as withdrawing certification from 
noncompliant designated organizations. Each Exchange will have 
flexibility in how it performs their oversight duties. It also requires 
designated organizations to agree that their staff members and 
volunteers who are application counselors will meet all of the 
requirements of Sec.  155.225, and that the designated organizations 
will withdraw certification from noncompliant certified application 
counselors. We believe that the approach taken in the final rule will 
create stronger oversight of individual certified application 
counselors, as the organizations that oversee them are in a better 
position to monitor their actions. Additionally, as described elsewhere 
in this preamble, we anticipate that the organizations designated by 
Exchanges will be organizations that already have processes in place to 
protect sensitive and personally identifiable information. State 
Exchanges that take the option of certifying individual certified 
application counselors must withdraw certification from noncompliant 
application counselors pursuant to Sec.  155.225(e)(2). Further, 
certified application counselors will enter into agreements with the 
certifying entity, whether they are certified directly by a State 
Exchange or certified by an organization designated by the Exchange, 
agreeing to comply with the standards and requirements for certified 
application counselors.
    The final rule, like the proposed rule, does not require the 
Exchange to indemnify certified application counselors or their 
organizations.
    Comment: A commenter asked that certification and compliance 
agreements for certified application counselors be at the federal 
rather than state level for multi-employer plans because such plans are 
subject to federal regulation under ERISA, the Internal Revenue Code, 
and the Taft-Hartley Act and are not subject to state insurance 
regulation.
    Response: Each Exchange is responsible for directly certifying or 
designating the organization certifying individual application 
counselors. Therefore, the Exchange must administer the designation and 
certification, as applicable, and any accompanying agreement. 
Organizations certifying their staff members and volunteers as 
certified application counselors will administer the certification 
process and the agreement.
    Comment: Many commenters addressed the proposed training standards 
in Sec.  155.225(b)(2) (renumbered paragraph (d)(1) in the final rule). 
A large number recommended that training include specific components on 
a variety of topics, including how to provide accessible services to 
individuals with disabilities; applicable civil rights laws; advance 
payments of the premium tax credit and cost-sharing reductions; 
providing referrals to other assistance programs; how to assist other 
underserved communities such as LGBT people, low-income people, and 
people of color; conflicts of interest; transacting insurance; and 
preventing and detecting fraud.
    Response: Section 155.225(d)(1) in the final rule requires training 
that covers several of these topics, and we expect that Exchanges will 
train certified application counselors on the various applicable 
regulatory standards. Because these standards are more

[[Page 42846]]

limited than those of Navigators and non-Navigator assistance 
personnel, we expect that the training course for certified application 
counselors will be more limited.
    Comment: Some commenters proposed the idea of periodic 
recertification or review of certification to ensure continued 
qualification, and a couple of commenters asked about refresher 
trainings or continuing education requirements. A number of commenters 
suggested that certified application counselors take the same 
certification examination that is required of certain Navigators and 
non-Navigator assistance personnel in Sec.  155.215(b)(1).
    Response: We agree that certified application counselors, like 
Navigators, should complete and achieve a passing score on a 
certification examination. We have amended Sec.  155.225(d)(1) 
(renumbered from paragraph (b)(2) in the proposed rule) to reflect this 
requirement. We expect to issue guidance on recommended recertification 
and continuing education for certified application counselors in 
Federally-facilitated Exchanges.
    Comment: A few commenters recommended that certified application 
counselors should not be required to duplicate training they already 
have, such as HIPAA confidentiality rules or Medicaid/CHIP.
    Response: The Federally-facilitated Exchanges, at the request of 
State Medicaid and CHIP agencies, will deem staff members and 
volunteers of organizations designated by state Medicaid or CHIP 
agencies to have completed the Exchange's training modules on Medicaid 
and CHIP. State Exchanges may also deem such staff members and 
volunteers to have completed the Exchange's training modules on 
Medicaid and CHIP. Other certified application counselors must fulfill 
all training requirements in order to be certified.
    Comment: A number of commenters recommended that certified 
application counselors go through the same or similar training and 
certification as Navigators and non-Navigator assistance personnel. 
Other commenters suggested that certified application counselors could 
have an abbreviated training program because many certified application 
counselors will be volunteers.
    Response: We do not require certified application counselors to 
learn all of the training content required by Navigators and non-
Navigator assistance personnel, as some of that content is not 
applicable to certified application counselors. For example, certified 
application counselors will not receive training on the appropriate use 
of federal funds since certified application counselors would not 
necessarily receive such funding. We believe that the topics required 
by the final rule for certified application counselor training balance 
the need for informed, trained certified application counselors with 
the scope of their duties.
    Comment: In the preamble to the proposed rule, we indicated that a 
state can develop a single set of core training materials that can be 
utilized by Navigators, agents and brokers, and certified application 
counselors. Several commenters asked that we encourage this or include 
it in the final rule.
    Response: We do not require, but encourage states running State 
Exchanges to develop a single set of core training materials, which it 
can tailor for each of its consumer assistance programs. This strategy 
will create efficiencies and ensure that all assistance personnel in a 
state receive consistent, comprehensive training. Additionally, HHS 
will share its training modules with states, which can be modified or 
used in full or in part by interested states.
    Comment: Numerous commenters recommended that federal training and 
support materials be made available to a variety of audiences, 
including states, Indian health providers and tribal application 
counselors, as well as the public.
    Response: We agree that making federal certified application 
counselor training materials publicly available will be beneficial to a 
variety of individuals and groups, including people who wish to assist 
family members, friends, or other community members with finding 
affordable health coverage. Therefore, HHS intends to make a version of 
its training program for Navigators, non-Navigator assistance 
personnel, and certified application counselors available to the 
general public. Anyone would be able to take this training. However, 
unless a person is certified as an application counselor by a 
designated organization or a State Exchange that opts to certify 
individual certified application counselors directly, that person may 
not present himself or herself to the public as a certified application 
counselor. We encourage State Exchanges to make their training 
available to the general public as well, and we note that HHS's 
training will be available online to individuals in all states, 
including states with State Exchanges.
    Comment: A number of commenters requested that the certified 
application counselor training be conducted online and several asked 
that training and certification be provided at no cost.
    Response: To encourage participation by community-based 
organizations, community health centers and others, we believe it is 
important that Exchanges make certified application counselor training 
available online and at no cost to persons taking the training. HHS 
intends to conduct its training program for certified application 
counselors in Federally-facilitated Exchanges on-line and at no cost 
either to the person taking the training, or to their organization.
    Comment: A few commenters recommended that states with Federally-
facilitated Exchanges or State Partnership Exchanges be able to 
establish training programs in addition to those established by a 
Federally-facilitated Exchange.
    Response: A state with a Federally-facilitated Exchange or State 
Partnership Exchange is welcome to make state-specific training 
materials available to interested certified application counselors and 
their organizations. As discussed above, the Federally-facilitated 
Exchange or State Partnership Exchange may designate organizations, and 
the organizations may certify individual certified application 
counselors that meet the requirements in Sec.  155.225. States, if they 
wish, may have additional training requirements that do not prevent the 
application of the requirements of Sec.  155.225.
    Comment: One commenter asked that we make training available well 
before open enrollment.
    Response: HHS is in the process of finalizing the training program 
for certified application counselors in Federally-facilitated 
Exchanges, including State Partnership Exchanges, and we intend to make 
it available with sufficient time for certified application counselors 
to be trained before open enrollment.
    Comment: One commenter suggested that certified application 
counselors should participate in the routine information-sharing 
sessions that the commenter recommended for Navigators and non-
Navigator assistance personnel.
    Response: HHS is continuing to develop the kinds of technical 
assistance it will provide to Exchange consumer assistance personnel in 
Federally-facilitated Exchanges. HHS intends to issue future guidance 
on opportunities for these assistance personnel and organizations to 
share experiences and best practices. We encourage State Exchanges to 
make similar opportunities available for

[[Page 42847]]

assistance personnel serving their consumers.
    Comment: Several commenters noted that the requirements at Sec.  
155.215(a)(1)(iv)(B) and Sec.  155.215(a)(2)(v)(B) for disclosure of 
existing or former employment relationships, including those of a 
spouse of domestic partner, with health insurance or stop loss issuers 
or their subsidiaries could be burdensome for large organizations like 
large health systems if these standards were also applied to certified 
application counselors.
    Response: It is important to note that under Sec.  155.225(d)(2) 
(renumbered from paragraph (b)(3) in the proposed rule), the disclosure 
burden is on the individual certified application counselor, not the 
designated organization. We agree that it would be impractical to 
require designated organizations to disclose the existing or former 
employment relationships of all their employees and volunteers. 
Certified application counselors will be responsible for disclosing 
only their own potential conflicts of interest, including any 
relationships with QHPs or insurance affordability programs.
    Comment: We received support for proposed Sec.  155.225(b)(4) 
(renumbered as Sec.  155.225(d)(3)) that certified application 
counselors comply with the privacy and security standards established 
for the Exchange under Sec.  155.260. We also received a suggestion 
that certified application counselors certified by the Exchange should 
comply with Medicaid confidentiality standards.
    Response: We are finalizing the proposed provision requiring 
compliance with the Exchange's privacy and security standards at Sec.  
155.225(d)(3) of the final rule (proposed as Sec.  155.225(b)(4)). 
Certified application counselors who are certified by Medicaid or CHIP 
agencies, including those certified by both Medicaid and CHIP agencies 
and the Exchange or an Exchange-designated organization, will be 
subject to the Medicaid confidentiality requirements applicable to the 
Medicaid certified application counselor program at 42 CFR 
435.908(c)(iii). However, that provision references rules designed to 
govern the actions of state Medicaid agencies and is not relevant for 
enrollment in a QHP through the Exchange. Therefore, we have not 
adopted those rules here.
    Comment: In Sec.  155.225(b)(5), we proposed that certified 
application counselors must agree to act in the best interest of the 
applicants assisted. The majority of commenters who addressed this 
provision asked us to hold certified application counselors to the same 
fairness and impartiality standard as Navigators.
    Response: The final rule does not modify this provision. We have 
renumbered it as Sec.  155.225(d)(4) in the final rule; it requires 
that certified application counselors act in the best interest of the 
applicants assisted. We believe this standard achieves our program goal 
of providing readily available consumer-focused assistance. When read 
in conjunction with the training and conflict of interest disclosure 
standards for certified application counselors, the best-interest 
provision helps ensure that a certified application counselor provides 
information and assistance to a consumer that will enable the consumer 
to make the most appropriate choice for himself or herself. This means 
that, regardless of any relationships a certified application counselor 
may have with QHPs or insurance affordability programs, the certified 
application counselor must help consumers choose coverage that best 
meets all of the consumer's needs.
    Comment: We received comments both supporting and expressing 
concerns about the language in proposed Sec.  155.225(b)(7) (renumbered 
as Sec.  155.225(b)(6) in this final rule) which would require 
certified application counselors to provide information with reasonable 
accommodations for those with disabilities. Many commenters suggested 
that the language should be expanded to include providing assistance in 
a culturally and linguistically appropriate manner. Some commenters 
requested that certified application counselors be allowed to meet this 
requirement by referring applicants to local Navigators or non-
Navigator assisters.
    Response: We agree that providing information in a manner that is 
accessible for people with disabilities is important to a certified 
application counselor's ability to provide effective assistance and act 
in the consumer's best interest. Some commenters expressed concerns 
that accommodations for persons with disabilities may be costly or 
burdensome for small organizations or volunteers. We have therefore 
amended proposed Sec.  155.225(b)(7), renumbered in the final rule as 
Sec.  155.225(d)(5), to clarify that the requirement that certified 
application counselors provide information in a manner that is 
accessible to individuals with disabilities may be satisfied either 
directly or through an appropriate referral to a Navigator, non-
Navigator assistance personnel authorized under Sec. Sec.  155.205(d) 
and (e) and/or 155.210, or to the Exchange's call center. For example, 
if a consumer with a visual limitation seeks assistance from a 
certified application counselor who does not have the appropriate 
auxiliary aids to assist the consumer, such as materials in large print 
or Braille, or a modified computer keyboard and monitor, the certified 
application counselor may refer the consumer to a geographically 
accessible Navigator or non-Navigator assistance personnel whom the 
certified application counselor has reason to believe will be able to 
assist the consumer, or to the Exchange's call center.
    Additionally, this subparagraph of the proposed rule included a 
reference to the Americans with Disabilities Act, and for clarity we 
have finalized that reference and included a reference to section 504 
of the Rehabilitation Act, as well as citations to those provisions.
    We are not expanding this rule to impose CLAS requirements on 
certified application counselors. However, we expect certified 
application counselors to provide appropriate referrals to 
geographically accessible Navigators, non-Navigator assistance 
personnel, and/or the Exchange call center, if the certified 
application counselor is unable to assist a consumer with limited 
English proficiency.
    We note that many organizations are already required by federal, 
state, and local laws to provide accessible and appropriate services to 
the individuals they serve. For example, failure by a recipient of 
federal financial assistance to provide services consistent with 
Standards 5 through 8 of the National Standards for Culturally and 
Linguistically Appropriate Services in Health and Health Care could 
result in a violation of Title VI of the Civil Rights Act of 1964 and 
HHS's regulation implementing that statute (See 42 U.S.C. 2000d et seq. 
and 45 CFR Part 80). Similarly, certain public entities and public 
accommodations must provide accessible spaces and services in 
compliance with the Americans with Disabilities Act and section 504 of 
the Rehabilitation Act. Certified application counselors must continue 
to meet their existing federal, state, and local obligations to provide 
consumers with information that is culturally and linguistically 
appropriate and accessible for those with disabilities. We therefore 
expect that because of these requirements, some certified application 
counselors will already be prepared to provide information in a manner 
that is culturally and linguistically appropriate to the applicants 
they serve.

[[Page 42848]]

    In addition, as discussed earlier, organizations already providing 
assistance with applications and enrollment in health insurance plans 
and insurance affordability programs or other social service programs 
to diverse populations are encouraged to become certified to certify 
application counselors. Such organizations are likely to have 
familiarity with the communities intended to be served by the Exchange. 
Although outreach is not a required function of the certified 
application counselor program, many organizations will already have 
outreach procedures in place, as well as information about the 
demographics of the communities they serve.
2. Withdrawal of Certification Sec.  155.225(e) (Renumbered From Sec.  
155.225(c) in the Proposed Rule)
    We proposed that the Exchange must establish procedures to withdraw 
certification from individual certified application counselors or from 
all certified application counselors associated with a particular 
organization when it finds noncompliance with the terms and conditions 
of the certified application counselor agreement.
    Comment: Commenters were generally supportive of proposed Sec.  
155.225(c), which provided for the withdrawal of certification from 
noncompliant certified application counselors. One commenter asked 
whether the actions of one individual or organization would trigger 
withdrawal of certification, or whether the Exchange would need to see 
a pattern of noncompliance.
    Response: We note that the final rule, in Sec.  155.225(e), 
provides that the Exchange must establish procedures to withdraw 
designation from a particular organization for non-compliance with the 
terms and conditions of the organization's agreement with the Exchange 
under Sec.  155.225(b)(1)(i); each State Exchange that directly 
certifies individual certified application counselors must establish 
procedures to withdraw that certification when it finds noncompliance 
with the requirements of Sec.  155.225; and each certified organization 
must establish procedures to withdraw certification from individual 
application counselors when it finds they have not complied with the 
requirements of Sec.  155.225, including the standards specified in 
paragraphs (d)(3) through (d)(5). These changes to the final rule track 
the changes we have made to the program structure, such that each 
entity responsible for certifying or designating has the responsibility 
to ensure that the standards associated with that certification or 
designation are upheld, and to remove that certification or designation 
when the standards have been violated. Each Exchange and each 
organization has the flexibility to establish its own procedure for 
withdrawal of certification and/or designation, as applicable. HHS 
intends to issue guidance on the procedure that will apply in 
Federally-facilitated Exchanges.
    Comment: Some commenters also had additional oversight proposals. 
Some recommended that we require routine performance monitoring and 
oversight to ensure that counselors provide quality services, comply 
with minimum standards, and serve the best interest of consumers. 
Several suggested that performance metrics should include examining 
enrollment patterns to detect steering. Commenters also requested 
clarification regarding the monitoring and oversight of certified 
application counselors, including identification of the entity 
responsible for monitoring, specificity about the complaint process if 
a consumer has a bad experience with a certified application counselor, 
and information about accountability for errors made by certified 
application counselors. One commenter suggested that HHS consider 
imposing civil money penalties against certified application counselors 
who violate their agreements. A few commenters asked that HHS not 
rigidly rely on background checks to disqualify individuals from 
participation.
    Response: HHS plans to implement several processes through which 
Federally-facilitated Exchanges and State Partnership Exchanges may 
oversee the activities of certified application counselors. First, HHS 
has proposed to develop a casework tracking system through which 
consumer complaints, including those related to certified application 
counselors, can be monitored. (See proposed Sec.  156.1010 in 78 FR 
37032 (June 19, 2013).) Furthermore, Sec.  155.225(a)(2) requires 
certified organizations to maintain a registration process and method 
to track the performance of certified application counselors.
3. Availability of Information; Authorization (Sec.  155.225(f) 
(Renumbered From Paragraph (d) in the Proposed Rule))
    In paragraph (d) of the proposed rule, we proposed that the 
Exchange must establish procedures to ensure that applicants are 
informed of the functions and responsibilities of certified application 
counselors and that applicants authorize the disclosure of their 
information to a certified application counselor.
    Comment: Several commenters suggested specifying that Exchanges 
should maintain a current registry on the Exchange Web site of 
certified application counselors or all assistance personnel. Another 
commenter suggested that counselors display a certificate or badge.
    Response: To ensure that consumers are able to seek out appropriate 
assistance, HHS will maintain on its Web site a public registry of 
consumer assistance options in each Federally-facilitated Exchange, 
including Navigators, non-Navigators, and certified application 
counselor organizations. We expect that, based on the organization's 
agreement with the Federally-facilitated Exchange, the organization 
will ensure that individuals and employees who call that organization 
for certified application counselor assistance will be connected with a 
certified application counselor. The final rule does not specify that 
State Exchanges must maintain a similar public registry, although we 
encourage it.
    Comment: Commenters were supportive of proposed Sec.  
155.225(d)(2), under which Exchanges would establish a procedure for 
applicants to authorize the disclosure of their application information 
to the certified application counselors. Some commenters emphasized the 
importance of the confidentiality of consumer information by requesting 
that certified application counselors be trained on confidentiality 
requirements.
    Response: For certified application counselors to comply with the 
privacy and security requirements specified in Sec.  155.225(d)(3), 
they must receive training on protecting the confidentiality of 
consumer information. Additionally, due to commenters' emphasis on the 
importance of confidentiality, we revise the requirements in final 
paragraph (f) to clarify that an applicant or enrollee's authorization 
must be provided prior to the certified application counselor's 
obtaining access to the applicant's or enrollee's personally 
identifiable information, that the organization or application 
counselor must maintain a record of the authorization, and that the 
applicant or enrollee must be able to revoke their authorization at any 
time.
4. Fees Sec.  155.225(g) (Renumbered From Paragraph (e) in the Proposed 
Rule)
    In paragraph (e) of the proposed rule, we proposed that certified 
application counselors may not impose any charge on applicants for 
application assistance.

[[Page 42849]]

    Comment: Several consumer advocacy organizations supported the 
prohibition on charging applicants for application assistance. 
Additional comments included a question about whether certified 
application counselors would be permitted to receive fees for other 
functions, such as enrollment assistance, and a suggestion that we 
prohibit certified application counselors from imposing other 
conditions on the receipt of application assistance, such as requiring 
that those requesting assistance undergo certain health care services 
or fill out other unrelated paperwork.
    Response: Counselors may not impose additional conditions on the 
receipt of application assistance. We see no distinction between 
charging for application assistance and charging for enrollment 
assistance, and the final rule therefore clarifies that we would 
prohibit both, by adding language explaining that certified application 
counselors may not impose any charge on applicants for application or 
other assistance.
5. Summary of Regulatory Changes
    We are finalizing the provisions proposed in Sec.  155.225 of the 
proposed rule, with the following modifications:
    We revise paragraph (a) to clarify that each Exchange must have a 
certified application counselor program. We no longer require that each 
Exchange certify the staff of Exchange-designated organizations and 
organizations designated by state Medicaid and CHIP agencies pursuant 
to 42 CFR 435.908. We move the certified application counselor duties 
to paragraph (c).
    We re-designate proposed paragraph (b) ``Standards of 
certification'' as revised paragraph (d) ``Standards of 
certification.'' We add new paragraph (b) ``Exchange designation of 
organizations.'' Subparagraph (b)(1) allows an Exchange to designate an 
organization, including an organization designated as a Medicaid 
certified application counselor organization by a state Medicaid or 
CHIP agency, to certify its staff members or volunteers to act as 
certified application counselors who perform the duties and meet the 
standards and requirements for certified application counselors set 
forth in this section. Subparagraphs (b)(1)(i) and (ii) require the 
designated organization to enter into an agreement with the Exchange to 
comply with the standards and requirements of this section including 
the standards specified in subparagraphs (d)(3) through (d)(5); and 
requires it to maintain a registration process and method to track the 
performance of certified application counselors.
    Revised paragraph (b)(2) allows an Exchange the option of 
fulfilling the requirements of revised paragraph (a) by designating 
organizations to certify application counselors in compliance with 
paragraph (b)(1); directly certifying individual staff members or 
volunteers of Exchange designated organizations to provide the duties 
specified in paragraph (c) if the staff member or volunteer enters into 
an agreement with the Exchange to comply with the standards for 
certified application counselors in this section; or by a combination 
of subparagraphs (b)(2)(i) and (b)(2)(ii).
    Revised paragraph (c) ``Duties'' states that certified application 
counselors are certified to: Provide information to individuals and 
employees about the full range of QHP options and insurance 
affordability programs for which they are eligible; assist individuals 
and employees to apply for coverage in a QHP through the Exchange and 
for insurance affordability programs; and help to facilitate enrollment 
of eligible individuals in QHPs and insurance affordability programs.
    We revise the standards of certification in paragraph (d) 
(redesignated from paragraph (b) in the NPRM) to allow a designated 
organization, or an Exchange utilizing the option in Sec.  
155.225(b)(2)(ii), to certify a staff member or volunteer to perform 
the duties specified in subparagraph (c) only if the staff member or 
volunteer complies with the regulatory standards which we finalize and 
re-designate from the proposed rule, and enters into an agreement with 
the organization regarding compliance with the standards specified in 
paragraphs (d), (f), and (g). We revise paragraph (b)(1), that 
individual certified application counselors register with the Exchange, 
by requiring that individual certified application counselors register 
with the designated organization. In paragraph (d)(1) we finalize the 
requirement that a staff member or volunteer seeking certification to 
complete Exchange approved training. We have amended Sec.  
155.225(d)(1) (renumbered from paragraph (b)(2) in the proposed rule) 
to reflect the requirement that certified application counselors, like 
Navigators, should complete and achieve a passing score on a 
certification examination. We finalize the requirement in paragraph 
(d)(2) that requires a staff member or volunteer seeking certification 
to disclose to potential applicants any relationships the counselor has 
with QHPs, insurance affordability programs, or other conflicts of 
interest, and revise paragraph (d)(2) to specify that the disclosure 
must also be made to the designated organization, or to the Exchange if 
directly certified by the Exchange. In paragraph (d)(5), we revise the 
redesignated paragraph (b)(7) to provide more specificity as to the 
requirement to provide information in a manner that is accessible to 
individuals with disabilities and to clarify that this may be done 
either directly or through appropriate referral. We redesignate 
paragraph (b)(8) as (d)(6) and add that the certified application 
counselor's agreement must include compliance with paragraphs (f) and 
(g).
    We re-designate and revise paragraph (e) ``Withdrawal of 
designation and certification'' to require the Exchange to establish 
procedures to withdraw designation from a particular organization it 
has designated under paragraph (b), when it finds noncompliance with 
the terms and conditions of the organization's agreement required by 
paragraph (b)(1) or (b)(2). In subparagraph (b)(2), we require 
Exchanges that directly certify application counselors to establish 
procedures to withdraw certification from individual certified 
application counselors when it finds noncompliance with the 
requirements of this section. In subparagraph (b)(3), we require an 
organization designated by the Exchange to establish procedures to 
withdraw certification from individual certified application counselors 
when it finds noncompliance with the requirements of this section.
    Re-designated and revised paragraph (f) requires an organization 
designated by the Exchange, or, if applicable, an Exchange that 
certifies staff members or volunteers of organizations directly, to 
establish procedures to ensure that applicants: Are informed of the 
functions and responsibilities of certified application counselors; 
provide authorization prior to a certified application counselor 
obtaining access to an applicant's personally identifiable information, 
and that the organization or certified application counselor maintains 
a record of the authorization provided; and, in new subparagraph 
(f)(3), may revoke at any time the authorization provided.
    Re-designated and revised paragraph (g) prohibits organizations 
designated by the Exchange and certified application counselors from 
charging applicants for application or other assistance related to the 
Exchange.

[[Page 42850]]

III. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 30-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. 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.
    In the January 22, 2013 (78 FR 4594) proposed rule, and the April 
5, 2013 (78 FR 20581) proposed rule, we requested public comment on 
each of the rule's information collection requirements (ICRs). The 
comments and our responses to them are discussed below.
    The information collection requirements in Sec.  155.225 were 
originally proposed in the January 22, 2013 (78 FR 4594) Notice of 
Proposed Rulemaking (Medicaid, Children's Health Insurance Programs, 
and Exchanges--CMS-2334-P). These requirements are being finalized in 
this Final Rule (Standards for Navigators and Non-Navigator Assistance 
Personnel; Consumer Assistance Tools and Programs of an Exchange and 
Certified Application Counselors--CMS-9958-F and CMS-2334-F2). Comments 
received in response to the proposed rule are also being addressed in 
this final rule.
    This final rule will 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 rule 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.
    Additionally, this final rule will establish certified application 
counselors as another type of assistance personnel available to provide 
information to consumers and facilitate their enrollment in QHPs and 
insurance affordability programs. This rule outlines the requirements 
for organizations designated by the Exchange to certify staff members 
and volunteers as certified application counselors and describes the 
duties of and standards for certified application counselors. The rule 
requires an organization seeking designation from the Exchange to agree 
to comply with the applicable standards and requirements of Sec.  
155.225 as well as maintain a registration process and method to track 
its certified application counselors. Individual certified application 
counselors at an organization designated by the Exchange must enter 
into an agreement with the designated organization to comply with 
certain standards set forth in the rule. The rule directs designated 
organizations to establish procedures to withdraw certification from 
noncompliant certified application counselors as well as to establish 
procedures to ensure that applicants are informed of the functions and 
responsibilities of certified application counselors, and provide 
authorization for the disclosure of applicant information to the 
certified application counselor. The rule also prohibits application 
counselors and organizations designated by the Exchange from imposing 
any charge on applicants for application assistance.
    Section III.A outlines information collection requirements 
associated with disclosure of conflicts of interest under Sec.  
155.215(a). These disclosures include an attestation regarding 
eligibility to be a Navigator or non-Navigator assistance personnel to 
which Sec.  155.215 applies; 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 Navigator and non-Navigator 
assistance program registration, certification, and recertification 
requirements under Sec.  155.215(b). Sections III.C through E outline 
information collection requirements associated with the certified 
application counselor assistance program requirements, including 
designated organizations and individual application counselor 
certification processes, as well as training, recordkeeping, 
disclosures, and designation or certification withdrawal requirements.
    For purposes of the information collection requirements, Navigator 
personnel and non-Navigator assistance personnel to which Sec.  155.215 
applies are estimated to have a professional wage of $20 per hour.\9\ 
Navigator and non-Navigator assistance project leads to which Sec.  
155.215 applies are estimated to have a professional wage of $29 per 
hour.\10\ Navigator senior executives to which Sec.  155.215 applies 
are estimated to have a professional wage of $48 per hour.\11\ The 
average professional wage for Navigator personnel, projects leads, 
senior executives, and non-Navigator assistance personnel and project 
leads to which Sec.  155.215 applies is estimated to be $29.20 per 
hour. These are estimates commonly used for estimating paperwork burden 
and do not represent a recommendation or a requirement of how much 
Navigator and non-Navigator personnel to which Sec.  155.215 applies 
are to be paid. There is nothing in the regulations released today that 
would require any of these workers to be paid any specific amount.
---------------------------------------------------------------------------

    \9\ 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.
    \10\ 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.
    \11\ 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 to which Sec.  155.215 applies; therefore 
the estimates discussed below are on a per individual basis. The 
application deadline for Navigator grants closed on June 7, 2013. At 
this time, grant applications are still undergoing review and it is not 
known how many applications meet all eligibility criteria to be 
considered for grant awards. Without this information it is not 
possible to appropriately estimate how many grants will be awarded, or 
how many individual staff will be serving the grantees. It is also not 
possible to estimate the number of non-Navigator assistance personnel 
and project leads to which Sec.  155.215 applies.

[[Page 42851]]

This is a new program without a comparable program to extrapolate 
estimates from. Exchanges may structure and fund these personnel in 
many different ways, and we do not want to underestimate and prejudice 
an Exchange from attempting to maximize the number of non-Navigator 
assistance personnel. We invited public comments on the number of 
Navigator grantees or the number of non-Navigator assistance personnel 
and project leads expected, but no comments were received on this 
issue. Additionally, because we do not have an estimate of how many 
Navigators or non-Navigator assistance personnel will be subject to 
Sec.  155.215, we are unable to estimate the number of consumers 
expected to receive assistance specifically from Navigator grantees or 
non-Navigator assistance personnel subject to Sec.  155.215; therefore 
estimates for disclosures to consumers discussed below are on a per 
consumer basis. We also invited comments on the number of consumers 
expected to receive assistance, but no comments were received on this 
issue.

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

    In accordance with Sec.  155.215(a)(1)(i) and (iv) and (a)(2)(ii) 
and (v), Navigator program grantees and other entities and individuals 
providing assistance under Sec.  155.205(d) and (e) will be required to 
disclose conflicts of interest. This disclosure will include an 
attestation that an individual or entity is not an ineligible entity. 
Additionally, in accordance with Sec.  155.215(a)(1)(ii) and 
(a)(2)(iii), a plan for mitigating any conflicts of interest will also 
be submitted. The cost associated with the attestation will apply to 
each Navigator entity and applicant, and to each individual or entity 
serving as non-Navigator assistance personnel. The cost 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.\12\ The attestation and mitigation 
plan are one-time requirements.
---------------------------------------------------------------------------

    \12\ The mitigation plan is required on an individual basis only 
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 
is $5, per Navigator project lead is $7.25, per Navigator senior 
executives is $12, per non-Navigator assistance personnel is $5, and 
per non-Navigator assistance personnel is $7.25. We estimate the total 
burden per person is 0.25 hours and $7.30 on average.
    The plan for mitigating conflicts of interest will be required on a 
per entity basis; \13\ therefore we assume for Navigator program 
grantees, the senior executive will 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.
---------------------------------------------------------------------------

    \13\ 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. A non-Navigator assistance project 
lead will 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 is $240, and for non-Navigator assistance 
project leads is $145.
    In accordance with Sec.  155.215(a)(1)(iii) and (a)(2)(iv), 
Navigator program grantees and non-Navigator assistance personnel will 
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 for the Navigator program grantee that the 
Navigator personnel will prepare the disclosure, including completion 
of any necessary forms, and we estimate the total burden per 
disclosure, including completion of any necessary forms, is 1 hour at a 
cost of $20. For non-Navigator assistance personnel we estimate the 
total burden per disclosure is 1 hour for preparing the disclosure at a 
cost of $20. We estimate the total burden per disclosure is 1 hour and 
$20 on average.
    In accordance with 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 will be required 
to disclose to 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 is 0.16 hours (10 minutes). 
We estimate the total cost for preparing this disclosure per Navigator 
personnel is $3.20, per Navigator project lead is $4.64, per Navigator 
senior executive is $7.68, per non-Navigator assistance personnel is 
$3.20, and per non-Navigator assistance project lead is $4.64. We 
estimate the total estimated burden per person is 0.16 hours and $4.67 
on average.

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

1. Registration Prior to Training
    In accordance with Sec.  155.215(b)(1)(ii), Navigator personnel, 
project leads, senior executives, non-Navigator assistance personnel, 
and non-Navigator assistance project leads will be required to register 
with the Exchange prior to training. We estimate 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 is $5, for 
Navigator project leads is $7.25, for Navigator senior executives is 
$12, for non-Navigator assistance personnel is $5, and for non-
Navigator assistance project leads is $7.25. We estimate the total 
burden per person is 0.25 hours and $7.30 on average.
2. Certification and Recertification
    In accordance with Sec.  155.215(b)(1), Navigator personnel, 
project leads, senior executives, non-Navigator assistance personnel, 
and non-Navigator

[[Page 42852]]

assistance project leads will 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 will be 
expected to obtain and maintain a record of certification. In 
accordance with 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 will be required to be recertified on at 
least an annual basis. Each person who receives recertification will be 
expected to obtain and retain proof of recertification. We estimate 
that the time burden associated with maintaining proof of certification 
or recertification is 0.016 hours (1 minute); we assume proof will be 
maintained through electronic copies with minimal cost.
    We estimate the total cost for maintaining proof of certification 
or recertification per Navigator is $0.32; per Navigator project lead 
is $0.48; per Navigator senior executive is $0.75; per non-Navigator 
assistance personnel is $0.32, and per non-Navigator assistance project 
lead is $0.48. In the initial year the requirement is to maintain proof 
of initial certification; in subsequent years the requirement will be 
to maintain proof of recertification. Because these requirements are 
the same time and cost burden we are categorizing them as one annual 
burden. We estimate the total annual burden for maintaining proof of 
certification or recertification is 0.016 hours and $0.47 on average.

                     Table 1--Annual Recordkeeping and Reporting Requirements, by Respondent
----------------------------------------------------------------------------------------------------------------
                                                                   Hourly labor
                                    OMB Control     Burden per        cost of      Labor cost of     Capital/
      Regulation section(s)             No.          response     reporting  ($)   reporting per    maintenance
                                                      (hours)           **         response ($)     costs  ($)
----------------------------------------------------------------------------------------------------------------
Conflict of Interest Attestation       0938--New           0.25            29.20            7.30               0
 Sec.   155.215(a)(1)(i) &
 (a)(2)(ii).....................
Conflict of Interest Mitigation        0938--New           5               48             240                  0
 Plan Sec.   155.215(a)(1)(ii) &
 (a)(2)(iii) Navigator Senior
 Executive......................
Non-Navigator Assistance Project  ..............           5               29             145                  0
 Lead...........................
Conflict of Interest Disclosure        0938--New           1               20              20                  0
 of Coverage Options Sec.
 155.215(a)(1)(iii) & (a)(2)(iv)
Conflict of Interest Disclosure        0938--New            .16            29.20            4.67               0
 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.......................  ..............          11.67   ..............          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.

    Comment: We received a few comments regarding the estimated wages; 
these comments generally stated an appreciation for an estimate of a 
livable wage; however the comments noted a concern that the wage 
estimates are unrealistic. No comments recommended specific wage 
estimates.
    Response: We are not modifying the wage estimates in this final 
rule. The estimates are not mandatory wages and are not broken down 
based on the role geographic differences may play in setting actual 
wages. There is nothing in the regulations released today that would 
require any of these workers to be paid any specific amount. These are 
estimates commonly used for estimating paperwork burden and do not 
represent a recommendation or a requirement of how much Navigator and 
non-Navigator personnel are to be paid.

C. ICRs Regarding Certified Application Counselors (Sec.  155.225)

    Section 155.225(a) of the regulation provides that each Exchange 
must have a certified application counselor program. Section 
155.225(b)(1) provides that the Exchange may designate certain 
organizations to certify certain staff members or volunteers to act as 
certified application counselors. In accordance with Sec.  
155.225(b)(2), each Exchange may opt to comply with the requirement to 
establish a certified application counselor program under Sec.  155.225 
by designating organizations to certify individual application 
counselors, as the Federally-facilitated Exchange intends to do, 
directly certifying individual staff members and volunteers of 
organizations to provide certified application counselor duties if such 
individuals enter into an agreement with the State Exchange, as was 
proposed in the proposed rule, or by both designating organizations and 
directly certifying individuals. We are unable to estimate the number 
of State Exchanges that will opt to establish a certified application 
counselor program by designating organizations to certify their staff 
members or volunteers to act as certified application counselors. The 
burden estimates we provide, unless specified otherwise, are on a per 
Exchange basis.
    Section 155.225(c) describes the duties of certified application 
counselors, which include providing information about insurance 
affordability programs and coverage options, assisting consumers with 
applications, and helping to facilitate enrollment and renewals. 
Section 155.225(d) establishes the standards that staff members and 
volunteers at organizations designated by the Exchange must meet in 
order to be certified application counselors. Sections 155.225(e), (f), 
and (g) provide additional standards governing the conduct of 
Exchanges, designated organizations and individual certified 
application counselors, including withdrawal of designation or 
certification requirements, as well as a prohibition on charging 
applicants or enrollees for application or other assistance related to 
the Exchange.
    In our original burden estimates, we calculated the overall 
estimated burden associated with these provisions as 105 hours per 
Exchange. We did not provide a detailed breakdown of this estimate. Our 
proposed estimate did not include all of the burdens on the Exchange as 
well as on certified application counselors and organizations seeking 
designation to certify individual

[[Page 42853]]

application counselors. The proposed rule's estimates did not 
contemplate the finalized regulatory provisions. For example, our 
proposed estimates did not include either the impact on organizations 
seeking designation in Exchanges or the State Exchange option to 
certify directly application counselors, including entering into an 
agreement with the designated organization or with individual staff or 
volunteers. Therefore, while our overall proposed burden estimates 
pursuant to proposed Sec.  155.225 were properly calculated, we note 
that the final rule reflects burden estimates based on the finalized 
regulation's requirements on all respondents. We provide more detailed 
estimates and explanation below.

D. ICRs Regarding Burdens on an Exchange (Sec.  155.225)

    The burdens on each Exchange include the following: The time and 
effort necessary to establish a process for designating organizations 
seeking to certify their staff or volunteers as application counselors 
in accordance with Sec.  155.225(b)(1); the time and effort necessary 
to develop training materials for the training described in Sec.  
155.225(d)(1); the time and effort necessary to develop the agreement 
identified in Sec.  155.225(b)(1)(i); and the time and effort necessary 
to establish a withdrawal process in accordance with Sec.  155.225(e). 
Additionally, in the event a State Exchange opts to perform direct 
certifications of individual application counselors in accordance with 
Sec.  155.225(b)(2)(ii), there would be the time and effort necessary 
to certify individuals and to develop procedures for informing 
applicants of the functions of certified application counselors under 
Sec.  155.225(f)(1) and authorizing disclosure of applicant information 
specified in Sec.  155.225(f)(2).
    First, in accordance with Sec.  155.225(b)(1), each Exchange may 
designate organizations whose staff and volunteers will seek to become 
certified application counselors. Each Exchange including a State 
Exchange if it so chooses, may establish a process through which it 
designates organizations. HHS will establish this process in Federally-
facilitated Exchanges, including all State Partnership Exchanges, and 
will designate organizations directly. While each State Exchange may 
choose its own process for implementing a certified application 
counselor program, HHS will create a single process for Federally-
facilitated Exchanges, such as the development of a single model 
application and agreement that will be used by organizations applying 
for designation as well as procedures for withdrawal. We anticipate 
that this application will incorporate the agreement of the 
organization to adhere to the regulatory standards in this regulation.
    The creation of an application and agreement and procedures for 
withdrawal by the Exchange are required on a one-time basis; we 
estimate that it will take 19 Exchanges \14\ developing a designation 
process up to 20 hours to create a designation and withdrawal process 
in addition to creating a model application which will include a model 
agreement and be available online for Federally-facilitated Exchanges. 
For purposes of the cost burden, we estimate it will take a mid-level 
health policy analyst \15\ up to 10 hours to draft an application and 
agreement, a senior manager \16\ up to 5 hours for review and an 
attorney \17\ up to 5 hours for legal review. We estimate the cost 
burden is $1,339.66 for each Exchange.
---------------------------------------------------------------------------

    \14\ We estimate 19 Exchanges, including 18 State Exchanges 
(which includes Utah) and one Federally-facilitated Exchange, 
developing their own processes to designate organizations, rather 
than directly certifying individuals as provided under Sec.  
155.225(b). HHS will establish a single process in all Federally-
facilitated Exchanges. We have proposed through rulemaking 
amendments to our regulations, that, if finalized as proposed, would 
permit Utah to operate a State Exchange for SHOP only.
    \15\ Using data from the U.S. Bureau of Labor Statistics, a mid-
level health policy analyst (occupation no. 13-2031) is estimated to 
have a wage of $49.35, including the cost of fringe benefits 
calculated at 35 percent of salary.
    \16\ According to the U.S. Bureau of Labor Statistics, a senior 
manager (occupation no. 11-1021) is estimated to have a wage of 
$79.08, including the cost of fringe benefits calculated at 35 
percent of salary.
    \17\ According to the U.S. Bureau of Labor Statistics, an 
attorney (occupation no. 23-1011) is estimated to have a wage of 
$90.15, including the cost of fringe benefits calculated at 35 
percent of salary.
---------------------------------------------------------------------------

    There are recordkeeping requirements associated with developing and 
maintaining a model application. 19 Exchanges establishing this process 
are expected to maintain a copy of the model application. We estimate 
that the time burden associated with maintaining a copy of the model 
application is 0.016 hours (1 minute); we assume a mid-level health 
policy analyst with a professional wage of $49.35 an hour will maintain 
the model application through electronic copies with minimal cost, 
which we estimate as $0.79 as a one-time requirement for the Exchange. 
We estimate the total cost burden is $1,340.45 for each Exchange 
establishing a process including recordkeeping.
    The cost for 19 Exchanges establishing a process for designating 
organizations includes the time and effort with reviewing each 
organization's application and notifying the organization of the result 
of its review will apply to the Exchange for each organization that 
seeks to be designated. We anticipate that this application review will 
be a one-time requirement for the organization seeking designation. 
Therefore, we estimated the burden for reviewing the application on a 
per organization basis. We estimate that it will take the Exchange up 
to 1.16 hours to review and approve an application. For purposes of the 
cost burden, we estimate it will take a mid-level health policy analyst 
up to 1 hour and a senior manager up to .16 hours (10 minutes) to 
review. The estimated cost burden is $62.01 for each organization.
    In accordance with Sec.  155.225(b)(2), State Exchanges may opt to 
certify application counselors directly rather than designate certain 
organizations to do so, or they may do both. State Exchanges performing 
direct certification of individual certified application counselors may 
choose to develop a process through which each certified application 
counselor is certified, including developing an agreement by which the 
individual will agree to adhere to the standards specified in Sec.  
155.225. We estimate it will take 18 State Exchanges performing direct 
certifications of individual application counselors an average of 20 
hours to create its own certification process and model agreement for 
certified application counselors, including verifying the individual's 
affiliation with an appropriate organization and issuing an 
identification number, if applicable, as well as procedures for 
providing authorization of applicant or enrollee information in 
accordance with Sec.  155.225(f). For the purpose of the cost burden, 
we estimate it will take a mid-level health policy analyst 10 hours, at 
$49.35 an hour and a senior manager 10 hours, at $79.08 an hour to 
create this process. We estimate the cost burden for each State 
Exchange to create its own process is therefore $1,284.34.
    In accordance with Sec.  155.225(b)(1)(i), an Exchange that has 
established a process for designating organizations will enter into 
agreements with designated organizations; in the case of State 
Exchanges performing direct certifications as allowed under Sec.  
155.225(b)(2)(ii), the State Exchange will enter into an agreement with 
individual certified application counselors.. We estimate it will take 
a

[[Page 42854]]

senior manager at the applicable Exchange up to 15 minutes (.25 hours) 
to enter into each agreement. We estimate the cost burden is $19.77 per 
agreement. There are recordkeeping requirements associated with this 
requirement. We expect that the Exchange will maintain a copy of each 
agreement. We estimate that the time burden associated with maintaining 
proof of the signed agreement is 0.016 hours (1 minute). We estimate 
the total cost for the Exchange to maintain proof of each agreement to 
be $1.27, for a total estimated cost burden of $21.04 per agreement.
    In accordance with Sec.  155.225(d)(1), certified application 
counselors must complete Exchange-approved training regarding QHP 
options and insurance affordability programs, eligibility, and benefits 
rules and regulations, and achieve a passing score on all Exchange-
approved certification examinations, prior to functioning as a 
certified application counselor. It is expected that 19 Exchanges must 
therefore develop a training registration process and training 
materials for certified application counselors. In the preamble above, 
we encouraged states to develop a single set of training materials for 
Navigators, non-Navigator assistance personnel, and certified 
application counselors. We also explained that we will make federal 
certified application counselor training materials available to states. 
In light of this, our estimates for developing a training registration 
process and materials may be lower than the estimates used here with 
respect to State Exchanges that adopt federal training materials. 
Additionally, any Exchange may reuse training material used to train 
other assistance personnel, and may also use training materials that 
were developed by HHS for other types of assister training, including 
Navigator training. If 19 Exchanges did choose to create a separate 
training registration process and materials for certified application 
counselors, instead of adopting the efficiencies outlined above, we 
estimate it will take a training specialist \18\ 10 hours at $26.64 an 
hour and a training and development manager \19\ 5 hours at $64.43 an 
hour to develop a registration process and training materials for 
certified application counselors, for a total time burden of 15 hours. 
We estimate the cost burden for each Exchange developing its own 
process and materials is therefore $588.55.
---------------------------------------------------------------------------

    \18\ According to the U.S. Bureau of Labor Statistics, a 
training specialist (occupation no. 13-1151) is estimated to have a 
wage of $26.64, including the cost of fringe benefits calculated at 
35 percent of salary.
    \19\ According to the U.S. Bureau of Labor Statistics, a 
training and development manager (occupation no. 11-3131) is 
estimated to have a wage of $64.43, including the cost of fringe 
benefits calculated at 35 percent of salary.
---------------------------------------------------------------------------

    In accordance with Sec.  155.225(e), when appropriate, each 
Exchange will withdraw designation from an organization when it finds 
noncompliance with the terms and conditions of the organization's 
application counselor agreement. In addition, a State Exchange that 
performs direct certification of individual certified application 
counselors will withdraw certification from individuals when it finds 
noncompliance. In either case, the Exchange will investigate instances 
of noncompliance it identifies or that are reported, and notify the 
appropriate organization, or individual, as applicable, when it 
determines noncompliance necessitates withdrawing the applicable 
entity's designation or individual's certification, as applicable. We 
are unable to estimate the frequency with which potential noncompliance 
will be reported or the frequency with which an Exchange will determine 
that an organization's or individual's designation or certification, 
respectively, should be withdrawn. Therefore, the estimates associated 
with the burden for determining the necessity for withdrawing an 
organization's designation or individual's certification are on a per 
occurrence basis for each applicable organization or individual, 
respectively.
    We assume that each Exchange will investigate potential 
noncompliance and verify the basis for the withdrawal and notify the 
applicable entity of the withdrawal. There are recordkeeping 
requirements associated with these procedures. The Exchange is expected 
to maintain a record of each verification review and copy of any 
withdrawal notification. We estimate that the time burden associated 
with maintaining a record of each potential withdrawal occurrence is 
.016 hours (1 minute). We assume a mid-level health policy analyst with 
a professional wage of $49.35 an hour will maintain record and any 
notification of withdrawal electronically with minimal cost, which we 
estimate as $0.79 for each potential occurrence.
    We estimate that it will take the Exchange up to 3 hours to 
investigate and notify an organization or individual, as applicable, of 
the withdrawal, respectively. For purposes of the cost burden, we 
estimate it will take a mid-level health policy analyst up to 2 hours 
to investigate, draft, and send notification of withdrawal and a senior 
manager up to 1 hour to review. We estimate that the printing/mailing 
costs per notice will be $0.50. We estimate the cost burden is $178.57 
per Exchange for each occurrence.

E. ICRs Regarding Burdens on Designated Organizations and Certified 
Application Counselors (Sec.  155.225)

1. Burdens on Designated Organizations
    Our proposed estimate of 105 hours also included several 
requirements that will fall on certified application counselors and 
designated organizations under the provisions of Sec.  155.225. For 
example, with respect to designated organizations in Federally-
facilitated Exchanges and certain State Exchanges, these include the 
time and effort for an organization to be designated by the Exchange to 
certify staff members and volunteers as application counselors in 
accordance with Sec.  155.225(b)(1), including entering into an 
agreement in accordance with Sec.  155.225(b)(1)(i); the time and 
effort required to maintain a registration process for certified 
application counselors in accordance with Sec.  155.225(b)(1)(ii); the 
time and effort to establish procedures for withdrawing individual 
certified application counselors in accordance with Sec.  155.225(e); 
and the time and effort of establishing procedures for providing 
authorization prior to a certified application counselor obtaining 
access to an applicant's or enrollee's personally identifiable 
information in accordance with Sec.  155.225(f). Because we are unable 
to estimate the number of organizations that will seek designation at 
this time, the burden estimates on organizations are on a per 
organization basis.
    In accordance with Sec.  155.225(b)(1)(i), each organization 
designated by the Exchange must enter into an agreement with the 
Exchange. Registering and completing and submitting an application to 
be a designated organization will be done on a per organization basis; 
we estimate that it will take an organization up to 1 hour to review 
instructions, register, and complete and submit an application. For 
purposes of the cost burden, we estimate it will take a senior manager 
up to 1 hour. The estimated cost burden is $79.08 for each organization 
seeking designation.
    In accordance with Sec.  155.225(b)(1)(ii) and (d), each designated 
organization must maintain procedures for its staff or volunteers to 
act as certified application counselors. This is a one-time requirement 
for the organization. We estimate that it will take a mid-level health 
policy analyst up to 7 hours, a senior manager up to 2 hours and an

[[Page 42855]]

attorney up to 1 hour for legal review to create such procedures. This 
process includes creating a registration process in accordance with 
Sec.  155.225(b)(1)(ii),creating an agreement for individual staff or 
volunteers seeking to act as certified application counselors, in 
accordance with Sec.  155.225(d); establishing procedures to withdraw 
certification from individual certified application counselors in 
accordance with Sec.  155.225(e)(3); and establishing procedures for 
providing authorization to applicants and enrollees under Sec.  
155.225(f), for a total time burden of up to 10 hours. We estimate the 
cost burden associated with creating these procedures is $593.78. There 
are recordkeeping requirements associated with developing and 
maintaining a model agreement and authorization form, if the 
organization chooses to obtain authorization in writing. Each 
organization is expected to maintain a copy of the forms. We estimate 
that the time burden associated with maintaining a copy of the model 
agreement and authorization form is 0.016 hours (1 minute); we assume 
these will be maintained through electronic copies with minimal cost.
    In accordance with Sec.  155.225(b)(1), designated organizations 
must enter into an agreement with the Exchange regarding compliance 
with the standards set forth in Sec.  155.225 by the staff and 
volunteers they certify as application counselors. We estimate it will 
take a senior manager at the organization up to .25 hours (15 minutes) 
to enter into each agreement. We estimate the cost burden is $19.77 per 
agreement. There are recordkeeping requirements associated with this 
requirement. We expect that the organization will maintain a copy of 
the agreement. We estimate that the time burden associated with 
maintaining proof of the signed agreement is 0.016 hours (1 minute). 
The total cost estimated for the organization to maintain proof of the 
signed agreement is $1.27, for a total cost burden of $21.04 per 
agreement.
    In accordance with Sec.  155.225(e)(1), our estimates include the 
time that it will take for an organization to review the applicable 
Exchange's notification of withdrawal of designation. We estimate it 
will take an organization up to 3 hours on average to review and inform 
its staff and volunteers that the organization is no longer designated 
to have staff or volunteers act as certified application counselors. 
For purposes of the cost burden, we estimate that it will take a senior 
manager up to 3 hours to review and inform staff and volunteers as 
needed. We estimate the cost burden is $237.24 for each occurrence.
2. Burdens on Individual Certified Application Counselors
    The burdens associated with individual certified application 
counselors include the time and effort necessary to register in 
accordance with Sec.  155.225(b)(1)(ii) or (b)(2)(ii), as applicable; 
enter into an agreement in which the individual agrees to comply with 
the standards set forth in Sec.  155.225; provide authorization to 
applicants and enrollees in accordance with Sec.  155.225(f); and take 
appropriate measures in the event the individual's certification is 
withdrawn by the Exchange or designated organization in accordance with 
Sec.  155.225(e).
    Although nothing prohibits individual certified application 
counselors or organizations from being funded through sources such as 
applicable private, state, or federal programs, we expect that 
certified application counselors will not be guaranteed any specific 
funding. We estimate the professional wage of certified application 
counselors \20\ for this type of work as equivalent to that of an 
eligibility interviewer for assistance from government programs and 
agency resources. An eligibility interviewer has a professional wage of 
$26.65 per hour. This is an estimate commonly used for estimating 
paperwork burden and does not represent a recommendation or a 
requirement of how much certified application counselors are to be 
paid. The actual wages, if any, of individuals performing certified 
application counselor work may be lower or higher, depending on the 
person's primary profession.
---------------------------------------------------------------------------

    \20\ According to the U.S. Bureau of Labor Statistics, an 
eligibility interviewer (occupation no. 43-4061) is estimated to 
have a wage of $26.65, including the cost of fringe benefits 
calculated at 35 percent of salary.
---------------------------------------------------------------------------

    There is no experience or strong basis for estimating the number of 
certified application counselors. Because such estimates are required 
for this purpose, solely for this analysis, we looked to the State 
Health Insurance Assistance Program (SHIP) counselor program created by 
section 4360 of the Omnibus Budget Reconciliation Act (OBRA) of 1990. 
The SHIP program uses large numbers of trained volunteers to help 
consumers navigate and enroll in health insurance plans and Medicare 
savings programs, such as the Qualified Medicare Beneficiary program. 
There are 15,250 SHIP counselors nationwide, and about 57 percent (or 
8,692) of these counselors are volunteers.\21\ As such, for purposes of 
analysis, we estimate that there will be approximately 8,700 certified 
application counselors nationwide, or an average of 170 per Exchange. 
We recognize that this is a new program so this estimate is 
speculative.
---------------------------------------------------------------------------

    \21\ CMS National SHIP Resource Center, ``Welcome & Key CMS 
Initiatives,'' in CMS New SHIP Director Training 3 (7th ed., 2013).
---------------------------------------------------------------------------

    In accordance with Sec.  155.225, individuals must be certified to 
act as certified application counselors. This includes the time and 
effort associated with completing a registration process through a 
designated organization, in accordance with Sec.  155.225(b)(1)(ii) or 
through a State Exchange in accordance with Sec.  155.225(b)(2)(ii) if 
the state requires a registration process; the time and effort 
associated with disclosing any relationships or conflicts of interest 
in accordance with Sec.  155.225(d)(2); and entering into an agreement 
with the organization or State Exchange, as applicable, regarding 
compliance with the certified application standards in accordance with 
Sec.  155.225(d)(6) or (b)(2)(ii), respectively. We assume that it will 
take a certified application counselor up to .25 hours (15 minutes) to 
register, provide adequate disclosures, and review and enter into an 
agreement. As stated above, we anticipate that most certified 
application counselors will perform certified application counselor 
functions on a volunteer basis; however, for purposes of estimating the 
cost burden on these respondents only, we estimate the cost burden for 
each individual certified application counselor is $6.66, based on a 
professional wage equivalent of $26.65. There are recordkeeping 
requirements associated with this requirement. We expect that the 
individual certified application counselor will maintain proof of the 
signed agreement. We estimate that the time burden associated with 
maintaining proof of the signed agreement is 0.016 hours (1 minute). We 
estimate the total cost for the individual to maintain the agreement 
will be $0.43, for a total cost burden of $7.09 per agreement.
    In accordance with Sec.  155.225(d)(1), certified application 
counselors 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 functioning as a certified 
application counselor. There are recordkeeping requirements associated 
with the

[[Page 42856]]

training certification; we expect each person who receives training to 
obtain and maintain a record of training certification. We estimate 
that the time burden associated with maintaining proof of training 
certification is 0.016 hours (1 minute), since we assume that this 
proof will be maintained through electronic copies, at a minimal cost. 
The total cost estimated for each individual to maintain proof of 
training certification is $0.43.
    In accordance with Sec.  155.225(d)(2), certified application 
counselors must disclose to potential applicants and enrollees any 
relationships the certified application counselor or sponsoring 
organization has with QHPs or insurance affordability programs, or 
other potential conflicts of interest. In addition, under Sec.  
155.225(f)(1) and (2), certified application counselors must provide 
for an authorization to applicants and enrollees to inform them of the 
functions and responsibilities of certified application counselors and 
obtain authorization for the disclosure of applicant and enrollee 
information to a certified application counselor prior to obtaining the 
individual's personally identifiable information. Because we are unable 
to estimate the number of consumers a certified application counselor 
will assist in a year, we calculated this estimate on a per individual 
basis. We estimate it will take a certified application counselor 0.25 
hours (15 minutes) to provide these disclosures each time. The total 
cost estimate for disclosures by each individual certified application 
counselor is therefore $6.66. In addition, although nothing in this 
rule requires individuals to provide authorization in the form of a 
signed authorization, there are recordkeeping requirements associated 
with maintaining a record of the authorization being provided by the 
applicant or enrollee. We estimate that the time burden associated with 
maintaining record of the authorization is 0.016 hours (1 minute). We 
estimate the total cost for the individual to maintain the record of 
authorization is $0.43, for a total cost burden of $7.09 per 
disclosure.
    In accordance with the withdrawal provisions under Sec.  
155.225(e)(2) and (3), our estimates reflect the time and effort for an 
individual certified application counselor to review a notification of 
withdrawal of certification. We estimate it will take a certified 
application counselor up to 3 hours on average to review such 
notification, including the time and effort needed to inform any 
applicants who may be in the process of receiving or seeking assistance 
from the certified application counselor. For purposes of the cost 
burden, we estimate that it will take a certified application counselor 
up to 3 hours to review the notification of withdrawal from its 
designated organization, or for those certified directly by a State 
Exchange from the State Exchange, and inform applicants as needed. We 
estimate the cost burden is $79.95 for each occurrence  of withdrawal.
---------------------------------------------------------------------------

    \22\ These estimated Exchange burdens assume 19 Exchanges, 
including 18 State Exchanges and one FFE, developing their own 
processes to designate organizations (rather than directly 
certifying individuals as provided under Sec.  155.225(b)). HHS will 
establish a single process in all FFEs. We have proposed through 
rulemaking amendments to our regulations, that, if finalized as 
proposed, would permit Utah to operate a State Exchange for SHOP 
only.
    \23\ These estimated State Exchange burdens assume 18 State 
Exchanges, including Utah.
---------------------------------------------------------------------------

F. Summary of Annual Burden Estimates

                                                     Annual Recordkeeping and Reporting Requirements
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Burden per     Total annual
           Regulation section(s)              Respondents      Responses       response         burden       Labor cost of reporting ($)  Total Cost ($)
                                                                (total)         (hours)         (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec.   155.225(b)(1) (Exchange \22\                     19              19          20                 380  1,339.66 (per respondent)...       25,453.54
 organization designation process).
Sec.   155.225(b)(1) (designation forms                 19              19            .016             .30  .79 (per respondent)........           15.01
 recordkeeping).
Sec.   155.225(b)(1) (organization                       1  ..............           1      ..............  79.08 (for one respondent)..  ..............
 designation by Exchange).
Sec.   155.225(b)(1) or (b)(2)(ii)                   8,700           8,700            .25            2,175  7.09 (per certification)....       61,683
 (individual certification with
 organization or Exchange, respectively).
Sec.   155.225(b)(1) or (b)(2)(i)                       19  ..............           1.16            22.04  62.01 (per respondent)......        1,178.19
 (Exchange application review).
Sec.   155.225(b)(1)(ii), (d)(6), (e) and                1  ..............          10      ..............  593.78 (per respondent).....  ..............
 (f) (designated organization process for
 staff or volunteers).
Sec.   155.225(b)(1)(i) or (b)(2)(ii)                    1  ..............            .266  ..............  21.04 (per agreement).......  ..............
 (Exchange executed agreement with
 organization or individual, as
 applicable).
Sec.   155.225(b)(2)(ii) (Exchange direct               18              18          20                 360  1,284.34 (per respondent)...       23,118.12
 individual certification process \23\).
Sec.   155.225(d)(1) (training by                       19              19          15                 285  588.55 (per respondent).....       11,182.45
 Exchange).
Sec.   155.225(d)(1) (training certificate           8,700           8,700            .016             139  .43.........................        3,741
 retention).

[[Page 42857]]

 
Sec.   155.225(d)(2) and (f) (disclosures)           8,700           8,700            .25            2,175  7.09 (per respondent).......       61,683
Sec.   155.225(d)(6) (agreement between                  1  ..............            .266  ..............  21.04 (per respondent)......  ..............
 designated organization and staff).
Sec.   155.225(e) (withdrawal by Exchange)               1  ..............           3.016  ..............  178.57 (per respondent).....  ..............
Sec.   155.225(e)(1) (organization                       1  ..............           3      ..............  237.24 (per respondent).....  ..............
 withdrawal).
Sec.   155.225(e)(2) and (3) (individual                 1  ..............           3      ..............  79.95 (per respondent)......  ..............
 withdrawal).
                                           -------------------------------------------------------------------------------------------------------------
    Total.................................            XXXX            XXXX  ..............        5,536.34  ............................      188,041.41
--------------------------------------------------------------------------------------------------------------------------------------------------------

IV. Regulatory Impact Statement

A. Summary

    HHS is publishing this final 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.
    Section 3(f) of Executive Order 12866 defines a ``significant 
regulatory action'' as an action that is likely to result in a proposed 
rule--(1) having an annual effect on the economy of $100 million or 
more in any one year, or adversely and materially affecting a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities 
(also referred to as ``economically significant''); (2) creating a 
serious inconsistency or otherwise interfering with an action taken or 
planned by another agency; (3) materially altering the budgetary 
impacts of entitlement grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raising novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order. OMB has 
determined that this final rule is a ``significant regulatory action'' 
under Executive Order 12866. Accordingly, OMB reviewed this final rule.
1. Need for Regulatory Action
    This final regulation establishes 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 
Exchanges that are funded through federal 1311(a) Exchange 
Establishment grants. The final rule requires that these Navigators and 
non-Navigator assistance personnel register with and be certified by 
the Exchange.
    The final rule also establishes the certified application counselor 
program as a consumer assistance function of the Exchange separate 
from, and in addition to, Navigators and non-Navigator assistance 
personnel. The Exchange may choose to either designate an organization 
to certify its staff members or volunteers to act as certified 
application counselors or to certify application counselors directly, 
or both. We intend that Federally-facilitated Exchanges will designate 
organizations to certify staff or volunteers as application counselors. 
State Exchanges may choose which option to use. The final rule also 
includes standards for certified application counselors for 
registration, training including complying with privacy and security 
standards, acting in the best interest of applicants, and ensuring 
reasonable accommodations for persons with disabilities, and entering 
into an agreement with the designated organization to comply with these 
standards. Designated organizations must enter into an agreement with 
the Exchange to comply with these standards and be responsible for 
registration and oversight of their staff and volunteers as certified 
application counselors.
    The final rule also amends 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; to 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 to clarify that the same ineligibility 
criteria that apply to Navigators providing services in any Federally-
facilitated Exchange, including State Partnership Exchanges, also apply 
to non-Navigator assistance personnel providing assistance in State 
Partnership Exchanges and non-Navigator assistance personnel in State 
Exchanges funded through Exchange establishment grants.
2. Summary of Impacts
    The final regulation helps ensure that Navigators in Federally-
facilitated Exchanges, non-Navigator assistance personnel in State 
Partnership

[[Page 42858]]

Exchanges, and non-Navigator assistance personnel in State Exchanges 
funded through Exchange establishment grants will be fair and 
impartial, that certified application counselors will act in the best 
interest of applicants, and that all 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 final rule also ensures 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 will incur costs 
in order to comply with the provisions of this final rule, which will 
be covered by the Navigator grants and other compensation provided by 
the Exchange to non-Navigator assistance personnel. Certified 
application counselors will also incur costs in order to comply with 
the provisions of this final rule; such costs will likely be covered by 
designated organizations. Designated organizations will also incur 
costs to comply with the provisions of this rule; we expect these costs 
to be low since they are likely to already have processes in place for 
oversight of their staff and volunteers. Nothing in this rule would 
prohibit certified application counselors from being funded through 
applicable private, state, or federal programs. HHS anticipates that 
the impacts of the final rule will 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 final rule will 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, 
or designated certified application counselor organizations, may be 
small entities and will 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 will be covered by the Navigator grants, other 
compensation provided by the Exchange to non-Navigator assistance 
personnel, or any available state funds. Participation in the certified 
application counselor program is also voluntary and costs incurred by 
designated organizations are expected to be low and may be covered by 
available private or state funds. Due to lack of data, HHS is unable to 
estimate how many small entities would elect to serve as Navigators, 
non-Navigator assistance personnel, or designated organizations.
    The size threshold for ``small'' business established by the SBA is 
currently $7 million in annual receipts for insurance agencies and 
brokerages.\24\ 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 conflict of interest standards for Navigators will 
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. 
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.
---------------------------------------------------------------------------

    \24\ ``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.
---------------------------------------------------------------------------

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 final 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 
will be covered by the Navigator grants, other compensation provided by 
the Exchange to non-Navigator assistance personnel, or any available 
state funds, and will not exceed the UMRA threshold. As discussed in 
the preamble to the April 5, 2013 proposed rule, State 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. Although 
certified application counselors are not required to or expected to be 
funded, State Exchanges may apply section 1311(a) Establishment grants 
to costs related to the certified application counselor training 
program. Nothing in this rule would prohibit certified application 
counselors from being funded through other sources including applicable 
private, state, or federal programs.

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 final rule clarifies that any Navigator licensing, 
certification, or other standards prescribed by the state

[[Page 42859]]

or Exchange should not prevent the application of the provisions of 
title I of the Affordable Care Act. An entity or individual will be 
required to 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. We are monitoring relevant state 
legislation and will work with states to help ensure that state 
legislation does not conflict with title I of the Affordable Care Act 
and the federal regulations implementing it.
    Throughout the process of developing this final 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 final regulation in a meaningful and timely manner.

F. Congressional Review Act

    This final rule is subject to the Congressional Review Act 
provisions of the Small Business Regulatory Enforcement Fairness Act of 
1996 (5 U.S.C. 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 amends 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, Pub. L. 111-148, 124 Stat. 119 (42 U.S.C. 18021-
18024, 18031-18033, 18041-18042, 18051, 18054, 18071, and 18081-
18083.)

0
2. Section 155.205 is amended by revising paragraph (d) to read as 
follows:


Sec.  155.205  Consumer assistance tools and programs of an Exchange.

* * * * *
    (d) Consumer assistance. (1) The Exchange must have a consumer 
assistance function that meets the standards in paragraph (c) of this 
section, including the Navigator program described in Sec.  155.210. 
Any individual providing such consumer assistance 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.
    (2) The Exchange must provide referrals to any applicable office of 
health insurance consumer assistance or health insurance ombudsman 
established under section 2793 of the Public Health Service Act, or any 
other appropriate State agency or agencies, for any enrollee with a 
grievance, complaint, or question regarding their health plan, 
coverage, or a determination under such plan or coverage.
* * * * *
0
3. 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
4. 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 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) 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, in plain language, 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

[[Page 42860]]

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) and the duties of a Navigator set forth at Sec.  
155.210(e)(2).
    (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.
    (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) Submit to the Exchange, and, in plain language, 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) 
of this subchapter), 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

[[Page 42861]]

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 or when requested by the consumer to ensure effective 
communication. 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, in their preferred language, 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 
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, when necessary or when requested by the 
consumer to ensure 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 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.

0
5. Section 155.225 is added to read as follows:


Sec.  155.225  Certified application counselors.

    (a) General rule. The Exchange must have a certified application 
counselor program that complies with the requirements of this section.
    (b) Exchange designation of organizations. (1) The Exchange may 
designate an organization, including an organization designated as a 
Medicaid certified application counselor organization by a state 
Medicaid or CHIP agency, to certify its staff members or volunteers to 
act as certified application counselors who perform the duties and meet 
the standards and requirements for certified application counselors in 
this section if the organization--
    (i) Enters into an agreement with the Exchange to comply with the 
standards and requirements of this section including the standards 
specified in paragraphs (d)(3) through (d)(5) of this section; and
    (ii) Maintains a registration process and method to track the 
performance of certified application counselors.
    (2) An Exchange may comply with paragraph (a) of this section 
either by--
    (i) Designating organizations to certify application counselors in 
compliance with paragraph (b)(1) of this section;
    (ii) Directly certifying individual staff members or volunteers of 
Exchange designated organizations to provide the duties specified in 
paragraph (c) of this section if the staff member or volunteer enters 
into an agreement with the Exchange to comply with the standards and 
requirements for certified application counselors in this section; or
    (iii) A combination of paragraphs (b)(2)(i) and (b)(2)(ii) of this 
section.
    (c) Duties. Certified application counselors are certified to--
    (1) Provide information to individuals and employees about the full 
range of QHP options and insurance affordability programs for which 
they are eligible;
    (2) Assist individuals and employees to apply for coverage in a QHP 
through the Exchange and for insurance affordability programs; and
    (3) Help to facilitate enrollment of eligible individuals in QHPs 
and insurance affordability programs.
    (d) Standards of certification. An organization designated by the 
Exchange to provide certified application counselor services, or an 
Exchange that chooses to certify individual staff members or volunteers 
directly under paragraph (b)(2)(ii) of this section, may certify a 
staff member or volunteer to perform the duties specified in paragraph 
(c) of this section only if the staff member or volunteer--
    (1) Completes Exchange approved training 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, and completes and achieves a 
passing score on all Exchange approved certification examinations, 
prior to functioning as a certified application counselor;
    (2) Discloses to the organization, or to the Exchange if directly 
certified by an Exchange, and potential applicants any relationships 
the certified application counselor or sponsoring agency has with QHPs 
or insurance affordability programs, or other potential conflicts of 
interest;
    (3) Complies with the Exchange's privacy and security standards 
adopted consistent with Sec.  155.260, and applicable authentication 
and data security standards;

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    (4) Agrees to act in the best interest of the applicants assisted;
    (5) Either directly or through an appropriate referral to a 
Navigator or non-Navigator assistance personnel authorized under 
Sec. Sec.  155.205(d) and (e) or 155.210, or to the Exchange call 
center authorized under Sec.  155.205(a), provides information in a 
manner that is accessible to individuals with disabilities, as defined 
by the Americans with Disabilities Act, as amended, 42 U.S.C. 12101 et 
seq. and section 504 of the Rehabilitation Act, as amended, 29 U.S.C. 
794; and
    (6) Enters into an agreement with the organization regarding 
compliance with the standards specified in paragraphs (d), (f), and (g) 
of this section.
    (e) Withdrawal of designation and certification. (1) The Exchange 
must establish procedures to withdraw designation from a particular 
organization it has designated under paragraph (b) of this section, 
when it finds noncompliance with the terms and conditions of the 
organization's agreement required by paragraph (b) of this section.
    (2) If an Exchange directly certifies organizations' individual 
certified application counselors, it must establish procedures to 
withdraw certification from individual certified application counselors 
when it finds noncompliance with the requirements of this section.
    (3) An organization designated by the Exchange under paragraph (b) 
of this section must establish procedures to withdraw certification 
from individual certified application counselors when it finds 
noncompliance with the requirements of this section.
    (f) Availability of information; authorization. An organization 
designated by the Exchange under paragraph (b) of this section, or, if 
applicable, an Exchange that certifies staff members or volunteers of 
organizations directly must establish procedures to ensure that 
applicants--
    (1) Are informed of the functions and responsibilities of certified 
application counselors; and
    (2) Provide authorization prior to a certified application 
counselor obtaining access to an applicant's personally identifiable 
information and that the organization or certified application 
counselor maintains a record of the authorization provided.
    (3) May revoke at any time the authorization provided the certified 
application counselor, pursuant to paragraph (f)(2) of this section.
    (g) Fees. Organizations designated by the Exchange under paragraph 
(b) of this section and certified application counselors may not impose 
any charge on applicants for application or other assistance related to 
the Exchange.

    Dated: June 13, 2013.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.
    Approved: June 14, 2013.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.
[FR Doc. 2013-17125 Filed 7-12-13; 4:15 pm]
BILLING CODE 4120-01-P