[Federal Register Volume 88, Number 225 (Friday, November 24, 2023)]
[Proposed Rules]
[Pages 82510-82655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25576]



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Vol. 88

Friday,

No. 225

November 24, 2023

Part II





Department of the Treasury





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31 CFR Part 33





Department of Health & Human Services





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Centers for Medicare & Medicaid Services





Office of the Secretary





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42 CFR Parts 435 and 600

45 CFR Parts 153, 155, and 156





Patient Protection and Affordable Care Act, HHS Notice of Benefit and 
Payment Parameters for 2025; Updating Section 1332 Waiver Public Notice 
Procedures; Medicaid; Consumer Operated and Oriented Plan (CO-OP) 
Program; and Basic Health Program; Proposed Rule

Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / 
Proposed Rules

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DEPARTMENT OF THE TREASURY

31 CFR Part 33

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 435 and 600

Office of the Secretary

45 CFR Parts 153, 155, and 156

[CMS-9895-P]
RIN 0938-AV22


Patient Protection and Affordable Care Act, HHS Notice of Benefit 
and Payment Parameters for 2025; Updating Section 1332 Waiver Public 
Notice Procedures; Medicaid; Consumer Operated and Oriented Plan (CO-
OP) Program; and Basic Health Program

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule includes payment parameters and provisions 
related to the HHS-operated risk adjustment program, as well as 2025 
user fee rates for issuers offering qualified health plans (QHPs) 
through Federally-facilitated Exchanges (FFEs) and State-based 
Exchanges on the Federal platform (SBE-FPs). This proposed rule also 
includes proposed requirements related to the auto re-enrollment 
hierarchy; essential health benefits; failure to file and reconcile; 
non-standardized plan option limits and an exceptions process; 
standardized plan options; special enrollment periods (SEPs); direct 
enrollment (DE) entities; Insurance Affordability Program enrollment 
eligibility verification process; requirements for agents, brokers, 
web-brokers, and DE entities assisting Exchange consumers; network 
adequacy; public notice procedures for section 1332 waivers; 
prescription drug benefits; updates to the Consumer Operated and 
Oriented Plan (CO-OP) Program; State flexibility on the financial 
methodology used for Medicaid eligibility determinations for non-
modified adjusted gross income (MAGI) populations; and State 
flexibility on the effective date of coverage in the Basic Health 
Program (BHP). A summary of this proposed rule may be found at https://www.regulations.gov/.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, by January 8, 2024.

ADDRESSES: In commenting, please refer to file code CMS-9895-P.
    Comments, including mass comment submissions, must be submitted in 
one of the following three ways (please choose only one of the ways 
listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the ``Submit a 
comment'' instructions.
    2. By regular mail. You may mail written comments to the following 
address ONLY: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-9895-P, P.O. Box 8016, 
Baltimore, MD 21244-8016.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address ONLY: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-9895-P, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: 
    Jeff Wu, (301) 492-4305, Rogelyn McLean, (301) 492-4229, Grace 
Bristol, (410) 786-8437, for general information.
    Joshua Paul, (301) 492-4347, Jackie Wilson, (301) 492-4286, or John 
Barfield, (301) 492-4433, for matters related to HHS-operated risk 
adjustment.
    John Barfield, (301) 492-4433, or Leanne Scott, (410) 786-1045, for 
matters related to user fees.
    Brian Gubin, (410) 786-1659, for matters related to agent, broker, 
and web-broker guidelines.
    Marisa Beatley, (301) 492-4307, for matters related to the 
verification process related to eligibility for insurance affordability 
programs and current sources of income.
    Carolyn Kraemer, (301) 492-4197, for matters related to auto re-
enrollment in the Exchanges.
    Nicholas Eckart, (301) 492-4452, for matters related to enrollment 
of qualified individuals into QHPs and termination of Exchange 
enrollment or coverage for qualified individuals.
    Hollynd Boyden, (667) 414-0105, for matters related to the monthly 
150 percent Federal poverty level special enrollment period.
    Alexandra Gribbin, (667) 290-9977, for matters related to dental 
coverage.
    Nikolas Berkobien, (667) 290-9903, for matters related to 
standardized plan options and non-standardized plan option limits.
    LeAnn Brodhead, (667) 290-8805, for matters related to the 
essential health benefits prescription drug benefit.
    Carolyn Sabini, (667) 290-9750, for matters related to the 
essential health benefits benchmark plan policy.
    Agata Pelka, (667) 290-9979, for matters related to mandates in 
addition to the essential health benefits.
    Emily Martin, (301) 492-4423, or Deborah Hunter, (443) 386-3651, 
for matters related to network adequacy and ECPs.
    Shilpa Gogna, (301) 492-4257, or Jenny Chen, (301) 492-5156, for 
matters related to approval of a State Exchange and State Exchange 
Blueprint requirements.
    Lina Rashid, (443) 902-2823, or Kimberly Koch (202) 381-6934, for 
matters related to section 1332 waivers.
    Jacquelyn Rudich, (301) 492-5211, for matters related to netting of 
payments.
    Kevin Kendrick, (301) 509-6612, for matters related to the CO-OP 
program.
    Carrie Grubert, (410) 786-8319, for matters related to the Basic 
Health Program (BHP) provision.
    Gene Coffey, (410) 786-2234, for matters related to Medicaid 
eligibility.
    Arshdeep Dhanoa, (301) 492-4400, for matters related to 
incarceration verification for QHP eligibility and periodic data 
matching for dual and deceased enrollees.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Background
    A. Legislative and Regulatory Overview
    B. Summary of Major Provisions
III. Provisions of the Proposed Regulations
    A. 31 CFR Part 33 and 45 CFR Part 155--Section 1332 Waivers
    B. 42 CFR Parts 435 and 600--Medicaid Eligibility for the 
States, District of Columbia, the Northern Mariana Islands and 
American Samoa, and Administrative Practice and Procedure, Health 
Care, Health insurance, Intergovernmental Relations, Penalties, 
Reporting and Recordkeeping Requirements.
    C. 45 CFR Part 153--Standards Related to Reinsurance, Risk 
Corridors, and HHS Risk Adjustment
    D. 45 CFR Part 155--Exchange Establishment Standards and Other 
Related Standards Under the Affordable Care Act
    E. 45 CFR Part 156--Health Insurance Issuer Standards Under the 
Affordable Care Act, Including Standards Related to Exchanges

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IV. Collection of Information Requirements
    A. Wage Estimates
    B. ICRs Regarding Proposed Amendments to Normal Public Notice 
Requirements (31 CFR 33.112, 31 CFR 33.120 and 45 CFR Part 155.1312, 
and 45 CFR 155.1320)
    C. ICRs Regarding Basic Health Program Regulations (42 CFR 
600.320)
    D. ICRs Regarding Election To Operate an Exchange After 2014 (45 
CFR 155.106)
    E. ICRs Regarding Adding and Amending Language To Ensure Web-
Brokers Operating in State Exchanges Meet Certain Requirements 
Applicable in the FFEs and SBE-FPs (45 CFR 155.220)
    F. ICRs Regarding Establishing Requirements for DE Entities 
Mandating HealthCare.gov Changes To Be Reflected on DE Entity Non-
Exchange Websites Within a Notice Period Set by HHS (45 CFR 
155.221(b)(6))
    G. ICRs Regarding Adding and Amending Language To Ensure DE 
Entities Operating in State Exchanges Meet Certain Standards 
Applicable in the FFEs and SBE-FPs (45 CFR 155.221)
    H. ICRs Regarding Failure To File and Reconcile Process (45 CFR 
155.305(f)(4))
    I. ICRs Regarding Verification Process Related to Eligibility 
for Enrollment in a QHP Through the Exchange (45 CFR 155.315(e))
    K. ICRs Regarding Eligibility Redetermination During a Benefit 
Year (45 CFR 155.330(d))
    L. ICRs Regarding Establishment of Exchange Network Adequacy 
Standards (45 CFR 155.1050)
    M. ICRs Regarding the State Selection of EHB-Benchmark Plans for 
Plan Years Beginning on or After January 1, 2027 (45 CFR 156.111)
    N. ICRs Regarding Non-Standardized Plan Option Limits (45 CFR 
156.202)
    O. Summary of Annual Burden Estimates for Proposed Requirements
    P. Submission of PRA-Related Comments
V. Response to Comments
VI. Regulatory Impact Analysis
    A. Statement of Need
    B. Overall Impact
    C. Impact Estimates of the Payment Notice Provisions and 
Accounting Table
    D. Regulatory Alternatives Considered
    E. Regulatory Flexibility Act (RFA)
    F. Unfunded Mandates Reform Act (UMRA)
    G. Federalism

I. Executive Summary

    We propose changes to the provisions and parameters implemented 
through prior rulemaking to implement the Patient Protection and 
Affordable Care Act (ACA).\1\ These proposals are published under the 
authority granted to the Secretary by the ACA and the Public Health 
Service (PHS) Act.\2\ In this proposed rule, we propose changes related 
to some of the ACA provisions and parameters we previously implemented 
and propose to implement new provisions. We also propose a change to 
Medicaid financial eligibility provisions to provide States with 
greater flexibility to extend Medicaid eligibility to specific 
populations based on the State's circumstances. Our goal with these 
proposals is providing quality, affordable coverage to consumers while 
minimizing administrative burden and ensuring program integrity. The 
changes proposed in this rule are also intended to help advance health 
equity and mitigate health disparities.
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    \1\ The Patient Protection and Affordable Care Act (Pub. L. 111-
148) was enacted on March 23, 2010. The Health Care and Education 
Reconciliation Act of 2010 (Pub. L. 111-152), which amended and 
revised several provisions of the Patient Protection and Affordable 
Care Act, was enacted on March 30, 2010. In this rulemaking, the two 
statutes are referred to collectively as the ``Patient Protection 
and Affordable Care Act,'' ``Affordable Care Act,'' or ``ACA.''
    \2\ See sections 1311, 1312, 1313, 1321, 1332, and 1343 of the 
ACA and section 2792 of the PHS Act.
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II. Background

A. Legislative and Regulatory Overview

    Title I of the Health Insurance Portability and Accountability Act 
of 1996 (HIPAA) added a new title XXVII to the Public Health Service 
Act (PHS Act) to establish various reforms to the group and individual 
health insurance markets.
    These provisions of the PHS Act were later augmented by other laws, 
including the ACA.
    Subtitles A and C of title I of the ACA reorganized, amended, and 
added to the provisions of part A of title XXVII of the PHS Act 
relating to group health plans and health insurance issuers in the 
group and individual markets. The term ``group health plan'' includes 
both insured and self-insured group health plans.
    Section 2702 of the PHS Act, as added by the ACA, establishes 
requirements for guaranteed availability of coverage in the group and 
individual markets.
    Section 1301(a)(1)(B) of the ACA directs all issuers of qualified 
health plans (QHPs) to cover the essential health benefit (EHB) package 
described in section 1302(a) of the ACA, including coverage of the 
services described in section 1302(b) of the ACA, adherence to the 
cost-sharing limits described in section 1302(c) of the ACA, and 
meeting the Actuarial Value (AV) levels established in section 1302(d) 
of the ACA. Section 2707(a) of the PHS Act, which is effective for plan 
or policy years beginning on or after January 1, 2014, extends the 
requirement to cover the EHB package to non-grandfathered individual 
and small group health insurance coverage, irrespective of whether such 
coverage is offered through an Exchange. In addition, section 2707(b) 
of the PHS Act directs non-grandfathered group health plans to ensure 
that cost sharing under the plan does not exceed the limitations 
described in section 1302(c)(1) of the ACA.
    Section 1302 of the ACA provides for the establishment of an EHB 
package that includes coverage of EHBs (as defined by the Secretary of 
HHS), cost-sharing limits, and AV requirements. The law directs that 
EHBs be equal in scope to the benefits provided under a typical 
employer plan, and that they cover at least the following 10 general 
categories: ambulatory patient services; emergency services; 
hospitalization; maternity and newborn care; mental health and 
substance use disorder services, including behavioral health treatment; 
prescription drugs; rehabilitative and habilitative services and 
devices; laboratory services; preventive and wellness services and 
chronic disease management; and pediatric services, including oral and 
vision care. Section 1302(d) of the ACA describes the various levels of 
coverage based on AV. Consistent with section 1302(d)(2)(A) of the ACA, 
AV is calculated based on the provision of EHB to a standard 
population. Section 1302(d)(3) of the ACA directs the Secretary of HHS 
to develop guidelines that allow for de minimis variation in AV 
calculations. Sections 1302(b)(4)(A) through (D) of the ACA establish 
that the Secretary must define EHB in a manner that: (1) reflects 
appropriate balance among the 10 categories; (2) is not designed in 
such a way as to discriminate based on age, disability, or expected 
length of life; (3) takes into account the health care needs of diverse 
segments of the population; and (4) does not allow denials of EHBs 
based on age, life expectancy, disability, degree of medical 
dependency, or quality of life.
    Section 1311(c) of the ACA provides the Secretary the authority to 
issue regulations to establish criteria for the certification of QHPs. 
Section 1311(c)(1)(B) of the ACA requires, among the criteria for 
certification that the Secretary must establish by regulation, that 
QHPs ensure a sufficient choice of providers. Section 1311(e)(1) of the 
ACA grants the Exchange the authority to certify a health plan as a QHP 
if the health plan meets the Secretary's requirements for certification 
issued under section 1311(c) of the ACA, and the Exchange determines 
that making the plan available through the Exchange is in the interests 
of qualified individuals and qualified employers in the State. Section 
1311(c)(6)(C) of the ACA directs the Secretary of HHS to require an 
Exchange

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to provide for special enrollment periods and section 1311(c)(6)(D) of 
the ACA directs the Secretary of HHS to require an Exchange to provide 
for a monthly enrollment period for Indians, as defined by section 4 of 
the Indian Health Care Improvement Act.
    Section 1311(d)(3)(B) of the ACA permits a State, at its option, to 
require QHPs to cover benefits in addition to EHB. This section also 
requires a State to make payments, either to the individual enrollee or 
to the issuer on behalf of the enrollee, to defray the cost of these 
additional State-required benefits.
    Section 1312(c) of the ACA generally requires a health insurance 
issuer to consider all enrollees in all health plans (except 
grandfathered health plans) offered by such issuer to be members of a 
single risk pool for each of its individual and small group markets. 
States have the option to merge the individual and small group market 
risk pools under section 1312(c)(3) of the ACA.
    Section 1312(e) of the ACA provides the Secretary with the 
authority to establish procedures under which a State may allow agents 
or brokers to (1) enroll qualified individuals and qualified employers 
in QHPs offered through Exchanges and (2) assist individuals in 
applying for advance payments of the premium tax credit (APTC) and 
cost-sharing reductions (CSRs) for QHPs sold through an Exchange.
    Section 1312(f)(1)(B) of the ACA provides that an individual shall 
not be treated as a qualified individual for enrollment in a QHP if, at 
the time of enrollment, the individual is incarcerated, other than 
incarceration pending the disposition of charges.
    Sections 1313 and 1321 of the ACA provide the Secretary with the 
authority to oversee the financial integrity of State Exchanges, their 
compliance with HHS standards, and the efficient and non-discriminatory 
administration of State Exchange activities. Section 1313(a)(5)(A) of 
the ACA provides the Secretary with the authority to implement any 
measure or procedure that the Secretary determines is appropriate to 
reduce fraud and abuse in the administration of the Exchanges. Section 
1321 of the ACA provides for State flexibility in the operation and 
enforcement of Exchanges and related requirements.
    Section 1321(a) of the ACA provides broad authority for the 
Secretary to establish standards and regulations to implement the 
statutory requirements related to Exchanges, QHPs and other components 
of title I of the ACA, including such other requirements as the 
Secretary determines appropriate. When operating an FFE under section 
1321(c)(1) of the ACA, HHS has the authority under sections 1321(c)(1) 
and 1311(d)(5)(A) of the ACA to collect and spend user fees. Office of 
Management and Budget (OMB) Circular A-25 Revised establishes Federal 
policy regarding user fees and specifies that a user charge will be 
assessed against each identifiable recipient for special benefits 
derived from Federal activities beyond those received by the public.
    Section 1321(d) of the ACA provides that nothing in title I of the 
ACA must be construed to preempt any State law that does not prevent 
the application of title I of the ACA. Section 1311(k) of the ACA 
specifies that Exchanges may not establish rules that conflict with or 
prevent the application of regulations issued by the Secretary.
    Section 1322 of the ACA establishes the Consumer Operated and 
Oriented Plan (CO-OP) program, which is a loan program that funds the 
establishment of private, non-profit, consumer-operated, consumer-
oriented health plan issuers of QHPs. The ACA requires, among other 
requirements, that substantially all of a CO-OP's activities consist of 
issuing QHPs in the individual and small group markets, and that a CO-
OP be governed by a board of directors where a majority is elected by 
members covered by policies issued by the CO-OP.
    Section 1331 of the ACA provides States with the option to operate 
a Basic Health Program (BHP).
    Section 1332 of the ACA provides the Secretary of HHS and the 
Secretary of the Treasury (collectively, the Secretaries) with the 
discretion to approve a State's proposal to waive specific provisions 
of the ACA, provided the State's section 1332 waiver plan meets certain 
requirements. Section 1332(a)(4)(B) of the ACA requires the Secretaries 
to issue regulations regarding procedures for the application and 
approval of section 1332 waivers.
    Section 1343 of the ACA establishes a permanent risk adjustment 
program to provide payments to health insurance issuers that attract 
higher-than-average risk populations, such as those with chronic 
conditions, funded by charges collected from those issuers that attract 
lower-than-average risk populations, thereby reducing incentives for 
issuers to avoid higher-risk enrollees. Section 1343(b) of the ACA 
provides that the Secretary, in consultation with States, shall 
establish criteria and methods to be used in carrying out the risk 
adjustment activities under this section. Consistent with section 
1321(c) of the ACA, the Secretary is responsible for operating the HHS 
risk adjustment program in any State that fails to do so.\3\
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    \3\ In the 2014 through 2016 benefit years, HHS operated the 
risk adjustment program in every State and the District of Columbia, 
except Massachusetts. Beginning with the 2017 benefit year, HHS has 
operated the risk adjustment program in all 50 States and the 
District of Columbia.
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    Section 1401(a) of the ACA added section 36B to the Internal 
Revenue Code (the Code), which, among other things, requires that a 
taxpayer reconcile APTC for a year of coverage with the amount of the 
premium tax credit (PTC) the taxpayer is allowed for the year.
    Section 1402 of the ACA provides for, among other things, 
reductions in cost sharing for EHB for qualified low- and moderate-
income enrollees in silver level QHPs offered through the individual 
market Exchanges. This section also provides for reductions in cost 
sharing for Indians enrolled in QHPs at any metal level.
    Section 1411(c) of the ACA requires the Secretary to submit certain 
information provided by applicants under section 1411(b) of the ACA to 
other Federal officials for verification, including income and family 
size information to the Secretary of the Treasury. Section 1411(d) of 
the ACA provides that the Secretary must verify the accuracy of 
information provided by applicants under section 1411(b) of the ACA, 
for which section 1411(c) of the ACA does not prescribe a specific 
verification procedure, in such manner as the Secretary determines 
appropriate.
    Section 1411(f) of the ACA requires the Secretary, in consultation 
with the Treasury and Homeland Security Department Secretaries and the 
Commissioner of Social Security, to establish procedures for hearing 
and making decisions governing appeals of Exchange eligibility 
determinations. Section 1411(f)(1)(B) of the ACA requires the Secretary 
to establish procedures to redetermine eligibility on a periodic basis, 
in appropriate circumstances, including eligibility to purchase a QHP 
through the Exchange and for APTC and CSRs.
    Section 1411(g) of the ACA allows the use of applicant information 
only for the limited purpose of, and to the extent necessary for 
ensuring the efficient operation of the Exchange, including by 
verifying eligibility to enroll through the Exchange and for APTC and 
CSRs, and limits the disclosure of such information.
    Section 1413 of the ACA directs the Secretary to establish, subject 
to minimum requirements, a streamlined enrollment process for 
enrollment in

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QHPs and all insurance affordability programs.
    Section 5000A of the Code, as added by section 1501(b) of the ACA, 
requires individuals to have minimum essential coverage (MEC) for each 
month, qualify for an exemption, or make an individual shared 
responsibility payment. Under the Tax Cuts and Jobs Act, which was 
enacted on December 22, 2017, the individual shared responsibility 
payment is reduced to $0, effective for months beginning after December 
31, 2018. Notwithstanding that reduction, certain exemptions are still 
relevant to determine whether individuals aged 30 and above qualify to 
enroll in catastrophic coverage under Sec. Sec.  155.305(h) and 
156.155(a)(5).
    Section 1902(r)(2)(A) of the Social Security Act (the Act), which 
permits States to apply less restrictive methodologies than cash 
assistance program methodologies in determining eligibility for certain 
eligibility groups.
1. Premium Stabilization Programs
    The premium stabilization programs refer to the HHS risk 
adjustment, risk corridors, and reinsurance programs established by the 
ACA.\4\ For past rulemaking, we refer readers to the following rules:
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    \4\ See ACA section 1341 (transitional reinsurance program), ACA 
section 1342 (risk corridors program), and ACA section 1343 (HHS 
risk adjustment program).
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    <bullet> In the March 23, 2012 Federal Register (77 FR 17219) 
(Premium Stabilization Rule), we implemented the premium stabilization 
programs.
    <bullet> In the March 11, 2013 Federal Register (78 FR 15409) (2014 
Payment Notice), we finalized the benefit and payment parameters for 
the 2014 benefit year to expand the provisions related to the premium 
stabilization programs and set forth payment parameters in those 
programs.
    <bullet> In the October 30, 2013 Federal Register (78 FR 65046), we 
finalized the modification to the HHS risk adjustment methodology 
related to community rating States.
    <bullet> In the November 6, 2013 Federal Register (78 FR 66653), we 
published a correcting amendment to the 2014 Payment Notice to address 
how an enrollee's age for the risk score calculation would be 
determined under the HHS risk adjustment methodology.
    <bullet> In the March 11, 2014 Federal Register (79 FR 13743) (2015 
Payment Notice), we finalized the benefit and payment parameters for 
the 2015 benefit year to expand the provisions related to the premium 
stabilization programs, set forth certain oversight provisions, and 
establish payment parameters in those programs.
    <bullet> In the May 27, 2014 Federal Register (79 FR 30240), we 
announced the 2015 fiscal year sequestration rate for the HHS-operated 
risk adjustment program.
    <bullet> In the February 27, 2015 Federal Register (80 FR 10749) 
(2016 Payment Notice), we finalized the benefit and payment parameters 
for the 2016 benefit year to expand the provisions related to the 
premium stabilization programs, set forth certain oversight provisions, 
and establish the payment parameters in those programs.
    <bullet> In the March 8, 2016 Federal Register (81 FR 12203) (2017 
Payment Notice), we finalized the benefit and payment parameters for 
the 2017 benefit year to expand the provisions related to the premium 
stabilization programs, set forth certain oversight provisions, and 
establish the payment parameters in those programs.
    <bullet> In the December 22, 2016 Federal Register (81 FR 94058) 
(2018 Payment Notice), we finalized the benefit and payment parameters 
for the 2018 benefit year, added the high-cost risk pool parameters to 
the HHS risk adjustment methodology, incorporated prescription drug 
factors in the adult models, established enrollment duration factors 
for the adult models, and finalized policies related to the collection 
and use of enrollee-level External Data Gathering Environment (EDGE) 
data.
    <bullet> In the April 17, 2018 Federal Register (83 FR 16930) (2019 
Payment Notice), we finalized the benefit and payment parameters for 
the 2019 benefit year, created the State flexibility framework 
permitting States to request a reduction in risk adjustment State 
transfers calculated by HHS, and adopted a new error rate methodology 
for HHS-RADV adjustments to transfers.
    <bullet> In the May 11, 2018 Federal Register (83 FR 21925), we 
published a correction to the 2019 HHS risk adjustment coefficients in 
the 2019 Payment Notice.
    <bullet> On July 27, 2018, consistent with 45 CFR 153.320(b)(1)(i), 
we updated the 2019 benefit year final HHS risk adjustment model 
coefficients to reflect an additional recalibration related to an 
update to the 2016 enrollee-level EDGE data set.\5\
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    \5\ CMS. (2018, July 27). Updated 2019 Benefit Year Final HHS 
Risk Adjustment Model Coefficients. https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/2019-Updtd-Final-HHS-RA-Model-Coefficients.pdf.
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    <bullet> In the July 30, 2018 Federal Register (83 FR 36456), we 
adopted the 2017 benefit year HHS risk adjustment methodology as 
established in the final rules published in the March 23, 2012 (77 FR 
17220 through 17252) and March 8, 2016 (81 FR 12204 through 12352) 
editions of the Federal Register. The final rule set forth an 
additional explanation of the rationale supporting the use of Statewide 
average premium in the State payment transfer formula for the 2017 
benefit year, including the reasons why the program is operated by HHS 
in a budget-neutral manner. The final rule also permitted HHS to resume 
2017 benefit year HHS risk adjustment payments and charges. HHS also 
provided guidance as to the operation of the HHS-operated risk 
adjustment program for the 2017 benefit year in light of the 
publication of the final rule.
    <bullet> In the December 10, 2018 Federal Register (83 FR 63419), 
we adopted the 2018 benefit year HHS risk adjustment methodology as 
established in the final rules published in the March 23, 2012 (77 FR 
17219) and the December 22, 2016 (81 FR 94058) editions of the Federal 
Register. In the rule, we set forth an additional explanation of the 
rationale supporting the use of Statewide average premium in the State 
payment transfer formula for the 2018 benefit year, including the 
reasons why the program is operated by HHS in a budget-neutral manner.
    <bullet> In the April 25, 2019 Federal Register (84 FR 17454) (2020 
Payment Notice), we finalized the benefit and payment parameters for 
the 2020 benefit year, as well as the policies related to making the 
enrollee-level EDGE data available as a limited data set for research 
purposes and expanding the HHS uses of the enrollee-level EDGE data, 
approval of the request from Alabama to reduce HHS risk adjustment 
transfers by 50 percent in the small group market for the 2020 benefit 
year, and updates to HHS-RADV program requirements.
    <bullet> On May 12, 2020, consistent with Sec.  153.320(b)(1)(i), 
we published the 2021 Benefit Year Final HHS Risk Adjustment Model 
Coefficients on the CCIIO website.\6\
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    \6\ CMS. (2020, May 12). Final 2021 Benefit Year Final HHS Risk 
Adjustment Model Coefficients.https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Final-2021-Benefit-Year-Final-HHS-Risk-Adjustment-Model-Coefficients.pdf.
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    <bullet> In the May 14, 2020 Federal Register (85 FR 29164) (2021 
Payment Notice), we finalized the benefit and payment parameters for 
the 2021 benefit year, as well as adopted updates to the HHS risk 
adjustment models' hierarchical condition categories (HCCs) to 
transition to ICD-10 codes, approved the request from Alabama to reduce 
HHS risk adjustment transfers by 50

[[Page 82514]]

percent in the small group market for the 2021 benefit year, and 
modified the outlier identification process under the HHS-RADV program.
    <bullet> In the December 1, 2020 Federal Register (85 FR 76979) 
(Amendments to the HHS-Operated Risk Adjustment Data Validation Under 
the Patient Protection and Affordable Care Act's HHS-Operated Risk 
Adjustment Program (2020 HHS-RADV Amendments Rule)), we adopted the 
creation and application of Super HCCs in the sorting step that assigns 
HCCs to failure rate groups, finalized a sliding scale adjustment in 
HHS-RADV error rate calculation, and added a constraint for negative 
error rate outliers with a negative error rate. We also established a 
transition from the prospective application of HHS-RADV adjustments to 
apply HHS-RADV results to risk scores from the same benefit year as 
that being audited.
    <bullet> In the September 2, 2020 Federal Register (85 FR 54820), 
we issued an interim final rule containing certain policy and 
regulatory revisions in response to the COVID-19 public health 
emergency (PHE), wherein we set forth HHS risk adjustment reporting 
requirements for issuers offering temporary premium credits in the 2020 
benefit year.
    <bullet> In the May 5, 2021 Federal Register (86 FR 24140) (part 2 
of the 2022 Payment Notice), we finalized a subset of proposals from 
the 2022 Payment Notice proposed rule, including policy and regulatory 
revisions related to the HHS-operated risk adjustment program, 
finalization of the benefit and payment parameters for the 2022 benefit 
year, and approval of the request from Alabama to reduce HHS risk 
adjustment transfers by 50 percent in the individual and small group 
markets for the 2022 benefit year. In addition, this final rule 
established a revised schedule of collections for HHS-RADV and updated 
the provisions regulating second validation audit (SVA) and initial 
validation audit (IVA) entities.
    <bullet> On July 19, 2021, consistent with Sec.  153.320(b)(1)(i), 
we released Updated 2022 Benefit Year Final HHS Risk Adjustment Model 
Coefficients on the CCIIO website, announcing some minor revisions to 
the 2022 benefit year final HHS risk adjustment adult model 
coefficients.\7\
---------------------------------------------------------------------------

    \7\ See CMS. (2021, July 19). 2022 Benefit Year Final HHS Risk 
Adjustment Model Coefficients. https://www.cms.gov/files/document/updated-2022-benefit-year-final-hhs-risk-adjustment-model-coefficients-clean-version-508.pdf.
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    <bullet> In the May 6, 2022 Federal Register (87 FR 27208) (2023 
Payment Notice), we finalized revisions related to the HHS-operated 
risk adjustment program, including the benefit and payment parameters 
for the 2023 benefit year, HHS risk adjustment model recalibration, and 
policies related to the collection and extraction of enrollee-level 
EDGE data. We also finalized the adoption of the interacted HCC count 
specification for the adult and child models, along with modified 
enrollment duration factors for the adult model models, beginning with 
the 2023 benefit year.\8\ We also repealed the ability for States, 
other than prior participants, to request a reduction in HHS risk 
adjustment State transfers starting with the 2024 benefit year. In 
addition, we approved a 25 percent reduction to 2023 benefit year HHS 
risk adjustment transfers in Alabama's individual market and a 10 
percent reduction to 2023 benefit year HHS risk adjustment transfers in 
Alabama's small group market. We also finalized further refinements to 
the HHS-RADV error rate calculation methodology beginning with the 2021 
benefit year.
---------------------------------------------------------------------------

    \8\ On May 6, 2022, we also published the 2023 Benefit Year 
Final HHS Risk Adjustment Model Coefficients at https://www.cms.gov/files/document/2023-benefit-year-final-hhs-risk-adjustment-model-coefficients.pdf.
---------------------------------------------------------------------------

    <bullet> In the April 27, 2023 Federal Register (88 FR 25740) (2024 
Payment Notice), we finalized the benefit and payment parameters for 
the 2024 benefit year, amended the EDGE discrepancy materiality 
threshold and data collection requirements, and reduced the risk 
adjustment user fee. For the 2024 benefit year, we repealed the State 
flexibility policy, including for prior participant States, and 
approved 50 percent reductions to HHS risk adjustment transfers for 
Alabama's individual and small group markets. In addition, we finalized 
several refinements to HHS-RADV program requirements, such as 
shortening the window to confirm SVA findings or file a discrepancy 
report, changing the HHS-RADV materiality threshold for random and 
targeted sampling, and no longer exempting exiting issuers from 
adjustments to risk scores and HHS risk adjustment transfers when they 
are negative error rate outliers. We also announced the discontinuance 
of the Lifelong Permanent Condition List (LLPC) and Non-EDGE Claims 
(NEC) in HHS-RADV beginning with the 2022 benefit year.
2. Program Integrity
    We have finalized program integrity standards related to the 
Exchanges and premium stabilization programs in two rules: the ``first 
Program Integrity Rule'' published in the August 30, 2013 Federal 
Register (78 FR 54069), and the ``second Program Integrity Rule'' 
published in the October 30, 2013 Federal Register (78 FR 65045). We 
also refer readers to the 2019 Patient Protection and Affordable Care 
Act; Exchange Program Integrity final rule (2019 Program Integrity 
Rule) published in the December 27, 2019 Federal Register (84 FR 
71674).
    In the April 27, 2023 Federal Register (88 FR 25740) (2024 Payment 
Notice), we finalized a policy to implement improper payment pre-
testing and assessment (IPPTA) requirements for State Exchanges to 
ensure adherence to the Payment Integrity Information Act of 2019. In 
addition, we finalized allowing additional time for HHS to review 
evidence submitted by agents and brokers to rebut allegations 
pertaining to Exchange agreement suspensions or terminations. We also 
introduced consent and eligibility documentation requirements for 
agents and brokers.
3. Market Rules
    For past rulemaking related to the market rules, we refer readers 
to the following rules:
    <bullet> In the April 8, 1997 Federal Register (62 FR 16894), HHS, 
with the Department of Labor and Department of the Treasury, published 
an interim final rule relating to the HIPAA health insurance reforms. 
In the February 27, 2013 Federal Register (78 FR 13406) (2014 Market 
Rules), we published the health insurance market rules.
    <bullet> In the May 27, 2014 Federal Register (79 FR 30240) (2015 
Market Standards Rule), we published the exchange and insurance market 
standards for 2015 and beyond.
    <bullet> In the December 22, 2016 Federal Register (81 FR 94058), 
we provided additional guidance on guaranteed availability and 
guaranteed renewability.
    <bullet> In the April 18, 2017 Federal Register (82 FR 18346) 
(Market Stabilization final rule), we further interpreted the 
guaranteed availability provision.
    <bullet> In the April 17, 2018 Federal Register (83 FR 17058) (2019 
Payment Notice), we clarified that certain exceptions to the special 
enrollment periods only apply to coverage offered outside of the 
Exchange in the individual market.
    <bullet> In the June 19, 2020 Federal Register (85 FR 37160) (2020 
section 1557 final rule), in which HHS discussed section 1557 of the 
ACA, HHS removed nondiscrimination protections based on gender identity 
and sexual orientation from the guaranteed availability regulation.

[[Page 82515]]

    <bullet> In part 2 of the 2022 Payment Notice, in the May 5, 2021 
Federal Register (86 FR 24140), we made additional amendments to the 
guaranteed availability regulation regarding special enrollment periods 
and finalized new special enrollment periods related to untimely notice 
of triggering events, cessation of employer contributions or government 
subsidies to COBRA continuation coverage, and loss of APTC eligibility.
    <bullet> In the September 27, 2021 Federal Register (86 FR 53412) 
(part 3 of the 2022 Payment Notice), which was published by HHS and the 
Department of the Treasury, we finalized additional amendments to the 
guaranteed availability regulations regarding special enrollment 
periods.
    <bullet> In the May 6, 2022 Federal Register (87 FR 27208), we 
finalized a revision to our interpretation of the guaranteed 
availability requirement to prohibit issuers from applying a premium 
payment to an individual's or employer's past debt owed for coverage 
and refusing to effectuate enrollment in new coverage.
4. Exchanges
    We published a request for comment relating to Exchanges in the 
August 3, 2010 Federal Register (75 FR 45584). We issued initial 
guidance to States on Exchanges on November 18, 2010. In the March 27, 
2012 Federal Register (77 FR 18310) (Exchange Establishment Rule), we 
implemented the Affordable Insurance Exchanges (Exchanges), consistent 
with title I of the ACA, to provide competitive marketplaces for 
individuals and small employers to directly compare available private 
health insurance options on the basis of price, quality, and other 
factors. This included implementation of components of the Exchanges 
and standards for eligibility for Exchanges, as well as network 
adequacy and essential community provider (ECP) certification 
standards.
    In the August 17, 2011, Federal Register (76 FR 51201) we published 
a proposed rule regarding eligibility determinations, including the 
regulatory requirement to verify incarceration status. In the March 27, 
2012, Federal Register (77 FR 18309) we finalized the regulatory 
requirement to verify incarceration attestation using an approved 
electronic data source that is current and accurate, and when 
attestations are not reasonably compatible with information in an 
approved data source, to resolve the inconsistency.
    In the 2014 Payment Notice and the Amendments to the HHS Notice of 
Benefit and Payment Parameters for 2014 interim final rule, published 
in the March 11, 2013 Federal Register (78 FR 15541), we set forth 
standards related to Exchange user fees. We established an adjustment 
to the FFE user fee in the Coverage of Certain Preventive Services 
under the Affordable Care Act final rule, published in the July 2, 2013 
Federal Register (78 FR 39869) (Preventive Services Rule).
    In the 2016 Payment Notice, we also set forth the ECP certification 
standard at Sec.  156.235, with revisions in the 2017 Payment Notice in 
the March 8, 2016 Federal Register (81 FR 12203) and the 2018 Payment 
Notice in the December 22, 2016 Federal Register (81 FR 94058).
    In an interim final rule, published in the May 11, 2016 Federal 
Register (81 FR 29146), we made amendments to the parameters of certain 
special enrollment periods (2016 Interim Final Rule). We finalized 
these in the 2018 Payment Notice, published in the December 22, 2016 
Federal Register (81 FR 94058).
    In the Market Stabilization final rule, published in the April 18, 
2017 Federal Register (82 FR 18346), we amended standards relating to 
special enrollment periods and QHP certification. In the 2019 Payment 
Notice, published in the April 17, 2018 Federal Register (83 FR 16930), 
we modified parameters around certain special enrollment periods. In 
the April 25, 2019 Federal Register (84 FR 17454), the 2020 Payment 
Notice established a new special enrollment period.
    We published the final rule in the May 14, 2020 Federal Register 
(85 FR 29164) (2021 Payment Notice).
    In the January 19, 2021 Federal Register (86 FR 6138) (part 1 of 
the 2022 Payment Notice), we finalized only a subset of the proposals 
in the 2022 Payment Notice proposed rule. In the May 5, 2021 Federal 
Register (86 FR 24140), we published part 2 of the 2022 Payment Notice. 
In the September 27, 2021 Federal Register (86 FR 53412) (part 3 of the 
2022 Payment Notice), in conjunction with the Department of the 
Treasury, we finalized amendments to certain policies in part 1 of the 
2022 Payment Notice.
    In the May 6, 2022 Federal Register (87 FR 27208), we finalized 
changes to maintain the user fee rate for issuers offering plans 
through the FFEs and maintain the user fee rate for issuers offering 
plans through the SBE-FPs for the 2023 benefit year. We also finalized 
various policies to address certain agent, broker, and web-broker 
practices and conduct. We also finalized updates to the requirement 
that all Exchanges conduct special enrollment period verifications.
    In the April 27, 2023 Federal Register (88 FR 25740) (2024 Payment 
Notice), we revised Exchange Blueprint approval timelines, lowered the 
user rate fee for QHPs, and amended re-enrollment hierarchies for 
enrollees. We also finalized policies to update standardized plan 
options, reduce the risk of plan choice overload by limiting the number 
of non-standardized plan options that issuers can offer, and ensure 
correct QHP information. In addition, to prevent gaps in coverage, we 
amended coverage effective date rules, lengthened the special 
enrollment period from 60 to 90 days to those who lose Medicaid 
coverage, and prohibited QHPs on the Federal platform from mid-year 
coverage terminations for dependent children who reach the applicable 
maximum age. We also finalized policies on verifying consumer income 
and permitting door-to-door assisters to solicit consumers. To ensure 
provider network adequacy, we finalized provider network and ECP 
policies for QHPs.
5. Essential Health Benefits
    We established requirements relating to EHBs in the Standards 
Related to Essential Health Benefits, Actuarial Value, and 
Accreditation Final Rule, which was published in the February 25, 2013 
Federal Register (78 FR 12833) (EHB Rule). In the 2019 Payment Notice, 
published in the April 17, 2018 Federal Register (83 FR 16930), we 
added Sec.  156.111 to provide States with additional options from 
which to select an EHB-benchmark plan for plan year (PY) 2020 and 
subsequent plan years. In the 2023 Payment Notice, published in the May 
6, 2022 Federal Register (87 FR 27208), we revised Sec.  156.111 to 
require States to notify HHS of the selection of a new EHB-benchmark 
plan by the first Wednesday in May of the year that is 2 years before 
the effective date of the new EHB-benchmark plan, otherwise the State's 
EHB-benchmark plan for the applicable plan year will be that State's 
EHB-benchmark plan applicable for the prior year. We displayed the 
Request for Information; Essential Health Benefits (EHB RFI), published 
in the December 2, 2022 Federal Register (87 FR 74097) to solicit 
public comment on a variety of topics related to the coverage of 
benefits in health plans subject to the EHB requirements of the ACA.
6. State Innovation Waivers
    In the March 14, 2011 Federal Register (76 FR 13553), HHS and the 
Department of the Treasury (collectively, the Departments)

[[Page 82516]]

published the ``Application, Review, and Reporting Process for Waivers 
for State Innovation'' proposed rule to implement section 1332(a)(4)(B) 
of the ACA.
    In the February 27, 2012 Federal Register (77 FR 11700), the 
Departments published the ``Application, Review, and Reporting Process 
for Waivers for State Innovation'' final rule (2012 Final Rule).
    In the October 24, 2018 Federal Register (83 FR 53575), the 
Departments issued the 2018 Guidance, which superseded the previous 
guidance published in the December 16, 2015 Federal Register (80 FR 
78131) (2015 Guidance) and set forth requirements that States must meet 
for waivers, application review procedures, pass-through funding 
determinations, certain analytical requirements, and operational 
considerations.
    In the November 6, 2020 Federal Register (85 FR 71142), the 
Departments issued an interim final rule (November 2020 IFC), which set 
forth flexibilities for waivers under section 1332 during the COVID-19 
Public Health Emergency.
    In the December 4, 2020 Federal Register (85 FR 78572), the 
Departments published the ``Patient Protection and Affordable Care Act; 
HHS Notice of Benefit and Payment Parameters for 2022 and Pharmacy 
Benefit Manager Standards; Updates to State Innovation Waiver (Section 
1332 Waiver) Implementing Regulations'' proposed rule (2022 Payment 
Notice proposed rule) which proposed to codify certain policies and 
interpretations of the 2018 Guidance.
    In the January 19, 2021 Federal Register (86 FR 6138), the 
Departments published the ``Patient Protection and Affordable Care Act; 
HHS Notice of Benefit and Payment Parameters for 2022; Updates to State 
Innovation Waiver (Section 1332 Waiver) Implementing Regulations'' 
final rule (part 1 of the 2022 Payment Notice) which codified many of 
the policies and interpretations of the 2018 Guidance.
    In the September 27, 2021 Federal Register (86 FR 53412), part 3 of 
the 2022 Payment Notice, the Departments published the ``Patient 
Protection and Affordable Care Act; Updating Payment Parameters, 
Section 1332 Waiver Implementing Regulations, and Improving Health 
Insurance Markets for 2022 and Beyond'' final rule, which superseded 
and rescinded the policies and interpretations outlined in the 2018 
Guidance and repealed the previous codification of the interpretations 
of statutory guidelines in part 1 of the 2022 Payment Notice. The 
Departments also finalized flexibilities in the public notice 
requirements and post-award public participation requirements for 
section 1332 waivers under certain emergent situations and processes 
and procedures for amendments and extensions for approved waiver plans.
7. Consumer Operated and Oriented Plans (CO-OPs)
    In the December 13, 2011 Federal Register (76 FR 77392), we 
published the ``Patient Protection and Affordable Care Act; 
Establishment of Consumer Operated and Oriented Plan (CO-OP) Program'' 
final rule (2011 CO-OP Rule), which established the rules governing the 
CO-OP program to make loans to capitalize eligible prospective CO-OPs. 
In the May 11, 2016 Federal Register (81 FR 29146), we amended several 
CO-OP standards related to governance requirements to provide greater 
flexibility, and to facilitate private market transactions that would 
assist efforts of CO-OPs to arrange access to new sources of needed 
capital.
8. Basic Health Program (BHP)
    In the March 12, 2014, Federal Register (79 FR 14111), we published 
a final rule entitled ``Basic Health Program: State Administration of 
Basic Health Programs; Eligibility and Enrollment in Standard Health 
Plans; Essential Health Benefits in Standard Health Plans; Performance 
Standards for Basic Health Programs; Premium and Cost Sharing for Basic 
Health Programs; Federal Funding Process; Trust Fund and Financial 
Integrity,'' implementing section 1331 of the ACA, which governs the 
establishment of BHPs.
9. State Flexibility in the Use of Income and Resource Disregards in 
Medicaid Eligibility
    In the January 19, 1993 Federal Register (58 FR 4929), we published 
a final rule with comment period entitled ``Medicaid Program; 
Eligibility and Coverage Requirements,'' in which we prescribed, at 42 
CFR 435.601, the financial methodologies State Medicaid agencies must 
apply in determining eligibility for Medicaid, with options to apply 
less restrictive income and resource methodologies for the eligibility 
groups specified in section 1902(r)(2) of the Act.
    In the August 22, 1994 Federal Register (59 FR 43052), we published 
a final rule entitled ``Medicaid Program; Eligibility and Coverage 
Requirements,'' in which we amended 42 CFR 435.601(f)(1) to delete 
cross-references to other regulatory provisions that had been removed 
from the CFR.
    In the November 30, 2016 Federal Register (81 FR 86456), we 
published a final rule entitled ``Medicaid and Children's Health 
Insurance Programs: Eligibility Notices, Fair Hearing and Appeal 
Processes for Medicaid and Other Provisions Related to Eligibility and 
Enrollment for Medicaid and CHIP,'' in which we amended 42 CFR 
435.601(b) to confirm that its provisions govern only individuals who 
are excepted from application of modified adjusted gross income 
financial methodologies (MAGI) in accordance with 42 CFR 435.603(j) 
(relating to ``Eligibility Groups for which MAGI-based methods do not 
apply''). We also established in 42 CFR 435.601(d)(1) the authority for 
States to apply less restrictive methodologies for medically needy 
individuals whose income eligibility is determined under 42 CFR 
435.831(b)(1) (including medically needy individuals whose eligibility 
is determined under MAGI-based methodologies that comply with certain 
rules relating to the financial responsibility of relatives and other 
individuals described in 42 CFR 435.602).

B. Summary of Major Provisions

    The regulations outlined in this proposed rule would be codified in 
31 CFR part 33, 42 CFR parts 435 and 600, and 45 CFR parts 153, 155, 
and 156.
1. 31 CFR Part 33 and 45 CFR Part 155
    This proposed rule would amend section 1332 Waivers for State 
Innovation (referred to throughout this proposed rule as section 1332 
waivers) implementing regulations regarding State public notice and 
comment procedures. The Departments propose changes in 31 CFR part 33 
and 45 CFR part 155 that would allow States the flexibility to hold a 
State public hearing or post-award forum in a virtual format (that is, 
one that uses telephonic, digital, and/or web-based platforms), or 
hybrid format (that is, one that provides for both in-person and 
virtual attendance), which would be considered as the equivalent of 
holding an in-person meeting. Specifically, the Departments propose 
changes to 31 CFR 33.112(c) and 45 CFR 155.1312(c) and 31 CFR 33.120(c) 
and 45 CFR 155.1320(c). The Departments propose that these changes go 
into effect upon finalization of this rule. Because these changes would 
relieve a regulatory restriction, the Departments anticipate that they 
would be made effective immediately upon publication of a final rule.

[[Page 82517]]

2. 42 CFR Part 435
    We propose to amend 42 CFR 435.601(d) to remove paragraph (d)(4), 
which would provide States with greater flexibility to adopt income 
and/or resource disregards in determining Medicaid financial 
eligibility for individuals excepted from application of financial 
methodologies based on MAGI (``non-MAGI'' methodologies). States are 
permitted to expand eligibility for individuals who are subject to non-
MAGI methodologies by disregarding income and/or resources that would 
otherwise be required to be considered in the individual's eligibility 
determination. However, under current rules, States must apply such 
income and/or resource disregards to all individuals within each 
Medicaid eligibility group. Removing paragraph (d)(4) would allow 
States, when considering expanding eligibility for non-MAGI 
individuals, to target disregards at discrete members of individuals 
within an eligibility group.
3. 42 CFR Part 600
    We propose to amend 42 CFR 600.320(c) to allow States a third 
option when choosing the effective date of eligibility for BHP 
applicants. Under current rules, States have the option to choose 
between following: either the Medicaid rules at 42 CFR 435.915 or the 
Exchange rules at 45 CFR 155.420(b)(1). We propose to add an option to 
the effective date of coverage rules that would allow States to start 
coverage on the first day of the month following the date of 
application.
4. 45 CFR Part 153
    In accordance with the OMB Report to Congress on the Joint 
Committee Reductions for Fiscal Year 2024, the HHS-operated risk 
adjustment program is subject to the fiscal year 2024 sequestration.\9\ 
Therefore, the HHS-operated risk adjustment program will be sequestered 
at a rate of 5.7 percent for payments made from fiscal year 2024 
resources (that is, funds collected during the 2024 fiscal year).
---------------------------------------------------------------------------

    \9\ OMB. (2023, March 13). OMB Report to the Congress on the 
BBEDCA 251A Sequestration for Fiscal Year 2024. https://www.whitehouse.gov/wp-content/uploads/2023/03/BBEDCA_Sequestration_Report_and_Letter_3-13-2024.pdf.
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    We propose to recalibrate the 2025 benefit year HHS risk adjustment 
models using the 2019, 2020, and 2021 benefit year enrollee-level EDGE 
data. For the 2025 benefit year, we propose to continue applying a 
market pricing adjustment to the plan liability associated with 
Hepatitis C drugs in the HHS risk adjustment models (see, for example, 
84 FR 17463 through 17466). We propose a modification to the adjustment 
for the receipt of CSRs in the HHS risk adjustment models to improve 
predictive accuracy for the American Indian and Alaska Native (AI/AN) 
subpopulation who are enrolled in zero and limited cost-sharing plans 
and to retain the other CSR adjustment factors in the HHS risk 
adjustment models. We also propose a risk adjustment user fee for the 
2025 benefit year of $0.20 per member per month (PMPM). Additionally, 
we propose that in certain cases we may require a corrective action 
plan to address an observation identified in an HHS risk adjustment 
audit.
5. 45 CFR Part 155
    In part 155, we propose to amend Sec.  155.105(b) to require that a 
State seeking to operate a State Exchange must first operate an SBE-FP 
for at least one plan year, including its open enrollment period. We 
believe this requirement would give States sufficient time to create, 
staff, and structure a State Exchange that could transition to 
operating its own platform and establish relationships with interested 
parties critical to a State Exchange's success in operating a Navigator 
and consumer outreach program, assuming plan management 
responsibilities, and communicating effectively with consumers to 
support enrollment and avoid health care coverage gaps.
    We propose to revise Sec.  155.106(a)(2) as it pertains to Exchange 
Blueprint requirements for States transitioning to a State Exchange. 
Specifically, we propose to add that we may require that a State 
submitting a Blueprint Application seeking to operate a State Exchange 
provide upon request, supplemental documentation to HHS detailing the 
State's implementation of its State Exchange functionality as laid out 
in the State Exchange Blueprint. This could include a State submitting 
detailed plans regarding its State Exchange consumer assistance 
programs and activities, such as information on its direct outreach 
plans. Further, we propose to require that a State applying to 
transition to a State Exchange must provide the public with a notice 
and copy of its State Exchange Blueprint Application, as well as 
conduct periodic public engagements whereby interested parties can 
learn about the status of a State's transition to a State Exchange and 
provide input on that transition.
    We propose to amend Sec.  155.170(a)(2) to codify that benefits 
covered in a State's EHB benchmark plan would not be considered in 
addition to EHB, even if they had been required by State action taking 
place after December 31, 2011, other than for purposes of compliance 
with Federal requirements. Under this proposal, there would be no 
obligation for the State to defray the cost of a State mandate enacted 
after December 31, 2011 that requires coverage of a benefit if that 
benefit is included in the State's EHB-benchmark plan. Benefits that 
are covered in a State's EHB-benchmark plan would not be considered in 
addition to EHB and would remain subject to the various rules 
applicable to the EHB, including the prohibition on discrimination in 
accordance with Sec.  156.125, limitations on cost sharing in 
accordance with Sec.  156.130, and restrictions on annual or lifetime 
dollar limits in accordance with Sec.  147.126. We believe that this 
change would promote consumer protections and facilitate compliance 
with the defrayal requirement by making the identification of benefits 
in addition to EHB more intuitive.
    At Sec.  155.205(a), we propose to establish additional minimum 
standards for Exchange call center operations. Specifically, we propose 
to require that all Exchange call centers, other than those of SBE-FPs 
and Small Business Health Options Program (SHOP) Exchanges that do not 
provide for enrollment in SHOP coverage through an online SHOP 
enrollment platform, provide consumer access to a live call center 
representative during an Exchange's published hours of operation to 
assist with submitting their QHP application. We believe speaking to a 
live representative would help troubleshoot consumer QHP application 
issues, provide in real time an opportunity for a live representative 
to explain QHP application terminology to a consumer, provide a live 
representative to ensure the consumer provides the most correct 
information to the QHP application--alleviating unnecessary follow-up, 
and provide greater overall consumer satisfaction.
    We propose to amend Sec.  155.205(b)(4) to require that an Exchange 
operate a centralized eligibility and enrollment platform on the 
Exchange's website (or, for an SBE-FP, the Federal eligibility and 
enrollment platform) such that the Exchange allows for the submission 
of the single, streamlined application for enrollment in a QHP and 
insurance affordability programs through the Exchange's website and 
performs eligibility determinations for all consumers based on 
submissions of the single, streamlined application. Further, we propose 
to amend Sec.  155.302(a)(1) to clarify that the Exchange, through the 
centralized eligibility and enrollment platform operated on the 
Exchange's

[[Page 82518]]

website (or, for an SBE-FP, the Federal eligibility and enrollment 
platform), is the entity that is responsible for making all 
determinations regarding the eligibility for QHP coverage and insurance 
affordability programs regardless of whether an individual files an 
application for enrollment in a QHP on the Exchange's website (or, for 
SBE-FPs, on the Federal eligibility and enrollment platform), or on a 
website operated by a non-Exchange website allowed for under Sec.  
155.220 or Sec.  155.221. We also clarify that only entities that an 
Exchange elects to contract with to operate its centralized eligibility 
and enrollment platform can perform this function on behalf of an 
Exchange, such that Exchanges would not be able to solely rely on non-
Exchange entities, including a web-broker (defined at Sec.  155.20) or 
other entities under Sec.  155.220 or Sec.  155.221, from making such 
eligibility determinations on behalf on the Exchanges.
    We also propose to amend Sec.  155.205(b)(5) to require that an 
Exchange operate a centralized eligibility and enrollment platform on 
the Exchange's website (or, for an SBE-FP, the Federal eligibility and 
enrollment platform) so that the Exchange (or, for an SBE-FP, the 
Federal eligibility and enrollment platform) meets the requirement 
under Sec.  155.400(c) to maintain record of all effectuated 
enrollments in QHPs, including changes in effectuated QHP enrollments.
    We propose to amend Sec.  155.220(h) to specify that the HHS 
reconsideration entity is the CMS Administrator, who is a principal 
officer. This proposal would ensure agents, brokers, and web-brokers 
utilizing the FFEs and SBE-FPs can submit a request to the CMS 
Administrator to reconsider HHS' decision to terminate their Exchange 
agreement(s) for cause.
    We propose changes to Sec. Sec.  155.220 and 155.221 to apply 
certain standards to web-brokers and Direct Enrollment (DE) entities 
assisting consumers and applicants across all Exchanges, including in 
States with State Exchanges. We seek to ensure that certain current 
minimum Federal standards applicable in the FFEs and SBE-FPs, related 
to web-broker website display of standardized QHP comparative 
information, disclaimer language, information on eligibility for APTC/
CSRs, operational readiness, and access by downstream agents and 
brokers, also apply to web-brokers in States with State Exchanges. We 
similarly propose to extend certain DE entity requirements applicable 
in the FFEs and SBE-FPs related to marketing and display of QHPs, 
providing consumers with correct information and refraining from 
certain conduct, marketing of non-QHPs, website disclaimer language, 
and operational readiness to DE entities across all Exchanges, to newly 
apply to DE entities in States with State Exchanges. These proposals 
would help establish greater general uniformity with respect to these 
requirements for web-brokers and DE entities operating in the Exchanges 
and establish minimum Federal consumer protections in all States, 
regardless of the Exchange model.
    We propose to update regulations in Sec.  155.221(b) to mandate 
HealthCare.gov changes be reflected on DE entity non-Exchange websites 
within a notice period set by HHS. We also propose requiring that DE 
entities make these display changes in a manner consistent with what is 
adopted by HHS for display on HealthCare.gov by meeting standards 
defined by HHS, unless HHS approves a deviation from those standards. 
This proposal would codify our existing practice of communicating 
important changes to the HealthCare.gov display to EDE entities, expand 
our existing change request processes to permit entities to request 
deviations from the required display changes, and require DE entities 
that do not participate in EDE to comply with these practices. 
Additionally, this proposal would also require that all display changes 
which affect the visual aspects of the website that users see and 
interact with must be prominently displayed on the non-Exchange website 
such that the changes are clear, noticeable, and understandable to 
consumers. Finally, this proposal would also require State Exchanges to 
require their DE entities to implement and prominently display changes 
adopted for display on the State Exchanges' websites on their non-
Exchange websites for purposes of assisting consumers with DE in QHPs 
offered through the Exchange.
    We propose in connection with the failure to file and reconcile 
process at Sec.  155.305(f)(4) that Exchanges be required to send 
notices to tax filers for the first year in which they have been 
determined to have failed to reconcile APTC as an initial warning to 
inform and educate tax filers that they need to file and reconcile, or 
risk being determined ineligible for APTC if they fail to file and 
reconcile for a second consecutive year. Currently, the regulation does 
not describe notification procedures for tax filers who have failed to 
reconcile for 1 year. We propose to require that all Exchanges be 
required to send informative notices at least annually to tax filers 
who have failed to reconcile.
    We propose to amend Sec.  155.315(e) to provide that all Exchanges 
can accept applicant incarceration status attestations without further 
verification, and Exchanges may verify applicant incarceration status 
using an HHS-approved verification data source. HHS would approve an 
alternative electronic data source for State Exchanges to use for 
incarceration verification if it provides data that are current and 
accurate, and if its use minimizes administrative costs and burdens.
    We propose to reinterpret State Exchange and State Medicaid and 
Children's Health Insurance Program (CHIP) agency use of the Federal 
Data Services Hub to access and use the income data provided by the 
Verify Current Income (VCI) Hub service as a State Exchange or a State 
Medicaid and CHIP agency function because these State entities use this 
optional service to implement eligibility verification requirements 
applicable to them. More specifically, State Exchanges and State 
Medicaid and CHIP agencies have the option to use this information to 
verify a tax household's annual income attestation for Exchange QHP 
eligibility and the Medicaid applicant's current household income as 
required to make insurance affordability program eligibility 
determinations. We propose to amend Sec.  155.320(c) to reflect this 
reinterpretation for the Exchanges but are not proposing to amend the 
Medicaid regulations as the Medicaid regulations already address 
Medicaid agency verification requirements and are not typically used to 
delineate Medicaid agency operations in this manner.
    We propose to revise Sec.  155.330(d) to require Exchanges to 
conduct periodic checks for deceased enrollees twice yearly and 
subsequently end deceased enrollees' QHP coverage. Additionally, we 
propose to revise Sec.  155.330(d)(3) to grant the Secretary the 
authority to temporarily suspend the periodic data matching (PDM) 
requirement during certain situations (for example, a declared national 
public health emergency). These proposals would align Sec.  155.330(d) 
with current Federal Exchange policy and operations, prevent 
overpayment of QHP premiums, and accurately capture household QHP 
eligibility based on household size.
    We propose to amend Sec.  155.335(j)(1) and (2) to require 
Exchanges to re-enroll individuals who are enrolled in catastrophic 
coverage, as defined in section 1302(e) of the ACA, into a new

[[Page 82519]]

QHP for the coming plan year. Incorporating these individuals enrolled 
in catastrophic coverage into the auto re-enrollment hierarchy rules at 
Sec.  155.335(j) would help ensure continuity of coverage in cases 
where the issuer does not continue to offer a catastrophic plan for the 
new plan year, or these individuals are no longer eligible for 
enrollment in a catastrophic plan for the new year, and these 
individuals do not actively select a different QHP. We also propose to 
add a new paragraph (j)(5) to Sec.  155.335 to establish that an 
Exchange may not newly auto re-enroll into catastrophic coverage an 
enrollee who is currently enrolled in coverage of a metal level as 
defined in section 1302(d) of the ACA. This change reflects our current 
practice for Exchanges on the Federal platform.
    We propose to amend Sec.  155.400(e)(2) to codify that the 
flexibility for issuers experiencing billing or enrollment problems due 
to high volume or technical errors is not limited to extensions of the 
binder payment.
    We propose to amend Sec.  155.410(e)(4)(ii) to revise parameters 
around the adoption of an alternative open enrollment period by a State 
Exchange. Specifically, we propose for benefit years beginning on or 
after January 1, 2025, State Exchanges must adopt an open enrollment 
period that begins on November 1 of the calendar year preceding the 
benefit year and ends no earlier than January 15 of the applicable 
benefit year, with the option to extend the open enrollment period 
beyond January 15 of the applicable benefit year. We believe this 
proposal would ensure consumers are not subjected to plan cost 
increases that they may not be notified about until after open 
enrollment ends, give Navigators, certified application counselors, and 
agents and brokers ample time to assist all interested applicants, 
provide State Exchanges with additional flexibility, reduce consumer 
confusion, and improve access to health coverage.
    At Sec.  155.420(b), we propose to align the effective dates of 
coverage after selecting a plan during certain special enrollment 
periods across all Exchanges, including State Exchanges. We would 
require all State Exchanges to provide coverage that is effective on 
the first day of the month following plan selection, if a consumer 
enrolls in a QHP during certain special enrollment periods. This 
proposal would prevent coverage gaps, particularly for consumers 
transitioning between different Exchanges or from other insurance 
coverage.
    We propose to amend paragraph Sec.  155.420(d)(16) to revise the 
parameters around the availability of a special enrollment period for 
APTC-eligible qualified individuals with a projected household income 
no greater than 150 percent of the Federal Poverty Level (FPL). 
Specifically, we are proposing to remove the limitation that this 
special enrollment period is only available during periods of time when 
APTC benefits are available such that the applicable taxpayers' 
applicable percentage is set to zero and that Exchanges have the option 
to permanently provide this special enrollment period. We believe this 
proposal would provide affordable coverage available to more uninsured 
people and additional enrollment opportunities to low-income consumers.
    We propose to add Sec.  155.430(b)(1)(iv)(D) to permit an enrollee 
to retroactively terminate the enrollee's enrollment in a QHP through 
an Exchange on the Federal platform when the enrollee enrolls in 
Medicare Parts A or B, and the termination date would be retroactively 
effective to the day before Medicare coverage begins. This proposal 
would allow consumers to avoid overlapping coverage and paying 
unnecessary premiums. State Exchanges would have the option of 
implementing this proposal, and we seek comment on whether this 
proposal should instead be mandatory for State Exchanges.
    We propose to revise Sec.  155.1050 to require that State Exchanges 
and SBE-FPs establish and impose quantitative time and distance network 
adequacy standards for QHPs that are at least as stringent as the FFEs' 
network adequacy standards established for QHPs under Sec.  156.230. We 
also propose that State Exchanges and SBE-FPs be required to conduct 
quantitative network adequacy reviews prior to certifying any plan as a 
QHP, consistent with the reviews conducted by the FFEs under Sec.  
156.230. We further propose to require State Exchanges and SBE-FPs to 
permit issuers that are unable to meet the specified network adequacy 
standards to participate in a justification process after submitting 
their initial network adequacy data to account for variances and 
potentially earn QHP certification. Finally, we propose to mandate that 
State Exchanges and SBE-FPs require all issuers seeking QHP 
certification to submit information to the State Exchange or SBE-FP 
about whether network providers offer telehealth services. These 
proposals would be effective for plan years beginning on or after 
January 1, 2025.
6. 45 CFR part 156
    In part 156, we propose user fee rates for the 2025 benefit year 
for all issuers participating on the Exchanges using the Federal 
platform. For the 2025 benefit year, we propose an FFE user fee rate of 
2.2 percent of total monthly premiums and an SBE-FP user fee rate of 
1.8 percent of total monthly premiums. We will issue the 2025 benefit 
year premium adjustment percentage index and related payment parameters 
in guidance, consistent with the policy finalized in part 2 of the 2022 
Payment Notice.
    For benefit years beginning on or after January 1, 2027, we propose 
three revisions to the standards for State selection of EHB-benchmark 
plans at Sec.  156.111. First, we propose to consolidate the options 
for States to change EHB-benchmark plans at Sec.  156.111(a) to reduce 
the burden on States to decide between three functionally identical 
choices. Second, we propose to revise the typicality standard at Sec.  
156.111(b)(2) so that, in demonstrating that a State's new EHB-
benchmark plan provides a scope of benefits that is equal to the scope 
of benefits of a typical employer plan in the State, the scope of 
benefits of a typical employer plan in the State would be defined as 
any scope of benefits that is as or more generous than the scope of 
benefits in the State's least generous typical employer plan 
(supplemented by the State as necessary to provide coverage within each 
EHB category at Sec.  156.110(a)), and as or less generous than the 
scope of benefits in the State's most generous typical employer plan 
(supplemented by the State as necessary to provide coverage within each 
EHB category at Sec.  156.110(a)), among the typical employer plans 
currently defined at Sec.  156.111(b)(2)(i)(A) and (B). We also propose 
to remove the generosity standard at Sec.  156.111(b)(2)(ii) and to 
make a technical revision to the language regarding supplementation at 
Sec.  156.111(b)(2)(i). Third, we propose to revise Sec.  156.111(e)(3) 
to require States to submit a formulary drug list as part of their 
application to change EHB-benchmark plans only if the State is seeking 
to change their prescription drug EHB.
    We propose to remove the regulatory prohibition at Sec.  156.115(d) 
on issuers from including routine non-pediatric dental services as an 
EHB, which would provide States the option to add routine adult dental 
services as an EHB by updating their EHB-benchmark plans pursuant to 
Sec.  156.111.

[[Page 82520]]

    We propose to amend Sec.  156.122 to codify that prescription drugs 
in excess of those covered by a State's EHB-benchmark plan are 
considered EHB. As a result, they would be subject to requirements 
including the annual limitation on cost sharing and the restriction on 
annual and lifetime dollar limits, consistent with Sec.  156.130, 
unless the coverage of the drug is mandated by State action and is in 
addition to EHB pursuant to Sec.  155.170, in which case the drug would 
not be considered EHB. In addition, for plan years beginning on or 
after January 1, 2026, we propose to amend Sec.  156.122 to provide 
that the Pharmacy & Therapeutics (P&T) committee must include a 
consumer representative. We also seek comment on a possible future 
policy proposal to replace the United States Pharmacopeia (USP) 
Medicare Model Guidelines (MMG) with the USP Drug Classification system 
(DC) to classify the prescription drugs required to be covered as EHB 
under Sec.  156.122(a)(1). In particular, we seek public comment to 
confirm or further expand our understanding of the risks and benefits 
associated with replacing the USP MMG with the USP DC in this context.
    For PY 2025, we propose to follow the approach finalized in the 
2024 Payment Notice concerning standardized plan option metal levels, 
and to otherwise maintain continuity with our approach to standardized 
plan options finalized in the 2023 and 2024 Payment Notices.\10\ We 
propose to make only minor updates to the plan designs for PY 2025 to 
ensure these plans have AVs within the permissible de minimis range for 
each metal level. Our proposed updates to plan designs for PY 2025 are 
detailed in Sec.  156.201 of the preamble of this proposed rule, 
specifically in Tables 12 and 13.
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    \10\ This includes continuation of the differential display of 
standardized plan options on HealthCare.gov and enforcement of the 
standardized plan options display requirements for approved web-
brokers and QHP issuers using a direct enrollment pathway to 
facilitate enrollment through an FFE or SBE-FP-- including both the 
Classic Direct Enrollment (Classic DE) and Enhanced Direct 
Enrollment (EDE) Pathways.
---------------------------------------------------------------------------

    In the 2024 Payment Notice (88 FR 25858), we announced our intent 
to propose an exceptions process that would allow issuers to offer non-
standardized plan options in excess of the limit of two per product 
network type, metal level, inclusion of dental and vision benefit 
coverage, and service area for PY 2025 and subsequent years. We propose 
an exceptions process at Sec.  156.202 that would allow issuers to 
offer more than two non-standardized plan options per product network 
type, metal level, inclusion of dental and vision benefit coverage, and 
service area for PY 2025 and subsequent plan years, if the issuer can 
demonstrate that these additional non-standardized plans have specific 
design features that would substantially benefit consumers with chronic 
and high-cost conditions.
    We propose a new regulatory provision that would permit us to allow 
a CO-OP loan recipient to voluntarily terminate its loan agreement with 
us and cease to constitute a qualified non-profit health insurance 
issuer (QNHII), for the purpose of pursuing innovative business plans 
that are not otherwise consistent with the governance requirements and 
business standards applicable to a CO-OP borrower. Under the proposed 
new regulatory provision, we would be able to consider a request by a 
CO-OP to voluntarily terminate its loan agreement for reasons other 
than financial viability, provided all outstanding CO-OP loans issued 
to the loan recipient are repaid in full prior to termination, and we 
believe granting the request would meaningfully enhance consumer access 
to quality, affordable, member-focused, non-profit health care options 
in affected markets.
    We propose conforming amendments to the payment and collections 
process set forth at Sec.  156.1215 to align with the policies and 
regulations proposed in the Federal Independent Dispute Resolution 
Operations proposed rule (88 FR 75744). This proposal would provide 
that administrative fees for utilizing the No Surprises Act Federal 
independent dispute resolution (IDR) process for health insurance 
issuers that participate in financial programs under the ACA would be 
subject to netting as part of HHS' integrated monthly payment and 
collections cycle. Additionally, we propose to amend Sec.  156.1215 to 
provide that any amount owed to the Federal government by an issuer and 
its affiliates for unpaid administrative fees due to the Federal 
government from these issuers and their affiliates for utilizing the 
Federal IDR process in accordance with Sec.  149.510(d)(2), after HHS 
nets amounts owed by the Federal government under these programs, would 
be the basis for calculating a debt owed to the Federal government.

III. Provisions of the Proposed Regulations

A. 31 CFR part 33 and 45 CFR Part 155--Section 1332 Waivers

1. Background
    Section 1332 of the ACA permits States to apply for a section 1332 
waiver to pursue innovative strategies for providing their residents 
with access to higher value, more affordable health insurance coverage. 
To allow for greater flexibility in communicating with the public, we 
are proposing updates to the public hearing process requirements for 
section 1332 waivers.
    Under section 1332(b) of the ACA, the Secretary of HHS and the 
Secretary of the Treasury (collectively, the Secretaries) may exercise 
their discretion to approve a request for a section 1332 waiver only if 
the Secretaries determine that the proposal for the section 1332 waiver 
meets the following four requirements, referred to as the statutory 
guardrails: (1) the proposal will provide coverage that is at least as 
comprehensive as coverage defined in section 1302(b) of the ACA and 
offered through Exchanges established under title I of the ACA, as 
certified by the Office of the Actuary of CMS, based on sufficient data 
from the State and from comparable States about their experience with 
programs created by the ACA and the provisions of the ACA that would be 
waived; (2) the proposal will provide coverage and cost-sharing 
protections against excessive out-of-pocket spending that are at least 
as affordable for the State's residents as would be provided under 
title I of the ACA; (3) the proposal will provide coverage to at least 
a comparable number of the State's residents as would be provided under 
title I of the ACA; and (4) the proposal will not increase the Federal 
deficit. The Secretaries retain their discretionary authority to deny 
requested section 1332 waivers when appropriate given consideration of 
the application, as a whole, even if a proposal for a section 1332 
waiver meets the four statutory guardrails.
    The Departments are responsible for monitoring an approved section 
1332 waiver's compliance with the statutory guardrails and for 
conducting evaluations to determine the impact of the section 1332 
waiver. Specifically, section 1332(a)(4)(B)(v) of the ACA requires the 
Secretaries to promulgate regulations that provide for a process for 
the periodic evaluation of approved section 1332 waivers. The 
Secretaries must also promulgate regulations that provide for a process 
under which States with approved section 1332 waivers submit to the 
Secretaries periodic reports concerning the implementation of the 
State's waiver program.\11\
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    \11\ See ACA section 1332(a)(4)(B)(iv).

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[[Page 82521]]

2. Proposed Amendments to Normal Public Notice Requirements (31 CFR 
33.112, 31 CFR 33.120, 45 CFR 155.1312, and 45 CFR 155.1320)
    Sections 1332(a)(4)(B)(i) and (iii) of the ACA provide that the 
Secretaries shall promulgate regulations that provide for a process for 
public notice and comment at the State level, including public 
hearings, and a process for providing public notice and comment at the 
Federal level after the section 1332 waiver application is received by 
the Secretaries, respectively, that are both sufficient to ensure a 
meaningful level of public input. Current regulations at 31 CFR 33.112 
and 45 CFR 155.1312 specify State public notice and comment period and 
participation requirements for proposed section 1332 waiver requests, 
and 31 CFR 33.116(b) and 45 CFR 155.1316(b) specify the public notice 
and comment period and approval requirements under the accompanying 
Federal process.
    In the November 2020 interim final rule (85 FR 71142), the 
Departments revised regulations to set forth flexibilities in the 
public notice requirements and post-award public participation 
requirements for section 1332 waivers during the COVID-19 PHE. In the 
September 2021 final rule (86 FR 53502), the Departments extended those 
changes beyond the COVID-19 PHE to allow similar flexibilities in the 
event of future natural disasters; PHEs; or other emergent situations 
that threaten consumers' access to health insurance coverage, 
consumers' access to health care, or human life. Currently, in such an 
event, States may submit a request to the Departments to modify, in 
part, the State public notice requirements specified in 31 CFR 
33.112(a)(1), (b), (c), and (d) and 45 CFR 155.1312(a)(1), (b), (c), 
and (d), and the Federal public notice requirement specified in 31 CFR 
33.116(b) and 45 CFR 155.1316(b), pursuant to 31 CFR 33.118(a) and 45 
CFR 155.1318(a).
    The criteria to request a modification from the normal public 
notice requirements during an emergent situation are set forth in 31 
CFR 33.118(b)(1) through (5) and 45 CFR 155.1318(b)(1) through (5). 
Pursuant to 31 CFR 33.118(b)(3) and 45 CFR 155.1318(b)(3), the State's 
request to modify normal public notice procedures is required to 
include: the justification for the requested modification from the 
State public notice procedures as it relates to the emergent situation 
and the alternative public notice procedures, including public 
hearings, that it proposes to implement at the State level and that are 
designed to provide the greatest opportunity for and level of 
meaningful public input from impacted interested parties that is 
practicable given the emergent circumstances motivating the State's 
request for a modification.
    Since the finalization of the flexibilities in 31 CFR 33.118(b)(1) 
through (5) and 45 CFR 155.1318(b)(1) through (5), almost all States 
with approved section 1332 waivers (``section 1332 waiver States'') 
submitted requests that were granted by the Departments to conduct 
their annual post-award forums virtually instead of in-person during 
the COVID-19 PHE to reduce the risk of transmission of COVID-19. 
Similarly, during the COVID-19 PHE, States submitting new section 1332 
waiver applications, waiver extension requests, or waiver amendment 
requests also requested to host their State public hearings virtually 
and these requests were also granted by the Departments. However, with 
the recent expiration of the Federal COVID-19 PHE \12\ (and many State 
COVID-19 PHEs) \13\ and in line with the requirements of 31 CFR 
33.120(c) and 45 CFR 155.1320(c) and 31 CFR 33.112(c) and 45 CFR 
155.1312(c), the Departments have ceased granting States' requests to 
hold public hearings or post-award forums virtually instead of in-
person on the basis of the Federal COVID-19 PHE.
---------------------------------------------------------------------------

    \12\ The Federal COVID-19 PHE ended on May 11, 2023. https://
www.hhs.gov/about/news/2023/05/09/fact-sheet-end-of-the-covid-19-
public-health-
emergency.html#:~:text=That%20means%20with%20the%20COVID,the%20expira
tion%20of%20the%20PHE.
    \13\ For example, in Alaska the State's PHE ended on July 1, 
2022 (https://health.alaska.gov/PHE/Pages/default.aspx); in Colorado 
the Disaster Recovery Order ended on April 27, 2023 (https://hcpf.colorado.gov/covid-19-phe-planning); in Georgia the State of 
Emergency ended on May 11, 2023 (https://dph.georgia.gov/press-releases/2023-05-11/dph-news-release-end-public-health-emergency-declaration); and in Rhode Island the State's COVID-19 Disaster 
Emergency ended on May 11, 2023 (https://governor.ri.gov/executive-orders/executive-order-23-05).
---------------------------------------------------------------------------

    Upon review and consideration of the lessons learned during the 
COVID-19 PHE, the Departments have determined that some current 
provisions regarding normal State public notice procedures are outdated 
given the increased accessibility that technology has provided for 
virtual and telephonic meetings. States have shared that their 
residents benefitted from the States' opportunity to host public 
hearings and post-award forums virtually, and that they would like to 
continue doing so to facilitate attendance. States have also reported 
to the Departments that hosting meetings virtually during the COVID-19 
PHE did not decrease the amount or quality of meaningful input 
received. States' experience during this time demonstrated that 
interested parties were able to virtually attend meetings and submit 
public comments verbally or in-writing, and States did not report any 
significant issues relating to virtual platforms that impeded public 
attendance or participation. States continued to share with the 
Departments summaries of their post-award forums, as well as all public 
comments received and actions taken in response to concerns or 
comments, in accordance with section 1332 waiver annual reporting 
requirements. In States' new waiver applications, waiver extension 
requests, and waiver amendment requests, States also shared with the 
Departments summaries of virtually conducted hearings from their State 
public comment periods and addressed public comments or concerns 
received.
    Beyond mitigating the spread of COVID-19, information shared by 
section 1332 waiver States has demonstrated that the opportunity to 
host post-award forums and public hearings on virtual platforms 
facilitated comparable or higher levels of public attendance when 
compared to previously held in-person meetings. For example, at 
Maryland's annual post-award forums held in 2019 (in-person) and 2020-
2022 (virtual), the State saw comparable participation across the years 
from interested parties. Minnesota also reported comparable attendance 
at its post-award forums across the years: 4 attendees in 2018 (in-
person), 1 in 2019 (in-person), 4 in 2020 (virtual), 9 in 2021 
(virtual),\14\ and 2 in 2022 (virtual). Likewise, Wisconsin had 6 
attendees at its post-award forum in 2019 (in-person), 24 in 2020 
(virtual),\15\ 11 in 2021 (virtual), and 7 in 2022 (virtual). Wisconsin 
noted that using a virtual format has allowed individuals who would 
otherwise not be able to attend in-person to view the State's 
presentation and that this has proven to be a convenient means for 
individuals to attend the forum.
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    \14\ Note that this post-award hearing was also a hearing for 
the State's waiver extension application, which likely increased 
attendance.
    \15\ Note that attendance was relatively higher in 2020 likely 
due to the forum following the State's first full year of 
implementing its reinsurance program.
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    States that began waiver implementation after the start of the 
COVID-19 PHE have also reported successfully hosting virtual post-award 
forums. For example, Colorado conducted its first post-award forum 
entirely virtually in 2020 and reported

[[Page 82522]]

79 attendees.\16\ Pennsylvania had 2 attendees at its first post-award 
forum in 2021 (virtual) and 4 in 2022 (virtual). Pennsylvania noted 
that due to the expansiveness of the State's geography, there has 
historically been low in-person attendance, as observed at its in-
person public hearings in 2019 for its waiver application, where no 
members of the public attended the first meeting, and two members of 
the public attended the second meeting.
---------------------------------------------------------------------------

    \16\ Note that this post-award forum was also a hearing for the 
State's waiver extension application, which likely increased 
attendance.
---------------------------------------------------------------------------

    States submitting new waiver applications, waiver extension 
requests, or waiver amendment requests during the COVID-19 PHE also 
reported successfully conducting their public hearings on virtual 
platforms. For example, in January 2022, Alaska held a combined post-
award forum and State public hearing for its waiver extension 
application both in-person and with a telephonic option, which 3 
members of the public attended either in-person or virtually. In April 
2022, Washington held two State public hearings virtually, in which 9 
representatives from organizations attended and shared public comments.
    There are other Federal programs and agencies that permitted a 
virtual option in place of in-person public hearings prior to the 
COVID-19 PHE or that have more recently amended their policies for 
public input to continue virtual and telephonic options that were first 
implemented during the COVID-19 PHE. For example, States that are 
applying for Medicaid section 1115 demonstrations are permitted to use 
telephonic and web-based conference capabilities for public meetings. 
In fact, per 42 CFR 431.408(a)(3), a State must use telephonic and/or 
web conference capabilities for at least one of the two required public 
hearings to ensure statewide accessibility to the public hearing, 
unless it can document it has afforded the public throughout the State 
the opportunity to provide comment, such as holding the two public 
hearings in geographically distinct areas of the State.
    As another example, during the COVID-19 PHE, the Internal Revenue 
Service (IRS) began holding public hearings on notices of proposed 
rulemaking telephonically instead of in-person. Following the end of 
the Federal COVID-19 PHE, the IRS recently announced that, for proposed 
regulations published in the Federal Register after May 11, 2023,\17\ 
public hearings would be conducted in-person but that a telephonic 
option would remain available for those who prefer to attend or testify 
by telephone.
---------------------------------------------------------------------------

    \17\ Internal Revenue Service, Public Hearings on Proposed 
Regulations to Be Conducted in Person with Telephone Options 
Available, Announcement 2023-16. Accessed at https://www.irs.gov/pub/irs-drop/a-23-16.pdf.
---------------------------------------------------------------------------

    The Departments considered whether to propose requiring States to 
hold at least one of the required public hearings for waiver 
applications in-person. However, as explained above, States have 
successfully hosted post-award forums and public hearings for section 
1332 waiver applications virtually to allow for meaningful public input 
over the last several years. Furthermore, by allowing States the 
ability to hold all of their meetings virtually, States may better 
allow for input across different geographies, communities, and 
populations. We also considered proposing the standard under section 
1115 demonstrations where one hearing is required to be done virtually. 
However, given the successful hosting of virtual meetings with public 
participation by States for section 1332 waivers, it does not seem 
necessary to continue to require in-person meetings to solicit public 
input on section 1332 waivers.
    The Departments believe that by allowing States the opportunity to 
hold post-award forums and public hearings virtually and through 
digital platforms, States would be able to continue facilitating 
attendance and participation from interested parties and the public to 
provide meaningful input. As such, the Departments are of the view that 
updating the State public notice procedures would enhance public 
participation in the section 1332 waiver review and monitoring process. 
This approach would help remove barriers to participation and increase 
opportunities for engagement in policymaking for communities and local 
partners who may face barriers to in-person participation (for example, 
those in rural areas). This approach is also consistent with Executive 
Order 14094, Executive Order on Modernizing Regulatory Review, as it 
would proactively engage interested or affected parties, including 
members of underserved communities, and promote best practices for 
information accessibility and engagement with interested or affected 
parties through the use of alternative platforms and media for engaging 
the public.\18\ Further, this approach may improve States' ability to 
understand and eliminate barriers experienced by underserved or under-
represented communities, and identify opportunities to advance health 
equity, while diminishing administrative burden related to the 
integration of in-person and virtual formats.
---------------------------------------------------------------------------

    \18\ 88 FR 21879. https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf.
---------------------------------------------------------------------------

    Therefore, we propose that a virtual (that is, one that uses 
telephonic, digital, and/or web-based platforms) or hybrid (that is, 
one that provides for both in-person and virtual attendance) public 
hearing or forum be considered as the equivalent of holding an in-
person meeting. In the 2012 final rule (77 FR 11700), the Departments 
noted that as set forth in 31 CFR 33.112(c)(1) and 45 CFR 
155.1312(c)(1), a State must hold at least two public hearings in 
distinct locations. Under the proposal in this rule to modify the 
normal public notice procedures, States would still need to hold at 
least two public hearings in distinct locations. For example, the 
Departments clarify that under this rule's proposal to allow 
flexibility to host these meetings virtually, a State would not be 
permitted to count a public hearing in which there is simultaneously an 
in-person location and virtual platform as two hearings (or two 
locations). Instead, one virtual or hybrid meeting would still count as 
one public hearing, and two virtual or hybrid meetings would count as 
two public hearings.
    To codify these new proposed policies, we propose to amend 31 CFR 
33.112(c) and 45 CFR 155.1312(c) and 31 CFR 33.120(c) and 45 CFR 
155.1320(c). More specifically, the Departments propose to amend 31 CFR 
33.112(c) and 45 CFR 155.1312(c) to permit States to conduct public 
hearings in a virtual (that is, one that uses telephonic, digital, and/
or web-based platforms) or hybrid (that is, one that provides for both 
in-person and virtual attendance) format in lieu of conducting an in-
person meeting. The Departments also propose to amend 31 CFR 33.120(c) 
and 45 CFR 155.1320(c) to provide that for a State's annual post-award 
forum, the public forum shall be conducted in an in-person, virtual 
(that is, one that uses telephonic, digital, and/or web-based 
platforms), or hybrid (that is, one that provides for both in-person 
and virtual attendance) format. The Departments propose that these 
changes go into effect upon finalization of this rule. Because these 
changes would relieve a regulatory restriction, the Departments 
anticipate that they would be made effective immediately upon 
publication of a final rule.
    This proposal is limited to allowing flexibility to host required 
meetings virtually. States would be required to continue to abide all 
other public notice requirements, including public notice

[[Page 82523]]

procedural requirements for waiver applications, waiver extension and 
waiver amendment requests, and post-award forums. For example, States 
would still be required to have a process to consult and collaborate 
with Federally-recognized tribes,\19\ as applicable, as well as take 
reasonable steps to provide meaningful access for individuals with 
limited English proficiency and appropriate steps to ensure effective 
access for and communication with individuals with disabilities, 
including accessibility of information and communication 
technology.\20\ States should recognize that virtual meetings may 
present additional accessibility challenges for people with 
communications and mobility disabilities, as well as to those who lack 
broadband access. Complying with the requirement to ensure effective 
communication may entail providing American Sign Language 
interpretation and real-time captioning and ensuring that the virtual 
platform is interoperable with assistive technology for those with 
mobility difficulties.
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    \19\ See 31 CFR 33.112(a)(2) and 45 CFR 155.1312(a)(2).
    \20\ See Title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d, 45 CFR part 80), Section 1557 of the ACA (42 U.S.C. 18116), 
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C 794, 45 CFR 
part 84), and Title II of the Americans with Disabilities Act (42 
U.S.C. 1213 et seq., 28 CFR part 35). The HHS Office for Civil 
Rights enforces applicable Federal civil rights laws that prohibit 
discrimination on the basis of race, color, national origin, sex, 
age, or disability, as well as laws protecting the exercise of 
conscience and religious freedom, including the Religious Freedom 
Restoration Act (Pub. L 103-141) (42 U.S.C. 2000bb through 2000bb-
4).
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    Finally, the Departments clarify that under this proposal, States 
should have a process by which members of the public can request in-
person meetings for the annual post-award forum or State public 
hearings on waiver applications, waiver extension requests, or waiver 
amendments requests, and that States should accommodate those requests 
whenever possible. In addition, States with approved section 1332 
waivers and States seeking approval for proposed waivers would continue 
to have flexibility to submit requests to the Departments during 
emergent situations to modify certain public participation requirements 
as set forth in 31 CFR 33.118(b)(1) through (5) and 45 CFR 
155.1318(b)(1) through (5).
    The Departments seek comment on these proposals.

B. 42 CFR Parts 435 and 600

1. Increase State Flexibility in the Use of Income and Resource 
Disregards for Non-MAGI Populations (42 CFR 435.601)
    We propose to provide States with greater flexibility to adopt 
income and/or resource disregards in determining financial eligibility 
under section 1902(r)(2) of the Act for individuals excepted from 
application of financial methodologies based on modified adjusted gross 
income (``MAGI-based methodologies'').
    Section 1902(r)(2) of the Act requires that States, in determining 
Medicaid financial eligibility, apply a methodology that may be less 
restrictive, but which may not be more restrictive, than in the case of 
individuals seeking eligibility on the basis of being 65 years old or 
older, having blindness or a disability, under the supplemental 
security income (SSI) program. In the case for other individuals, the 
methodology may be less restrictive, but may not be more restrictive 
than the methodology applied to determine eligibility ``under the State 
plan most closely categorically related.'' For the latter populations, 
prior to the enactment of the ACA, the aid to families with dependent 
child AFDC program methodologies were generally used (42 CFR 
435.601(a), (b), and (d)(2)(ii)). However, section 2002(a) of the ACA 
amended section 1902(e) of the Act which, at paragraph (14)(A), 
requires that, notwithstanding section 1902(r)(2) of the Act (or any 
other provision of title XIX of the Act), States use MAGI-based 
methodologies in determining individuals' Medicaid eligibility unless 
the individual is excepted from such methodologies under section 
1902(e)(14)(D) of the Act.\21\ Implemented in our regulations at 42 CFR 
435.603(j), these exceptions include, but are not limited to, 
individuals who are age 65 years old or older; have blindness or a 
disability; are being evaluated for coverage as medically needy; or 
request need for coverage of long-term services and supports (LTSS). 
This means, for example, that in determining financial eligibility for 
an optional eligibility group in which being at least 65 years old is a 
requirement, SSI-based methodologies (as the most closely related cash 
assistance program) and not MAGI-based methodologies apply, and States 
must apply a methodology no more restrictive than the methodology of 
the SSI program. Similarly, in determining eligibility for a medically 
needy group of parents and caretaker relatives, States must apply a 
methodology no more restrictive than the methodology of the former AFDC 
program.\22\
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    \21\ MAGI-based methodologies are the rules described in section 
36B(d)(2)(B) of the U.S. Internal Revenue Code.
    \22\ Because the AFDC program no longer exists, we have 
permitted States, where AFDC methodologies otherwise apply, to use 
MAGI-like methodologies instead of AFDC methodologies in determining 
eligibility for the medically needy. 42 CFR 435.831(b)(1)(ii). 
Disregards under section 1902(r)(2)(A) of the Act may be applied to 
individuals whose eligibility is determined using these ``MAGI-
like'' methodologies. For a discussion of MAGI-like methodologies, 
see 81 FR 86382, 86415-86418 (November 30, 2016). We have proposed 
that States have the option to apply MAGI-like methodologies in all 
circumstances in which AFDC methodologies otherwise apply. 87 FR 
54842.
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    Importantly, for any group to which SSI, AFDC, or MAGI-like 
methodologies apply, States may utilize the authority under section 
1902(r)(2)(A) of the Act to apply a ``less restrictive'' methodology; 
that is, they may elect to disregard income and/or resources that would 
otherwise be countable under the relevant methodology. For example, 
under SSI methodologies, $20 of an individual's otherwise countable 
monthly income is disregarded in determining income eligibility. A 
State Medicaid agency, using the authority under section 1902(r)(2)(A) 
of the Act, could adopt an additional monthly income disregard of $100 
for an eligibility group to which SSI methodologies apply.\23\
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    \23\ Section 1902(r)(2) of the Act does not limit the amount of 
an income or a resource disregard. States could, for example, 
disregard all countable income and/or resources for an eligibility 
under the authority of section 1902(r)(2) of the Act. Under 42 CFR 
435.1007(e), the Federal financial participation (FFP)-related 
income limits are applied after application of cash assistance 
income deductions and any disregards in the State plan authorized 
under section 1902(r)(2) of the Act.
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    In 1993, we implemented the less-restrictive methodology authority 
in section 1902(r)(2)(A) of the Act at 42 CFR 435.601(d)(4) (58 FR 
4908-01, 4929-4930 (January 19, 1993)). We confirmed in the regulation 
the eligibility groups to which States may apply less restrictive 
methodologies, which include: optional categorically needy groups 
described in section 1902(a)(10)(A)(ii) of the Act; medically needy 
groups described in section 1902(a)(10)(C) of the Act; the mandatory 
group serving individuals 65 years old or older; who have blindness or 
disabilities in States that have exercised the option in section 
1902(f) of the Act to apply more restrictive criteria to these 
populations than SSI (so-called ``section 209(b) States''); and 
Qualified Medicare Beneficiaries described in sections

[[Page 82524]]

1902(a)(10)(E) and 1905(p) of the Act. Additionally, the current 
regulation requires that any less restrictive methodologies elected by 
a State must be ``comparable for all persons within each category of 
assistance within an eligibility group.'' As further explained in 42 
CFR 435.601(d)(4): ``For example, if the agency chooses to apply less 
restrictive income or resource methodology to an eligibility group of 
aged individuals, it must apply that methodology to all aged 
individuals within the selected group.''
    In 2001, we issued guidance on the use of less restrictive 
methodologies by States (``Medicaid Eligibility Groups and Less 
Restrictive Methods of Determining Countable Income and Resources 
Questions and Answers,'' May 11, 2001 (May 2001 guidance)). As 
explained in the May 2001 guidance, an ``eligibility group'' under 
section 1902(a)(10)(A)(ii) of the Act for purposes of less restrictive 
methodologies is created by applying the eligibility requirements 
described in any of the clauses of section 1902(a)(10)(A)(ii) of the 
Act (for example, section 1902(a)(10)(A)(ii)(I) of the Act) to one of 
the categorical populations described in section 1905(a) of the Act 
(for example, individuals under the age of 21, or at the option of a 
State, under the age of 20, 19, or 18, as described in section 
1905(a)(i) of the Act).
    For example, a State could elect to apply the eligibility criteria 
described in section 1902(a)(10)(A)(ii)(V) of the Act (relating to 
individuals in medical institutions for at least 30 consecutive days 
whose incomes do not exceed 300 percent of the SSI Federal benefit 
rate) to individuals 65 years old or older (the population described in 
section 1905(a)(iii) of the Act). A State similarly could apply the 
eligibility criteria described in section 1902(a)(10)(A)(ii)(V) of the 
Act to other categorical populations described in section 1905(a) of 
the Act, such as individuals who have blindness or disabilities 
(section 1905(a)(vii) of the Act) or individuals under age 21 (section 
1905(a)(i) of the Act). As explained in the May 2001 guidance, the 
election of the optional eligibility category at section 
1902(a)(10)(A)(ii)(V) of the Act and a population in section 1905(a) of 
the Act (for example, individuals 65 years old or older) forms a 
singular eligibility group.\24\
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    \24\ As also explained in the May 2001 guidance, medically needy 
groups are created in the same manner; for example, a State that has 
adopted the medically needy category in section 1902(a)(10)(C) of 
the Act (that is, the medically needy) and elects to include the 
population described in section 1905(a)(ii) of the Act (parents and 
caretaker relatives) forms a singular medically needy group. Section 
1902(a)(10)(C) of the Act requires that States that select the 
medically needy category must adopt a medically needy group for 
children under 18 and a medically needy group for pregnant 
individuals.
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    Thus, consistent with 42 CFR 435.601(d)(4), if a State that covers 
an eligibility group of individuals 65 years old and older who have 
been in a medical institution for at least 30 consecutive days wants to 
adopt a resource disregard of $5,000 of otherwise countable resources, 
the State must apply the disregard to all 65 and older individuals who 
are seeking coverage under the group; the State could not target the 
disregard at only certain 65 and older individuals seeking eligibility 
in the group, for example individuals age 65 and older with a diagnosed 
cognitive impairment.
    Section 1902(r)(2)(A) of the Act does not expressly impose, and we 
did not identify a specific legal rationale in the proposed or final 
rule requiring, the ``comparability'' mandate that we incorporated into 
42 CFR 435.601(d)(4). 54 FR 39421, 39433 (September 26, 1989); 58 FR 
4908, 4919 (January 19, 1993). Section 1902 of the Act contains two 
separate provisions which are commonly referred to as ``comparability'' 
rules: section 1902(a)(10)(B) of the Act, which requires that the 
amount, duration, and scope of the medical assistance available to any 
categorically needy individuals must not be less than the medical 
assistance available to any other categorically needy individuals 
(subject to express exceptions in the statute); and section 1902(a)(17) 
of the Act, which requires that eligibility standards, subject to 
certain exceptions, must be ``comparable for all groups.''
    Upon further analysis, we conclude that neither section 
1902(a)(10)(B) of the Act nor section 1902(a)(17) of the Act requires 
that a State adopting a less restrictive methodology for a given 
eligibility group apply such methodology to all individuals seeking 
coverage under the group. First, a State's use of a less restrictive 
methodology for an eligibility group would never alter the amount, 
duration, and scope of medical assistance available within the group, 
which means the comparability mandate in section 1902(a)(10)(B) of the 
Act would never be implicated by a less restrictive methodology. 
Second, the comparability mandate in section 1902(a)(17) of the Act 
refers to standards, not methodologies, which are different terms and 
which we have in the past expressly defined differently. ``Standard'' 
refers to the dollar level that a person's income or resources cannot 
exceed to qualify for Medicaid; ``methodology'' refers to the rules for 
determining what sources and amounts of income and resources will be 
counted in determining whether a person's income exceeds the income and 
resource standard. 54 FR 39421-01, 39430 (September 26, 1989). Thus, we 
conclude that the incorporation of a comparability mandate into 42 CFR 
435.601(d)(4) was a policy choice that was not mandated by Federal law.
    In addition, section 3(b) of the Sustaining Excellence in Medicaid 
Act (Pub. L. 116-39, enacted in 2019) directed that nothing in section 
1902(a)(17) of the Act should be construed as prohibiting a State from 
adopting income or resource disregards under section 1902(r)(2) of the 
Act exclusively for people who need home and community-based services 
(HCBS) authorized under various authorities. In other words, section 
3(b) of the Sustaining Excellence in Medicaid Act confirmed that, at 
least with regard to the use of section 1902(r)(2)-related authority to 
target income and/or resource disregards at people who need HCBS, the 
comparability mandate in section 1902(a)(17) of the Act does not impose 
a bar. We believe that this provides further support for the view that 
the comparability mandate in section 1902(a)(17) of the Act should not 
be considered to require comparability in the use of less restrictive 
methodologies under section 1902(r)(2)(A) of the Act.\25\
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    \25\ For further information, see CMS State Medicaid Director 
Letter 21-004, ``State Flexibilities to Determine Financial 
Eligibility for Individuals in Need of Home and Community-Based 
Services.'' https://www.medicaid.gov/sites/default/files/2021-12/smd21004_0.pdf.
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    Over the years, a number of States also have sought to target 
income and/or resource disregards to other populations within an 
eligibility group without applying the disregard to all, including, for 
example, individuals with disabilities who have accumulated resources 
through saving their earned income. Under this example, the eligibility 
group serving individuals with disabilities who have earned income has 
comparatively higher resource standard than other eligibility groups 
with a resource standard to allow these individuals to save their 
earned income. When these individuals stop working and must qualify in 
a separate eligibility group to maintain their Medicaid, most typically 
one with a much lower resource standard, they may be faced with the 
choice of forgoing Medicaid coverage or exhausting the savings they 
were effectively incentivized to accumulate in their

[[Page 82525]]

original eligibility group in order to retain their Medicaid 
eligibility. States cannot address this predicament without effectively 
increasing the resource standard for everyone in the new group because 
States currently cannot, consistent with the comparability mandate in 
42 CFR 435.601(d)(4), target a resource disregard at applicants for a 
particular eligibility group based on their previous eligibility in a 
separate group.
    For these reasons, we are proposing to eliminate paragraph (d)(4) 
from 42 CFR 435.601, which would allow States to target income and/or 
resource disregards at discrete subpopulations in the same eligibility 
group, provided the subpopulation is reasonable and does not violate 
other Federal statutes (for example, it does not discriminate based on 
race, gender, sexual orientation or disability). We believe this would 
increase State flexibility and provide States more options to extend 
eligibility to specific populations based on the State's circumstances. 
As noted above, this proposed regulatory change would not be applicable 
to eligibility groups to which MAGI-based financial methodologies apply 
but could be applied to most non-MAGI eligibility groups. In enacting 
the Sustaining Excellence in Medicaid Act, Congress recognized that the 
ability to target income and resource disregards at people who need 
HCBS provides States a critical tool in their efforts to ``rebalance'' 
their LTSS programs and move institutionalized individuals to 
community-based care. We similarly believe that more broadly 
eliminating the comparability rule in the use of income and/or resource 
disregards would enable States to achieve targeted expansions of 
coverage that best meet their needs, in contrast to the all-or-nothing 
approach that is effectively required by the current regulation.
    It is possible that, in eliminating the comparability rule from 42 
CFR 435.601(d), a State might narrow an existing disregard that is 
broadly available to an eligibility group to discrete members of the 
group. However, CMS has not received inquiries from States on the 
feasibility of such an approach to the same extent that we have 
received questions from States on whether they may use income and/or 
resource disregards to expand eligibility in a targeted manner. CMS 
believes that, in the absence of a comparability rule in 42 CFR 
435.601(d), States would on the whole utilize disregard-related 
authority to expand eligibility instead of contracting it.
    Consistent with 42 CFR 435.601(f)(2), under the proposed revisions 
to 42 CFR 435.601(d), States would continue to be required to submit a 
State plan amendment describing any new less restrictive methodologies 
the State seeks to apply and the groups to which it seeks to apply such 
methodologies. We also confirm that eliminating paragraph (d)(4) from 
42 CFR 435.601 would not mean that States would be required to target 
any new income or resource disregards or modify any existing ones. The 
proposed change simply provides States with additional flexibility to 
do so.
    We propose to amend 42 CFR 435.601 to: eliminate the current 
language of paragraph (d)(4); and redesignate the current paragraph 
(d)(5) as paragraph (d)(4). We seek comment on our proposal.
2. Changes to the Basic Health Program Regulations (42 CFR 600.320)
    Section 1331 of the Patient Protection and Affordable Care Act, as 
amended by the Health Care and Education Reconciliation Act of 2010 
(Pub. L. 111-152, enacted March 30, 2010), provides States with the 
option to operate a Basic Health Program (BHP). In the States that 
elect to operate a BHP, the State's BHP makes affordable health 
benefits coverage available for lawfully present individuals under age 
65 with household incomes between 133 and 200 percent of the Federal 
poverty level (FPL) (or in the case of a lawfully present non-citizen, 
ineligible for Medicaid or the Children's Health Insurance Program 
(CHIP) due to immigration status, with household incomes between zero 
and 200 percent of the FPL) who are not eligible for Medicaid, CHIP, or 
other minimum essential coverage. As of the date of this proposed rule, 
only New York and Minnesota have implemented a BHP.
    Under current 42 CFR 600.320(c), States must establish a uniform 
method of determining the effective date of eligibility for enrollment 
in a standard health plan following either the Medicaid process at 42 
CFR 435.915 exclusive of Sec.  435.915(a) or the Exchange standards at 
45 CFR 155.420(b)(1).
    Under the Medicaid rules at Sec.  435.915, the effective date of an 
individual's eligibility is also the effective date of coverage. Under 
the Exchange rules at 45 CFR 155.420(b)(1), an individual must first be 
determined to be a qualified individual (that is, eligible to enroll in 
a QHP through an Exchange). After that determination is made, the 
individual can make a plan selection. The Exchange coverage effective 
date is then determined based on when the qualified individual selects 
their plan. If the plan selection is made between the first and 
fifteenth day of the month, coverage will be effective the first day of 
the month following the plan selection month. If the plan selection is 
made between the sixteenth and the last day of the month, coverage will 
be effective the first day of the second month following the plan 
selection month.
    In States selecting the Medicaid process at 42 CFR 435.915 
exclusive of Sec.  435.915(a), eligibility for enrollment in a standard 
health plan in the BHP can be effective on either the date the 
application was submitted or the first day of the month of such month. 
In States selecting the Exchange standards at 45 CFR 155.420(b)(1), an 
individual is eligible to enroll in a standard health plan in the BHP 
on the first day of the month following the month of application if 
that individual is found eligible to enroll in a standard health plan 
between the first and the fifteenth of such month. Furthermore, under 
the Exchange standards if an individual is found eligible to enroll in 
a standard health plan between the sixteenth and the last day of any 
month, the individual will have an eligibility effective date of the 
first day of the second following month. A State operating a BHP may 
require an eligible individual to select a plan and/or pay a premium 
prior to the coverage.
    Although the current BHP regulation provides States with some 
flexibility in establishing an effective eligibility date, it does not 
permit a State to select a standard in which all applicants who meet 
all requirements are eligible to enroll in a standard health plan in 
the BHP effective the first day of the month following the month of 
application or eligibility determination regardless of when they apply 
or are found eligible to enroll in a standard health plan in the BHP. 
As an example, to help to illustrate this point, if an individual 
applied on July 7, Medicaid rules would allow a BHP to determine an 
individual eligible for enrollment in a standard health plan on July 1 
or July 7. If an individual applied on July 7 and was determined BHP-
eligible on July 15, in a State that follows Exchange rules, the 
individual would be eligible for enrollment in a standard health plan 
on August 1. If the individual was determined BHP-eligible on July 23 
in a State that follows Exchange rules, the individual would be 
eligible for enrollment in a standard health plan on September 1; the 
State could not choose to have coverage start on August 1, regardless 
of the date of application.

[[Page 82526]]

Even in a State with real-time eligibility determinations, if the State 
follows Exchange rules and the application is on July 23, the 
individual would be eligible for enrollment in a standard health plan 
on September 1.
    We believe eligible individuals should have access to coverage as 
soon as is feasible. Since the BHP and Exchange standards were first 
established, HHS has taken steps to provide further flexibility for 
States to reduce barriers to enrollment and eliminate coverage gaps. 
Additionally, system improvements have provided faster and more 
accurate eligibility determinations. For example, in practice, all 
special enrollment periods on the FFEs now allow coverage to start at 
the beginning of the month after the qualifying individual's triggering 
event regardless of the plan selection date.
    While the Medicaid process at 42 CFR 435.915, exclusive of Sec.  
435.915(a), allows for a State operating a BHP to have the earliest 
possible effective date for its enrollees, we understand that some 
States may have operational or regulatory constraints that do not allow 
them to follow the Medicaid process, but may be able to implement an 
effective date for all eligible applicants the first day of the month 
after the month in which the eligibility determination is made, 
regardless of which day of the month such determination occurs.
    Therefore, we propose to revise Sec.  600.320(c) to add a third 
option at paragraph (c)(iii) that would allow a State operating a BHP 
to follow an effective date of eligibility for all enrollees on the 
first day of the month following the month in which BHP eligibility is 
determined. Because States can require individuals to pay their first 
month's premium prior to enrolling in a standard health plan, Sec.  
600.320(c)(iii) also reflects this State option. Under Sec.  
600.320(c)(i), States will continue to have the option to follow the 
Exchange standards at 45 CFR 155.420(b)(1) and under Sec.  
600.320(c)(ii), a State may follow Medicaid standards at 42 CFR 435.915 
exclusive of Sec.  435.915(a).
    We considered an alternative option of whether to instead allow a 
State to establish its own uniform effective date policy, outside of 
following the three options in this proposed rule, subject to CMS 
approval and as long as it is no later than the first day of the second 
month following the date that an individual has been determined BHP-
eligible. This alternative option, however, may cause delays in 
coverage even further. We seek comment on the proposed additional 
option for determining the effective date of eligibility for enrollment 
in a standard health plan as well as the alternative option.

C. 45 CFR Part 153--Standards Related to Reinsurance, Risk Corridors, 
and HHS Risk Adjustment

    In subparts A, D, G, and H of part 153, we established standards 
for the administration of the risk adjustment program. The risk 
adjustment program is a permanent program created by section 1343 of 
the ACA that transfers funds from lower-than-average risk, risk 
adjustment covered plans to higher-than-average risk, risk adjustment 
covered plans in the individual, small group markets, or merged 
markets, inside and outside the Exchanges. In accordance with Sec.  
153.310(a), a State that is approved or conditionally approved by the 
Secretary to operate an Exchange may establish a risk adjustment 
program or have HHS do so on its behalf.\26\ We did not receive any 
requests from States to establish and operate a risk adjustment program 
for the 2025 benefit year. Therefore, HHS will operate risk adjustment 
in every State and the District of Columbia for the 2025 benefit year.
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    \26\ See also 42 U.S.C. 18041(c)(1).
---------------------------------------------------------------------------

1. Sequestration
    In accordance with the OMB Report to Congress on the Joint 
Committee Reductions for Fiscal Year 2024, the HHS-operated risk 
adjustment program is subject to the fiscal year 2024 
sequestration.\27\ The Federal Government's 2024 fiscal year began on 
October 1, 2023. Therefore, the HHS-operated risk adjustment program 
will be sequestered at a rate of 5.7 percent for payments made from 
fiscal year 2024 resources (that is, funds collected during the 2024 
fiscal year).
---------------------------------------------------------------------------

    \27\ OMB. (2023, March 13). OMB Report to the Congress on the 
BBEDCA 251A Sequestration for Fiscal Year 2024. https://www.whitehouse.gov/wp-content/uploads/2023/03/BBEDCA_Sequestration_Report_and_Letter_3-13-2024.pdf.
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    HHS, in coordination with OMB, has determined that, under section 
256(k)(6) of the Balanced Budget and Emergency Deficit Control Act of 
1985,\28\ as amended, and the underlying authority for the HHS-operated 
risk adjustment program, the funds that are sequestered in fiscal year 
2024 from the HHS-operated risk adjustment program will become 
available for payment to issuers in fiscal year 2025 without further 
Congressional action. If Congress does not enact deficit reduction 
provisions that replace the Joint Committee reductions, the program 
would be sequestered in future fiscal years, and any sequestered 
funding would become available in the fiscal year following that in 
which it was sequestered.
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    \28\ Public Law 99-177 (1985).
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    Additionally, we note that the Infrastructure Investment and Jobs 
Act \29\ amended section 251A(6) of the Balanced Budget and Emergency 
Deficit Control Act of 1985 and extended sequestration for the HHS-
operated risk adjustment program through fiscal year 2031 at a rate of 
5.7 percent per fiscal year.<SUP>30 31</SUP>
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    \29\ Public Law 117-58, 135 Stat. 429 (2021).
    \30\ 2 U.S.C. 901a.
    \31\ The Infrastructure Investment and Jobs Act (Pub. L. 117-58) 
extended sequestration for the HHS-operated risk adjustment program 
through 2031 at a rate of 5.7 percent per fiscal year.
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2. HHS Risk Adjustment (Sec.  153.320)
    The HHS risk adjustment models predict plan liability for an 
average enrollee based on that person's age, sex, and diagnoses (also 
referred to as hierarchical condition categories (HCCs)), producing a 
risk score. The HHS risk adjustment methodology utilizes separate 
models for adults, children, and infants to account for clinical and 
cost differences in each age group. In the adult and child models, the 
relative risk assigned to an individual's age, sex, and diagnoses are 
added together to produce an individual risk score. Additionally, to 
calculate enrollee risk scores in the adult models, we added enrollment 
duration factors

[[Page 82527]]

beginning with the 2017 benefit year,\32\ and prescription drug 
categories (RXCs) beginning with the 2018 benefit year.\33\ Starting 
with the 2023 benefit year, we removed the severity illness factors in 
the adult models and added interacted HCC count factors (that is, 
additional factors that express the presence of a severity or 
transplant HCC in combination with a specified number of total payment 
HCCs or HCC groups on the enrollee's record) to the adult and child 
models \34\ applicable to certain severity and transplant HCCs.\35\
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    \32\ For the 2017 through 2022 benefit years, there is a set of 
11 binary enrollment duration factors in the adult models that 
decrease monotonically from one to 11 months, reflecting the 
increased annualized costs associated with fewer months of 
enrollments. See, for example, 81 FR 94071 through 94074. These 
enrollment duration factors were replaced beginning with the 2023 
benefit year with HCC-contingent enrollment duration factors for up 
to 6 months in the adult models. See, for example, 87 FR 27228 
through 27230.
    \33\ For the 2018 benefit year, there were 12 RXCs, but starting 
with the 2019 benefit year, the two severity-only RXCs were removed 
from the adult models. See, for example, 83 FR 16941.
    \34\ See Table 1 for a list of factors in the adult models, and 
Table 2 for a list of factors in the child models.
    \35\ See 87 FR 27224 through 27228.
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    Infant risk scores are determined by inclusion in one of 25 
mutually exclusive groups, based on the infant's maturity and the 
severity of diagnoses. If applicable, the risk score for adults, 
children, or infants is multiplied by a cost sharing reduction (CSR) 
adjustment factor. The enrollment-weighted average risk score of all 
enrollees in a particular risk adjustment covered plan (also referred 
to as the plan liability risk score (PLRS)) within a geographic rating 
area is one of the inputs into the State payment transfer formula,\36\ 
which determines the State transfer payment or charge that an issuer 
will receive or be required to pay for that plan for the applicable 
State market risk pool for a given benefit year. Thus, the HHS risk 
adjustment models predict average group costs to account for risk 
across plans, in keeping with the Actuarial Standards Board's Actuarial 
Standards of Practice for risk classification.
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    \36\ The State payment transfer formula refers to the part of 
the Federally certified risk adjustment methodology that applies in 
States where HHS is responsible for operating the program. The 
formula calculates payments and charges at the State market risk 
pool level (prior to the calculation of the high-cost risk pool 
payment and charge terms that apply beginning with the 2018 benefit 
year). See, for example, 81 FR 94080.
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a. Data for HHS Risk Adjustment Model Recalibration for the 2025 
Benefit Year
    We are proposing to recalibrate the 2025 benefit year HHS risk 
adjustment models with the 2019, 2020, and 2021 enrollee-level EDGE 
data. Consistent with the approach outlined in the 2020 Payment Notice 
to no longer use MarketScan[supreg] data for recalibrating the HHS risk 
adjustment models, we propose to recalibrate the HHS risk adjustment 
models for the 2025 benefit year using only enrollee-level EDGE data, 
and we would continue to use blended, or averaged, coefficients from 
the 3 years of separately solved models for the 2025 benefit year model 
recalibration.\37\ Additionally, as outlined in the 2022 Payment Notice 
(86 FR 24140, 24152), we propose to use the 3 most recent consecutive 
years of enrollee-level EDGE data that are available at the time we 
incorporate the data in the draft recalibrated coefficients published 
in the proposed rule for the applicable benefit year,\38\ and would not 
update the coefficients between the proposed and final rules if an 
additional year of enrollee-level EDGE data becomes available for 
incorporation. We believe this promotes stability, better meets the 
goal of the HHS-operated risk adjustment program and allows issuers 
more time to incorporate this information when pricing their plans for 
the upcoming benefit year.
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    \37\ 84 FR 17463 through 17466.
    \38\ Although we do receive the next year of enrollee-level EDGE 
data prior to the proposed rule, that data must go through several 
quality and analysis checks before it is useable for HHS risk 
adjustment model recalibration.
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    In the 2024 Payment Notice (88 FR 25740 through 25749), we 
finalized the use of 2018, 2019 and 2020 benefit year enrollee-level 
EDGE data for recalibration of the 2024 benefit year HHS risk 
adjustment models for all model coefficients, with no exceptions. As 
explained in the 2024 Payment Notice proposed rule \39\ and final 
rule,\40\ we analyzed the 2020 benefit year data to identify possible 
impacts of the COVID-19 PHE and our analysis generally found that the 
2020 enrollee-level EDGE data were anomalous primarily in the volume 
and frequencies of certain types of claims, but that the relative costs 
of specific services, at least those associated with payment HCCs in 
the HHS risk adjustment models, were largely unaffected. Because the 
HHS risk adjustment models predict relative costs of care for specific 
conditions on an enrollee-level basis and tend not to rely on overall 
patterns of utilization, the minimal impacts to relative costs of care 
for payment HCCs likewise resulted in minimal impacts on the 
coefficients fitted by the 2020 enrollee-level EDGE recalibration data.
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    \39\ 87 FR 78215 through 78216.
    \40\ 88 FR 25749 through 25753.
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    Considering that the COVID-19 PHE was still in effect throughout 
the 2021 benefit year,\41\ we recognize that some interested parties 
may continue to be concerned about the use of either the 2020 or 2021 
enrollee-level EDGE data for the purposes of HHS risk adjustment model 
recalibration. In this regard, we conducted additional analyses to 
determine whether any anomalies in the 2021 benefit year enrollee-level 
EDGE data were present beyond expected year-to-year variation and 
whether the use of two years of PHE-impacted data presented any 
additional concerns. We did not identify any such anomalies and note 
that all draft coefficients for the 2025 benefit year HHS risk 
adjustment models in this proposed rule vary from their values in the 
2024 HHS risk adjustment models within the range of previous year-to-
year coefficient changes.
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    \41\ See, for example, the Renewal of Determination that a 
Public Health Emergency Exists dated February 9, 2023. https://aspr.hhs.gov/legal/PHE/Pages/COVID19-9Feb2023.aspx.
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    As such, we propose to determine coefficients for the 2025 benefit 
year based on a blend of separately solved coefficients from the 2019, 
2020, and 2021 benefit years' enrollee-level EDGE data, with the costs 
of services identified from the data trended between the relevant year 
of data and the 2025 benefit year.\42\ The draft coefficients listed in 
Tables 1 through 6 reflect the use of trended 2019, 2020, and 2021 
benefit year enrollee-level EDGE data, as well as other HHS risk 
adjustment model updates proposed in this proposed rule (including, for 
example, the proposed pricing adjustment for Hepatitis C drugs). 
However, we note that the draft coefficients could change between the 
proposed and final rules if we identify an error after publication of 
this proposed rule or if any proposed model parameters are modified in 
response to comments. In addition, consistent with

[[Page 82528]]

Sec.  153.320(b)(1)(i), if we are unable to finalize the final 
coefficients in time for publication in the final rule, we would 
publish the final coefficients for the 2025 benefit year in guidance 
soon after the publication of the final rule.
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    \42\ As described in the 2016 Risk Adjustment White Paper 
(https://www.cms.gov/cciio/resources/forms-reports-and-other-resources/downloads/ra-march-31-white-paper-032416.pdf) and the 2017 
Payment Notice (81 FR at 12218), we subdivide expenditures into 
traditional drugs, specialty drugs, medical services, and preventive 
services and determine trend factors separately for each category of 
expenditure. In determining these trend factors, we consult our 
actuarial experts, review relevant Unified Rate Review Template 
(URRT) submission data, analyze multiple years of enrollee-level 
EDGE data, and consult National Health Expenditure Accounts (NHEA) 
data as well as external reports and documents published by third 
parties. In this process, we aim to determine trends that reflect 
changes in cost of care rather than gross growth in expenditures. As 
such, we believe the trend factors we used for each expenditure 
category for the 2025 benefit year are appropriate for the most 
recent changes in cost of care that we have seen in the market.
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    We seek comment on the proposal to determine 2025 benefit year 
coefficients for the HHS risk adjustment models based on a blend of 
separately solved coefficients from the 2019, 2020, and 2021 enrollee-
level EDGE data.
b. Pricing Adjustment for the Hepatitis C Drugs
    For the 2025 benefit year, we propose to continue applying a market 
pricing adjustment to the plan liability associated with Hepatitis C 
drugs in the HHS risk adjustment models.\43\ Since the 2020 benefit 
year HHS risk adjustment models, we have been making a market pricing 
adjustment to the plan liability associated with Hepatitis C drugs to 
reflect future market pricing prior to solving for coefficients for the 
models.\44\ The purpose of this market pricing adjustment is to account 
for significant pricing changes between the data years used for 
recalibrating the models and the applicable benefit year of HHS risk 
adjustment as a result of the introduction of new and generic Hepatitis 
C drugs.\45\
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    \43\ See for example, 84 FR 17463 through 17466.
    \44\ The Hepatitis C drugs market pricing adjustment to plan 
liability is applied for all enrollees taking Hepatitis C drugs in 
the data used for recalibration.
    \45\ Silseth, S., & Shaw, H. (2021). Analysis of prescription 
drugs for the treatment of hepatitis C in the United States. 
Milliman White Paper. https://www.milliman.com/-/media/milliman/pdfs/2021-articles/6-11-21-analysis-prescription-drugs-treatment-hepatitis-c-us.ashx.
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    We have committed to reassessing this pricing adjustment with 
additional years of enrollee-level EDGE data, as data becomes 
available. As part of the 2025 benefit year model recalibration 
analysis, we reassessed the cost trend for Hepatitis C drugs using 
available enrollee-level EDGE data (including 2021 benefit year data) 
to consider whether the adjustment was still needed and if it is still 
needed, whether it should be modified. We found that the data for the 
Hepatitis C RXC that would be used for the 2025 benefit year 
recalibration still do not account for the significant pricing changes 
due to the introduction of new and generic Hepatitis C drugs, and 
therefore, do not precisely reflect the average cost of Hepatitis C 
treatments applicable to the benefit year in question.
    Specifically, although generic Hepatitis C drugs became available 
on the market in 2019,\46\ and therefore were available for all 3 years 
of data proposed to be used for the 2025 benefit year model 
recalibration, our analysis of the data continued to observe that costs 
for Hepatitis C drugs are not increasing at the same rate as other drug 
costs between the data years and the applicable benefit year of HHS 
risk adjustment, likely due to continued increases in the proportion of 
Hepatitis C drug prescriptions for generic versions of the drugs. As 
such, we do not believe that the trends used to reflect growth in the 
cost of prescription drugs due to inflation and related factors for 
recalibrating the models will appropriately reflect the average cost of 
Hepatitis C treatments expected in the 2025 benefit year. Therefore, we 
continue to believe a market pricing adjustment specific to Hepatitis C 
drugs in the HHS risk adjustment models for the 2025 benefit year is 
necessary to account for the lack of growth in Hepatitis C drug prices 
relative to other prescription drugs in the market between the data 
years used for recalibrating the models and the applicable benefit year 
of HHS risk adjustment due to the introduction of new and generic 
Hepatitis C drugs in recent years. We intend to continue to assess this 
pricing adjustment as part of future benefit year model recalibrations 
using available additional years of enrollee-level EDGE data.
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    \46\ See Miligan, J, (2018). A perspective from our CEO: Gilead 
Subsidiary to Launch Authorized Generics to Treat HCV. Gilead. 
https://www.gilead.com/news-and-press/company-statements/authorized-generics-for-hcv. See also AbbVie. (2017). AbbVie Receives U.S. FDA 
Approval of MAVYRET<SUP>TM</SUP> (glecaprevir/pibrentasvir) for the 
Treatment of Chronic Hepatitis C in All Major Genotypes (GT 1-6) in 
as Short as 8 Weeks. Abbvie. https://news.abbvie.com/news/abbvie-receives-us-fda-approval-mavyret-glecaprevirpibrentasvir-for-treatment-chronic-hepatitis-c-in-all-major-genotypes-gt-1-6-in-as-short-as-8-weeks.htm.
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    We seek comment on our proposal to continue applying a market 
pricing adjustment to the plan liability associated with Hepatitis C 
drugs for the 2025 benefit year.
c. Proposed List of Factors To Be Employed in the HHS Risk Adjustment 
Models (Sec.  153.320)
    The proposed 2025 benefit year HHS risk adjustment model factors 
resulting from the equally weighted (averaged) blended factors from 
separately solved models using the 2019, 2020, and 2021 enrollee-level 
EDGE data are shown in Tables 1 through 6. The adult, child, and infant 
models have been truncated to account for the high-cost risk pool 
payment parameters by removing 60 percent of costs above the $1 million 
threshold.\47\ Table 1 contains proposed factors for each adult model, 
including the age-sex, HCCs, RXCs, RXC-HCC interactions, interacted HCC 
counts, and enrollment duration coefficients. Table 2 contains the 
proposed factors for each child model, including the age-sex, HCCs, and 
interacted HCC counts coefficients. Table 3 lists the proposed HCCs 
selected for the interacted HCC counts factors that would apply to the 
adult and child models. Table 4 contains the proposed factors for each 
infant model. Tables 5 and 6 contain the HCCs included in the infant 
models' maturity and severity categories, respectively.
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    \47\ We are not proposing changes to the high-cost risk pool 
parameters for the 2025 benefit year. Therefore, we would maintain 
the $1 million threshold and 60 percent coinsurance rate.

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d. Cost-Sharing Reduction Adjustments
    We propose to recalibrate the CSR adjustment factors for AI/AN zero 
cost sharing and limited cost sharing CSR plan variant enrollees for 
the 2025 benefit year, and to retain these proposed AI/AN CSR 
adjustment factors, if finalized, for all future benefit years unless 
changed through notice-

[[Page 82546]]

and-comment rulemaking. We also propose to maintain the current CSR 
adjustment factors for silver plan variant enrollees (70 percent, 73 
percent, 87 percent, and 94 percent AV plan variants) \48\ for the 2025 
benefit year and beyond, unless changed through notice-and-comment 
rulemaking.
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    \48\ See 83 FR 16930 at 16953; 84 FR 17478 through 17479; 85 FR 
29190; 86 FR 24181; 87 FR 27235 through 27236; and 88 FR 25772 
through 25774.
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    Since the beginning of the HHS-operated risk adjustment program in 
the 2014 benefit year, we included CSR adjustment factors in the 
calculations under the State payment transfer formula to account for 
anticipated increased demand for health care services due to lower cost 
sharing for CSR enrollees.\49\ At that time, we did not have data 
available on the individual and small group (including merged) markets' 
use of services, and therefore, we based the CSR adjustment factors on 
the available large group market MarketScan[supreg] data.\50\ We have 
proposed and finalized the same CSR adjustment factors since they were 
first established to maintain stability and certainty for issuers.\51\ 
At the same time, we have continued to study these issues and have 
explored a range of options to update the CSR adjustments to improve 
prediction.\52\ Interested parties have also repeatedly requested that 
HHS re-analyze the CSR adjustment factors and consider making 
updates.\53\
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    \49\ 78 FR 15410 at 15421 through 15422.
    \50\ See 77 FR 73117 at 73127 and 78 FR 15410 at 15419 through 
15420. See also HHS-Operated Risk Adjustment Technical Paper on 
Possible Model Changes. (2021, October 26). CMS. https://www.cms.gov/files/document/2021-ra-technical-paper.pdf. Section 
A.3.1.
    \51\ See 83 FR 16930 at 16953; 84 FR 17478 through 17479; 85 FR 
29190; 86 FR 24181; 87 FR 27235 through 27236; and 88 FR 25772 
through 25774.
    \52\ See, for example, the 2024 Payment Notice, 88 FR 25772-
25774. Also see Appendix A, HHS-Operated Risk Adjustment Technical 
Paper on Possible Model Changes. (2021, October 26). CMS. https://www.cms.gov/files/document/2021-ra-technical-paper.pdf.
    \53\ Id.
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    Because our prior analysis of the current CSR adjustment factors 
was based on the extraction and use of national enrollee-level EDGE 
data without issuer or geographic markers,\54\ we did not previously 
have the ability to analyze the distribution of the CSR populations at 
a more granular level (for example, at the issuer, State or rating area 
level). However, with policies finalized in the 2023 Payment Notice (87 
FR 27241 through 27243) and the 2024 Payment Notice (88 FR 25784 
through 25787), we can now extract and use multiple years of enrollee-
level EDGE data with plan ID and rating area markers. This allowed for 
further study of the CSR populations at a more granular level to inform 
potential proposed changes to these factors, including, for example, 
whether certain issuers, States, or rating areas have a high percentage 
of AI/AN enrollment. We have now reconsidered the current CSR 
adjustment factors using several years of EDGE data available to HHS, 
including 2021 benefit year enrollee-level EDGE data with plan ID and 
rating area markers, and analyzed potential changes to the CSR 
adjustment factors at the State market risk pool level.
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    \54\ The 2021 Risk Adjustment Technical Paper provided initial 
analysis on the CSR adjustment factors and their performance with 
the geographical indicators. See Appendix A, HHS-Operated Risk 
Adjustment Technical Paper on Possible Model Changes. (2021, October 
26). CMS. https://www.cms.gov/files/document/2021-ra-technical-paper.pdf.
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    Based on further analysis of all CSR adjustment factors, HHS is not 
proposing changes to the CSR adjustment factors, with the exception of 
the AI/AN CSR plan variant factors.\55\ Our continued study of these 
issues found that adjustments to the CSR adjustment factors for AI/AN 
CSR plan variant enrollees were needed and would be appropriate. As 
described in the 2021 Risk Adjustment Technical Paper,\56\ AI/AN CSR 
plan variant enrollees experienced higher expenditures than non-CSR 
silver enrollees, which may reflect increased demand associated with 
enrollee receipt of the AI/AN zero cost sharing or limited cost sharing 
CSR plan variants or risk characteristics specific to the AI/AN 
population which are not specifically captured by HCCs or other model 
factors. Given these findings, we conducted additional analysis using 
additional benefit years of available enrollee-level EDGE data, 
including the 2021 benefit year data with the plan ID and rating area 
markers, and found that AI/AN CSR plan variant enrollees were 
meaningfully underpredicted in the HHS risk adjustment models. 
Specifically, we evaluated the predictive accuracy of the current AI/AN 
CSR plan variant adjustment factors using the risk term PRs in Table 7 
to measure the accuracy of the entire risk term (including PLRS, metal 
IDFs, CSR adjustment factors, and geographic cost factors) in 
predicting plan liability for this cohort, as measured by actual paid 
PMPM claims. Table 7 shows that in 2021 EDGE data, the risk term PRs 
demonstrate underprediction for AI/AN zero cost sharing and limited 
cost sharing bronze plan variants under the CSR adjustment factors for 
the 2024 benefit year relative to the proposed CSR adjustment factors 
for the 2025 benefit year and beyond.\57\ The risk term PRs demonstrate 
similar underprediction for AI/AN zero cost sharing and limited cost 
sharing bronze plan variants in other EDGE data years.\58\
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    \55\ In the 2021 Risk Adjustment Technical Paper, we concluded 
that, in aggregate, most of the current CSR adjustment factors 
contribute to a reasonable prediction of what plans are paying for 
CSR enrollees, with the exception of CSR adjustment factors for AI/
AN enrollees. Our continued study of these issues, including the 
more recent analysis of 2021 benefit year data, affirmed these 
initial conclusions. Therefore, we propose in this rulemaking to 
update the CSR adjustment factors for AI/AN zero-cost sharing and 
limited cost sharing plan variants and propose to maintain the 
existing CSR adjustment factors for other enrollees. See Appendix A, 
HHS-Operated Risk Adjustment Technical Paper on Possible Model 
Changes. (2021, October 26). CMS. https://www.cms.gov/files/document/2021-ra-technical-paper.pdf.
    \56\ HHS-Operated Risk Adjustment Technical Paper on Possible 
Model Changes. (2021, October 26). CMS. https://www.cms.gov/files/document/2021-ra-technical-paper.pdf.
    \57\ Almost 90 percent of total billable member months in AI/AN 
zero-cost sharing and limited cost sharing CSR plan variants are in 
bronze plans.
    \58\ HHS-Operated Risk Adjustment Technical Paper on Possible 
Model Changes. (2021, October 26). CMS. https://www.cms.gov/files/document/2021-ra-technical-paper.pdf.

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    To address concerns about the observed underprediction among AI/AN 
CSR plan variant enrollees, we propose to update the CSR adjustment 
factors for AI/AN zero-cost sharing and limited cost sharing plan 
variants and use the proposed factors for these enrollees as shown in 
Table 8. We recalibrated these factors such that the risk term PRs for 
each CSR plan variant category equals 1.00 (accurate prediction \59\) 
but constrained each CSR adjustment factor so that no CSR adjustment 
factor would be less than 1.00 to avoid creating incentives for issuers 
to avoid enrolling AI/AN CSR recipients. As shown in Table 7, the risk 
term PRs were demonstrated through simulation to improve under the 
proposed AI/AN CSR adjustment factors for the zero-cost sharing and 
limited cost sharing plans.
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    \59\ A subpopulation that is predicted perfectly would have a PR 
of 1.0.
[GRAPHIC] [TIFF OMITTED] TP24NO23.020

    We believe that these proposed changes to AI/AN CSR adjustment 
factors are important to our efforts to continuously improve the HHS 
risk adjustment models with incremental changes to improve model 
prediction by updating the AI/AN adjustment factors to more accurately 
predict plan liability for this subpopulation. We also believe that 
these proposed changes would increase the incentives for issuers to 
engage the AI/AN population, whose communities have been historically 
underserved and who face significant health disparities. We also 
believe this proposed change would help advance the agency's health 
equity goals and align with the policy objectives in the January 20, 
2021 Executive Order on Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government.\60\
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    \60\ 86 FR 7009.

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[[Page 82548]]

    We also propose to retain the proposed 2025 benefit year CSR 
adjustment factors, if finalized, for future benefit years (that is, 
the 2026 benefit year and beyond) \61\ unless changed through notice-
and-comment rulemaking. Although we could analyze and consider 
potential updates to the CSR adjustment factors every year as part of 
the annual recalibration of the HHS risk adjustment models, we have 
found that the implied CSR adjustment factors calculated from 2018 
through 2022 plan data were stable across each year of data. We also 
want to balance our approach to making changes as part of the annual 
recalibration of the HHS risk adjustment models in future benefit years 
with the desire to maintain stability and predictability for issuers. 
With the proposed changes to the AI/AN CSR adjustment factors, we 
believe the models would better predict risk for AI/AN CSR plan variant 
enrollees such that we do not expect to update the CSR factors on an 
annual basis.\62\ However, if we were to pursue changes to any of the 
CSR adjustment factors in future benefit years, we would propose those 
updates through notice-and-comment rulemaking.
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    \61\ This includes the CSR adjustment factors in Table 8.
    \62\ As outlined previously in this rule, the proposed changes 
to the CSR adjustment factors focus on the AI/AN CSR plan variants 
because our analysis found the CSR adjustment factors for other 
enrollees to be adequate.
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    Lastly, separate from the proposal pertaining to AI/AN CSR 
adjustment factors, we note that for all plan liability risk score 
calculations under the State payment transfer formula, we use the CSR 
adjustment factors that align with the AV of the applicable plan for 
the enrollee. Thus, for unique State-specific plans, we apply the CSR 
adjustment factors that correspond to each plan's AV. Specifically, 
when we identify unique State-specific plans that have higher plan 
liability than the standard plan variants, we utilize the corresponding 
CSR adjustment factor in the plan liability risk score calculation that 
maps to the plan's AV. For example, we use a CSR adjustment factor of 
1.12 for all Massachusetts wrap-around plans with AVs above 94 percent 
in the plan liability risk score calculation.<SUP>63 64</SUP> This 
approach does not apply in the case of States whose State-specific 
plans take the form of Medicaid expansion plans offered on the Exchange 
(for example, Arkansas), because these plans are identical in all their 
parameters, including AV and degree of plan liability, to other plans 
offered on the Exchange in those States and are differentiated from 
their comparable plans only in eligibility criteria and sources of 
funding.\65\ As we identify unique State-specific plans that have 
higher plan liability than the standard plan variants, such as those in 
Massachusetts, we work with the relevant State Department of Insurance 
and other relevant State institutions to identify the applicable CSR 
adjustment factor that corresponds to the unique State-specific plan's 
AV.\66\ We would continue to follow this approach, working with the 
State to identify the applicable CSR adjustment factor that corresponds 
to that State's unique State-specific plan's AV, unless changed through 
notice-and-comment rulemaking.
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    \63\ See, for example, 81 FR 12203 at 12228, 85 FR 29164 at 
29190 and 29191, and 88 FR 25740 at 25772 through 25774.
    \64\ Massachusetts Cost Sharing Subsidies in ConnectorCare: 
Design, Administration, and Impact (2021 Aug.). https://www.mahealthconnector.org/wp-content/uploads/MA-Cost-Sharing-Subsidies-in-ConnectorCare-Brief-083021.pdf.
    \65\ The structure of wrap-around plans in some States, such as 
Massachusetts, differs from the coverage in States who offer 
Medicaid expansion plans on the Exchange. For example, in 
Massachusetts, the higher cost sharing wrap-around plans are 
variations of lower cost sharing plans. As such, the Massachusetts 
wrap-around plans do not have the same AVs as their comparable 
plans. That is why we use a CSR adjustment factor of 1.12 for all 
Massachusetts wrap-around plans with AVs above 94 percent. In 
contrast, in Arkansas, its Medicaid expansion plans are identical to 
other 94 percent and 100 percent AV CSR plan variants offered on the 
Exchange and are distinguished from these identical plans only in 
their sources of funding and eligibility criteria. As such, we 
presently direct issuers in Arkansas who provide Medicaid expansion 
plans with AVs of 94 percent and 100 percent to use specified plan 
variant codes for their Medicaid expansion plans only to 
differentiate the sources of funding and to differentiate between 
populations eligible for the Medicaid expansion plans from those who 
are eligible for standard 94 percent and 100 percent AV CSR plan 
variants. Because the Arkansas Medicaid expansion plans are 
identical to other 94 percent and 100 percent AV CSR plan variants 
available in Arkansas and therefore have the same AVs, we would use 
the proposed CSR adjustment factor of 1.12 for Arkansas 94 percent 
AV Medicaid-expansion plans and the proposed CSR adjustment factor 
that corresponds to the silver metal level zero cost sharing 
variants (that is, the proposed 1.46 CSR adjustment factor for zero 
cost sharing variants) for Arkansas 100 percent AV Medicaid-
expansion plans in the plan liability risk score calculation. See 
CMS approval of Arkansas's section 1115(a) demonstration, ``Arkansas 
Health and Opportunity for Me.'' https://www.medicaid.gov/sites/default/files/2021-12/ar-arhome-ca.pdf.
    \66\ For a list of the unique State-specific CSR levels that 
have higher plan liability than the standard plan variants, for 
which we utilize the corresponding CSR adjustment factor that maps 
to the plan's AV, refer to the applicable benefit year's DIY 
Software on the CMS website. See, for example, the Draft 2023 
Benefit Year DIY Software on the CMS website (August 22, 2023). 
https://www.cms.gov/files/document/cy2023-diy-instructions-08222023.pdf.
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    We seek comment on these proposals.
e. Model Performance Statistics
    Each benefit year, to evaluate the HHS risk adjustment model 
performance, we examine each model's R-squared statistic and predictive 
ratios (PRs). The R-squared statistic, which calculates the percentage 
of individual variation explained by a model, measures the predictive 
accuracy of the model overall. The PR for each of the HHS risk 
adjustment models is the ratio of the weighted mean predicted plan 
liability for the model sample population to the weighted mean actual 
plan liability for the model sample population. The PR represents how 
well the model does on average at predicting plan liability for that 
subpopulation.
    A subpopulation that is predicted perfectly would have a PR of 1.0. 
For each of the current and proposed HHS risk adjustment models, the R-
squared statistic and the PRs are in the range of published estimates 
for concurrent HHS risk adjustment models.\67\ Because we propose to 
blend the coefficients from separately solved models based on the 2019, 
2020, and 2021 benefit years' enrollee-level EDGE data, we are 
publishing the R-squared statistic for each model separately to verify 
their statistical validity. The R-squared statistics for the proposed 
2025 benefit models are shown in Table 9.
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    \67\ Hileman, G., & Steele, S. (2016). Accuracy of Claims-Based 
Risk Scoring Models. Society of Actuaries. https://www.soa.org/4937b5/globalassets/assets/files/research/research-2016-accuracy-claims-based-risk-scoring-models.pdf.

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3. Overview of the HHS Risk Adjustment Methodology (Sec.  153.320)
    In part 2 of the 2022 Payment Notice (86 FR 24183 through 24186), 
we finalized the proposal to continue to use the State payment transfer 
formula finalized in the 2021 Payment Notice for the 2022 benefit year 
and beyond, unless changed through notice-and-comment rulemaking. We 
explained that under this approach, we will no longer republish these 
formulas in future annual HHS notice of benefit and payment parameter 
rules unless changes are being proposed. We are not proposing any 
changes to the formula in this rule, and therefore, are not 
republishing the formulas in this rule. We therefore would continue to 
apply the formula as finalized in the 2021 Payment Notice (86 FR 24183 
through 24186) \68\ in the States where HHS operates the risk 
adjustment program in the 2025 benefit year. Additionally, as finalized 
in the 2020 Payment Notice (84 FR 17466 through 17468), we will 
maintain the high-cost risk pool parameters for the 2020 benefit year 
and beyond, unless amended through notice-and-comment rulemaking. We 
are not proposing any changes to the high-cost risk pool parameters for 
the 2025 benefit year; therefore, we would maintain the $1 million 
threshold and 60 percent coinsurance rate.\69\
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    \68\ Discussion provided an illustration and further details on 
the State payment transfer formula.
    \69\ See 81 FR 94081. See also 84 FR 17467.
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4. HHS Risk Adjustment User Fee for the 2025 Benefit Year (Sec.  
153.610(f))
    We propose an HHS risk adjustment user fee for the 2025 benefit 
year of $0.20 PMPM. Under Sec.  153.310, if a State is not approved to 
operate, or chooses to forgo operating, its own risk adjustment 
program, HHS will operate risk adjustment on its behalf. For the 2025 
benefit year, HHS will operate risk adjustment in every State and the 
District of Columbia. As described in the 2014 Payment Notice (78 FR 
15416 through 15417), HHS' operation of risk adjustment on behalf of 
States is funded through a risk adjustment user fee. 45 CFR 
153.610(f)(2) provides that, where HHS operates a risk adjustment 
program on behalf of a State, an issuer of a risk adjustment covered 
plan must remit a user fee to HHS equal to the product of its monthly 
billable member enrollment in the plan and the PMPM risk adjustment 
user fee specified in the annual HHS notice of benefit and payment 
parameters for the applicable benefit year.
    OMB Circular No. A-25 established Federal policy regarding user 
fees, and specifies that a user charge will be assessed against each 
identifiable recipient for special benefits derived from Federal 
activities beyond those received by the general public.\70\ The HHS-
operated risk adjustment program provides special benefits as defined 
in section 6(a)(1)(B) of OMB Circular No. A-25 to issuers of risk 
adjustment covered plans because it mitigates the financial instability 
associate with potential adverse risk selection.\71\ The HHS-operated 
risk adjustment program also contributes to consumer confidence in the 
health insurance industry by helping to stabilize premiums across the 
individual, merged, and small group markets.
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    \70\ See Circular No. A-25 Revised. https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf.
    \71\ Id.
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    In the 2024 Payment Notice (88 FR 25740), we calculated the Federal 
administrative expenses of operating the HHS risk adjustment program 
for the 2024 benefit year to result in a risk adjustment user fee rate 
of $0.21 PMPM based on our estimated costs for HHS risk adjustment 
operations and estimated Billable Member Months (BMM) for individuals 
enrolled in risk adjustment covered plans. For the 2025 benefit year, 
HHS proposes to use the same methodology to estimate our administrative 
expenses to operate the HHS risk adjustment program. These costs cover 
development of the models and methodology, collections, payments, 
account management, data collection, data validation, program integrity 
and audit functions, operational and fraud analytics, interested 
parties training, operational support, and administrative and personnel 
costs dedicated to HHS-operated risk adjustment program activities. To 
calculate the HHS risk adjustment user fee, we divided HHS' projected 
total costs for administering the HHS risk adjustment program on behalf 
of States by the expected number of BMM in risk adjustment covered 
plans in States where the HHS-operated risk adjustment program will 
apply in the 2025 benefit year.
    We estimate that the total cost for HHS to operate the risk 
adjustment program on behalf of States for the 2025 benefit year will 
be approximately $65 million, which is more than the approximately $60 
million estimated for the 2024 benefit year. We are projecting 
increased costs due to increased

[[Page 82550]]

contracting costs combined with increased labor costs.
    We also project higher enrollment than our prior estimates in the 
2024 and 2025 benefit years based on the increased enrollment, as 
measured by BMM, between the 2021 and 2022 benefit years in the 
individual non-catastrophic market risk pool in most States, likely due 
to the increased PTC subsidies provided for in the American Rescue Plan 
Act of 2021 (ARP).<SUP>72 73</SUP> In light of the passage of the 
Inflation Reduction Act of 2022 (IRA), in which section 12001 extended 
the enhanced PTC subsidies in section 9661 of the ARP through the 2025 
benefit year, we project there will continue to be increased enrollment 
levels through the 2025 benefit year.\74\ Because we project an 
increased budget to operate the HHS-operated risk adjustment program 
and estimated higher enrollment through the end of the 2025 benefit 
year, we propose a HHS risk adjustment user fee of $0.20 PMPM for the 
2025 benefit year.
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    \72\ ARP. Public Law 117-2 (2021).
    \73\ CMS. (2023, June 30). Summary Report on Permanent Risk 
Adjustment Transfers for the 2022 Benefit Year. (p. 8). https://www.cms.gov/files/document/summary-report-permanent-risk-adjustment-transfers-2022-benefit-year.pdf.
    \74\ Inflation Reduction Act. Public Law 1217-169 (2022).
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    We seek comment on the proposed HHS risk adjustment user fee for 
the 2025 benefit year.
5. Audits and Compliance Reviews of Risk Adjustment Covered Plans 
(Sec.  153.620(c))
    We propose amending Sec.  153.620(c)(4) to require issuers of risk 
adjustment covered plans to complete, implement, and provide to HHS 
written documentation of any corrective action plans when required by 
HHS if a high-cost risk pool audit results in the inclusion of a 
finding \75\ or certain observations \76\ in the final audit report. 
Currently, under Sec.  153.620(c)(4), the completion, implementation, 
and submission of documentation of a corrective action plan to HHS is 
only required if the audit results in the inclusion of a finding in the 
final audit report. Upon completion of the first benefit year of high-
cost risk pool audits (2018 benefit year audits), HHS found that some 
issuers of risk adjustment covered plans made data submission errors to 
their EDGE servers that constituted instances of noncompliance but did 
not result in a financial impact and were therefore only recorded as 
observations in the final audit report. For example, many issuers 
failed to provide adequate documentation of their policies and 
procedures that demonstrate that they are in compliance with the data 
submission requirements for the HHS-operated risk adjustment program, 
such as the applicable benefit year's EDGE Server Business Rules.\77\ 
While such instances of noncompliance did not cause a financial impact, 
and therefore were not identified as audit findings, fully compliant 
policies and procedures, and documentation thereof, are critical to 
ensuring issuer adherence to HHS requirements and the submission of 
accurate data to an issuer's EDGE server.
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    \75\ In the context of high-cost risk pool audits, a ``finding'' 
results from cases of confirmed non-compliance or discovery of 
evidence suggesting noncompliance with applicable Federal 
requirements related to high-cost risk pool payments, which require 
a recoupment of these payments. Centers for Medicare & Medicaid 
Services, Center for Consumer Information and Insurance Oversight 
(CCIIO). (Dec. 2022). Best Practices Overview: Benefit Year (BY) 
2018 HCRP Payment Audits and General EDGE Server Requirements. 
https://regtap.cms.gov/reg_library_openfile.php?id=4234&type=l 
(Login Required).
    \76\ In the context of high-cost risk pool audits, an 
``observation'' results from the identification of areas for 
improvement when there is no evidence of actual non-compliance with 
applicable Federal requirements or when there may be evidence of 
non-compliance with applicable Federal requirements that does not 
require recoupment of these payments. Centers for Medicare & 
Medicaid Services, Center for Consumer Information and Insurance 
Oversight (CCIIO). (Dec. 2022). Best Practices Overview: Benefit 
Year (BY) 2018 HCRP Payment Audits and General EDGE Server 
Requirements. https://regtap.cms.gov/reg_library_openfile.php?id=4234&type=l (Login Required). This 
proposal is limited to observations where there may be evidence of 
non-compliance with applicable Federal requirements.
    \77\ Centers for Medicare & Medicaid Services, Center for 
Consumer Information and Insurance Oversight (CCIIO). (Nov. 2022). 
EDGE Server Business Rules (ESBR) Version 22.0. https://regtap.cms.gov/reg_library_openfile.php?id=3765&type=l (Login 
Required).
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    Furthermore, in these situations, noncompliance may result from 
unintentional negligence where issuers lack proper documentation or the 
ability to locate data due to improper record maintenance and retention 
procedures. In these cases, the accuracy of the issuer's EDGE data may 
still be impacted, as EDGE claims data submission is incremental. For 
example, if an issuer identified an error in one file that does not 
have a financial impact and subsequently corrects the error in that 
file only during the submission period, but does not perform an impact 
analysis to review the accuracy of all claims file submissions and 
correct all claims file submissions that included the same error, the 
issuer's EDGE data will be incorrect even though there may be no 
financial impact with respect to the calculation of HHS risk adjustment 
State transfers or high-cost risk pool amounts. However, since 
enrollee-level data that HHS extracts from issuers' EDGE servers is 
also used for HHS risk adjustment model recalibration, updates to the 
AV methodology and calculator, and other analyses for the commercial 
individual and small group market HHS programs and other Federal HHS 
related programs (for example, Medicaid expansion QHP population and 
non-Federal governmental plans),\78\ it is important that issuers of 
risk adjustment covered plans also take corrective action to address 
instances of noncompliance, including those that result from audit 
findings and audit observations, to ensure that all instances of 
noncompliance identified through audits do not result in unaddressed 
material impact to the enrollee-level data that HHS extracts from 
issuers' EDGE servers and are not repeated in future benefit year data 
submissions. As Sec.  155.620(c)(4) currently only requires corrective 
action plans for findings, instances of noncompliance that result in 
audit observations may be unaddressed by issuers. We are concerned that 
allowing these instances of noncompliance to be unaddressed may impact 
EDGE data integrity in future benefit years, and by requiring these 
corrective action plans, we also intend to help prevent EDGE data 
discrepancies in the future.
---------------------------------------------------------------------------

    \78\ See, for example, 84 FR at 17488 and 87 FR at 27243.
---------------------------------------------------------------------------

    For these reasons, HHS is proposing to require corrective action 
plans for observations identified through HHS risk adjustment 
(including high-cost risk pool) audits when there is evidence of non-
compliance with applicable Federal requirements if required by HHS to 
improve program and data integrity for accurate data submissions to 
issuer EDGE servers. HHS would communicate to the issuer, as part of 
the final audit report, which findings and observations require 
corrective action. Under this proposal, consistent with the existing 
framework in Sec.  155.620(c)(4), HHS would require an issuer of a risk 
adjustment covered plan to provide, within 45 calendar days of the 
issuance of the final audit report, a written corrective action plan 
for any audit findings, as well as audit observations when there is 
evidence of non-compliance with applicable Federal requirements, to HHS 
for approval, implement that plan, and provide to HHS written 
documentation of the corrective actions taken to resolve the root cause 
of the noncompliance identified. This is the same timeline and 
framework that currently applies to corrective action plans that are 
required as a result of findings included in the

[[Page 82551]]

final audit report.\79\ We propose that this change would be applicable 
beginning with 2020 benefit year audits, which we anticipate beginning 
in early 2024.\80\
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    \79\ See 45 CFR 153.620(c)(4). Also see 86 FR at 24192 through 
24194.
    \80\ If 2020 benefit year audits begin in early 2024, we 
anticipate the final audit reports would be completed, with findings 
and observations identified, in late 2024.
---------------------------------------------------------------------------

    We seek comment on this proposal.

D. 45 CFR Part 155--Exchange Establishment Standards and Other Related 
Standards

1. Approval of a State Exchange (Sec.  155.105)
    We propose to amend Sec.  155.105(b) to require that, in addition 
to meeting all other approval standards under Sec.  155.105(b), a State 
seeking to operate a State Exchange must first operate a State-based 
Exchange using the Federal platform (SBE-FP), meeting all requirements 
under Sec.  155.200(f), for at least one plan year, including its open 
enrollment period. This proposal is intended to give States sufficient 
time to create, staff, and structure a State Exchange that could 
transition to operating its own platform and establish relationships 
with interested parties critical to a State Exchange's success in 
operating a Navigator and consumer outreach program, assuming plan 
management responsibilities, and communicating effectively with 
consumers to support enrollment and avoid health care coverage gaps.
    Sections 1311(b) and 1321(b) of the Affordable Care Act (ACA) allow 
States to elect to operate their own health insurance Exchanges to 
provide individuals and employers with health insurance coverage. 
Section 1321(a)(1)(A) of the ACA directs the Secretary to issue 
regulations setting standards with respect to the establishment and 
operation of those Exchanges. Section 155.106 describes different 
Exchange models that States may utilize. A State's choice of model may 
depend on the State's specific needs. State Exchanges offer States the 
ability to maintain more authority over policy and operational 
decisions, including health insurance issuer relationships, plan 
certification, and consumer assistance. However, building and 
maintaining a consumer-oriented, technology-driven marketplace platform 
requires extensive start-up resources, as well as investment of time 
and resources in the establishment of relationships with consumers, 
consumer assisters, partners in the coordination of eligibility 
functions, issuers, and other interested parties.
    To encourage more State authority over Exchange functions, we 
provided States with the flexibility to operate a State Exchange while 
relying on the Federally-facilitated Exchange (FFE) eligibility 
enrollment technology and infrastructure (known as the ``Federal 
platform'') to perform certain Exchange functions. Specifically, as 
finalized in the 2017 Payment Notice (81 FR 12244 through 12246), the 
SBE-FP model allows States to maintain their Exchange's legal status as 
a State Exchange while relying on the Federal platform to perform 
eligibility and enrollment functions and associated consumer call 
center and casework functions. Under the SBE-FP model, States retain 
authority and primary responsibility for plan management functions, 
including QHP certification, and consumer support functions, such as 
operating an informational website and toll-free telephone hotline. 
Under this model, States are also primarily responsible for operating a 
Navigator program. We charge issuers on the SBE-FPs a user fee 
calculated as a percentage of the user fee charged to issuers on the 
FFEs. HHS' Payment Notice final rules set forth the user fee for 
issuers participating in SBE-FPs every year. SBE-FPs may assess an 
additional State-level user fee on issuers for the purposes of 
operating the Exchanges. For Plan Year 2023, three States operated 
Exchanges under the SBE-FP model.
    Over the past several years, we have observed the benefits of 
States first operating an SBE-FP for at least one plan year prior to 
transitioning fully from an FFE to a State Exchange. Operating an SBE-
FP for at least one plan year, including its open enrollment period, 
prior to transitioning to a State Exchange gives States an opportunity 
to focus on investing time and resources needed to implement key 
Exchange functions that involve the establishment of critical and 
necessary relationships with consumers, consumer assisters, partners in 
the coordination of eligibility functions, issuers, and other 
interested parties. Operating an SBE-FP for at least one plan year 
prior to transitioning to a State Exchange also affords States time to 
implement eligibility and enrollment functions which require 
information technology platforms, call centers, and coordination with 
partners, such as State Medicaid agencies. In addition, operating an 
SBE-FP for at least one plan year prior to transitioning to a State 
Exchange gives States more time to engage with partners and interested 
parties to develop various consumer-facing content and consumer 
outreach strategies, all while establishing and gaining experience 
operating a consumer assistance program. Further, when States operate 
an SBE-FP for at least one plan year before operating a State Exchange, 
they are more likely to have the time and resources needed to 
coordinate with the State Department of Insurance to establish policies 
and procedures associated with carrying out plan management functions, 
engage with the issuer community, and develop QHP certification 
requirements and processes. Finally, operating an SBE-FP for at least 
one plan year before transitioning to a State Exchange allows States 
time to familiarize consumers, consumer assisters, partners in the 
coordination of eligibility functions, issuers, and other interested 
parties with operations of the new State Exchange organization ahead of 
engaging with that Exchange, and it mitigates the risks and disruption 
associated with a transition to a State Exchange and simultaneous 
replacement of HealthCare.gov as the eligibility and enrollment pathway 
for those parties.
    We propose to amend Sec.  155.105(b)(4) to require that a State 
seeking to operate a State Exchange must first operate an SBE-FP for at 
least one plan year, including its first open enrollment period, for 
the reasons explained previously in this section.
    We seek comment on this proposal, including the duration of time 
that a State must operate an SBE-FP prior to transitioning to a State 
Exchange.
2. Election To Operate an Exchange After 2014 (Sec.  155.106)
    We propose changes to the Exchange Blueprint (OMB control number: 
0938-1172) requirements for States seeking to operate a State Exchange. 
At Sec.  155.106(a)(2), we propose to add that, as part of a State's 
activities for its establishment of a State Exchange, we would require 
that the State provide supporting documentation demonstrating progress 
toward meeting State Exchange Blueprint requirements, or documentation 
that details a State's plans for how it intends to implement and meet 
the Exchange functional requirements as laid out in the State Exchange 
Blueprint. This could include a State submitting detailed plans 
regarding its State Exchange consumer assistance programs and 
activities, such as information on its direct-to-consumer outreach 
plans, for HHS to assess comparability to the FFEs' consumer assistance 
programs and activities while allowing for State flexibility in its 
approach to best serve the State's

[[Page 82552]]

consumers. Over the past few years, several States have transitioned 
off the Federal platform to establish and operate State Exchanges. In 
our experience providing technical assistance and oversight to States 
that are establishing State Exchanges, we have observed that requesting 
additional detail from States on various aspects of their State 
Exchange implementation plans is imperative to a successful 
establishment of a State Exchange. Ultimately, we seek to support the 
establishment of a successful State Exchange, and the ability to 
request additional detail on a State's State Exchange implementation 
plans is crucial to identifying areas the State may need to reconsider 
or further develop.
    The current State Exchange Blueprint Application provides that we 
may require live demonstrations of Exchange functionality on the State 
Exchange's platform, and/or supporting documentation from a State, as 
evidence of its progress toward meeting State Exchange Blueprint 
Application requirements.\81\ We propose to codify in our regulations 
in order to set a clear expectation for a State establishing a State 
Exchange that, as part of the State's submission of a State Exchange 
Blueprint Application, we have the authority to request any evidence we 
determine necessary for the State to detail its implementation of the 
required State Exchange functionality. This could include HHS requiring 
a State to submit detailed plans regarding its State Exchange consumer 
assistance programs and activities, such as information on its direct 
outreach plans. We would provide guidance and direction to each State 
regarding requests for evidence, so that each State understands the 
purpose of our requests as they relate directly to how the State meets 
the functional requirements for operating a State Exchange. We would 
request supporting documentation from States with the goal of imposing 
minimal burden on States' ability to meet its State Exchange Blueprint 
requirements, while maintaining the objective that our requests would 
provide us with the ability to sufficiently assess a State's readiness 
to operate a State Exchange and ensure that a State is sufficiently 
implementing and scaling policies, procedures, operations, technology, 
and administrative capacities to meet the needs of the State's 
consumers. We would use the information in a State's Exchange Blueprint 
Application, as well as any supporting documentation and evidence, to 
make a determination of whether to grant approval for a State's 
establishment and operation of a State Exchange for its intended first 
open enrollment period.
---------------------------------------------------------------------------

    \81\ CMS. (2021, November 30). Blueprint For Approval of State-
Based Health Insurance Exchanges, Coverage Years Beginning on or 
After 2019. CMS. Section I, p. iii. https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/CMS-Blueprint-Application.pdf.
---------------------------------------------------------------------------

    We also propose to add new Sec.  155.106(a)(2)(i) and (ii) to 
require that when a State submits its State Exchange Blueprint 
application to HHS for approval, the State must provide the public with 
notice and a copy of its State Exchange Blueprint application. To 
facilitate such public notice, HHS would post a State Exchange 
Blueprint application submitted by a State to its public-facing website 
within 90 calendar days of receipt. Further, we propose to require that 
at some point following a State's submission of its State Exchange 
Blueprint application to HHS, a State must conduct at least one public 
engagement (such as a townhall meeting or public hearing) in a timeline 
and manner (for instance, considering whether to conduct in-person and/
or virtually) considered effective by the State, with concurrence from 
HHS, at which interested parties can learn about the State's intent to 
establish a State Exchange and the State's progress toward executing 
that transition. We also propose to require that while a State is in 
the process of establishing a State Exchange and until HHS has approved 
or conditionally approved the State Exchange Blueprint application, a 
State must conduct periodic public engagements at which interested 
parties would continue to learn about the State's progress towards 
establishing a State Exchange, in a timeline and manner considered 
effective by the State with concurrence from HHS.
    As we explained previously, sections 1311(b) and 1321(b) of the ACA 
allow States to elect to operate their own health insurance Exchanges 
to provide individuals and employers with health insurance coverage, 
and section 1321(a)(1)(A) of the ACA directs the Secretary to issue 
regulations setting standards with respect to the establishment and 
operation of those Exchanges. The Exchange Blueprint serves as a 
vehicle for a State to document its progress toward implementing its 
intended Exchange operational model. Section 155.106(a)(2) requires 
States to submit an Exchange Blueprint application for HHS approval at 
least 15 months prior to the date on which the Exchange proposes to 
begin open enrollment with a State Exchange. The submission and 
approval of Exchange Blueprints is an iterative process that generally 
takes place over the course of 15 months prior to a State's first open 
enrollment as a State Exchange. HHS' review and approval of the 
Exchange Blueprint involves providing substantial technical assistance 
to States as they design, finalize, and implement their Exchange 
operations. Further, the establishment of a State Exchange involves 
significant collaboration between HHS and States to develop plans and 
document readiness for the State to transition from an Exchange that 
uses the Federal platform to one that operates its own eligibility and 
enrollment platform. State activities as part of this transition 
process include completing key milestones, meeting established 
deadlines, and implementing contingency measures.
    Certain parties, such as consumers or advocate groups, who may be 
interested in a State's establishment of a State Exchange may not know 
if a State applied to HHS to establish a State Exchange or is in the 
process of establishing a State Exchange. A mandatory process whereby 
States notify the public of their plans to establish State Exchanges 
and provide an opportunity to meet with interested parties to provide 
updates would help ensure that interested parties are aware these 
activities are occurring and can provide input on how States can 
successfully establish State Exchanges. Based on our experience 
supporting and providing oversight to States in their establishment of 
State Exchanges, we believe that States would benefit from having a 
more transparent process to facilitate input from interested parties, 
especially given the impacts of a State Exchange transition on 
interested parties, including consumers and issuers. We believe that 
for a State to maximize consumer gains following its establishment of a 
State Exchange, its interested parties, including consumers, must have 
trust in its State Exchange. Providing opportunities for consumers to 
learn more about a State's planned State Exchange establishment process 
and plans can build that trust and help support a State's enrollment 
goals. We believe that all States that have established a State 
Exchange since PY 2020 conducted public events, such as town halls or 
hearings, where State Exchange establishment activities were discussed. 
States planning to establish State Exchanges could use such public 
events as opportunities to meet the requirements for public engagements 
being proposed. Our goal of the proposed changes at Sec.  
155.106(a)(2)(ii) is to clearly state, for States who are seeking to 
establish State Exchanges,

[[Page 82553]]

our expectations of the States engaging with the public regarding their 
transition to State Exchanges, thus strengthening the transparency 
requirements of the State Exchange Blueprint review and approval 
process. Finally, we believe this proposal would help States that 
establish State Exchanges meet the consultation requirements with 
interested parties in Sec.  155.130 during the period when the States 
are establishing State Exchanges, by formalizing a process whereby 
States and interested parties communicate about the States' 
establishment of State Exchanges throughout the transition process.
    We seek comment on this proposal, including comments related to 
additional ways States seeking to establish State Exchanges could 
provide greater transparency to interested parties, including 
consumers, regarding the process for establishing State Exchanges.
3. Additional Required Benefits (Sec.  155.170)
    We propose to amend Sec.  155.170(a)(2) to provide that benefits 
covered in a State's EHB-benchmark plan would not be considered in 
addition to EHB and thus would not be subject to defrayal by the State 
beginning with PY 2025.
    Section 1311(d)(3)(B) of the ACA permits a State to require QHPs 
offered in the State to cover benefits in addition to EHB, but requires 
the State to make payments, either to the individual enrollee or to the 
issuer on behalf of the enrollee, to defray the cost of these 
additional State-required benefits.
    In the EHB final rule (78 FR 12838), we finalized a standard at 
Sec.  155.170(a)(2) that specifies that State-required benefits enacted 
on or before December 31, 2011, even if not effective until a later 
date, are considered EHB and therefore the costs of these benefits are 
not required to be defrayed by the State. In the 2017 Payment Notice 
(81 FR 12242 through 12244), we revised Sec.  155.170(a)(2) to make 
clear that benefits required by State action taking place on or before 
December 31, 2011, are considered EHB to reflect that this section 
applies not only when benefits are mandated through State legislative 
action but also through regulation, guidance, or other State action. We 
also amended Sec.  155.170(a)(2) to provide that benefits required 
after December 31, 2011, are in addition to EHB unless enactment is 
directly attributable to State compliance with Federal requirements.
    Under our current policy, benefits mandated after December 31, 
2011, other than for compliance with Federal requirements, are 
considered in addition to EHB (and thus not EHB) without regard as to 
whether the mandated benefits are embedded in the State's EHB-benchmark 
plan. Specifically, under Sec.  155.170, a State mandate is considered 
``in addition to EHB'' if it: is a State action taken after December 
31, 2011; \82\ requires coverage of benefits specific to care, 
treatment, and services; \83\ requires QHPs to cover the benefits; \84\ 
and was not enacted to comply with Federal requirements. As a result, 
States must defray the associated costs of QHP coverage of such 
benefits, and those costs may not be included in the percentage of 
premium attributable to coverage of EHB for purpose of calculating 
APTC. In addition, because the benefits are not EHB, they are not 
subject to EHB nondiscrimination rules at Sec.  156.125, the annual 
limitation on cost sharing at Sec.  156.130, and restrictions on annual 
or lifetime dollar limits at Sec.  147.126.
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    \82\ EHB Rule (78 FR 12838). A State action can be by statute, 
regulation, guidance, or other State action. 2017 Payment Notice (81 
FR 12242).
    \83\ Requirements related to provider types, cost sharing, 
benefit delivery methods, or reimbursement methods are not specific 
to care, treatment, and services. EHB Rule (78 FR 12838).
    \84\ If a State action applies to the individual and small group 
markets, it applies to QHPs; if a State allows for the sale of large 
group plans as QHPs, a State-mandated benefit for the large group 
market applies to QHPs. EHB Proposed Rule (77 FR 70647 through 
70648) (finalized without modification in the EHB Rule (78 FR 
12838)).
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    In the years since we finalized Sec.  155.170, we have received 
feedback from States and other interested parties that we should 
reconsider this provision, including in comments submitted to the EHB 
RFI that we issued in 2022. This feedback indicates that States 
struggle to understand and operationalize Sec.  155.170, and that 
States that seek to mandate coverage of benefits are unintentionally 
removing EHB protections from benefits already included in the State's 
EHB-benchmark plan.
    Therefore, we propose to amend Sec.  155.170(a)(2) to codify that 
``a covered benefit in the State's EHB-benchmark plan'' is considered 
an EHB. Under this proposal, there would be no obligation for the State 
to defray the cost of a State mandate enacted after December 31, 2011, 
that requires coverage of a benefit covered in the State's EHB-
benchmark plan. Benefits that are covered in a State's EHB-benchmark 
plan would not be considered in addition to EHB and would remain 
subject to the various rules applicable to the EHB, including the 
prohibition on discrimination in accordance with Sec.  156.125, 
limitations on cost sharing in accordance with Sec.  156.130, and 
restrictions on annual or lifetime dollar limits in accordance with 
Sec.  147.126. We believe that this change would promote consumer 
protections and facilitate compliance with the defrayal requirement by 
making the identification of benefits in addition to EHB more 
intuitive.
    Under the proposal, if a State mandates coverage of a benefit that 
is in its EHB-benchmark plan at the time the mandate is enacted, the 
benefit would continue to be considered EHB and the State would not 
have to defray the costs of that mandate. However, if at a future date 
the State updates its EHB-benchmark plan under Sec.  156.111 and 
removes the mandated benefit from its EHB-benchmark plan, the State may 
have to defray the costs of the benefit under the factors set forth at 
Sec.  155.170 as it would no longer be an EHB after its removal from 
the EHB-benchmark plan. In addition, starting in PY 2025, a State that 
is defraying the costs of a benefit required by a mandate that is in 
addition to EHB under Sec.  155.170 would be permitted to cease 
defraying the costs of that benefit if the benefit is included in its 
EHB-benchmark plan or upon updating its EHB-benchmark plan in the 
future to include such benefit coverage.
    We acknowledge that there are States that may have been defraying 
the costs of benefits under the current policy that would be able to 
stop defraying those costs if this proposal is finalized. We propose 
this change to be effective starting in PY 2025 to allow for issuers to 
make necessary modifications to their plan designs and plan filings to 
reflect any possible changes in designation of benefits as EHB as a 
result of this proposal, if finalized. For example, if we finalize this 
proposal and a State ceases defraying the costs of a State-mandated 
benefit to issuers because it is covered in its EHB-benchmark plan, 
issuers should update their plan filings accordingly beginning in PY 
2025 to reflect that the benefit is covered as an EHB and should be 
included in the percentage of premium attributable to coverage of EHB 
for the purpose of calculating APTC. We also note that those States 
would not be able to recoup the cost of benefits they have already 
defrayed. In addition, we acknowledge that the start and end dates of 
State legislative sessions vary greatly by State, and that this change, 
if finalized, may occur during State legislative sessions that are 
considering State actions that would be impacted by the change.
    We note that this proposal may impact health plans that are not 
directly subject to the EHB requirements, such as self-insured group 
health plans and fully-insured group health plans in the

[[Page 82554]]

large group market that are required to comply with the annual 
limitation on cost sharing and restrictions on annual or lifetime 
dollar limits in accordance with applicable regulations with respect to 
such EHBs.\85\ Sponsors of such plans would be affected by this 
proposal, if finalized, only to the extent a State changes benefits in 
its EHB-benchmark plan and such plan selects that State's EHB-benchmark 
plan for purposes of complying with sections 2707 and 2711 of the PHS 
Act. It may also impact State Basic Health Programs (BHPs) established 
under section 1331 of the ACA and Medicaid Alternative Benefit Plans 
(ABPs) implemented pursuant to section 1937 of the Act.
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    \85\ See parallel requirements to Sec.  147.126 at 26 CFR 
54.9815-2711, and 29 CFR 2590.715-2711. Additionally, section 
2707(b) of the PHS Act, as added by the ACA, was incorporated by 
reference into section 9815 of the Code and section 715 of the 
Employee Retirement Income Security Act (ERISA).
---------------------------------------------------------------------------

    We solicit comment on the proposal.
4. Consumer Assistance Tools and Programs of an Exchange (Sec.  
155.205)
    At Sec.  155.205(a), we propose to establish additional minimum 
standards for Exchange call center operations. Currently, Sec.  
155.205(a) requires that Exchanges provide for operation of a consumer-
accessible, toll-free call center that addresses the needs of consumers 
requesting assistance. For a State requesting to establish a State 
Exchange, we review its plans to implement and meet call center 
requirements under Sec.  155.205(a) as described in the State Exchange 
Blueprint Application. Through the Blueprint process, we review and 
assess a State's call center operational plan for consistency with 
standards governing its hours of operation, staffing levels, and 
service level goals (including wait times and abandonment rates), as 
well as for consistency with best practices utilized by existing 
Exchanges, including the FFEs' call center. Once a State Exchange has 
been established and is operating, HHS monitors Exchange call center 
operations through the annual collection of performance monitoring 
data, as specified at Sec.  155.1200(b)(3). The data collected includes 
call center volume, wait times, calls abandoned, and average call 
center handle time.\86\
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    \86\ OMB Control Number: 0938-1119.
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    We recognize the value in each Exchange being able to tailor 
customer service level expectations based on their experience in the 
areas they serve, including setting hours of operation that meet the 
needs of their consumers. As such, we are not proposing to establish 
minimum standards for customer service staffing levels. We will 
continue to assess and monitor Exchanges' compliance with Sec.  
155.205(a) through the Blueprint process and annual collection of 
compliance reports, as specified at Sec.  155.1200(b)(2). We also 
intend to utilize, if finalized, the proposed requirement that 
transitioning States submit documentation through their Blueprint 
application, which would strengthen our review of Exchange call center 
plans.
    In this proposed rule, we are proposing to require that all 
Exchanges, other than SBE-FPs and SHOP Exchanges that do not provide 
for enrollment in SHOP coverage through an online SHOP enrollment 
platform, meet the following additional requirements: their call center 
must provide consumers with access to a live call center representative 
during the Exchanges' published hours of operation; and their live call 
center representatives must be able to assist consumers with their QHP 
application, which includes providing consumers information on their 
APTC and CSR eligibility, helping consumers understand their QHP 
options, helping consumers select a QHP, and helping consumers submit 
QHP enrollment applications to the Exchange.
    Sections 1311(d)(4)(B) and 1321 of the ACA require that Exchanges 
provide for the operation of a toll-free telephone hotline to respond 
to requests for assistance, and section 1413(b)(1)(A)(ii) of the ACA 
requires that a consumer's application for QHP coverage can be filed by 
telephone. We believe that our proposal would support the intent of 
these statutory requirements by codifying the requirement that 
consumers have access to live representatives with Exchange call 
centers who can assist consumers with their QHP applications, including 
helping them submit QHP enrollment applications to the Exchange. 
Similarly, requiring that Exchange call centers provide consumers with 
a reliable window for live representative support would support 
compliance with sections 1311(d)(4)(B) and 1413(b)(1)(A)(ii) of the 
ACA.
    We believe that all State Exchange call centers already meet the 
minimum standards being proposed, and we know that the call center for 
the Exchanges on the Federal platform is meeting them. As such, this 
proposal seeks to standardize and strengthen Exchange consumer 
assistance capabilities without imposing additional burden on current 
Exchanges or hindering Exchanges' ability to be innovative in their 
call center functions. The changes being proposed here would ensure 
that regardless of where a consumer is in the United States, the 
consumer would be able to speak to a live representative who can assist 
the consumer with the QHP application process during the hours of 
operation for that State's call center. We also want to ensure that a 
State does not solely rely on an automated telephone system for QHP 
application assistance because we believe speaking to a live 
representative would help troubleshoot consumer QHP application issues, 
provide in real time an opportunity for a live representative to 
explain QHP application terminology to a consumer, provide a live 
representative to ensure the consumer provides the most correct 
information in the QHP application to alleviate unnecessary follow-up, 
and provide greater overall consumer satisfaction. We believe that call 
centers should have a basic level of customer service especially as 
they relate to hours and operations and staffing levels to limit wait 
times for QHP application assistance. We also know based on our work 
with State Exchanges and the Exchanges on the Federal platform that the 
Exchanges have created and continue to maintain robust call centers.
    We seek comment on this proposal.
5. Requirement for Exchanges To Operate a Centralized Eligibility and 
Enrollment Platform on the Exchange's Website (Sec. Sec.  155.205(b); 
155.302(a)(1))
    We propose to amend Sec.  155.205(b)(4) to require that an Exchange 
operate a centralized eligibility and enrollment platform on the 
Exchange's website (or, for an SBE-FP, the Federal eligibility and 
enrollment platform), such that the Exchange allows for the submission 
of the single, streamlined application for enrollment in a QHP and 
insurance affordability programs by consumers, in accordance with Sec.  
155.405, through the Exchange's website and the Exchange performs 
eligibility determinations for all consumers based on submissions of 
the single, streamlined application. Further, we propose to amend Sec.  
155.302(a)(1) to clarify that the Exchange, through the centralized 
eligibility and enrollment platform operated on the Exchange's website 
(or, for an SBE-FP, the Federal eligibility and enrollment platform), 
is the entity responsible for making all determinations regarding the 
eligibility for QHP coverage and insurance affordability programs 
regardless of whether an individual files an application for enrollment 
in a QHP on the Exchange's website or on a non-Exchange website 
operated by an entity described under Sec.  155.220, such as a web-
broker defined at Sec.  155.20, or a DE entity or QHP issuer described 
under

[[Page 82555]]

Sec.  155.221. As we believe the eligibility determination function is 
inherently a function that should only be performed by the Exchange, 
the proposed amendment to Sec.  155.302(a)(1) would also clarify that 
only the private vendors or State entities that an Exchange contracts 
with to operate its centralized eligibility and enrollment platform can 
perform this function on behalf of an Exchange, and would prohibit an 
Exchange from solely relying on non-Exchange entities, including a web-
broker (defined at Sec.  155.20) or other entities under Sec. Sec.  
155.220 or 155.221, to make such eligibility determinations on behalf 
on an Exchange.
    We also propose to amend Sec.  155.205(b)(5) to require that an 
Exchange operate a centralized eligibility and enrollment platform on 
the Exchange's website (or, for an SBE-FP, by relying on the Federal 
eligibility and enrollment platform) so that the Exchange (or, for an 
SBE-FP, the Federal eligibility and enrollment platform) meets the 
requirement under Sec.  155.400(c) to maintain records of all 
effectuated enrollments in QHPs, including changes in effectuated QHP 
enrollments.
    As background for these proposed amendments, Sec.  155.205(b) 
states that an Exchange must maintain an up-to-date website that allows 
consumers to receive eligibility determinations for QHPs and insurance 
affordability programs and provides standardized comparative 
information on each available QHP and a calculator to facilitate the 
comparison of available QHPs after the application of any APTC and any 
CSRs. Section 1413(c)(1) of the ACA also requires that Exchanges 
develop a secure electronic interface that allows consumers to apply 
for health insurance coverage online and electronically receive an 
eligibility determination and that Exchanges conduct verifications of 
eligibility through electronic data interfaces. However, currently, 
there is no explicit regulatory or statutory requirement that Exchanges 
operate a centralized eligibility and enrollment platform on their 
website for performing all eligibility determinations for QHPs and 
insurance affordability programs. Nonetheless, all Exchanges currently 
provide access to a centralized eligibility and enrollment platform and 
process for consumers that they serve, and all Exchanges also currently 
perform all eligibility determinations through the operation of a 
centralized eligibility and enrollment platform on their websites. In 
order to codify existing policy and practices and help set clear 
expectations for existing Exchanges and States that may seek to operate 
State Exchanges in the future, we propose these amendments to require 
that Exchanges may not allow eligibility determinations to be made 
outside of the Exchanges' own centralized eligibility and enrollment 
platform by another entity for applications for QHP coverage nor for 
selections for enrollment in a QHP.
    We also propose to amend Sec.  155.302(a) to codify the Exchange's 
obligation and role as the sole entity responsible for conducting 
eligibility determinations. For example, if an Exchange permits an 
eligible web-broker to operate a non-Exchange website that interfaces 
with an Exchange to assist consumers with DE in QHPs offered through 
the Exchange as described in Sec. Sec.  155.220(c)(3) and 155.221, the 
Exchange must ensure that the Exchange continues to maintain 
responsibility for conducting all eligibility determinations for 
applications submitted for QHP coverage and related insurance 
affordability programs. While HHS has not delegated these functions to 
DE entities in FFE and SBE-FP States, currently, Exchanges may allow 
entities described in Sec.  155.220, among others that meet applicable 
requirements, to be able function as an eligible contracting entity 
under Sec.  155.110(a) that can carry out determinations regarding QHP 
coverage eligibility and eligibility for related insurance 
affordability programs on behalf of the Exchange. This proposed 
amendment to Sec.  155.302(a) would prohibit Exchanges from delegating 
the responsibility to conduct eligibility determinations to any non-
Exchange entities, besides entities that the Exchanges have elected to 
contract with to operate the centralized eligibility and enrollment 
platform. Consistent with these amendments, we propose to maintain the 
current requirement under Sec.  155.302(a) that SBE-FPs rely on HHS, 
through the operation of the centralized HealthCare.gov eligibility and 
enrollment platform, to carry out all eligibility determinations for 
their Exchanges.
    This proposal would tie together the disparate, but related, 
requirements that exist across 45 CFR part 155 that speak to the real-
time and tightly integrated nature of the online eligibility functions 
that Exchanges are required to perform (specifically the tight 
integration needed between the Exchange-operated website, single 
streamlined application, and back-end automated eligibility 
verifications based on information provided by applicants to arrive at 
an eligibility determination), by clearly stating the principle that 
Exchanges are solely responsible for conducting eligibility 
determinations, and that Exchanges would need to meet the required 
eligibility functions that exist across 45 CFR part 155 through 
operating a centralized eligibility and enrollment platform on their 
website, regardless of whether an application is submitted through the 
Exchanges' website or through eligible non-Exchange entities that are 
assisting an individual in enrolling in a QHP.
    We believe the lack of a clear statement in the regulations at 45 
CFR part 155 affirming the requirement that the Exchange must make all 
determinations regarding eligibility for QHP coverage and related 
insurance affordability programs through a centralized eligibility and 
enrollment platform on the Exchange's website are oversights, as other 
sections of the regulations implementing the ACA in title 45 of the CFR 
allude to a requirement or expectation that an Exchange operates in 
this way already, or the regulations are written in a way such that it 
would be difficult to fulfill their requirements if an Exchange did not 
operate as proposed in these amendments.
    As an example of an implementing regulation of the ACA that would 
require an Exchange to operate in this manner, Sec.  155.220 permits 
qualified individuals to be enrolled in a QHP through the Exchange with 
the assistance of a web-broker, while Sec.  155.220(c)(3)(ii)(A), and 
by reference Sec.  155.220(c)(3)(i)(F), require that if the non-
Exchange website of a web-broker is used to complete an Exchange 
eligibility application, that web-broker's website must also provide 
consumers with the ability to withdraw from the process and use the 
Exchange's website described in Sec.  155.205(b) instead at any time. 
If an Exchange did not provide an ability on its website for a consumer 
to complete an eligibility application, then it would not be possible 
to fulfill the requirements of Sec. Sec.  155.220(c)(3)(ii)(A) and 
(c)(3)(i)(F).
    To ensure that the requirements of Sec. Sec.  155.220(c)(3)(ii)(A) 
and (c)(3)(i)(F), and 155.205(b) are fulfilled, we believe it is 
important that Exchanges allow a consumer to continue the application 
process through the centralized eligibility and enrollment platform 
operated on the Exchange's own website should the consumer chose to 
withdraw from the application process that was begun on a web-broker's 
non-Exchange website; or, if the Exchange is an SBE-FP, allow the 
consumer to continue the application process through the website of the 
Federal platform.

[[Page 82556]]

    As another example, QHP issuers that assist consumers with 
enrollment in QHPs are currently required under Sec.  156.265(b)(2) to 
either direct the consumer to the Exchange's website to file an 
eligibility application or ensure that the consumer's eligibility 
application is completed through the Exchange website or submitted 
through Exchange-approved web services in order for the Exchange to 
conduct an eligibility determination. To align with these requirements, 
we believe that it is important to amend Sec.  155.302(a)(1) to provide 
that an Exchange must perform all eligibility determinations through 
operating a centralized eligibility and enrollment platform on the 
Exchange's website, and that only those entities that an Exchange 
chooses to enter into an agreement with to operate its centralized 
eligibility and enrollment platform, as allowed for under Sec.  
155.110(a), can carry out this function on behalf of the Exchange.
    In addition to these examples of how current regulations may 
require an Exchange to operate according to the proposed amendments to 
Sec. Sec.  155.205 and 155.302, we believe that consumers may be harmed 
if these proposals are not adopted. If an entity other than the 
Exchange conducted eligibility determinations, consumers might receive 
incorrect or inconsistent eligibility determinations, as entities other 
than the Exchange may not update their systems with the same 
eligibility determination rules or logic as the Exchange itself when 
Federal or State policies or regulations impacting eligibility for QHP 
coverage and insurance affordability programs come into effect or are 
updated, including the implementation and maintenance of State-specific 
eligibility rules and logic for Medicaid and CHIP programs. As a 
result, a non-centralized eligibility system model would introduce 
increased program integrity risk as to the accuracy of eligibility 
determinations, which would introduce increased risk of inaccurate APTC 
payments to QHP issuers and increased risk to consumers of potential 
tax liability when filing taxes and reconciling their PTC.
    In addition, the websites and eligibility platforms provided by 
non-Exchange entities may not include the same informational content 
for consumers that an Exchange provides to consumers through the 
Exchange's website, such as information related to Medicaid and CHIP 
programs or the availability of special enrollment periods before or 
after the open enrollment period. As a result, some consumers might not 
provide information in their application in such a manner as to receive 
a correct eligibility determination and thus, enroll in the wrong 
coverage or not enroll in any coverage. Lastly, consumers may prefer to 
enroll directly through the eligibility and enrollment platform hosted 
and operated on an Exchange's website because they are more comfortable 
with sharing their personal information through a platform hosted by 
the Exchange.
    In light of these considerations, we propose to amend Sec. Sec.  
155.205(b)(4) and (5) and 155.302(a)(1) to address these gaps. Since 
all Exchanges currently provide access to a centralized eligibility and 
enrollment platform and process for consumers that they serve, and all 
Exchanges also currently perform all eligibility determinations through 
the operation of a centralized eligibility and enrollment platform on 
their websites, we believe the impact of these proposals would be 
minimal.
    We seek comment on these proposals.
6. Ability of States To Permit Agents and Brokers and Web-Brokers To 
Assist Qualified Individuals, Qualified Employers, or Qualified 
Employees Enrolling in QHPs (Sec.  155.220(h))
    We propose to amend Sec. Sec.  155.220(h)(2) and (3) by deleting 
the current references to ``the HHS reconsideration entity'' and 
replacing them with ``the CMS Administrator'' and by specifying that, 
instead of the HHS reconsideration entity, the CMS Administrator, who 
is a principal officer,\87\ would be the entity responsible for 
handling these reconsideration decisions. Agents, brokers, and web-
brokers whose Exchange agreement(s) to participate in the FFEs or SBE-
FPs have been terminated for cause would continue to have the ability 
to request a reconsideration of such action in the manner and form 
established by HHS by requesting a reconsideration within 30 calendar 
days of the date of the written termination notice from HHS. We propose 
that the request for reconsideration would be made to the CMS 
Administrator. This proposal would improve transparency by specifying 
who would review reconsideration requests under Sec.  155.220(h).
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    \87\ A principal officer is an individual nominated by the 
President and confirmed by the Senate.
---------------------------------------------------------------------------

    Exchange agreement suspensions and terminations play a critical 
role in stopping potentially fraudulent enrollments or other fraudulent 
behavior in the FFEs and SBE-FPs. Currently, Sec.  155.220(g) 
establishes the framework for suspension and termination of an agent's, 
broker's, or web-broker's Exchange agreement(s) for cause in four 
instances.\88\ First, Sec.  155.220(g)(1) allows HHS to terminate an 
agent's, broker's, or web-broker's Exchange agreement(s) when there is 
a specific finding of noncompliance or pattern of noncompliance that is 
sufficiently severe. Second, Sec.  155.220(g)(3)(ii) enables HHS to 
terminate an agent's or broker's Exchange agreement(s) when an agent or 
broker fails to maintain the appropriate license in every State in 
which the agent or broker actively assists consumers with applying for 
APTC and CSRs or with enrolling in QHPs through the FFEs and SBE-FPs. 
Third, HHS will terminate an agent's, broker's, or web-broker's 
Exchange agreement(s) under Sec.  155.220(g)(5)(ii) when there is a 
finding or determination by a Federal or State entity that an agent, 
broker, or web-broker engaged in fraud or abusive conduct that may 
result in imminent or ongoing consumer harm using personally 
identifiable information (PII) of Exchange enrollees or applicants or 
in connection with an Exchange enrollment or application. Fourth, under 
Sec.  155.220(g)(5)(i)(B), HHS may terminate an agent's, broker's, or 
web-broker's Exchange agreement(s) following a suspension of the 
agreement(s) under Sec.  155.220(g)(5)(i)(A) if the agent, broker, or 
web-broker submitted rebuttal evidence that does not persuade HHS to 
lift the suspension, or if the agent, broker, or web-broker fails to 
submit rebuttal evidence during the suspension period.
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    \88\ Section 155.220(f) establishes the framework for an agent, 
broker, or web-broker to terminate an agent's, broker's, or web-
broker's Exchange agreement(s) with HHS. We are not proposing any 
changes with respect to the terminations under Sec.  155.220(f). 
These terminations are not eligible for reconsideration under Sec.  
155.220(h) because they are agent, broker, or web-broker initiated 
actions.
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    If an agent's, broker's, or web-broker's Exchange agreement(s) has 
been terminated for cause, under Sec.  155.220(h)(1), the agent, 
broker, or web-broker can request reconsideration of such action in the 
manner and form established by HHS. The agent, broker, or web-broker 
must submit the reconsideration request to the HHS reconsideration 
entity within 30 calendar days of the date of the written termination 
notice from HHS.\89\ Current regulations also require the HHS 
reconsideration entity to notify the agent, broker, or web-broker of 
its decision, in writing, within 60 calendar days of the date it 
receives the request for reconsideration.\90\ Currently,

[[Page 82557]]

Sec.  155.220(h)(3) further provides that this decision constitutes 
HHS' final determination.
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    \89\ 45 CFR 155.220(h)(2).
    \90\ 45 CFR 155.220(h)(3).
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    The current framework in Sec.  155.220(h) does not define or 
identify ``the HHS reconsideration entity'' responsible for making 
these decisions. As noted earlier in this rule, we propose revising 
Sec. Sec.  155.220(h)(2) and (3) by deleting the existing references to 
``the HHS reconsideration entity'' and replacing them with ``the CMS 
Administrator.'' This proposal would ensure that authority to review 
requests for reconsideration of decisions to terminate an agent's, 
broker's, or web-broker's Exchange agreement(s) for cause are vested in 
a principal officer. We seek comments on this proposal.
7. Adding and Amending Language To Ensure Web-Brokers Operating in 
State Exchanges Meet Certain HHS Standards Applicable in the FFEs and 
SBE-FPs (Sec.  155.220)
    We propose to amend Sec.  155.220 to apply certain existing HHS 
standards for Exchanges that use the Federal platform that apply to 
web-brokers \91\ assisting the FFEs' and SBE-FPs' \92\ consumers and/or 
applicants with enrolling in QHPs and assisting consumers with applying 
for APTC/CSRs in State Exchanges, for both the State Exchange's 
Individual Exchange and SHOP. Specifically, our proposals would ensure 
that minimum HHS standards governing web-broker non-Exchange website 
display of standardized QHP comparative information, disclaimer 
language, information on eligibility for APTC/CSRs, operational 
readiness, standards of conduct, and access by web-broker downstream 
agents and brokers apply to web-brokers across all Exchanges.\93\ We 
believe that extending these standards across all Exchanges, to newly 
apply to State Exchanges, is important given the increased interest 
from State Exchanges in using web-brokers to assist consumers with 
enrollment, as to maximize enrollment opportunities. The ability of 
consumers and applicants to have consistent, reliable information from 
web-brokers who, to the extent permitted by the State and the 
applicable Exchange, assist consumers with enrolling and applying for 
QHPs offered on the Exchange, with or without APTC and CSRs, in a 
manner that constitutes enrollment through the Exchange \94\ is an 
important consumer safeguard, particularly given that web-brokers may 
operate across Exchange models. These proposals are intended to ensure 
that certain HHS standards are extended to protect State Exchange 
consumers as minimum requirements while also providing State Exchanges 
with continued flexibility and discretion to decide whether and how to 
utilize web-brokers to assist State Exchange consumers and applicants 
with enrolling in QHPs and applying for APTC/CSRs. Finally, these 
proposals align with our other proposals as described later in this 
proposed rule to extend certain existing HHS standards at Sec.  155.221 
that currently apply to DE entities \95\ assisting the FFEs' and SBE-
FPs' consumers and applicants with direct enrollment in QHPs and 
applying for APTC/CSRs to also apply in State Exchanges. These 
proposals, if finalized, would be effective on the date of publication 
of the final rule.
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    \91\ Web-broker is defined at 45 CFR 155.20 as ``an individual 
agent or broker, group of agents or brokers, or business entity 
registered with an Exchange under Sec.  155.220(d)(1) that develops 
and hosts a non-Exchange website that interfaces with an Exchange to 
assist consumers with direct enrollment in QHPs offered through the 
Exchange as described in Sec.  155.220(c)(3) or Sec.  155.221. The 
term also includes an agent or broker direct enrollment technology 
provider.''
    \92\ See Sec.  155.220(l).
    \93\ The amendments to Sec.  155.220 we are proposing would not 
impact how agents, brokers, or web-brokers may assist consumers and 
applicants in SBE-FP States. Section 155.220(l) currently provides 
that an agent, broker or web-broker who enrolls qualified 
individuals, qualified employers, or qualified employees in coverage 
in a manner that constitutes enrollment through an SBE-FP or assists 
individual market consumers with submission of applications for APTC 
and CSRs through an SBE-FP, must comply with all applicable FFE 
standards in Sec.  155.220. We are not proposing any changes to this 
existing framework for agents, brokers, or web-brokers who provide 
assistance in SBE-FP States.
    \94\ See 77 FR 18334 through 18336.
    \95\ DE entities permitted to participate in the FFEs and SBE-
FPs include, to the extent permitted by applicable State law: (1) 
QHP issuers that meet the applicable requirements in Sec. Sec.  
155.221 and 156.1230, and (2) web-brokers that meet the applicable 
requirements in Sec. Sec.  155.220 and 155.221. 45 CFR 155.221(a).
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    Section 1312(e) of the ACA provides that the HHS Secretary shall 
establish procedures under which a State may allow agents, brokers, and 
web-brokers to enroll individuals and small employers in QHPs offered 
through an Exchange and to assist individuals in applying for APTC/CSRs 
for QHPs sold through an Exchange. The Secretary also has authority 
under section 1321(a) of the ACA to promulgate regulations with respect 
to the establishment and operation of Exchanges, the offering of QHPs 
through such Exchanges, and such other requirements as the Secretary 
determines appropriate.\96\ HHS previously leveraged these authorities 
to establish the existing agent, broker, and web-broker standards 
applicable in FFE and SBE-FP States codified in Sec.  155.220.\97\
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    \96\ Section 1321(a)(1)(A), (B), and (D) of the ACA.
    \97\ See 77 FR 18444, as amended at 78 FR 15533; 78 FR 54134; 79 
FR 13837; 81 FR 12338; 81 FR 94176; 84 FR 17563; 85 FR 37248; 86 FR 
24288; 87 FR 27388; and 88 FR 25917.
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    In new proposed paragraph (n), we propose to apply the web-broker 
standardized QHP comparative information and the accompanying 
Enrollment Support disclaimer requirements in Sec.  155.220(c)(3)(i)(A) 
to web-brokers operating in State Exchanges, and consequently to these 
State Exchanges. Consistent with Sec.  155.220(c)(3)(i)(A)(1) through 
(6), web-broker non-Exchange websites used to complete the QHP 
selection must disclose and display the standardized comparative QHP 
information provided by the Exchange or directly by QHP issuers, 
consistent with the requirements of Sec.  155.205(c) for all QHPs, 
including Qualified Dental Plans (QDPs),\98\ offered through the 
Exchange. The standardized comparative information on each available 
QHP that must be displayed by the web-broker on its non-Exchange 
website is the following information provided by the Exchange or 
directly by QHP issuers: (1) premium and cost-sharing information 
(total and net premium based on APTC and CSR, if applicable); \99\ (2) 
the summary of benefits and coverage; (3) identification of whether the 
QHP is a bronze, silver, gold or platinum level plan, or a catastrophic 
plan; (4) the results of the enrollee satisfaction survey; (5) quality 
ratings assigned by HHS; and (6) the provider directory made available 
to the Exchange. The results of the enrollee satisfaction survey should 
be displayed in accordance with instructions in the CMS Quality Rating 
Information Bulletin.\100\ As described in the CMS

[[Page 82558]]

Quality Rating Information Bulletin, State Exchanges already have some 
flexibility to customize the display of quality ratings assigned by HHS 
for their respective QHPs.\101\ For example, State Exchanges can make 
some State-specific customizations, such as to incorporate additional 
State or local quality information or to modify the display names of 
the quality ratings assigned by HHS. Under this proposal, web-brokers 
in State Exchanges should use the same consumer-facing labels for the 
quality ratings that HHS displays on HealthCare.gov (that is, ``Overall 
Rating,'' ``Medical Care,'' ``Member Experience,'' and ``Plan 
Administration'') unless the State Exchange modified the display names 
for these labels. If the State Exchange has modified the display names, 
web-brokers operating in State Exchanges should use the display names 
used on the State Exchange website. Web-brokers operating in State 
Exchanges should also align their display of the quality ratings to 
reflect any permitted State-specific customizations, such as the 
addition of State or local quality information. Additionally, 
consistent with the approach for display of quality ratings by web-
brokers in the FFEs and SBE-FPs and by State Exchanges, if a QHP was 
not eligible to receive a rating or did not receive a rating for other 
reasons, web-brokers participating in State Exchanges would need to 
display ``New plan--Not Rated'' or ``Not Rated'' in place of the 
quality ratings.\102\ When displaying the quality rating assigned by 
HHS on their non-Exchange websites, web-brokers operating in State 
Exchanges would be required to prominently display the disclaimer 
language specified in the CMS Quality Rating Information Bulletin, 
which mirrors the language that web-brokers in the FFEs and SBE-FPs 
must display on their non-Exchange websites.\103\
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    \98\ With some limited exceptions, QDPs are considered a type of 
QHP. See 77 FR at 18315. Web-brokers participating in the FFEs and 
SBE-FPs are expected to follow the same requirements for QDPs as for 
QHPs, including display of all applicable QDPs offered through the 
Exchange and all available information specific to each QDP on their 
websites. However, because it is not possible to enroll in QDPs 
through DE unless also enrolling in medical QHPs, web-brokers are 
permitted to modify their QDP displays accordingly (for example, 
display QDPs after medical QHPs to ensure a consumer has first 
selected a medical QHP). See CMS. (2023, July 12). Federally-
facilitated Exchange (FFE) Enrollment Manual. CMS. Section 4.3, p.47 
and Section 4.4.2, p. 52. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf. Under this proposal, these 
same standards governing QDPs would also apply to web-brokers in 
State Exchanges.
    \99\ See CMS. (2023, July 12). Federally-facilitated Exchange 
(FFE) Enrollment Manual. CMS. Section 4.4.2, p. 52. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf.
    \100\ See CMS. (2023, May 2). Quality Rating Information 
Bulletin. CMS. Section III, p. 3. https://www.cms.gov/files/document/py2024-qrs-display-bulletin.pdf. See Exchange and Insurance 
Market Standards for 2015 and Beyond; Final Rule, 79 FR 30240 at 
30310-30311 (May 27, 2014).
    \101\ Sec. Sec.  155.1400 and 155.1405. Also see 85 FR at 29214 
through 29216.
    \102\ See CMS. (2023, May 2). Quality Rating Information 
Bulletin. CMS. Section III, p. 3. https://www.cms.gov/files/document/py2024-qrs-display-bulletin.pdf.
    \103\ See CMS. (2023, May 2). Quality Rating Information 
Bulletin. CMS. Section III, p. 3. https://www.cms.gov/files/document/py2024-qrs-display-bulletin.pdf.
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    State Exchanges are also currently required to display the quality 
ratings assigned by HHS and the results of the enrollee satisfaction 
survey, in the form and manner specified by the Secretary.\104\ This 
includes prominently displaying the same disclaimer language on the 
State Exchange website or a static website when displaying the quality 
ratings assigned by HHS and the results of the enrollee satisfaction 
survey.\105\ Web-brokers would be able to access QHP quality rating 
information for a State Exchange they are operating in, including the 
quality ratings assigned by HHS and enrollee satisfaction survey 
results,\106\ from the State Exchange.
---------------------------------------------------------------------------

    \104\ See Sec. Sec.  155.1400 and 155.1405. Also see Sec.  
155.205(b)(1)(iv) and (v). Exchanges can satisfy the requirement to 
display the enrollee satisfaction survey results by displaying the 
quality ratings assigned by HHS (which incorporate member experience 
data from the survey). See 79 FR at 30310 through 30311.
    \105\ See CMS. (2023, May 2). Quality Rating Information 
Bulletin. CMS. Section III, p. 3. https://www.cms.gov/files/document/py2024-qrs-display-bulletin.pdf.
    \106\ Consistent with the approach for Exchanges, for purposes 
of compliance with the Federal minimum standards, web-brokers would 
be able to satisfy the requirement to display the enrollee 
satisfaction survey results by displaying the quality ratings 
assigned by HHS (which incorporate member experience data from the 
survey).
---------------------------------------------------------------------------

    This list of standardized QHP comparative information that web-
brokers must disclose and display on their non-Exchange websites used 
to complete QHP selection in FFE and SBE-FP States mirrors the 
information that Exchanges are required to disclose and display on 
their respective websites.\107\ This approach ensures consumers have 
access to the same QHP comparative information whether they elect to 
enroll through the Exchange's website or through a web-broker's non-
Exchange website. We propose to extend these same standardized 
comparative information requirements, as minimum Federal standards, 
that would need to be met by web-brokers participating in State 
Exchanges and consequently to these State Exchanges. We similarly 
propose to extend the Enrollment Support disclaimer referenced in Sec.  
155.220(c)(3)(i)(A) beyond FFE and SBE-FP States to also extend to web-
brokers participating in State Exchanges and consequently to these 
State Exchanges. The goal of this disclaimer is to ensure consumers are 
clearly informed about any enrollment limitations on a web-broker's 
non-Exchange website and similarly have clear instructions for 
accessing the Exchange website if they wish to enroll in those QHPs. In 
particular, when a website of a web-broker is used in FFE or SBE-FP 
States to complete the QHP selection, but it does not support 
enrollment for a QHP,\108\ the web-broker's website must prominently 
display the standardized Enrollment Support disclaimer \109\ provided 
by HHS, as follows:
---------------------------------------------------------------------------

    \107\ See Sec.  155.205(b)(1). Also see 87 FR at 642 (explaining 
that ``(i)ncluding this [list of] information within Sec.  155.220, 
instead of through a cross-reference to Sec.  155.205(b)(1), would 
provide better clarity and ease of reference . . .'').
    \108\ A web-broker's non-Exchange website may not support 
enrollment in a QHP if a web-broker does not have an appointment 
with a QHP issuer and therefore is not permitted under State law to 
enroll consumers in coverage offered by that issuer.
    \109\ CMS. (2023, July 12). Federally-facilitated Exchange (FFE) 
Enrollment Manual. CMS. Section 4.4.2, p. 52. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf.
---------------------------------------------------------------------------

    ``(Name of Company) does not support enrollment in this Qualified 
Health Plan at this time. To enroll in this Qualified Health Plan, 
visit the Health Insurance Marketplace[supreg] website at 
HealthCare.gov.''
    We propose to require web-brokers assisting consumers in State 
Exchanges to comply with these same requirements, while also providing 
these State Exchanges some flexibility regarding the disclaimer 
language required to be displayed by their web-brokers. First, to 
prominently display the disclaimer, it must be written in a font size 
no smaller than the majority of text on the website page and must be 
noticeable in the context of the website by (for example) using a font 
color that contrasts with the background of the website page.\110\ In 
addition, the Enrollment Support disclaimer must appear on the web-
broker's non-Exchange website in close proximity to where the QHP 
information is displayed if the web-broker does not support enrollment 
in any such QHP, so it is noticeable to the consumer.\111\ Web-brokers 
can also meet this prominent display requirement if a visual cue is 
displayed where the enrollment button (or another similar mechanism) 
would otherwise appear for a particular QHP that clearly directs the 
consumer to the required disclaimer on the same website page or 
otherwise displays the required disclaimer (for example, in a pop-up 
bubble that appears while hovering over the visual cue).\112\
---------------------------------------------------------------------------

    \110\ See 78 FR at 27260. Also see CMS. (2023, July 12). 
Federally-facilitated Exchange (FFE) Enrollment Manual. CMS. Section 
4.4.1, p. 49-50 and Section 4.4.2, p. 54-55. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf.
    \111\ See 78 FR at 27260. Also see CMS. (2023, July 12). 
Federally-facilitated Exchange (FFE) Enrollment Manual. CMS. Section 
4.4.2, p. 52. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf.
    \112\ Id.
---------------------------------------------------------------------------

    With respect to State flexibility, under this proposal, the HHS-
provided disclaimer language must be used as a minimum starting point, 
but State Exchanges may add State-specific language to the Enrollment 
Support

[[Page 82559]]

disclaimer, provided the additional language does not conflict with the 
HHS-provided standardized disclaimer. This would permit a State 
Exchange to replace references and links to the Health Insurance 
Marketplace[supreg] and HealthCare.gov in the HHS-provided disclaimer 
language with the appropriate reference or links to the State 
Exchange's website for the Enrollment Support disclaimer that web-
brokers assisting consumers in the State Exchange would be required to 
prominently display on their non-Exchange websites. Additionally, State 
Exchanges may require web-brokers operating in their State to translate 
the disclaimer text into languages appropriate for the State as this 
type of additional requirement would not conflict with the HHS-provided 
disclaimer language or minimum standards. As with all informational 
materials, standard plain language practice is to write at or near a 
fourth grade reading level and not to exceed an eighth grade reading 
level. We expect that any additional State-specific customizations to 
this disclaimer would be written accordingly. We would be available to 
provide technical assistance to State Exchanges that want to add State-
specific language. We propose to codify this State flexibility in new 
proposed paragraph (n)(1).
    In addition, consistent with Sec.  155.220(c)(3)(i)(G), when used 
to assist FFE consumers, the web-broker's non-Exchange website must 
also prominently display a standardized disclaimer \113\ provided by 
HHS, referred to as the General non-FFE disclaimer, that informs 
consumers and applicants that the web-broker's website is not the 
Exchange website, notes that the web-broker's non-Exchange website may 
not support enrollment in all QHPs, and provides a web link to the 
Exchange's website. This same requirement extends beyond the FFEs and 
also applies to SBE-FPs today.\114\ In new paragraph (n), we propose to 
extend this disclaimer requirement to also apply to web-brokers 
operating in State Exchanges, and consequently to these State 
Exchanges, while providing these State Exchanges some flexibility to 
add State-specific language to this disclaimer, provided the additional 
language does not conflict with the HHS-provided disclaimer language. 
We propose to codify this State flexibility in new proposed paragraph 
(n)(1). Similar to the adoption of this disclaimer for consumers in an 
FFE or an SBE-FP,\115\ we continue to believe this additional standard 
is in the best interest of consumers, as it would help them distinguish 
between the Exchange website and web-broker non-Exchange websites. We 
therefore also identified it as an important baseline consumer 
protection that should extend to consumers across all Exchanges.
---------------------------------------------------------------------------

    \113\ CMS. (2023, July 12). Federally-facilitated Exchange (FFE) 
Enrollment Manual. CMS. Section 4.4.2, p. 54. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf.
    \114\ 45 CFR 155.220(l).
    \115\ 78 FR 37046.
---------------------------------------------------------------------------

    The General non-FFE disclaimer provided by HHS that must be 
prominently displayed by web-brokers participating in the FFEs and SBE-
FPs reads:
    ``Attention: This website is operated by (Name of Company) and is 
not the Health Insurance Marketplace[supreg] website. In offering this 
website, (Name of Company) is required to comply with all applicable 
Federal law, including the standards established under 45 CFR 
155.220(c) and (d) and standards established under 45 CFR 155.260 to 
protect the privacy and security of personally identifiable 
information. This website may not support enrollment in all Qualified 
Health Plans (QHPs) being offered in your State through the Health 
Insurance Marketplace[supreg] website. For enrollment support in all 
available QHP options in your State, go to the Health Insurance 
Marketplace[supreg] website at HealthCare.gov.
    Also, you should visit the Health Insurance Marketplace[supreg] 
website at HealthCare.gov if:
    <bullet> You want to select a catastrophic health plan. (This only 
needs to be included if the web-broker does not offer catastrophic 
plans.)
    <bullet> You want to enroll members of your household in separate 
QHPs. (This only needs to be included if the web-broker does not allow 
multiple enrollment groups for its Classic DE pathway; note that EDE 
Entities are required to support multiple enrollment groups.)
    <bullet> You want to enroll members of your household in dental 
coverage. The plans offered here do not offer pediatric dental coverage 
and you want to choose a QHP offered by a different issuer that covers 
pediatric dental services or a separate dental plan with pediatric 
coverage. (This only needs to be included if the web-broker does not 
offer assistance with enrollment in adult coverage or pediatric dental 
coverage.)
    (Name of web-broker's website) offers the opportunity to enroll in 
either QHPs or off-Marketplace coverage. Please visit HealthCare.gov 
for information on the benefits of enrolling in a QHP. Off-Marketplace 
coverage is not eligible for the cost savings offered for coverage 
through the Marketplaces. (This final paragraph must be displayed if 
the web-broker offers consumers assistance with off-Marketplace 
coverage options.)''
    To prominently display this disclaimer, it must be written in a 
font size no smaller than the majority of text on the website page and 
must be noticeable in the context of the website by (for example) using 
a font color that contrasts with the background of the website 
page.\116\ In addition, the disclaimer must be prominently displayed on 
both the initial user landing page and on the landing page displaying 
QHP options that appear before the applicant makes a decision to 
purchase coverage (QHP selection page). In FFE and SBE-FP States, the 
disclaimer must use the exact language provided by HHS, must include a 
functioning web link to HealthCare.gov, and must be viewable without 
requiring the user to select or click on an additional link. The 
disclaimer must also be displayed in the same non-English language as 
any language(s) the web-broker maintains screens for on its 
website.\117\ The web-broker may change the font color, size, or 
graphic context of the information to ensure that it is noticeable to 
the user in the context of its website or the other written material.
---------------------------------------------------------------------------

    \116\ See 78 FR at 27260. Also see CMS. (2023, July 12). 
Federally-facilitated Exchange (FFE) Enrollment Manual. CMS. Section 
4.4.1, p. 49-50 and Section 4.4.2, p. 54-55. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf.
    \117\ See 45 CFR 155.205(c)(2)(iv)(C).
---------------------------------------------------------------------------

    Consistent with the proposed approach for the extension of the 
Enrollment Support disclaimer to State Exchanges and their web-brokers, 
under this proposal, the HHS-provided disclaimer language must be used 
as a minimum starting point, but State Exchanges may add State-specific 
language, provided the additional language does not conflict with the 
HHS-provided standardized disclaimer.
    This would permit State Exchanges to replace references and links 
to the Health Insurance Marketplace[supreg] and HealthCare.gov in the 
HHS-provided disclaimer language with the appropriate reference or 
links to the State Exchange's website for the disclaimer under Sec.  
155.220(c)(3)(i)(G) that web-brokers assisting consumers in State 
Exchanges would be required to prominently display on their non-
Exchange websites. Additionally, while web-brokers assisting consumers 
in State Exchanges must specify in their disclaimer that they are 
subject to applicable Federal requirements, under this proposal, we 
anticipate State

[[Page 82560]]

Exchanges would leverage this flexibility to direct their web-brokers 
to omit citations to Federal requirements included in the HHS-provided 
language to the extent those provisions do not apply, such as Sec.  
155.220(d). State Exchanges would also be permitted under this proposal 
to modify the disclaimer required under Sec.  155.220(c)(3)(i)(G) to 
specify applicable provisions of State law. Further, to the extent that 
web-brokers in State Exchanges may offer off-Exchange coverage options, 
we would require them to include the HHS-provided disclaimer language 
that distinguishes between such coverage options and QHPs sold through 
the Exchange, noting in particular that such off-Exchange coverage 
options are not eligible for cost savings offered with a QHP sold 
through the Exchange, and providing a link to the State Exchange 
website for more information. Similar to the approach adopted for web-
brokers participating in FFE and SBE-FP States, bracketed language 
included in the HHS-provided disclaimer language would not be required 
for web-brokers assisting consumers in State Exchanges to comply with 
the Federal minimum standards unless applicable or otherwise required 
by the State Exchange. State Exchanges may also require web-brokers 
operating in their State to translate the disclaimer text required 
under Sec.  155.220(c)(3)(i)(G) into languages appropriate for the 
State as this type of additional requirement would not conflict with 
the HHS-provided disclaimer language or minimum standards. As with all 
informational materials, standard plain language practice is to write 
at or near a fourth grade reading level and not to exceed an eighth 
grade reading level. HHS expects that any State-specific additions or 
customizations to this disclaimer would be written accordingly. We 
would be available to provide technical assistance to State Exchanges 
that want to add State-specific language to this disclaimer that a web-
broker in a State Exchange would be required to prominently display on 
its non-Exchange website to distinguish it from the State Exchange 
website.
    In new proposed paragraph (n), we also propose to extend the 
requirement in Sec.  155.220(c)(3)(i)(I), which requires the prominent 
display by web-brokers of the information provided by HHS pertaining to 
a consumer's eligibility for APTC or CSRs on the web-broker's non-
Exchange website, to web-brokers operating in State Exchanges and 
consequently to these State Exchanges. We established this requirement 
for web-brokers in FFE and SBE-FP States to increase the likelihood 
that consumers understand their potential eligibility for APTC and CSRs 
and potential liability for excess APTC repayment and can factor those 
determinations into their QHP selection and the amount of APTC they 
elect to take.\118\ We identified this as another important consumer 
protection that should be part of the Federal minimum web-broker 
standards in Sec.  155.220 that also extends to web-brokers in State 
Exchanges. Consistent with the proposals described above to extend the 
requirements at Sec.  155.220(c)(3)(i)(A) and (G), we propose to also 
extend the display obligations in Sec.  155.220(c)(3)(i)(I) to apply to 
web-brokers in State Exchanges. As such, to prominently display this 
information, it must appear in a font size no smaller than the majority 
of text on the website page and must be noticeable in the context of 
the website by (for example) using a font color that contrasts with the 
background of the website page.\119\ We similarly propose to require 
web-brokers in State Exchanges to display information provided by, and 
as specified by, the State Exchange regarding a consumer's eligibility 
for APTC or CSRs. Additionally, we propose flexibility in how consumer 
eligibility information for APTC or CSRs is displayed on websites by 
web-brokers in State Exchanges, at the direction of the State Exchange 
on the display of that information. This flexibility is intended to 
provide State Exchanges the ability to define how consumer education 
information about the State Exchanges, including the consumer 
eligibility information for APTC or CSRs, is customized and presented 
on their web-brokers' websites. For example, we recognize that State 
Exchanges may wish to require their web-brokers include additional 
consumer educational information or State-specific content to meet the 
particular needs of their consumers and applicants. We believe allowing 
the flexibility for State Exchanges and their web-brokers to customize 
consumer-facing educational information with the HHS minimum standard 
requiring the prominent display of the consumer eligibility information 
for APTC or CSRs as provided by the applicable Exchange that must be 
adopted by web-brokers across all Exchanges would provide a necessary 
baseline. Meeting these standards would also provide consistency for 
all Exchange consumers receiving assistance from web-brokers through 
their non-Exchange websites and would ensure that all Exchange 
consumers are provided accurate and sufficient information on potential 
eligibility for APTC and CSRs and the potential liability for excess 
APTC repayment. We propose to codify this State flexibility in new 
proposed paragraph (n)(1).
---------------------------------------------------------------------------

    \118\ 81 FR 61499.
    \119\ See 78 FR 27260. Also see CMS. (2023, July 12). Federally-
facilitated Exchange (FFE) Enrollment Manual. CMS. Section 4.4.1, p. 
49-50 and Section 4.4.2, p. 54-55. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf.
---------------------------------------------------------------------------

    We also propose to add new Sec.  155.220(c)(4)(iii) to extend 
certain downstream agent and broker requirements at Sec.  
155.220(c)(4)(i) that currently apply to web-brokers in FFE and SBE-FP 
States and govern the use of the web-broker's non-Exchange website by 
other agents or brokers assisting Exchange consumers to also apply to 
web-brokers, and their downstream agents and brokers in States with 
State Exchanges, and consequently to these State Exchanges. Under the 
proposed new provision, web-brokers that permit other agents or 
brokers, through a contract or other arrangement, to use the web-
broker's non-Exchange website to help an applicant or enrollee complete 
a QHP selection or complete the Exchange eligibility application would 
be required to meet the standards at Sec.  155.220(c)(4)(i)(A), (B), 
(D), and (F) when assisting consumers in States with a State Exchange. 
As noted in proposed new Sec.  155.220(c)(4)(iii) and described further 
below, to extend this framework to also apply in State Exchanges, we 
propose that all references to ``HHS'' and ``Federally-facilitated 
Exchange'' in Sec.  155.220(c)(4)(i)(A), (B), (D), and (F) would be 
understood to mean and be replaced with a reference to the applicable 
State Exchange.
    The goal of the downstream agent and broker framework codified in 
Sec.  155.220(c)(4)(i) is to ensure that agents or brokers who utilize 
a web-broker's non-Exchange website to help applicants complete a QHP 
selection or complete the Exchange eligibility application comply with 
necessary safeguards related to transparency, oversight, and consumer 
support. It ensures appropriate oversight by the web-broker and allows 
for closer monitoring by the applicable Exchange. For example, the 
proposed extension of Sec.  155.220(c)(4)(i)(A) to web-brokers 
operating in State Exchanges would require these web-brokers to provide 
the State Exchanges in which it they are operating a list of all agents 
or brokers utilizing the web-broker website to facilitate enrollment of 
a consumer. The proposed extension of

[[Page 82561]]

Sec.  155.220(c)(4)(i)(B) would also offer a basic consumer protection 
that all agents or brokers utilizing a web-broker website to facilitate 
enrollment of a consumer in a manner that constitutes enrollment 
through the State Exchange are licensed in the State in which the 
consumer is selecting the QHP, have completed training and 
registration, and have signed all required agreements with the State 
Exchange. Finally, the proposed extension of Sec.  155.220(c)(4)(i)(F) 
to also apply to web-brokers operating in State Exchanges that make 
their non-Exchange website available to other agents and brokers would 
require the web-brokers to obtain approval from the State Exchanges 
verifying that all applicable requirements are met.
    The proposed extension of the Sec.  155.220(c)(4)(i)(A), (B), (D), 
and (F) framework to State Exchanges and their web-brokers would equip 
the State Exchanges with information needed to oversee their web-
brokers and the use of web-broker non-Exchange websites by other web-
brokers. Ultimately, the application of Sec.  155.220(c)(4)(i)(A), (B), 
(D), and (F) would extend these safeguards to the State Exchange and 
their consumers when web-brokers participating in the State Exchanges 
permit downstream agents and brokers to utilize their non-Exchange 
websites to help applicants or enrollees complete their QHP selection 
or complete their Exchange eligibility applications in a manner that 
constitutes enrollment through the State Exchanges. In particular, 
requiring compliance with the HHS minimum standards at Sec.  
155.220(c)(4)(i)(A), (B), (D), and (F) for web-brokers participating in 
State Exchanges that contract with or enter into arrangements with 
downstream agents and brokers to provide applicants or enrollees with 
assistance when selecting QHPs or completing Exchange eligibility 
applications through their non-Exchange websites would maximize 
transparency and provide necessary safeguards to applicants or 
enrollees who rely on those downstream agents and brokers to enroll in 
coverage. We believe the extension of these HHS minimum standards is 
especially important since some agents, brokers, and web-brokers 
operate in multiple States and would benefit from a standardized 
framework and set of requirements. As part of the State Exchanges' 
oversight of the use of web-broker non-Exchange websites, we also 
encourage State Exchanges adopt a temporary suspension framework 
similar to Sec.  155.220(c)(4)(ii) that applies in FFE and SBE-FP 
States. This provision permits HHS to temporarily suspend the ability 
of a web-broker to make its non-Exchange website available to its 
downstream agents and brokers to transact information with HHS if HHS 
discovers a security or privacy incident or breach. The suspension 
extends for the period in which HHS begins to conduct an investigation 
and until the incident or breach is remedied to HHS' satisfaction. It 
is another important feature of HHS' oversight of the use of web-broker 
non-Exchange websites in FFE and SBE-FP States that protects consumers 
data and safeguards Exchange operations and systems. State Exchanges 
that choose to permit web-brokers to host non-Exchange websites to 
assist consumers with QHP selections and submission of Exchange 
eligibility applications should consider adoption of similar measures.
    In addition, in new paragraph (n)(2), we propose to extend web-
broker operational readiness requirements to State Exchanges and their 
web-brokers. Under this proposal, web-brokers operating in State 
Exchanges would be required to demonstrate operational readiness to the 
applicable State Exchange prior to the web-broker's website being used 
to complete an Exchange eligibility application or a QHP selection. The 
standards under Sec.  155.220(c)(6) applicable to operational readiness 
reviews performed by HHS of web-brokers' non-Exchange websites used to 
assist the FFEs' and SBE-FPs' consumers to apply and enroll in QHP 
coverage through the Exchange, with or without APTC and CSRs, is a 
critical part of the oversight framework for HHS' Direct Enrollment 
(DE) program (including both Classic DE and Enhanced Direct Enrollment 
(EDE)). DE is a service that allows approved web-brokers to enroll 
consumers in Exchange coverage, with or without the assistance of an 
agent/broker, directly from their non-Exchange websites.\120\ In 
Classic DE, consumers start on a web-broker's website by indicating 
they are interested in Exchange coverage. The web-broker redirects 
users to HealthCare.gov to complete the eligibility application portion 
of the process. After completing their eligibility application, 
HealthCare.gov redirects users back to the web-broker website to shop 
for a plan and enroll in Exchange coverage. EDE is a service that 
allows approved EDE web-brokers to provide a comprehensive consumer 
experience including the eligibility application, Exchange enrollment, 
and post-enrollment year-round customer service capabilities for 
consumers and agents/brokers working on behalf of consumers, directly 
on web-broker websites. Through EDE, approved web-broker EDE entities 
\121\ build and host a version of the HealthCare.gov eligibility 
application directly on their non-Exchange websites that securely 
integrates with a back-end suite of FFE application programing 
interfaces (APIs) to support application, enrollment and more.
---------------------------------------------------------------------------

    \120\ QHP issuers are also eligible to become approved DE 
entities and participate in HHS' DE program. See 45 CFR 
155.221(a)(1).
    \121\ QHP issuers are also eligible to become approved EDE 
entities. See 45 CFR 155.221(a)(1).
---------------------------------------------------------------------------

    In the 2018 Payment Notice final rule, we adopted rules to capture 
operational readiness requirements applicable to web-brokers that host 
non-Exchange websites to complete QHP selection.\122\ In the 2020 
Payment Notice final rule, we finalized amendments that moved the 
parallel operational readiness requirements for web-brokers and QHP 
issuers to Sec.  155.221(b)(4), accounting for the fact that DE 
entities participating in EDE in the FFEs and SBE-FPs host the 
Eligibility application in addition to QHP selection.\123\ In the 2022 
Payment Notice final rule, we finalized amendments to codify more 
detail describing the operational readiness reviews applicable to web-
brokers participating in FFE and SBE-FP States by adding a new Sec.  
155.220(c)(6).\124\ This included codifying requirements for a web-
broker to demonstrate operational readiness and compliance with 
applicable requirements prior to the web-broker's non-Exchange website 
being used to complete an Exchange eligibility application or a QHP 
selection, which may include submission or completion, in a form and 
manner specified by HHS,\125\ of certain information, data, or testing 
results. As part of these reviews, HHS may request a web-broker submit 
a number of artifacts or documents or complete certain testing 
processes to demonstrate the operational readiness of its non-Exchange 
website. The required documentation may include operational data 
including licensure information, points of contact, and third-party 
relationships; security and privacy assessment documentation, including 
penetration testing results, security and

[[Page 82562]]

privacy assessment reports, vulnerability scan results, plan of action 
and milestones, and system security and privacy plans; and an agreement 
between the web-broker and HHS documenting the requirements for 
participating in the applicable DE pathway.\126\ The required testing 
may include enrollment testing, prior to approval or at the time of 
renewal, and website reviews performed by HHS to evaluate prospective 
web-brokers' compliance with applicable website display requirements 
prior to approval.\127\ We identified these operational readiness 
requirements as necessary safeguards to protect consumer data and the 
efficient and effective operation of the Exchange while also supporting 
innovation and the creation of additional approved pathways for FFE and 
SBE-FP consumers to enroll in QHP coverage in a manner that constitutes 
enrollment through the Exchange.
---------------------------------------------------------------------------

    \122\ 81 FR 94120.
    \123\ 84 FR 17522 through 17525.
    \124\ 86 FR 24208 through 24209.
    \125\ For additional information, including technical 
specifications on, the HHS web-broker operational readiness reviews, 
see CMS. (2023, March 1). Third-party Auditor Operational Readiness 
Reviews for the Enhanced Direct Enrollment Pathway and Related 
Oversight Requirements. CMS. https://www.cms.gov/files/document/guidelines-enhanced-direct-enrollment-audits-year-6-final.pdf.
    \126\ See 45 CFR 155.220(c)(6)(i),(iv), and (v).
    \127\ See 45 CFR 155.220(c)(6)(ii) and (iii).
---------------------------------------------------------------------------

    As part of the proposal to extend an operational readiness review 
requirement to State Exchanges and their web-brokers, we propose in new 
paragraph (n)(2) to require these State Exchanges to establish the form 
and manner for their web-brokers to demonstrate operational readiness, 
which may include submission or completion of the same items addressed 
in Sec.  155.220(c)(6)(i)-(v) to the State Exchanges, in the form and 
manner specified by the applicable State Exchanges. These standards, 
which apply in FFE and SBE-FP States, ensure operational readiness and 
compliance with all applicable requirements prior to the web-broker's 
non-Exchange website being used to complete Exchange eligibility 
application or a QHP selection. They make sure consumers and applicants 
are not able to enroll in Exchange coverage nor submit an Exchange 
application via a web-broker's non-Exchange website that is not 
operationally ready. Websites that have not been tested to see if they 
are operationally ready may not provide consumers and applicants with 
proper eligibility determinations or may have security flaws that could 
make a breach involving consumer PII more likely. Mandating that web-
brokers participating in State Exchanges meet standards set by the 
applicable State Exchange to demonstrate operational readiness would 
help reduce this risk in all Exchanges. We encourage State Exchanges to 
adopt operational readiness review standards consistent with the 
requirements captured in Sec.  155.220(c)(6)(i)-(v) and also consider 
leveraging the audits that web-brokers use to demonstrate compliance 
with the operational readiness review requirements applicable in FFE 
and SBE-FP States. Such an approach would promote standardization 
across Exchanges in terms of operational readiness requirements 
applicable for web-brokers while building in flexibility for State 
Exchanges. We recognize it is important to provide State Exchanges 
flexibility to tailor the operational readiness review process to best 
serve their operational and business needs. For example, State 
Exchanges may have the need to structure their operational readiness 
reviews to emphasize or prioritize different web-broker functionalities 
that meet State-specific needs. Therefore, we are proposing to 
establish a general requirement that State Exchanges must establish 
operational readiness requirements for their web-brokers to demonstrate 
compliance with applicable requirements and technological readiness 
prior to the web-broker's website being used to complete an Exchange 
eligibility application or a QHP selection, while providing these State 
Exchanges with flexibility to define the contours of those 
requirements. We propose to capture at the end of the new paragraph (n) 
the accompanying proposed requirement that web-brokers in States with 
State Exchanges comply with the applicable State Exchanges' operational 
readiness standards under paragraph (n)(2).
    Finally, we propose in new paragraph (n)(1) to extend the current 
web-broker FFE standard of conduct established at Sec.  
155.220(j)(2)(i) to also apply to web-brokers assisting consumers in 
State Exchanges, and consequently to these State Exchanges. Section 
155.220(j)(2)(i) requires agents, brokers, or web-brokers that assist 
with or facilitate enrollment of qualified individuals, qualified 
employers, or qualified employees, in coverage in a manner that 
constitutes enrollment through an FFE, or assist individuals in 
applying for APTCs and CSRs for QHPs sold through an FFE, must provide 
consumers with correct information, without omission of material fact, 
regarding the FFEs, QHPs offered through the FFEs, and insurance 
affordability programs,\128\ and refrain from marketing or conduct that 
is misleading (including by having a DE website that HHS determines 
could mislead a consumer into believing they are visiting 
HealthCare.gov), coercive, or discriminates based on race, color, 
national origin, disability, age, or sex. This FFE standard already 
extends to web-brokers SBE-FP States.\129\ As proposed to be applied in 
State Exchanges, web-brokers would be required to provide consumers 
with correct information, without omission of material fact, regarding 
the applicable State Exchange, QHPs offered through the applicable 
State Exchange, and insurance affordability programs.\130\ In addition, 
web-brokers who assist with or facilitate enrollment of qualified 
individuals, qualified employers, or qualified employees, in coverage 
in a manner that constitutes enrollment through a State Exchange, or 
assist individuals in applying for APTCs and CSRs for QHPs sold through 
a State Exchange, would also be required to refrain from marketing or 
conduct that is misleading (including by having a website that the 
State Exchange determines could mislead a consumer into believing they 
are visiting the State Exchange's website), coercive, or discriminates 
based on race, color, national origin, disability, age, or sex. As 
noted in the last sentence of proposed new paragraph (n), to extend 
this FFE standard of conduct to State Exchanges, we propose that all 
references to ``HHS'' and ``the Federally-facilitated Exchanges'' in 
Sec.  155.220(j)(2)(i) would be understood to mean and be replaced with 
a reference to ``the applicable State Exchange, applied to web-
brokers,'' and the reference to ``HealthCare.gov'' in Sec.  
155.220(j)(2)(i) would be understood to mean and be replaced with a 
reference to ``the State Exchange website, applied to web-brokers.''
---------------------------------------------------------------------------

    \128\ See 42 CFR 435.4 for the definition of insurance 
affordability programs.
    \129\ See 45 CFR 155.220(l). A parallel requirement also applies 
to QHP issuer DE entities in FFE and SBE-FP States. See 45 CFR 
155.221(a)(1) and (i), and 156.1230(b)(2). As discussed below, in 
this rulemaking, we propose to extend the parallel QHP issuer DE 
entity requirement to State Exchanges and their QHP issuer DE 
entities.
    \130\ See 42 CFR 435.4 for the definition of insurance 
affordability programs.
---------------------------------------------------------------------------

    We seek comment on these proposals, especially from States 
operating, or seeking to operate, State Exchanges. We also seek comment 
on which of the other current provisions at Sec.  155.220 should or 
should not apply to State Exchanges and web-brokers that assist 
consumers in State Exchanges.
8. Establishing Requirements for DE Entities Mandating HealthCare.gov 
Changes Be Reflected on DE Entity Non-Exchange Websites Within a Notice 
Period Set by HHS (Sec.  155.221(b))
    We propose to revise Sec.  155.221(b) to require that 
HealthCare.gov changes be reflected and prominently displayed on

[[Page 82563]]

DE entity non-Exchange websites within a specific notice period \131\ 
set by HHS. We conduct various DE entity monitoring programs, including 
website display reviews, and routinely identify areas where DE entity 
non-Exchange websites can improve the user experience and more closely 
align with HealthCare.gov. The changes that we propose to require DE 
Entities to make to their non-Exchange websites include changes that 
enhance the consumer experience, simplify the plan selection process, 
and increase consumer understanding of plan benefits, cost-sharing 
responsibilities, and eligibility for financial assistance. This 
proposal would codify our existing practice of communicating important 
changes to the HealthCare.gov display to EDE entities to ensure their 
EDE websites conform to those changes and provide the same vital 
information to consumers, expand our existing change requests processes 
to permit entities to request deviations from required display changes, 
require DE entities that do not participate in EDE to comply with this 
practice, and require State Exchanges that choose to implement a DE 
program to require their DE entities to implement and prominently 
display changes adopted for display on the State Exchanges' websites on 
their non-Exchange websites for purposes of assisting consumers with DE 
in QHPs offered through the Exchange in a manner that constitutes 
enrollment through the Exchange.
---------------------------------------------------------------------------

    \131\ ``Notice period'' refers to the time period that DE 
entities have to reflect and prominently display HealthCare.gov 
changes communicated to them by HHS pursuant to this proposal.
---------------------------------------------------------------------------

    Section 1312(e) of the ACA directs the Secretary to establish 
procedures under which a State may permit agents and brokers to enroll 
qualified individuals and qualified employers in QHPs through an 
Exchange and to assist individuals in applying for financial assistance 
for QHPs sold through an Exchange. In addition, section 1413 of the ACA 
directs the Secretary to establish, subject to minimum requirements, a 
streamlined enrollment process for enrollment in QHPs and all insurance 
affordability programs. At Sec.  155.221(a) and (i), we established 
that the FFEs and SBE-FPs will permit QHP issuers, which meet the 
applicable requirements of Sec.  155.221 and Sec.  156.1230, and web-
brokers, which meet the applicable requirements of Sec.  155.220 and 
Sec.  155.221, to assist consumers with DE in QHPs offered through the 
Exchange in a manner that is considered to be through the Exchange and 
to the extent permitted by applicable State law.\132\ Collectively, QHP 
issuers and web-brokers that meet the applicable requirements to assist 
Exchange consumers with DE in QHPs are referred to as ``DE entities.'' 
DE entities may assist consumers with DE in QHPs offered through an 
Exchange by redirecting consumers from the non-Exchange website to 
HealthCare.gov to complete the eligibility application and obtain an 
eligibility determination, referred to as ``Classic DE.'' DE entities 
may also assist consumers with DE in QHPs offered through an Exchange 
by hosting an eligibility application on their non-Exchange website and 
allowing consumers to complete the eligibility application and obtain 
an eligibility determination from the Exchange without being redirected 
to HealthCare.gov, referred to as ``Enhanced Direct Enrollment (EDE).'' 
Section 155.221(b) establishes requirements that DE entities must meet 
to assist consumers in FFE and SBE-FP States.\133\ Additional 
requirements that apply to web-brokers and QHP issuers that assist 
consumers with enrollment in coverage offered through the FFEs and SBE-
FPs are captured in Sec. Sec.  155.220, 156.265, and 156.1230.\134\
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    \132\ 84 FR 17523 through 17524, 86 FR 6176 and 6177.
    \133\ In this rulemaking, we propose to extend certain Federal 
minimum standards under Sec.  155.221(b) to State Exchanges and 
their DE entities.
    \134\ In this rulemaking, we propose to extend certain Federal 
minimum standards under Sec. Sec.  155.220 and 156.1265 to State 
Exchanges, their web-brokers, and their QHP issuer DE entities.
---------------------------------------------------------------------------

    The display requirements for DE entity non-Exchange websites are 
captured in Sec. Sec.  155.220, 155.221, 156.265, and 156.1230. The 
website display requirements are often technical in nature and can 
require subsequent release of guidance to provide technical and 
operational details to support their implementation. When HHS makes 
changes to the HealthCare.gov display, we notify EDE entities 
participating in the FFEs and SBE-FPs of these changes and require that 
they make them to their non-Exchange websites via the HHS-initiated 
change request process outlined in the Third Party Auditor Operational 
Readiness Reviews for the Enhanced Direct Enrollment Pathway and 
Related Oversight Requirements guidance document referred to as the 
``Third Party Auditor Guidelines.'' \135\ This process helps ensure 
consumers receive vital information they need in a timely fashion.
---------------------------------------------------------------------------

    \135\ CMS. (2023, March 1). Third-party Auditor Operational 
Readiness Reviews for the Enhanced Direct Enrollment Pathway and 
Related Oversight Requirements. CMS. Section IX.B., pp. 72-74. 
https://www.cms.gov/files/document/guidelines-enhanced-direct-enrollment-audits-year-6-final.pdf.
---------------------------------------------------------------------------

    This proposal would codify and expand this existing, HHS-initiated 
change request practice for EDE entities' non-Exchange websites and 
support consistency as to the timing of display changes across 
enrollment platforms, which would help ensure all Exchange consumers 
have timely access to accurate, clear information as they navigate the 
QHP selection and enrollment processes. Most DE partners in FFE and 
SBE-FP States participate in EDE and therefore are already familiar 
with and complying with this proposal because it is part of the 
existing requirements, as outlined in the Third Party Auditor 
Guidelines. However, the requirements of this proposal would be new for 
some DE partners, such as those that only participate in Classic DE, 
because they are not currently subject to these requirements, which 
currently only apply to DE entities that participate in EDE. It is 
especially important that changes to the HealthCare.gov display are 
reflected on non-Exchange websites, including websites used for both 
Classic DE and EDE, as a steadily increasing number of the FFEs' and 
SBE-FPs' consumers enroll in Exchange plans via these DE pathways. This 
proposal would help ensure consumers using these DE pathways benefit 
from the policies we introduce to improve the HealthCare.gov website 
display by enhancing the consumer experience, increasing consumer 
understanding, and simplifying the plan selection process.
    We recognize that the technical details necessary to implement 
website display changes must be communicated to DE entities with 
sufficient notice for development prior to implementation. As such, 
this proposal provides that HHS would provide DE entities with advance 
notice to give them time to implement the changes on their non-Exchange 
websites. We intend for the duration of the advance notice period to 
correspond to the complexity of the change and the urgency with which 
the change must be reflected on the DE entity's non-Exchange website 
(that is, we intend to provide a longer advance notice period for 
implementation of changes requiring more complex website-development 
work, or for lower-urgency changes). We would categorize display 
changes as simpler versus more complex based on a combination of 
factors, including, but not limited to, consideration of the following: 
number of website pages affected; number of data fields affected; 
nature of the change (that is, text-based versus data-based); whether 
the change

[[Page 82564]]

is static or dynamic based on user input; whether the change updates 
QHP data provided by us \136\ or involves the display of new data not 
previously provided by us (that is, new data types would be considered 
a more complex change due to the web-development work required to 
integrate a new PUF data field or MAPI data variable); and whether the 
change may affect backend algorithms for plan sorting, filtering, or 
recommendations. The complexity of the change would be the primary 
factor determining the length of the advance notice period. Generally, 
we would expect to provide approximately 30 calendar days' advance 
notice of simpler display changes and up to 90 or more calendar days' 
advance notice for more complex changes. However, in situations where 
we have determined that it is urgent that HealthCare.gov display 
changes are similarly made to DE entities' non-Exchange websites to 
communicate necessary information to consumers regarding their plan 
selection or enrollment, we may provide fewer than 30 days' advance 
notice, but not less than 5 business days' advance notice. When 
considering the urgency of a display change, we would consider a number 
of factors, including, but not limited to, the following: potential to 
impact the consumers' understanding of plan benefits and cost-sharing 
responsibilities; potential for consumers to receive an incorrect 
eligibility determination; potential impact to the consumer's 
understanding of their eligibility for financial assistance (that is, 
APTC or CSR); proximity to the Open Enrollment period (with changes 
becoming more urgent as Open Enrollment nears, as implementing changes 
prior to Open Enrollment is critical for ensuring the greatest number 
of consumers are able to benefit from the changes); and whether failure 
to implement the change may result in a display that is misleading or 
confusing to consumers.
---------------------------------------------------------------------------

    \136\ We provide DE entities with the QHP comparative 
information that must be displayed in accordance with Sec.  
155.220(c)(3)(i)(A) and Sec.  156.1230(a)(1)(ii). We provide this 
data via the Public Use Files (PUF) (https://www.cms.gov/cciio/resources/data-resources/marketplace-puf) and through non-Exchange 
website integration with the Marketplace Application Program 
Interface (MAPI) (https://developer.cms.gov/marketplace-api/). In 
this context, website integration refers to connecting the non-
Exchange website with Exchange data by using the MAPI.
---------------------------------------------------------------------------

    We propose to amend Sec.  155.221 to add new paragraph (b)(6), 
which would require DE entities to implement and prominently display 
website changes in a manner consistent with what is adopted by HHS for 
display on HealthCare.gov by meeting standards communicated and defined 
by HHS within a time period set by HHS, unless HHS approves a deviation 
from those standards. Consistent with Sec.  155.221(i), this new 
proposed DE entity non-Exchange website display requirement would also 
apply to DE entities that enroll qualified individuals in coverage in a 
manner that constitutes enrollment through an SBE-FP or assist 
individual market consumers with submission of applications for APTC 
and CSRs through an SBE-FP.
    We are cognizant of, and support, DE entity non-Exchange websites' 
use of innovative decision-support tools and user interface design for 
consumers to help them shop for and select QHPs that best fit their 
needs. This proposal is not intended to prohibit or otherwise stand in 
the way of DE entities' development of such tools and consumer 
interfaces. Consistent with the existing approach for implementation of 
HHS-initiated changes described in the Third Party Auditor Guidelines, 
we would implement this requirement with a focus on requiring DE 
entities in FFE and SBE-FP States to mirror any display changes made to 
HealthCare.gov that impact a consumer's understanding of plan benefits, 
cost-sharing responsibilities, and eligibility for financial 
assistance. For each required change, DE entities in FFE and SBE-FP 
States would need to implement on their non-Exchange websites 
conforming changes that meet standards defined by HHS for display in a 
manner consistent with that adopted by HHS for display on 
HealthCare.gov. We would provide DE entities flexibility in their user 
interface graphic design, provided that their design complies with the 
standards defined by HHS in the notification of required change(s). As 
part of this proposal, we would require that all front-end website 
changes (that is, website changes that would affect the visual aspects 
of the website that users see and interact with) be prominently 
displayed on DE entity non-Exchange websites. ``Prominently displayed'' 
means that text must be written in a font size no smaller than the 
majority of the text on the web page, text must be displayed in the 
same non-English language as any language(s) the DE entity maintains 
translations for on its website,\137\ and any display changes must be 
noticeable in the context of the website (that is, DE entity non-
Exchange websites must use a font or graphic color that contrasts with 
the background of the web page and ensure any graphics and iconography 
that they are required to display are readable without requiring the 
user to increase their magnification percentage greater than 100 
percent). The DE entity may change the font color, size, or graphic 
context of the information to ensure that it is noticeable to the user 
in the context of its website or other written material.
---------------------------------------------------------------------------

    \137\ 45 CFR 155.205(c)(2)(iv).
---------------------------------------------------------------------------

    For example, in a scenario where HealthCare.gov is updated to 
display new help text communicating educational content to consumers 
that is designed to help a consumer better understand plan benefits, 
cost-sharing responsibility, or eligibility for financial assistance, 
we would require the DE entity's non-Exchange website to display that 
help text or similar text. When notifying DE entities about the 
required change, we would establish and communicate the standards that 
must be met for display of the required change, such as the new help 
text that must be prominently displayed on their websites. If the 
standards allow the DE entity to display similar text to the language 
used on HealthCare.gov (for example, when information must be 
communicated but there is a low risk of misinterpretation of the 
information such that we would not require DE entities to display the 
exact language used on HealthCare.gov), we would provide DE entities 
with information on how the help text is displayed on HealthCare.gov, 
along with the standards that must be met, while also outlining the 
flexibility for DE entities to adapt the language to reflect their own 
entity branding if it generally conveys the same information and 
meaning as the help text displayed on HealthCare.gov. In this example, 
we would also allow flexibility as to the location of the help text if 
it adheres to the prominent display requirements discussed earlier in 
this proposal. In this scenario, DE entities would be able to adjust 
the language and decide on the location of the help text on the QHP 
selection page(s) without seeking prior approval from us. However, we 
would monitor implementation through existing periodic website review 
monitoring per Sec.  155.220(c)(5) and, as described in the Third Party 
Auditor Guidelines,\138\ may notify the DE entity if we find that their 
language does not convey the same meaning as the help text displayed on 
HealthCare.gov or if we find the help text is not prominently 
displayed. Such notification would occur via a letter that would 
provide the DE entity with feedback explaining the

[[Page 82565]]

noncompliance and required corrective actions (such letter is referred 
to as ``Technical Assistance''). If Technical Assistance fails, we may 
potentially take enforcement action to address the identified instances 
of non-compliance, which could include temporarily suspending the DE 
entity's ability to transact information with the Exchange if we 
discover circumstances that pose unacceptable risk to eligibility 
determination, Exchange operations, or Exchange systems, if 
warranted.\139\
---------------------------------------------------------------------------

    \138\ CMS. (2023, March 1). Third-party Auditor Operational 
Readiness Reviews for the Enhanced Direct Enrollment Pathway and 
Related Oversight Requirements. CMS. Section X.F., p. 69. https://www.cms.gov/files/document/guidelines-enhanced-direct-enrollment-audits-year-6-final.pdf.
    \139\ 45 CFR 155.221(e).
---------------------------------------------------------------------------

    Additionally, we recognize that some DE entities may have system 
constraints that prevent them from precisely mirroring the 
HealthCare.gov display approach, and so we propose that if a DE entity 
is unable to implement the standards defined by HHS, or the DE entity 
has an idea for implementation that does not meet the standards but 
would effectively communicate the same information to consumers, we may 
permit a deviation. We propose that DE entities that are interested in 
pursuing a deviation must submit deviation requests to HHS and propose 
that such requests would be subject to review by HHS in advance of 
implementation of any alternative display approaches. Deviation 
requests must include a proposed alternative display and accompanying 
rationale. The rationale must explain why the DE entity is unable to 
implement the standards or the DE entity's idea for implementation that 
does not meet the standards but would effectively communicate the same 
information to consumers. Therefore, similar to the differential 
website display requirements for standardized plans applicable to web-
broker and QHP issuer DE entities at Sec. Sec.  155.220(c)(3)(i)(H) and 
156.265(b)(3)(iv) and the HHS-initiated change request process, we 
propose to allow DE entities to request a deviation from the standards 
communicated by HHS for required display changes to align with 
HealthCare.gov by submitting a proposed alternative display and 
accompanying rationale or explanation for why a deviation is necessary. 
In reviewing deviations, HHS would consider whether the same level of 
differentiation and clarity is being provided under the deviation 
requested by the DE entity as is provided on HealthCare.gov. Other 
factors and criteria HHS would consider include, but are not limited 
to, whether the proposed alternative website display adheres to the 
standards for prominent display described in this proposal and whether 
the display provides correct information, without omission of material 
fact, that does not have the potential to be misleading to consumers.
    Under this proposed approach, the deviation request would have to 
be submitted and approved by HHS before DE entities would be permitted 
to implement any alternative website displays. Deviation requests would 
not toll the advance notice period. This deviation request process 
described in this paragraph is separate and distinct from the 
flexibilities in user interface graphic design that we would allow 
without preapproval as long as the design and display otherwise meets 
the applicable standards defined and communicated by HHS for the 
display change. DE entities would only need to request a deviation from 
the requirements of the standards communicated by HHS if the DE entity 
seeks to deviate from those standards or specifications when it 
implements a display change to its Non-Exchange website that is 
required by HHS pursuant to this proposal.
    Pursuant to proposed new Sec.  155.221(j)(3), we also propose to 
extend this new proposed DE entity non-Exchange website display 
requirement to require State Exchanges that choose to implement a DE 
program to require their DE entities to implement and prominently 
display changes adopted for display on the State Exchanges' websites on 
their non-Exchange websites for purposes of assisting consumers with DE 
in QHPs offered through the Exchange in a manner that constitutes 
enrollment through the Exchange. We believe it is necessary for 
consumers utilizing DE entities in State Exchanges to have access to 
the same vital information pertaining to their plan selection and 
enrollment process as they would have if they were enrolling via the 
State Exchanges' websites. Under this proposal, we would require State 
Exchanges to establish and communicate standards for required display 
changes and to set the time period within which display changes must be 
implemented on DE entities' non-Exchange websites. State Exchanges 
would also be required to review deviation requests submitted by DE 
entities and establish their own deviation request process if the State 
Exchange wants to permit deviations. We would provide flexibility for 
State Exchanges to develop their own process for communicating those 
standards, setting advance notice periods, and establishing a deviation 
request process as needed to meet the business needs of the State 
Exchange. We would encourage State Exchanges to consider the same 
factors described above (that is, urgency and complexity of the change) 
when determining the advance notice period. Similarly, we would 
encourage State Exchanges to provide their DE entities with examples of 
the State Exchange website display change and technical assistance, 
including technical implementation guidance, to ease the burden of 
implementing and prominently displaying required changes. We would 
require State Exchanges to apply HHS's standard for ``prominently 
display,'' explained earlier in this section of this proposed rule, to 
help ensure that important enrollment, eligibility, and other 
information is as noticeable and clear to consumers using DE entities' 
websites in State Exchanges as it is to consumers using State Exchange 
websites or HealthCare.gov, which we believe would enhance the user 
experience, increase understanding, and simplify the plan selection 
process for all consumers.
    As part of this proposal to extend the requirement for DE entities 
to reflect Exchange website changes on their non-Exchange websites to 
State Exchanges and their DE entities, we would rely on State Exchanges 
that choose to implement a DE program to enforce compliance with these 
requirements and take enforcement action when their DE entities fail to 
comply and update their non-Exchange websites to mirror changes made to 
the State Exchange website. We would be available to provide technical 
assistance to support the State Exchanges' efforts to take appropriate 
enforcement action as needed to ensure compliance with applicable 
requirements. There may exist scenarios where the website display 
requirements may differ between the FFEs or SBE-FPs versus the State 
Exchanges (for example, in scenarios where a State Exchange uses the 
HealthCare.gov disclaimer language and adds State-specific information 
such as replacing a HealthCare.gov hyperlink with the State Exchange 
hyperlink). In such scenarios, DE entities must tailor their non-
Exchange website display to the requirements of the State the consumer 
is seeking assistance in. Based on our experience providing oversight 
of DE entity website displays, we understand that many DE entities are 
familiar with and have the capability to tailor website displays based 
on different scenarios and, as such, we anticipate DE entities would 
have the capability to tailor website displays to mirror the Exchange 
website of the State the consumer is shopping for coverage in.
    With an increasing number of consumers utilizing the DE pathways to

[[Page 82566]]

enroll in coverage through the Exchanges, we believe it is important to 
codify a requirement to mandate changes adopted by HealthCare.gov (or 
for State Exchanges, the State Exchanges' websites) be implemented on 
DE entity non-Exchange websites within a timeframe specified by HHS 
(or, for DE entities participating in State Exchanges, within a 
timeframe specified by the State Exchange). These proposals would 
ensure consumers using DE entity non-Exchange websites have a similar 
user experience, with access to the same information in a similar 
manner as provided on HealthCare.gov and State Exchange websites.
    We seek comment on all aspects of this proposal.
9. Adding and Amending Language To Ensure DE Entities Operating in 
State Exchanges Meet Certain Standards Applicable in the FFEs and SBE-
FPs (Sec.  155.221)
    We propose to amend Sec.  155.221 to extend certain existing HHS 
standards for Exchanges that use the Federal platform that apply to DE 
entities assisting the FFEs' and SBE-FPs' \140\ consumers and 
applicants with direct enrollment in QHPs and applying for APTC/CSRs to 
DE entities operating in State Exchanges, for both the State Exchanges' 
Individual Exchange and SHOP. These proposals would extend certain 
Federal DE program standards to DE entities operating in State 
Exchanges, and consequently to those State Exchanges that, to the 
extent permitted by applicable State law, permit DE entities to assist 
their consumers and applicants with direct enrollment in QHPs and 
applying for APTC/CSRs in a manner that constitutes enrollment through 
an Exchange.\141\ These proposals would also ensure that certain 
minimum Federal standards--those governing DE entity marketing and 
display of QHPs and non-QHPs, providing consumer with correct 
information and refraining from certain conduct, marketing of non-QHPs, 
website disclaimer language, and operational readiness--would apply to 
DE entities across all Exchanges. These proposals, if finalized, would 
be effective on the date of publication of the final rule.
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    \140\ 45 CFR 155.221(i).
    \141\ See 78 FR at 37065 through 37066 and 78 FR at 54124 
through 54126.
---------------------------------------------------------------------------

    Notably, our regulations do not currently address whether and how 
DE entities may assist consumers and applicants with DE in QHPs and 
submission of applications for APTC/CSRs in a manner that constitutes 
enrollment in State Exchanges. We believe that current and future State 
Exchanges may seek to implement DE programs similar to the FFEs and 
SBE-FPs. As such, we believe that DE entities seeking to assist State 
Exchange consumers with DE in QHPs and submission of applications for 
APTC/CSRs in a manner that constitutes enrollment through an Exchange 
should meet the same or, at a minimum, similar standards as are 
required in the FFEs and SBE-FPs to protect consumers. These safeguards 
focus on mitigating the potential for confusion between QHPs and non-
QHPs (including the eligibility for APTC and/or CSR as it relates to 
QHPs versus non-QHPs) and as to which products are available through 
the Exchange and what products are not, ensuring proper eligibility 
determinations, protecting against security breaches or incidents 
through implementation of operational readiness reviews (as websites 
that have not been tested to see if they are operationally ready may 
provide improper eligibility determinations or may have security flaws 
that could make a breach involving consumer PII more likely) and 
through the other minimum Federal standards in Sec.  155.221 that we 
propose to extend to State Exchanges and their DE entities.\142\ We 
recognize that to date, no State Exchanges have implemented DE 
programs; however, as stated, we anticipate that there may be growing 
interest in doing so. As such, we recognize a potential burden on State 
Exchanges that would newly be subject to the standards being proposed, 
if they choose to implement DE programs. This would include drafting 
new policies, updating standards, and potentially hiring additional 
staff to perform functions not currently being performed by the State 
Exchanges, including providing technical assistance during development 
and implementation of DE programs in the State Exchanges, creating the 
framework for and conducting operational readiness reviews, including 
developing and maintaining documentation needed to complete the 
operational readiness reviews, as well as conducting ongoing oversight 
and taking appropriate enforcement action for DE entity non-compliance 
with applicable requirements. It would also include requiring and 
overseeing web-development and the hosting of non-Exchange websites by 
DE entities participating in these State Exchanges to ensure compliance 
with the proposed minimum standards outlined in this rulemaking.
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    \142\ The amendments to Sec.  155.221 we are proposing would not 
impact how DE entities may assist consumers and applicants in SBE-FP 
States. Section 155.221(i) provides that a DE entity that enrolls 
qualified individuals in coverage in a manner that constitutes 
enrollment through an SBE-FP or assists individual market consumers 
with submission of applications for APTC and CSRs through an SBE-FP, 
must comply with all applicable FFE standards in Sec.  155.221. We 
are not proposing any changes to this existing framework for DE 
entities who assist consumers and applicants in SBE-FP States.
---------------------------------------------------------------------------

    Section 1312(e) of the ACA provides that the HHS Secretary shall 
establish procedures under which a State may allow agents, brokers, and 
web-brokers to enroll individuals in QHPs. The Secretary also has 
authority under section 1321(a) of the ACA to promulgate regulations 
with respect to the establishment and operation of Exchanges, the 
offering of QHPs through such Exchanges, and such other requirements as 
the Secretary determines appropriate.\143\ As explained earlier, HHS 
previously leveraged these authorities to establish the existing agent, 
broker, and web-broker standards applicable in FFE and SBE-FP States, 
which are currently codified in Sec. Sec.  155.220 and 155.221.\144\ In 
addition, section 1413 of the ACA directs the Secretary to establish, 
subject to minimum requirements, a streamlined enrollment process for 
enrollment in QHPs and all insurance affordability programs. This 
authority, along with the Secretary's rulemaking authority under 
section 1321(a) of the ACA, was previously leveraged to establish the 
existing QHP issuer DE Entity requirements applicable in FFE and SBE-FP 
States, which are currently codified in Sec. Sec.  155.221, 156.265, 
and 156.1230.\145\
---------------------------------------------------------------------------

    \143\ Section 1321(a)(1)(A), (B) and (D) of the ACA.
    \144\ See 77 FR 18334-18336; 78 FR 15533; 78 FR 54134; 79 FR 
13837; 81 FR 12338; 81 FR 94176; 83 FR 16981-16982; 84 FR 17563; 85 
FR 37248; 86 FR 24288; 87 FR 27388; and 88 FR 25917.
    \145\ See 77 FR 18425-18246; 78 FR 54124-54126; 81 FR 12309-
12310; 81 FR 94152; 81 FR 94184; 83 FR 16981-16982, 17030; 84 FR 
17521-17525, 17546-17547; and 86 FR 24209-24214.
---------------------------------------------------------------------------

    Similar to the agent, broker and web-broker requirements in Sec.  
155.220, currently Sec.  155.221 only applies to DE entities assisting 
consumers and applicants in the FFEs and SBE-FPs. Section 155.221(a) 
provides that the FFEs will permit the following entities to assist 
consumers with DE in QHPs offered through the Exchange in a manner that 
is considered to be through the Exchange, to the extent permitted by 
applicable State law: (1) QHP issuers that meet the applicable 
requirements in Sec. Sec.  155.221 and 156.1230, and (2) web-brokers 
that meet the applicable requirements in Sec. Sec.  155.220 and 
155.221. These same entities are permitted to

[[Page 82567]]

assist consumers with DE in QHPs offered through the Exchange in a 
manner that is considered to be through the Exchange, to the extent 
permitted by applicable State law, in SBE-FP States.\146\ As explained 
above, DE allows approved entities to enroll consumers in Exchange 
coverage, with or without the assistance of an agent/broker, directly 
from their non-Exchange websites. The HHS DE Program includes two DE 
pathways: Classic DE and EDE. In Classic DE, consumers start on a DE 
entity's website by indicating they are interested in Exchange 
coverage. The DE entity's website redirects users to HealthCare.gov to 
complete the eligibility application portion of the process. After 
completing their eligibility application, HealthCare.gov redirects the 
users back to the DE entity's non-Exchange website to shop for a plan 
and enroll in Exchange coverage. EDE allows approved EDE entities to 
provide a comprehensive consumer experience including the eligibility 
application, Exchange enrollment, and post-enrollment year-round 
customer service capabilities for consumers and agents/brokers working 
on behalf of consumers, directly on the DE entities' non-Exchange 
websites. Through EDE, approved EDE entities build and host a version 
of the HealthCare.gov eligibility application directly on their 
websites that securely integrates with a back-end suite of FFE 
application programing interfaces (APIs) to support application, 
enrollment, and more. References to ``Direct Enrollment'' or ``DE'' 
within Sec.  155.221 include both the Classic DE and EDE pathways. 
Similarly, the proposal to extend certain existing HHS standards 
applicable to DE entities participating in FFE and SBE-FP States to 
State Exchanges and their DE entities would also apply to the operation 
of Classic DE and/or EDE within these State Exchanges. That is, under 
this proposal, State Exchanges that choose to implement DE programs in 
their States would be permitted to adopt the same pathways or tailor 
their configuration in a manner best suited to their operational and 
business needs, so long as their DE programs meet the proposed Federal 
minimum standards in Sec.  155.221 that we propose in this rulemaking 
to extend to State Exchanges and their DE entities. We would be 
available to provide extensive technical assistance to State Exchanges 
that choose to implement DE programs.
---------------------------------------------------------------------------

    \146\ 45 CFR 155.221(i).
---------------------------------------------------------------------------

    As detailed further below, we propose to add a new paragraph (j) to 
Sec.  155.221 to extend certain Federal minimum DE entity standards in 
Sec.  155.221 to DE entities operating in State Exchanges, and 
consequently, to these State Exchanges that choose to implement DE 
programs in their States. We seek to ensure that DE entities assisting 
these State Exchanges' consumers with DE in QHPs and applying for APTC/
CSRs in a manner that constitutes enrollment through the Exchange meet 
Federal minimum standards governing DE entity marketing and display of 
QHPs, providing consumers with correct information and refraining from 
certain conduct, marketing of non-QHPs, website disclaimer language, 
and operational readiness. We also encourage State Exchanges to require 
DE entities to engage a third-party auditor to perform the operational 
readiness review audits of their DE entities, consistent with the 
operational readiness framework adopted by HHS for the FFEs and SBE-
FPs. As stated earlier, we recognize that there may be a growing 
interest from State Exchanges to operate DE programs, and we seek to 
establish a set of Federal minimum standards to ensure appropriate 
safeguards are in place, regardless of the Exchange model. Further, the 
proposed approach to establish a minimum set of Federal standards that 
would apply to DE entities across all Exchanges would support 
efficiency in DE entity operations across all Exchanges, including 
State Exchanges, while also providing flexibility for State Exchanges 
to tailor their DE program and establish their own standards with 
respect to operational readiness demonstrations by their DE entities, 
including whether to require third-party audits of DE entities and to 
impose additional requirements beyond the proposed Federal minimum 
standards as they determine may be appropriate based on their 
operational or business needs. As described above, if they choose to 
implement DE programs, the State Exchanges would be required to draft 
policies, update standards, and potentially hire additional staff to 
perform functions and activities not currently being performed by the 
State Exchanges in order to comply with these proposals.
    We propose to update Sec.  155.221(a), which identifies the 
entities permitted to be DE entities in FFE and SBE-FP States, to apply 
across all Exchanges, including State Exchanges. Under this proposal, 
State Exchanges that choose to implement a DE program may permit QHP 
issuers and web-brokers that meet applicable requirements to assist 
consumers with submitting applications for APTC/CSRs and DE in QHPs 
offered through the Exchange in a manner that is considered to be 
through the Exchange. Under the framework proposed in this rulemaking, 
the applicable requirements that would extend to web-brokers DE 
entities in States with State Exchanges would include certain 
subparagraphs of Sec. Sec.  155.220(c) and (j) and 155.221(a), (b), 
(c), (d), and (j). We describe above the proposed extension of certain 
FFE web-broker standards in Sec.  155.220(c) and (j) to State Exchanges 
and their web-brokers and detail below the FFE web-broker DE entity 
standards in Sec.  155.221(a), (b), (c), (d), and (j) we propose 
extending to web-broker DE entities in State Exchanges. As described 
further below, we propose the applicable requirements that would apply 
to QHP issuer DE entities in State Exchanges would be certain FFE QHP 
issuer DE entity standards in Sec. Sec.  155.221(a), (b), (c), (d), and 
(j) and 156.1230(b). The proposals to extend certain FFE requirements 
in Sec.  155.221 to these State Exchanges' web-broker DE entities are 
intended to align with the proposals described above to extend certain 
FFE standards and consumer protections in Sec.  155.220 to these State 
Exchanges' web-brokers.\147\ The proposals to extend certain FFE 
requirements to QHP issuer DE entities are similarly intended to 
establish a minimum set of standards and consumer protections, with the 
HHS requirements generally serving as a floor, for State Exchanges that 
choose to implement DE programs. As detailed further below, as part of 
these proposals to extend certain FFE requirements to DE entities, we 
would rely on State Exchanges to enforce compliance with these 
requirements and take enforcement action as needed when a DE entity 
fails to comply with applicable requirements. However, we would provide 
technical assistance to support State Exchange efforts to take 
appropriate enforcement action as needed to ensure compliance with 
applicable requirements.
---------------------------------------------------------------------------

    \147\ As previously noted, the FFE requirements for web-brokers 
in Sec. Sec.  155.220 and 155.221 also currently extend to web-
brokers participating in SBE-FPs. See 45 CFR 155.220(l) and 
155.221(i).
---------------------------------------------------------------------------

    First, consistent with the cross-reference in Sec.  155.221(a)(1), 
we propose to extend the FFE requirements of Sec.  156.1230(b) 
governing QHP issuer DE entities to also apply to QHP issuer DE 
entities assisting consumers with submitting applications for APTC/CSRs 
and DE in QHPs offered through the Exchange in States with State 
Exchanges. As reflected in new section Sec.  155.221(a)(1)(i), for 
purposes of extending the FFE requirements of

[[Page 82568]]

Sec.  156.1230(b) to these States Exchanges and their QHP issuer DE 
entities, references in Sec.  156.1230(b) to ``Federally-facilitated 
Exchange'', ``HHS'', and ``HealthCare.gov'' would be understood to mean 
``the applicable State Exchange'', ``the applicable State Exchange'', 
and ``the applicable State Exchange website'', respectively. Consistent 
with Sec. Sec.  156.1230(b)(1) and (2), to directly enroll consumers in 
a manner that is considered to be through the Exchange, QHP issuer DE 
entities are required to comply with the applicable requirements in 
Sec.  155.221 and provide consumers with correct information, without 
omission of material fact, regarding the Exchanges, QHPs offered 
through the Exchanges, and insurance affordability programs,\148\ and 
refrain from marketing or conduct that is misleading (including by 
having a DE website that HHS determines could mislead a consumer into 
believing they are visiting HealthCare.gov), coercive, or discriminates 
based on race, color, national origin, disability, age, or sex. This 
FFE standard already extends to QHP issuer DE entities in SBE-FP 
States.\149\ In this rulemaking, we propose to extend these FFE 
requirements to also apply them to QHP issuer DE entities in State 
Exchanges. As proposed to be applied in these State Exchanges, QHP 
issuer DE entities would similarly be required to provide consumers 
with correct information, without omission of material fact, regarding 
the Exchanges, QHPs offered through the Exchanges, and insurance 
affordability programs.\150\ In addition, QHP issuer DE entities in 
State Exchanges would also be required to refrain from marketing or 
conduct that is misleading (including by having a DE website that the 
State Exchange determines could mislead a consumer into believing they 
are visiting the Exchange's website), coercive, or discriminates based 
on race, color, national origin, disability, age, or sex. We solicit 
comments on whether Sec.  156.1230 should also be amended to affirm its 
applicability to these State Exchanges and their QHP issuer DE 
entities.\151\
---------------------------------------------------------------------------

    \148\ See 42 CFR 435.4 for the definition of insurance 
affordability programs.
    \149\ See 45 CFR 155.221(a)(1) and (i).
    \150\ Id.
    \151\ If Sec.  156.1230 is amended to affirm its applicability 
to these State Exchanges and their QHP issuer DE entities, parallel 
revisions may be made to Sec.  156.1230 in the final rule to also 
capture and affirm its applicability to SBE-FPs and their QHP issuer 
DE entities.
---------------------------------------------------------------------------

    In addition, we propose that all Exchanges, including State 
Exchanges that choose to implement DE programs must require their DE 
entities, both web-broker and QHP issuer DE entities, to meet the 
Federal standards under Sec.  155.221(b)(1) governing plan display and 
marketing for QHPs and any other products offered on the Exchange. 
These Federal standards governing plan display and marketing for QHPs 
and any other products offered on the Exchange currently apply today to 
approved web-broker and QHP issuer DE entities in FFE and SBE-FP 
States.\152\ As such, in new paragraph (j), we propose to extend Sec.  
155.221(b)(1), including the exceptions in Sec.  155.221(c), to DE 
entities participating in State Exchanges, and consequently to these 
State Exchanges. Under this proposal, DE entities participating in 
State Exchanges would be required to display and market QHPs offered 
through the Exchange, individual health insurance coverage as defined 
in Sec.  144.103 offered outside the Exchange (including QHPs and non-
QHPs other than excepted benefits) and any other products, such as 
excepted benefits, on at least three separate website pages on its non-
Exchange website, except as permitted under Sec.  155.221(c). Pursuant 
to the exception under Sec.  155.221(c)(1), a DE entity operating in a 
State Exchange would be permitted to display and market individual 
health coverage offered outside the Exchange (including QHPs and non-
QHPs other than excepted benefits) on the same website pages when 
assisting individuals who have communicated receipt of an offer of an 
individual coverage health reimbursement arrangement as described in 
Sec.  146.123(c), as a standalone benefit, or in addition to an offer 
of an arrangement under which the individual may pay the portion of the 
premium for individual health insurance coverage that is not covered by 
an individual coverage health reimbursement arrangement using a salary 
arrangement pursuant to a cafeteria plan under section 125 of the Code, 
but would be required to clearly distinguish between the QHPs offered 
through the Exchange and individual health insurance coverage offered 
outside the Exchange (including QHPs and non-QHPs other than excepted 
benefits), and prominently communicate that APTCs and CSRs are 
available only for QHPs purchased through the Exchange, that APTCs are 
not available to individuals who accept an offer of an individual 
coverage health reimbursement arrangement or who opt out of an 
individual coverage health reimbursement arrangement that is considered 
affordable, and that a salary reduction arrangement under a cafeteria 
plan may only be used toward the cost of premiums for plans purchased 
outside the Exchange. Pursuant to the exception in Sec.  155.221(c)(2), 
DE entities operating in States with State Exchanges would be permitted 
to display and market Exchange-certified stand-alone dental plans 
offered outside the Exchange and non-certified stand-alone dental plans 
on the same website pages.
---------------------------------------------------------------------------

    \152\ 45 CFR 155.221(b)(1) and (i).
---------------------------------------------------------------------------

    In new proposed paragraph (j), we also propose to extend the 
Federal marketing standard at Sec.  155.221(b)(3) to DE entities 
participating in State Exchanges and consequently to State Exchanges 
that choose to implement a DE program, such that these DE entities 
would also be required to limit marketing of non-QHPs during the 
Exchange eligibility application and QHP selection process in a manner 
that minimizes the likelihood that consumers would be confused as to 
which products and plans are available through the Exchange and which 
products and plans are not, except as permitted under Sec.  
155.221(c)(1). Refer to the discussion above regarding the exception in 
Sec.  155.221(c)(1) pertaining to DE entities assisting individuals who 
have communicated receipt of an offer of an individual coverage health 
reimbursement arrangement as described in Sec.  146.123(c), as a 
standalone benefit, or in addition to an offer of an arrangement under 
which the individual may pay the portion of the premium for individual 
health insurance coverage that is not covered by an individual coverage 
health reimbursement arrangement using a salary arrangement pursuant to 
a cafeteria plan under section 125 of the Code.
    We believe requiring DE entities participating in all Exchanges to 
meet the plan display and marketing requirements in Sec.  155.221(b)(1) 
and (3) adopted by HHS for FFE and SBE-FP States would provide 
necessary safeguards for consumers who may participate in DE programs 
across all Exchange models, including in State Exchanges. Requiring DE 
entities across all Exchanges to meet these Federal plan display and 
marketing requirements would protect consumers by minimizing their 
confusion regarding which products and plans are available through the 
Exchange, which products and plans are not, and which products and 
plans are eligible for APTC and CSRs. Further, the adoption of uniform 
requirements across Exchanges in this regard can also alleviate burden 
on DE entities from having to build different programs and comply with 
disparate requirements for each State Exchange

[[Page 82569]]

that chooses to implement a DE program, as well as burden on a State 
Exchange from having to develop different requirements than what HHS 
has already found to be beneficial and effective for FFE and SBE-FP 
States. We recognize that elsewhere in this rulemaking, we have built 
in more operational flexibility for State Exchanges to tailor certain 
aspects of their programs or oversight processes to best suit their 
operational and business needs (for instance, the operational readiness 
review requirements for web-brokers and DE entities in States with 
State Exchanges). In this case, however, we believe that the benefits 
to consumers of uniformly applying the plan display and marketing 
requirements in Sec.  155.221(b)(1) and (3) to ensure they apply to all 
Exchanges as minimum standards outweigh the potential drawbacks of 
reducing discretion and flexibility to State Exchanges with respect to 
modifying these baseline requirements. We solicit comments on whether 
State Exchanges should instead be provided with broader discretion and 
flexibility to establish their own plan display and marketing 
requirements tailored to their consumers or local needs.
    In new proposed paragraph (j), we also propose to extend the 
existing standardized disclaimer requirement in Sec.  155.221(b)(2) to 
apply to DE entities participating in States with State Exchanges and 
consequently to these State Exchanges. Pursuant to Sec.  155.221(b)(2) 
and (i), DE entities in FFE and SBE-FP States are required to 
prominently display a standardized disclaimer in the form and manner 
provided by HHS.\153\ This disclaimer is separate from the Enrollment 
Support and General non-FFE standardized disclaimers under Sec.  
155.220(c)(3)(i)(A) and (G), respectively, that web-brokers are 
required to display when their non-Exchange websites are used to 
complete a QHP selection or complete the Exchange eligibility 
application.\154\ The standardized disclaimer required under Sec.  
155.221(b)(2) instead is intended to help consumers understand the 
difference between QHPs and non-QHPs, and that financial assistance is 
only available for QHPs. Under this proposal, DE entities in State 
Exchanges, and DE entities in FFEs and SBE-FPs under existing Sec.  
155.221(b)(2), would also be required to prominently display a 
standardized disclaimer that similarly informs consumers about the 
differences between QHPs and non-QHPs, and that financial assistance is 
only available for QHPs. Its purpose is to assist consumers in 
distinguishing between DE entity website pages that display QHPs and 
those that display non-QHPs, and for which products APTC and CSRs are 
available. Consistent with the current practice for the other 
standardized disclaimers provided by HHS under Sec. Sec.  155.220 and 
156.1230, we will provide further details on the text and other display 
details for the standardized disclaimer in technical guidance.
---------------------------------------------------------------------------

    \153\ See 84 FR 17523.
    \154\ As detailed above, we propose to extend the Enrollment 
Support and General non-FFE standardized disclaimers to State 
Exchanges and web-brokers participating in those State Exchanges.
---------------------------------------------------------------------------

    This proposal requires that the disclaimer must be displayed 
prominently on a DE entity's website in State Exchanges, and in FFEs 
and SBE-FPs under existing Sec.  155.221(b)(2), when a consumer 
navigates away from any website page that markets or displays QHPs 
offered through the Exchange (that is, on-Exchange QHPs) to any website 
page that markets or displays QHPs offered outside the Exchange (that 
is, off-Exchange QHPs) or non-QHPs. DE entities would be required to 
display this disclaimer on its own interstitial website page or on a 
pop-up window.
    We propose in paragraph (j)(1) to provide State Exchanges with 
flexibility regarding the standardized disclaimer language that would 
be required to be displayed by their DE entities, provided that the 
additional language does not conflict with the HHS-provided 
standardized disclaimer. This proposed flexibility is similar to the 
proposed flexibility for State Exchanges to modify the web-broker 
Enrollment Support and General non-FFE standardized disclaimers under 
Sec.  155.220(c)(3)(i)(A) and (G) described above, such that the HHS-
provided language for the standardized disclaimer under Sec.  
155.221(b)(2) must be used as a minimum starting point, but State 
Exchanges may add State-specific information to the disclaimers, 
provided the additional language does not conflict with the HHS-
provided standardized disclaimer. This would permit State Exchanges to 
replace references to the Exchange or Marketplace with the appropriate 
reference to the State-specific Exchange name. State Exchanges may also 
require web-brokers and QHP issuers operating as DE entities in their 
States to translate the disclaimer text into languages appropriate for 
the States as this type of additional requirement would not conflict 
with the HHS-provided disclaimer language or minimum standards. As with 
all informational materials, standard plain language practice is to 
write at or near a fourth grade reading level and not to exceed an 
eighth grade reading level. We expect that any State-specific additions 
or customizations to this disclaimer would be written accordingly. We 
would be available to provide technical assistance to State Exchanges 
that want to add State-specific language to the standardized disclaimer 
under Sec.  155.221(b)(2). In using HHS-provided disclaimer language as 
a minimum starting point, DE entities in State Exchanges would be 
required to display a disclaimer that provides information to assist 
consumers in distinguishing between DE entity website pages that 
display QHPs and those that display non-QHPs and for which products 
APTC and CSRs are available, all during a single shopping experience 
for consumers.
    We believe establishing the HHS language as a minimum standard for 
the standardized disclaimer under Sec.  155.221(b)(2) that DE entities 
must display across all Exchanges would provide a necessary baseline, 
and meeting these standards would ensure consumers and applicants are 
receiving sufficient information to help consumers distinguish between 
DE entity website pages displaying QHPs versus pages displaying non-
QHPs and provide general uniformity among the different Exchange models 
when enrollment or enrollment information is provided outside of the 
Exchange through a DE entity's non-Exchange website.
    Similar to the proposed requirement to extend operational readiness 
requirements to web-brokers in States with State Exchanges, we also 
propose to extend operational readiness requirements to DE entities in 
State Exchanges and consequently to these State Exchanges. DE entities 
that participate in FFE and SBE-FP States are required, pursuant to 
Sec.  155.221(b)(4) and (i), to demonstrate to HHS operational 
readiness and compliance with applicable requirements prior to the DE 
entity's non-Exchange website being used to complete an Exchange 
eligibility application or a QHP selection. In new paragraph (j)(2), we 
propose to extend DE entity operational readiness requirements to State 
Exchanges. Under this proposal, DE entities participating in State 
Exchanges would be required to demonstrate operational readiness and 
compliance with applicable requirements to the State Exchange prior to 
the DE entity's website being used to complete an Exchange eligibility 
application or a QHP selection. We also propose in new paragraph (j)(2) 
to require these State

[[Page 82570]]

Exchanges to establish the form and manner for their DE entities to 
demonstrate operational readiness and compliance with applicable 
requirements, which may include submission or completion of the same 
items business audit documentation or security and privacy audit 
documentation in Sec.  155.221(b)(4)(i) and (ii) to the State Exchange, 
in the form and manner specified by the applicable State Exchange. 
Pursuant to Sec.  155.221(b)(4)(i) and (ii), HHS may request a DE 
entity submit a number of documents to demonstrate compliance with 
applicable requirements, as well as the operational readiness of its 
non-Exchange website. The required documentation may include privacy 
questionnaires, privacy policy statements, and terms of services, 
business audit reports, interconnection security agreements, security 
and privacy controls assessment and plans, security and privacy 
assessment reports, plans of action and milestones, privacy impact 
assessments, system security and privacy plans, incident response 
plans, and vulnerability scan results. We propose to codify these 
documentation standards in new paragraphs (j)(2)(i) and (ii) as 
illustrative examples of the type of requirements that we encourage 
State Exchanges that choose to implement a DE program to adopt as part 
of their operational readiness and compliance reviews of DE entities 
non-Exchange websites.
    This proposal would require DE entities participating in State 
Exchanges to meet operational readiness requirements established by the 
State Exchanges, and State Exchanges would have the flexibility to 
decide which particular operational readiness requirements to implement 
to support their respective DE programs, potentially leveraging the 
items in Sec.  155.220(b)(4)(i) and (ii) as the starting point for 
their operationally readiness reviews. Similar to the web-broker 
operational readiness reviews under Sec.  155.220(c)(6), the standards 
under Sec.  155.221(b)(4) governing the HHS operational readiness 
reviews of DE entity non-Exchange websites are also a critical part of 
the oversight framework for HHS' DE program (including both Classic DE 
and EDE) available in the FFEs and SBE-FPs. These standards as they 
apply to DE entities participating in FFE and SBE-FP States help ensure 
operational readiness and compliance with applicable requirements prior 
to the DE entity's non-Exchange website being used to complete Exchange 
eligibility application or a QHP selection and help ensure consumers 
would not be able to enroll via a DE entity's website that is not 
operationally ready. Websites that have not been tested to see if they 
are operationally ready may not provide consumers with proper 
eligibility determinations or may have security flaws that could make a 
breach involving consumer PII more likely. Mandating DE entities that 
participate in State Exchanges meet minimum standards set by the State 
Exchanges for operational readiness would help reduce this risk in all 
Exchanges.
    We recognize that some State Exchanges that choose to implement a 
DE program may seek to utilize DE entities already participating in DE 
in the FFEs or SBE-FPs. We specifically encourage those State Exchanges 
to consider adopting the same operational readiness requirements 
established by HHS, including the third-party auditor framework adopted 
by HHS pursuant to Sec.  155.221(f) and (g), as well as accept HHS' 
review of those third-party audits and determinations made as to the DE 
entities' operational readiness without conducting additional review, 
unless there are other unique State specific requirements that warrant 
further targeted review. This approach would permit DE entities to also 
participate in State Exchanges when HHS determined that those DE 
entities demonstrated operational readiness and compliance with 
applicable requirements as they apply to FFE and SBE-FP States would 
minimize burden of the operational readiness reviews on the State 
Exchanges and on their DE entities. For example, if the DE entity is 
using the single streamlined application described in Sec.  155.405 and 
has already been approved to participate in the FFEs or SBE-FPs, we 
encourage State Exchanges to accept HHS' review of and determinations 
made as to the DE entity's audit documentation without conducting 
further review to confirm compliance with the Federal minimum 
standards. However, we also recognize that it is important to provide 
these State Exchanges with flexibility to adopt their own operational 
readiness requirements in a manner that is tailored to best meet the 
operational and business needs of the State Exchanges since State 
Exchanges are best positioned to make that judgement. We therefore 
encourage, but do not propose to require, these State Exchanges to 
adopt the same operational readiness requirements and third-party 
auditor framework that HHS adopted under Sec.  155.221(b)(4), (f) and 
(g) for DE entities assisting FFE and SBE-FP consumers.
    We encourage State Exchanges that choose to implement a DE program 
to consider requiring their DE entities to engage a third-party 
auditor, consistent with standards adopted by HHS at Sec.  155.221(f) 
and (g) that apply in FFE and SBE-FP States, to perform the operational 
readiness reviews, for example, to provide an unbiased confirmation 
that the DE entities are able to appropriately conduct eligibility 
determinations. However, we do not propose to mandate these State 
Exchanges require their DE entities to perform such third-party audits 
as we recognize that State Exchanges may want to adopt their own 
mechanisms or impose State-specific requirements to confirm DE entity 
operational readiness and compliance with applicable requirements 
(which may include additional State-specific standards), and we want to 
ensure State Exchanges have the flexibility to establish operational 
readiness review requirements that are tailored to support their 
respective DE programs. For example, as noted above, if the State 
Exchange uses an alternative to the single streamlined application 
described in Sec.  155.405, we would not recommend leveraging HHS' 
eligibility application audit under Sec.  155.221(b)(4)(iii), as the 
HHS audit results may not be applicable to the State Exchange's 
alternative eligibility applications. However, if the State Exchange 
requires the use of the single streamlined application described in 
Sec.  155.405, for DE entities that have already been approved to 
participate in the FFEs or SBE-FPs, we would encourage the State 
Exchange to use the same third-party auditor framework and requirements 
that HHS adopted for FFE and SBE-FP States, as well as accept HHS' 
review of the third-party audits and determinations made as to the DE 
entity's operational readiness and compliance with applicable 
requirements without conducting further review, unless there are other 
unique State specific requirements that warrant further targeted 
review.
    As State Exchanges establish DE programs, it may be in their 
interest to permit a DE entity to provide consumers with access to DE 
entity application assisters, as defined at Sec.  155.20, to provide 
assistance with applying for a determination or redetermination of 
eligibility for individual market coverage through the Exchange and 
insurance affordability programs. As such, in new proposed paragraph 
(j), we propose to also extend Sec.  155.221(d) to State Exchanges and 
their DE entities to allow DE entity application assisters, when 
permitted by the applicable State Exchange and only to the extent 
permitted by applicable State law, to

[[Page 82571]]

assist individuals in the individual market with applying for a 
determination or redetermination of eligibility for coverage through 
the Exchange and for insurance affordability programs, provided that 
such DE entities ensure that each of its DE entity application 
assisters meets the requirements in Sec.  155.415(b). Section 
155.415(b) establishes minimum standards for QHP issuer and DE entity 
application assisters regarding required training on QHP options and 
insurance affordability programs, eligibility, and benefits rules and 
regulations at paragraph (b)(1), compliance with the Exchange's privacy 
and security standards at paragraph (b)(2), and compliance with 
applicable State laws related to the sale, solicitation and negotiation 
of insurance products; licensure; confidentiality and conflict of 
interest at paragraph (b)(3). Although Sec.  155.415(b) is generally 
applicable to all Exchanges, paragraph (b)(1) establishes required 
training on QHP options and insurance affordability programs, 
eligibility, and benefits rules and regulations with respect to 
providing assistance in the FFEs or SBE-FPs. As proposed to be applied 
in State Exchanges, DE entities and their application assisters would 
be required at new paragraph (j) to complete appropriate State-required 
training and registration in a manner specified by the State Exchange 
consistent with Sec.  155.415(b)(1), which should similarly include 
training on QHP options and insurance affordability programs, 
eligibility, and benefits rules and regulations as training on this 
content is necessary to ensure consumers are provided with vital 
information about these topics if DE entities and their application 
assisters would be permitted to assist consumers with QHP shopping and 
DE in coverage offered through State Exchanges.
    In addition, under this proposal, to meet the requirements of Sec.  
155.415(b)(2) and (3), DE entities that participate in a State Exchange 
and want to use DE entity application assisters would be required to 
coordinate with the State Exchange and appropriate State agencies to 
ensure they are meeting the Exchange privacy and security standards at 
Sec.  155.260 consistent with Sec.  155.415(b)(2), as well as complying 
with State law related to the sale, solicitation, and negotiations of 
health insurance products consistent with Sec.  155.415(b)(3).
    As part of their establishment of DE programs, we also encourage 
the State Exchange to adopt an immediate suspension framework, similar 
to Sec.  155.221(e) that applies in FFE and SBE-FP States, that 
provides for the immediate suspension of a DE entity's ability to 
transact information with the State Exchange if the State Exchange 
discovers circumstances that pose unacceptable risk to the accuracy of 
the State Exchange's eligibility determinations, operations, or 
information-technology systems until the incident or breach is remedied 
or sufficiently mitigated to the State Exchange's satisfaction. This 
provision is an important feature of HHS' oversight of the use of DE 
entity non-Exchange websites in FFE and SBE-FP States that protects 
consumers data and safeguards Exchange operations and systems. State 
Exchanges that choose to establish a DE program and permit DE entities 
to use non-Exchange websites to assist consumers with QHP selections 
and submission of Exchange eligibility applications should consider 
adoption of similar measures.
    Finally, at new proposed Sec.  155.221(j)(3), we propose to extend 
the new proposed requirement that would be applicable in FFE and SBE-FP 
States to mandate HealthCare.gov changes be reflected on DE entity 
websites in a manner consistent with that adopted for display on 
HealthCare.gov within a notice period set by HHS by conforming with 
display changes defined and communicated as standards by HHS, at new 
proposed Sec.  155.221(b)(6), to apply to DE entities operating in 
State Exchanges and consequently to these State Exchanges. As reflected 
in the last clause of new proposed Sec.  155.221(j)(3), for the 
purposes of extending this requirement to DE entities operating in the 
State Exchanges, references to an FFE website would be understood to 
mean the State Exchange website and references to HHS would be 
understood to mean the State Exchange. Refer to the discussion in the 
proposal for new Sec.  155.221(b)(6) for additional details on how 
State Exchanges would implement the extension of this proposal to their 
DE entities.
    We seek comment on these proposals, especially from States 
operating, or seeking to operate, State Exchanges. We are particularly 
interested in comments regarding which of the other current Federal 
standards at Sec.  155.221 should or should not apply to State 
Exchanges that choose to implement a DE program.
10. Failure To Reconcile (FTR) Process (Sec.  155.305(f)(4))
    We are proposing in connection with the FTR process described in 
Sec.  155.305(f)(4), to require all Exchanges, including State 
Exchanges, to send notices to tax filers for the first year in which 
they failed to reconcile APTC starting in PY 2025 as an initial warning 
to inform and educate tax filers that they need to file and reconcile 
or risk being determined ineligible for APTC if they fail to file and 
reconcile for a second consecutive year. As part of the 2024 Payment 
Notice (88 FR 25814 through 25816), we changed the FTR process such 
that an Exchange may only determine enrollees ineligible for APTC after 
a tax filer (or a tax filer's spouse, if married) has failed to file a 
Federal income tax return and reconcile their past APTC for two 
consecutive years (specifically, years for which tax data will be 
utilized for verification of household income and family size). 
However, in that rule, we did not impose a requirement for Exchanges to 
notify enrollees during the first year that the applicable tax filer 
failed to file and reconcile.
    We are proposing to require that all Exchanges be required to send 
informative notices at least annually to tax filers who have failed to 
file and reconcile. Since Exchanges are prohibited from sending 
protected Federal tax information (FTI) to an individual who may not be 
the tax filer, only the FTR Open Enrollment notices sent directly to 
the tax filer may directly state that the IRS data indicates the tax 
filer failed to file and reconcile, consistent with standards 
applicable to the protection of FTI. An Exchange may not always be able 
to send FTR Open Enrollment notices directly to the tax filer because 
Exchange notices are sent to the household contact or subscriber on the 
household's Exchange account or insurance policy, and this person is 
not necessarily the tax filer. Therefore, to comply with the 
prohibition on sending FTI (including information about failing to file 
and reconcile) in cases where the household contact is not the tax 
filer, the Exchange may send notices that contain broad, general 
language regarding FTR referred to as ``combined notices.'' For 
example, an Exchange can send the same Exchange Open Enrollment Notice 
to multiple groups of consumers at risk for APTC discontinuation in the 
upcoming coverage year such as those flagged as FTR, those for whom the 
Exchange has received updated income information that suggests the 
consumers may have income too high to qualify for APTC, and those who 
did not permit the Exchange to check IRS data. Because the combined 
notices apply and are sent to some consumers who are currently 
unaffected by FTR, and not exclusively to individuals who are affected 
by FTR, these notices are generally not considered FTI under IRS rules 
may be

[[Page 82572]]

sent using the standard notice functionality.
    As background, Exchange enrollees whose tax filer fails to comply 
with current Sec.  155.305(f)(4) are referred to as having failed to 
``file and reconcile.'' These individuals are referred to as having FTR 
status, and the Exchanges conduct the FTR process to identify such 
individuals. In the 2024 Payment Notice (88 FR 25814 through 25816), we 
finalized a new process for Exchanges to conduct FTR to address 
concerns that the pre-existing FTR process requiring Exchanges to 
determine an enrollee ineligible for APTC after one year of having an 
FTR status could be overly punitive. Under the previous policy, 
enrollees occasionally had their APTC ended due to delayed data 
processing, in which case their only remedy was to appeal to get their 
APTC reinstated. Enrollees or their tax filers also may have been 
confused by or received inadequate education on the requirement to file 
and reconcile. HHS' and the State Exchanges' experiences with running 
FTR operations showed that Exchange enrollees often do not understand 
the requirement that their tax filer must file a Federal income tax 
return and reconcile their APTC or that they must also submit IRS Form 
8962 to properly reconcile their APTC, even though both the single, 
streamlined application used by Exchanges on the Federal platform and 
the QHP enrollment process require a consumer to attest to 
understanding the requirement to file and reconcile. Note, the updated 
policy in the 2024 Payment Notice does not relieve tax filers from 
their requirement to reconcile each year nor any potential tax 
liability. By making these changes to the FTR processes in the 2024 
Payment Notice and requiring Exchanges to determine an enrollee 
ineligible for APTC only after having an FTR status for two consecutive 
years (specifically, years for which tax data will be utilized for 
verification of household income and family size), Exchanges now have 
more opportunity to conduct outreach to tax filers for whom data 
indicate they have failed to file and reconcile and to prevent 
erroneous terminations of APTC, as well as to provide access to APTC 
for an additional year even when APTC would have been correctly 
terminated under the original FTR process.
    There are limitations to these notices; notices that are sent 
directly to the tax filers and explicitly describe their FTR status 
must be compliant with IRS requirements for disclosing FTI, which can 
be a complex process and untenable with some Exchanges' infrastructure. 
Alternatively, combined notices, which do not contain FTI, have 
limitations in that they do not explicitly inform the recipients that 
they are at risk of losing APTC due to the household tax filer being 
found to have failed to file and reconcile. However, both types of 
notices will create an opportunity for State Exchanges to educate 
enrollees or their tax filers on the requirement to reconcile their 
PTC. This will address the consumer confusion and knowledge gaps that 
were identified by both HHS and State Exchanges, which were key 
considerations in making the changes to the FTR process described in 
the 2024 Payment Notice, wherein tax filers now must be identified as 
FTR for two years prior to having their APTC removed. With this 
additional year for tax filers to correct their FTR status, consumers 
will be better able to take appropriate action prior to losing their 
APTC and file and reconcile in response to these notices.
    Under this proposal, Exchanges on the Federal platform would 
continue to send notices to tax filers for the year in which they have 
failed to reconcile APTC as an initial warning to inform and educate 
consumers that they need to file and reconcile, or risk being 
determined ineligible for APTC if they fail to file and reconcile for a 
second consecutive tax year. Our proposal to codify this practice and 
require it of all Exchanges, including the State Exchanges, would 
ensure that tax filers who have been determined to have FTR status for 
one year are adequately educated on the file and reconcile requirement, 
and have ample opportunity to address the issue and file and reconcile 
their APTC before they are determined to have FTR status for two 
consecutive years. This proposal would support compliance with the 
filing and reconciling requirement under section 36B(f) of the Code and 
its implementing regulations at 26 CFR 1.36B-4(a)(1)(i) and 
(a)(1)(ii)(A), minimize the potential for APTC recipients to incur 
large tax liabilities over time, and support eligible enrollees' 
continuous enrollment in Exchange coverage with APTC by avoiding 
situations where enrollees become uninsured when their APTC is 
terminated. Additionally, this proposal would better align State 
Exchanges' Failure to Reconcile processes with that of the Exchanges on 
the Federal platform.
    We seek comment on this proposal.
11. Verification Process Related to Eligibility for Enrollment in a QHP 
Through the Exchange (Sec.  155.315(e))
    We are proposing to amend Sec.  155.315(e) by revising paragraph 
(e)(1) to permit all Exchanges to accept an applicant's attestation of 
incarceration status and paragraph (e)(2) to allow Exchanges to 
electronically verify a consumer's current incarceration status using 
an HHS-approved verification data source. We are also proposing to 
amend the reference in paragraph (e)(3) to reflect that if an Exchange 
verifies an applicant's attestation of incarceration status using an 
approved data source and the attestation is not reasonably compatible 
with the information provided from the said data source or other 
information provided by the applicant or in the records of the 
Exchange, then the Exchange must follow the data matching issue (DMI) 
process set forth in Sec.  155.315(f). If this proposed policy is 
finalized, Exchanges using the Federal eligibility and enrollment 
platform, including SBE-FPs, that currently use the incarceration 
verification data source offered through the Federal Data Services Hub 
(the ``Hub'') would be able to accept consumer attestation of 
incarceration status without further verification of incarceration 
status.
    As background, section 1312(f)(1)(B) of the ACA states that an 
individual shall not be treated as a qualified individual for 
enrollment in a QHP if, at the time of enrollment, the individual is 
incarcerated, other than incarceration pending the disposition of 
charges. Sections 155.315(e) and (e)(1) currently state that Exchanges 
must verify incarceration status with a data source approved by HHS and 
deemed accurate, current, and offering less administrative complexity 
than paper verification. When an individual's incarceration attestation 
conflicts with information from an approved data source or other 
information provided by the applicant or in the records of the 
Exchange, Sec.  155.315(e)(3) requires Exchanges to create a DMI as 
outlined in Sec.  155.315(f). However, if an approved data source is 
unavailable, an Exchange may accept attestation of incarceration 
without further verification under Sec.  155.315(e)(2).
    Under proposed paragraphs (e)(1) and (2), an Exchange would be able 
to accept a consumer's attestation of incarceration status or propose 
an electronic data source for incarceration verification to HHS for 
approval and use that approved source to verify incarceration status. 
Should a State Exchange choose to propose use of an alternative 
electronic data source for verifying incarceration status, HHS would 
review such proposals in accordance with the process under Sec.  
155.315(h), through which HHS would make a determination based on the 
proposed

[[Page 82573]]

use of the alternative data source and whether it minimizes 
administrative costs and burdens on individuals while it maintains 
accuracy and minimizes delay. Proposed paragraph (e)(3) would provide 
that if an Exchange verifies an applicant's attestation of 
incarceration status using an approved data source as provided under 
proposed paragraph (e)(2), to the extent that the applicant's 
attestation is not reasonably compatible with information from the 
approved data source or other information provided by the applicant or 
in the records of the Exchange, the Exchange would be required to 
follow the DMI procedures at Sec.  155.315(f).
    In the Exchange Establishment Rule (77 FR 18362), we recognized 
that there may be challenges in the availability of electronic 
incarceration verification data but believed that so long as an 
incarceration verification data source existed that has been approved 
by HHS, it should be used to verify incarceration status. We also 
recognized that requesting consumer attestation of incarceration status 
and accepting such attestation without further verification when an 
accurate data source was unavailable is necessary since incarceration 
status is a statutory standard for eligibility to enroll in a QHP.
    Exchanges using the Federal eligibility and enrollment platform, 
including SBE-FPs, currently verify whether an applicant is 
incarcerated through the Hub by using the Social Security 
Administration's (SSA) Prisoner Update Processing System (PUPS). PUPS 
is currently maintained by SSA and is the only national database that 
reflects information from Federal, State, and local correctional 
records. Our experience administering the Federal eligibility and 
enrollment platform, along with the experience from the State Exchanges 
that have used the PUPS data, have demonstrated that verifying 
incarceration data using PUPS has resulted in a high number of DMIs, 
few of which identify QHP applicants who are incarcerated. For example, 
we conducted an internal study and found that out of 110,802 
incarceration DMIs generated between PYs 2018 to 2019, 96.5 percent of 
them were resolved in favor of the applicant. More importantly of those 
3,878 applicants whose DMIs were not resolved in their favor (3.5 
percent of 110,802), we found that only a total of 2,469 applied for 
QHP coverage during PYs 2018 and 2019. Of these 2,469 ineligible 
applicants, 950 applicants were released from either prison or jail 
within 90 days after the application submission date. Excluding these 
individuals leaves 1,519 QHP-ineligible individuals, of which 921 
applicants effectuated coverage (that is, made the binder payment), 
which is allowed while awaiting DMI clearance, thus resulting in an 
improper APTC payment. An average annual APTC per individual of $1,569 
was estimated for the 921 QHP ineligible applicants with effectuated 
policies.\155\ This yields potential improper payments of approximately 
$361,262.25 over 3 months. Because only a very small number of 
incarcerated individuals apply to enroll in QHPs, verifying 
incarceration status using PUPs and conducting the DMI process outlined 
at Sec.  155.315(f) results in Exchanges saving only a fraction of 
improper overpayment of APTC, and those savings are dwarfed by the 
administrative costs imposed by using PUPs and conducting the DMI 
process.
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    \155\ This per-person per-year estimate was calculated by 
multiplying the monthly APTC benefit that each ineligible and 
effectuated applicant was estimated to receive in their FFE 
application by the maximum number of months the applicant could have 
been enrolled in a QHP while still incarcerated and pending DMI 
clearance. For open enrollment applications, an enrollment start 
date of January 1 was used (45 CFR 155.410). For special enrollment 
period applicants, the previous coverage effective date rules were 
used where if the applicant applied between the 1st and 15th of the 
month, an enrollment start date of the 1st of the following month 
was used. If the applicant applied after the 16th of the month, an 
enrollment start date of the 1st of the month 2 months following the 
application month was used. 45 CFR 155.420.
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    We conducted a cost-benefit assessment and determined that the cost 
to verify incarceration status electronically far exceeds potential 
savings. Should the Exchange conduct an electronic incarceration 
verification check, such as a verification check of a consumer's 
attestation using PUPS data, it would cost more than $4 million to 
operate yearly, along with a one-time implementation startup cost of 
approximately $200,000. Furthermore, connecting to an alternative 
incarceration data source, such as PUPS, and conducting the DMI process 
outlined at Sec.  155.315(f) can be very costly to Exchanges. In PY 
2019, nearly 38,000 out of 78,000 applicants with an incarceration DMI 
submitted documents to attempt to resolve the incarceration DMI. To 
process DMIs, the Exchange incurs costs for the eligibility-
verification contractor on a fixed-price basis totaling about $0.57 
million per year for verification of incarceration. This figure does 
not include other costs related to sending notices to consumers, 
processing appeals, and handling call center transactions. Our 2019 
study concluded that those who receive an incarceration DMI are 
statistically likely to be eligible to enroll in a QHP as the 
applicants were released from either prison or jail within 90 days 
after the application submission date. However, an unresolved 
incarcerated DMI can result in a complete loss of coverage.
    The processes of notifying consumers of their DMIs and resolving 
them have been burdensome and has negatively impacted the consumer 
experience. When an incarceration DMI is generated, applicants are 
required to provide documentation to show that they are no longer 
incarcerated.\156\ This creates a significant enrollment burden for 
formerly incarcerated individuals, a population comprised of a 
significant number of people with disabilities.\157\ Many documents 
that can prove incarceration status cannot be obtained without an 
unexpired proof of identity document, and most cannot be obtained 
without submitting non-refundable payments. Incarceration may inhibit 
one's financial savings, and formerly incarcerated individuals are less 
likely to secure employment.\158\
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    \156\ HealthCare.gov. (n.d.) How do I resolve a Data Matching 
Issue. Dept. of Health and Human Services. https://www.healthcare.gov/help/how-do-i-resolve-an-inconsistency/#incarceration-status.
    \157\ Apel, R., and Sweeten, G. (2010, Aug. 1). The Impact of 
Incarceration on Employment during the Transition to Adulthood. 
Social Problems, 57(3), 448-479. https://doi.org/10.1525/sp.2010.57.3.448.
    \158\ Id.
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    These findings support our beliefs that incarcerated individuals 
apply for QHP coverage at very low rates, and that their applications 
are considered to be a very low program integrity risk for Exchanges, 
which do not warrant always conducting an extensive incarceration 
verification check. We also believe that previous guidance to conduct 
incarceration status verification \159\ may have contributed to 
inequity in the Exchange population, as Black adults were imprisoned at 
five times the rate for White adults \160\ and are more likely to face 
systemic obstacles hindering their ability to secure employment post 
incarceration.\161\
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    \159\ 45 CFR 155.315(e).
    \160\ Nellis, A. (2021). The Color of Justice: Racial and Ethnic 
Disparity in State Prisons. The Sentencing Project. https://www.sentencingproject.org/app/uploads/2022/08/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf; Sabol, W.J., and 
Johnson, T.L. (2022). Justice System Disparities: Black-White 
National Imprisonment Trends, 2000 to 2020. Council on Criminal 
Justice. https://secure.counciloncj.org/np/viewDocument?
    \161\ Sirios, C., and Western, B. (2017, Feb.). Racial 
Inequality in Employment and Earnings after Incarceration. Harvard 
University. https://scholar.harvard.edu/files/brucewestern/files/racial_inequality_in_employment_and_earnings_after_incarceration.pdf.

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    Given these concerns, we propose to amend Sec.  155.315(e) by 
revising

[[Page 82574]]

paragraph (e)(1) to permit all Exchanges to accept consumer attestation 
of incarceration status without further electronic verification. We 
also propose to revise paragraph (e)(2) to permit Exchanges to verify 
consumer incarceration status using an HHS-approved verification data 
source that is current, accurate, and minimizes administrative costs 
and burdens. We believe these proposed changes would improve the 
Exchange enrollment process, reduce operational challenges for 
Exchanges, and reduce burdens on applicants, all while maintaining 
program integrity and ensuring that the alternative incarceration 
verification data source that may be used by Exchanges is not unduly 
burdensome or costly to administer.
    We also propose changes to paragraph (e)(3) to reflect that if an 
Exchange verifies an applicant's attestation of incarceration status 
using an approved data source, and the attestation is not reasonably 
compatible with the information from the approved data source or other 
information provided by the applicant or in the records of the 
Exchange, the Exchange must then follow the DMI process set forth in 
Sec.  155.315(f).
    We seek comment on this proposal, particularly from State Exchanges 
and other users of PUPS data through the Hub. We are also particularly 
interested in comments about whether State Exchanges intend to continue 
using PUPS data to verify incarceration status. We are also seeking 
input from any State Medicaid agency that uses PUPS data available 
through the Hub.
12. Verification Process Related to Eligibility for Insurance 
Affordability Programs (Sec.  155.320)
    We propose to reinterpret State Exchange and State Medicaid and 
Children's Health Insurance Program (CHIP) agency use of the Federal 
Data Services Hub (Hub) to access and use the income data provided by 
the optional Verify Current Income (VCI) Hub service as a State 
Exchange or a State Medicaid and CHIP agency function, because these 
State entities use this optional service to implement eligibility 
verification requirements applicable to them. While we propose to 
redesignate use of the VCI Hub service by State Exchanges and State 
Medicaid and CHIP agencies as a State function, HHS would continue to 
maintain contracts that make this service available through the Hub for 
State Exchange and State Medicaid and CHIP agency use as part of its 
ongoing implementation of sections 1411 and 1413 of the ACA. We propose 
to amend Sec.  155.320(c) to reflect this reinterpretation for the 
Exchanges. Under this proposal, States would pay annually in advance 
for the State Exchanges and Medicaid and CHIP agencies' anticipated 
utilization of the optional VCI Hub service. State Exchanges and 
Medicaid and CHIP agencies would be required to reconcile with HHS on 
an annual basis the anticipated utilization of CSI data provided by the 
VCI Hub service with the actual utilization. In the alternative, HHS 
would invoice States on a monthly basis for their actual utilization of 
CSI data provided by the VCI Hub service after that utilization occurs. 
State Medicaid and CHIP agencies would be eligible for Federal matching 
for the cost of this service, as described in this section.
    To operationalize application and verification processes related to 
eligibility for health insurance affordability programs and to make 
eligibility determinations as accurate as possible, in accordance with 
sections 1411 and 1413 of the ACA, we developed the Hub, which is a 
secure, electronic interface that facilitates the exchange of 
information used by Exchanges and State Medicaid and CHIP agencies and 
provides access to authoritative, trusted data sources for various 
types of information, including income. The Hub serves as the mechanism 
described in 45 CFR 155.315 and 155.320 that Exchanges are required to 
use to perform eligibility verifications by transmitting applicant data 
to HHS, which then submits the data to specific trusted data sources 
for verification. For State Medicaid and CHIP agencies, the Hub serves 
as a mechanism for accessing both required and optional trusted data 
sources to verify eligibility at application or renewal as described at 
42 CFR 435.949 and 42 CFR 457.380(g). These trusted data sources 
include Federal agencies, such as the IRS for Federal income tax data 
and the SSA for Social Security benefits.
    For example, the ACA requires that Exchanges and State Medicaid and 
CHIP agencies use data from the SSA to verify applicants' U.S. 
Citizenship, Social Security number (SSN), and Social Security 
Disability Insurance (SSDI) income, if any, and data from the 
Department of Homeland Security to verify applicants' naturalized 
citizenship or immigration status, both available through the Hub. In 
addition to mandatory data to verify eligibility, Exchanges and State 
Medicaid and CHIP agencies may also use optional data available through 
the Hub, including Medicare enrollment data to verify an applicant's 
eligibility for minimum essential coverage, and the VCI Hub service, 
which provides an access point for Exchanges and State Medicaid and 
CHIP agencies to request and receive an applicant's current income data 
from a private company, referred to as Current Sources of Income (CSI) 
data. Consistent with the requirements at sections 1411 and 1413 of the 
ACA (related to establishment and participation in a coordinated 
eligibility and enrollment system for all insurance affordability 
programs), in order to facilitate Exchange and State Medicaid and CHIP 
agency access to optional data, HHS will continue to provide free 
access to States for certain optional data, such as Medicare enrollment 
data, and will provide access to the CSI data to States that pay for 
their use of it in advance. However, we propose to re-reinterpret 
Exchange and State Medicaid and CHIP agency use of the Hub to access 
the optional data sources as an Exchange or a State Medicaid and CHIP 
agency function. We propose to amend Sec.  155.320(c) to reflect this 
reinterpretation.
    As additional background, the ACA requires the use of a single, 
streamlined application to determine Exchange eligibility and collect 
information.\162\ The application is used to determine eligibility for 
enrollment in a QHP, and, as applicable, for insurance affordability 
programs such as APTC, CSR, Medicaid, CHIP, and, if applicable, the 
BHP. Eligibility for these programs is determined using an income 
standard based on an applicant's modified adjusted gross income (MAGI) 
and the process for verifying income depends on the insurance 
affordability program.\163\ The income verification process that an 
Exchange uses to verify income depends on whether an applicant is being 
evaluated for eligibility for APTC and CSRs for a QHP or eligibility 
for Medicaid, CHIP, or the BHP. For example, Medicaid eligibility is 
determined using ``point-in-time'' income, or current monthly income, 
while eligibility for APTC and CSRs is determined using projected 
annual income.\164\ An Exchange must follow a verification process for 
household income that includes requesting data

[[Page 82575]]

through the Hub to verify income \165\ using IRS and SSA income 
data.\166\
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    \162\ See 42 U.S.C. 18083 and 45 CFR 155.405(a).
    \163\ Section 1902(e)(14)(A) of the Act requires that States 
determine financial eligibility for Medicaid based on MAGI except in 
the case of individuals identified in section 1902(e)(14)(D) of the 
Act. For example, States do not determine financial eligibility 
based on MAGI for individuals who are being evaluated for 
eligibility on the basis of living with a disability or blindness or 
being age 65 or older.
    \164\ See section 1902(e)(14)(H) of the Act, as added by section 
2002 of the ACA.
    \165\ See Sec.  155.320(c).
    \166\ See Sec.  155.320(a)(1) and (c)(3)(ii)(B). Section 
155.320(c)(2) outlines the verification process that Exchanges are 
also required to follow when evaluating eligibility for Medicaid or 
CHIP.
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    For these applications, regulations require that for any individual 
in the applicant's or enrollee's tax household (and for whom the 
Exchange has a SSN), the Exchange must request Federal income tax 
return data regarding income and family size from the IRS as well as 
data from SSA regarding Social Security Benefits.\167\ When the 
Exchange requests tax return data from the IRS and the data indicates 
that attested projected annual household income represents an accurate 
projection of the tax filer's household income for the benefit year for 
which coverage is requested, the Exchange must determine eligibility 
for APTC and CSRs based on the IRS income tax data.\168\ However, when 
the Exchange requests income tax return data from the IRS and the IRS 
returns data reflecting that the attested projected annual household 
income is not an accurate projection of the tax filer's household 
income for the benefit year for which coverage is requested, the 
applicant or enrollee is considered to have experienced a change in 
circumstances. This change in circumstance allows HHS to establish 
procedures for determining eligibility for APTC and CSRs on information 
other than the IRS income tax return data as described in Sec.  
155.320(c)(3)(iii)-(vi).\169\
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    \167\ See Sec.  155.320(c)(i)(A).
    \168\ See Sec.  155.320(c)(3)(ii)(C).
    \169\ See section 1412(b)(2) of the ACA.
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    In these situations, where government sources of income are 
unavailable, or the applicant(s)' attested income is significantly 
different from what the IRS returns, data on current income may be used 
for eligibility determinations and redeterminations for financial 
assistance, including the CSI data that HHS makes available to 
Exchanges and State Medicaid and CHIP agencies via the optional VCI Hub 
service. HHS holds a contract with a private, commercial company to 
provide the CSI data through the VCI Hub service. Exchanges and State 
Medicaid and CHIP agencies have been able to use the VCI Hub service as 
an optional secondary, trusted data source for income verification but 
are not required to do so and may use other data sources. The VCI Hub 
service provides current income data that is sourced from employer-
reported income and job status data that is provided and updated for 
each employer payroll period (that is, weekly, bi-weekly, monthly, 
etc.). Under Sec.  155.315(h), State Exchanges may seek HHS approval to 
use other sources of additional income data for verification of 
applicant-attested annual household income.
    For Medicaid and CHIP, section 2201 of the ACA, codified at section 
1943 of the Act, requires State Medicaid and CHIP agencies to 
participate in and comply with the eligibility and enrollment system 
requirements under section 1413 of the ACA. This requires State 
Medicaid and CHIP agencies to use a single streamlined application and 
rely primarily on electronic data to verify income and other 
eligibility criteria. The ACA and the Act specify several data sources 
that State Medicaid and CHIP agencies must use in verifying 
eligibility. These agencies may also elect to use other optional 
electronic data sources to improve the efficiency and accuracy of the 
eligibility determination process. They may use the VCI Hub service for 
initial applications, redeterminations, changes in circumstance, and 
periodic data matching for their Medicaid and CHIP populations. State 
Medicaid agencies are required by 42 CFR 435.948(a) to verify financial 
eligibility with certain financial data sources. If a State does not 
accept self-attestation of income in determining eligibility for a 
separate CHIP, it similarly must verify financial eligibility with 
certain data sources in accordance with 42 CFR 435.948(a), which is 
incorporated into the CHIP regulations by cross reference at 42 CFR 
457.380. CSI data is not among the data sources which State Medicaid 
agencies are required to access under this requirement. States also are 
given latitude to determine the usefulness of these data sources and 
must only access data sources determined to be useful to them. For 
initial applications and redeterminations for Medicaid or CHIP 
eligibility, income data accessed through the VCI Hub service provides 
real time, current income information for States to determine Medicaid 
or CHIP financial eligibility. Because other financial data sources, 
such as State quarterly wage data, provide data that is from a quarter 
to six months old, some States prefer to use the CSI income data 
available through the VCI Hub service, which is the only data source in 
the Hub used to verify and redetermine current and annual income 
outside of the IRS or SSA data, as their primary source of data to 
verify income prior to accessing other financial data sources. Some 
States also utilize the VCI Hub service to verify income information 
when a beneficiary reports a change in circumstance for financial 
eligibility.
    Under our proposal, Exchanges and State Medicaid and CHIP agencies 
may opt to continue to use the VCI Hub service to support their 
eligibility verification processes for Exchange QHP coverage or 
Medicaid and CHIP if they pay in advance for the cost of their use of 
the service. For instance, Exchanges would still be able to use this 
current income information to verify a tax household's annual income 
attestation if they are unable to verify income using SSA, IRS income 
tax data, or a combination of both SSA and IRS data, in determining 
eligibility for APTC. Because Exchanges and State Medicaid and CHIP 
agencies are permitted, but not required to use the VCI Hub service to 
fulfill the mandatory eligibility determination requirements imposed on 
them, accessing the CSI data via the VCI Hub service would be properly 
characterized as an Exchange or State Medicaid and CHIP agency 
function.
    Consistent with section 1413 of the ACA, HHS would continue to 
provide access to optional data sources through the Hub to support the 
streamlined application processes. However, as these functions would be 
considered Exchange or State Medicaid and CHIP agency functions, and 
not HHS functions, HHS would no longer fund Exchange or State Medicaid 
and CHIP agency use of these sources and would only provide access to 
States who paid in advance for their use of the service. For all but 
one of the optional data sources available through the Hub, HHS does 
not bear a cost for Exchange or State Medicaid and CHIP agency use of 
the various Hub services that provide these data. However, HHS does 
bear a cost for Exchange and State Medicaid and CHIP agency use of the 
CSI data accessed through the VCI Hub service. If finalized as 
proposed, under this interpretation, State Exchanges and State Medicaid 
and CHIP agencies would be required to pay for their use of the VCI Hub 
service in advance of their usage of the service. However, where 
applicable, State costs for State Medicaid and CHIP agencies may be 
eligible for Federal matching funds, where HHS will match 75 percent of 
the cost of a State Medicaid agency's utilization of the VCI Hub 
service and match CHIP costs at a State's enhanced Federal Medical 
Assistance Percentage (FMAP).
    Since the VCI Hub service was established in 2013 for use by both 
Exchanges and State Medicaid and CHIP agencies, utilization of the VCI 
Hub service has grown significantly over time, both in the number of 
State

[[Page 82576]]

Exchanges and State Medicaid and CHIP agencies using the service, and 
the number of applicants and beneficiaries that require income 
verification as Exchange populations have increased over time. During 
the first Open Enrollment in 2013, only the Exchanges on the Federal 
platform, two State Exchanges, and eight State Medicaid agencies used 
data from the VCI Hub service for eligibility determinations. In that 
first year, the Exchanges on the Federal platform initiated about 88 
percent of all requests, or ``pings'' to the VCI Hub service for income 
verification. In the past decade, more State Medicaid agencies and 
State Exchanges have started using the VCI Hub service; as of June 
2023, 34 States, including the District of Columbia and Puerto Rico, 
use the VCI Hub service for their State Medicaid and CHIP programs, and 
10 of those States also use the service to verify QHP eligibility for 
their State Exchanges. Our analysis shows that as of March 2023, over 
70 percent of monthly pings to the VCI Hub service were from State 
Medicaid applications, including renewals of eligibility for Medicaid 
or CHIP coverage, and the Exchanges on the Federal platform now account 
for less than 10 percent of the total volume.
    If new State Medicaid agencies or State Exchanges are permitted to 
request access to the VCI Hub service, we forecast that in the next 5 
years, transaction volume to the VCI Hub service would increase by over 
17 percent. These trends in utilization have provided us with a clear 
picture of the primary uses and utilizers of the VCI Hub service. 
Specifically, we have learned that the queries submitted by States to 
the VCI Hub service have been for income verification by State Medicaid 
agencies to determine Medicaid and CHIP eligibility, and by State 
Exchanges to assess or determine Medicaid and CHIP eligibility and 
determine APTC eligibility. Accordingly, we now believe this activity 
that has been categorized as an HHS function would be better 
categorized as: (1) a State Medicaid and CHIP agency eligibility 
determination function under title XIX or title XXI of the Act when the 
determination is initiated by a State Medicaid or CHIP agency; and (2) 
as an Exchange function when the determination is initiated by an 
Exchange.
    While we believe the utilization of this optional data source is an 
Exchange or State Medicaid and CHIP agency function, making the 
optional data sources available through the Hub is consistent with the 
requirements at sections 1411 and 1413 of the ACA related to 
establishment and participation in a coordinated eligibility and 
enrollment system for all insurance affordability programs. As such, to 
facilitate Exchanges' and States Medicaid and CHIP agencies' access to 
this optional CSI data that is available through the VCI Hub service, 
HHS would continue to maintain contracts that make access to these 
resources available through the Hub for Exchange and State Medicaid and 
CHIP agency use.
    In making this proposal, we note that while use of the VCI Hub 
service is an integral part of the eligibility determination process in 
most States, Exchanges and State Medicaid and CHIP agencies may have 
access to other data sources to verify income. As noted previously, we 
are aware that many States have access to other comprehensive data 
sources, such as State quarterly wage data. Generally, as dictated by 
individual State law, employers are required to report employee 
information such as payroll and unemployment insurance contribution 
data to a State department, such as the State Department of Labor or a 
similar office. In place of the optional VCI Hub service, State 
Exchanges continue to have flexibility under 45 CFR 155.315(h) and 
155.320(c)(3)(iv) to use an alternative verification source, like State 
wage data, when income is not verified using IRS tax data or SSA title 
II data. We encourage State Exchanges, State Medicaid and CHIP 
agencies, and other interested parties, to submit comments regarding 
any operational burden, policy, or budget challenges regarding access 
to other State data sources of this proposal change.
    As part of our consideration of these proposals in this rulemaking, 
we considered requiring State Medicaid agencies and State Exchanges to 
obtain their own contracts to administer their CSI data usage; however, 
we had concerns that these services cannot be procured reasonably and 
expeditiously, which would undermine the system we have implemented 
under section 1413 of the ACA. We also believe that there may be 
benefits to the State Medicaid agencies and State Exchanges that prefer 
to use the CSI data accessible through the VCI Hub service in their 
States. Therefore, we propose to retain optional access to the VCI Hub 
service on behalf of State Medicaid agencies and State Exchanges that 
prefer to continue to use this service and are willing to pay for their 
CSI data usage in advance. Under this proposal, State Medicaid agencies 
and State Exchanges can choose to discontinue their use of the CSI data 
accessible through the VCI Hub service.
    Given these considerations, we propose to amend 45 CFR 
155.320(c)(1) to add new paragraph (c)(1)(iii) to require that 
beginning July 1, 2024, State Exchanges would be required to pay for 
100 percent of their utilization of the CSI income data provided by the 
VCI Hub service.\170\ To implement this proposal, States would be 
required to pay for their usage of the CSI data in advance of their use 
of the service in a timeline and manner established by HHS. HHS would 
use the State's pre-payment to pay for the State's access, with the 
amount of the pre-payment calculated as being equal to the product of 
the number of projected purchased transactions to be returned from the 
VCI Hub service, that is, the ``number of pings,'' and the price per 
transaction established under the contract maintained by HHS to provide 
the VCI Hub service. HHS is currently exploring the best mechanism to 
project States' usage for their State Exchange's use of the VCI Hub 
service. HHS anticipates leveraging lessons learned from its existing 
financial management processes.
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    \170\ The FFEs' and SBE-FPs' costs for accessing these services 
would be covered by the FFEs' and SBE-FPs' user fees.
---------------------------------------------------------------------------

    Similarly, we propose to require that beginning July 1, 2024, 
States pay for their Medicaid and CHIP utilization of the VCI Hub 
service prior to obtaining information from data sources which these 
State entities choose, but are not required, to use in fulfilling 
Medicaid or CHIP eligibility determination requirements. As noted 
above, consistent with the requirements at section 1413 of the ACA 
(related to establishment and participation in a coordinated 
eligibility and enrollment system for all insurance affordability 
programs), which is incorporated into the Medicaid and CHIP statutes at 
sections 1943(b)(3) and 2107(e)(1), respectively, of the Act, in order 
to facilitate States' access to this optional CSI data that is 
available through the VCI Hub service, we would continue to maintain 
contracts that enable States to efficiently access CSI data through the 
VCI Hub service. However, under our proposal, States would be required 
to pay the advance cost incurred by HHS when the State requests CSI 
data through the VCI service offered by the Hub.
    In the alternative, HHS is also considering whether it could 
invoice States on a monthly basis for their actual utilization of CSI 
data provided by the VCI hub service after that

[[Page 82577]]

utilization occurs. If appropriate, this alternative proposal could be 
adopted in the final rule. We are considering these mechanisms for 
implementing State Exchange and Medicaid and CHIP agency payments for 
use of the VCI Hub service and solicit comments on whether a different 
implementation approach would be more efficient or otherwise 
preferable.
    To implement this proposal for the States to pay in advance for CSI 
data services, we would anticipate working with States to develop an 
estimate of their annual usage of the CSI data service and collecting 
those amounts from the States. Under this approach, each State would 
notify HHS that the State wants to continue to use the CSI data through 
the VCI Hub service and will pay in advance for its usage of services. 
In particular, HHS would estimate, based on historical utilization 
trends taking into consideration other reasonable assumptions about the 
State's usage, the anticipated annual number of each participating 
State's purchased transactions to the VCI Hub service returning usable 
CSI data, that is, the number of pings to the VCI Hub service returning 
usable CSI data. The estimate for each participating State would be 
multiplied by the fixed price set by the CSI contract HHS holds with 
its vendor. HHS would collect that amount from the State, which would 
be required to reconcile with HHS on an annual basis the anticipated 
utilization of CSI data provided by the VCI Hub service with the actual 
utilization.
    Under this reconciliation process, HHS would offset payments for 
the next annual payment cycle for States \171\ where actual utilization 
is less than the anticipated utilization for which they were invoiced. 
The offset amount would be equal to the difference in that State's 
anticipated number of pings multiplied by the fixed price, and its 
actual number of pings multiplied by the fixed price. States in which 
actual utilization is greater than the anticipated utilization for 
which they were invoiced would be assessed a charge for the difference 
in that State's actual number of pings multiplied by the fixed price, 
and the anticipated number of pings multiplied by the fixed price. We 
seek comment on how HHS should estimate States' future anticipated 
utilization of CSI data provided by the VCI Hub service. We also seek 
comment on whether HHS should estimate, collect, and reconcile these 
payments from States more frequently, such as biannually, quarterly, or 
monthly, rather than annually, for their anticipated utilization.
---------------------------------------------------------------------------

    \171\ Utilization of CSI data through the VCI Hub will be 
assessed for each relevant State Exchange, State Medicaid Agency, or 
CHIP agency.
---------------------------------------------------------------------------

    Alternatively, we seek comment on HHS invoicing on a monthly basis 
for their actual utilization of CSI data provided by the VCI Hub 
service after that utilization occurs. To implement this alternative 
approach, we anticipate that each month, States would receive an 
invoice of the amount that must be paid to HHS for its usage in the 
prior month. This amount would total each respective State Exchange's 
and Medicaid and CHIP agencies' utilization in that month, specifically 
the number of purchased transactions to the VCI Hub service that 
returned usable CSI data, multiplied by the fixed price set by the CSI 
contract HHS holds with its vendor. Therefore, we, on behalf of HHS, 
would collect funds to cover the costs of these services from Medicaid 
and CHIP agencies after the use of the service and on a regular basis. 
State Medicaid and CHIP agencies would be eligible for Federal matching 
for the cost of this service under this alternative proposal we have 
opted to propose a July 1, 2024 effective, as described in this 
section. We seek comment on this alternative approach, including 
whether HHS should invoice States annually, biannually, or quarterly, 
rather than monthly, if this alternative is adopted in the final rule.
    In accordance with section 1903(a)(3)(B) of the Act and 42 CFR 
433.116, Federal Financial Participation (FFP) is available at 75 
percent of State expenditures for operations of approved State Medicaid 
Enterprise Systems (MES) costs for data exchange between State systems 
and the VCI Hub service and including for State costs to access the VCI 
Hub service, as well as maintenance of associated State system 
functionality and automation. Additionally, per section 
1903(a)(3)(A)(i) of the Act and 42 CFR 433.112, FFP is available at 90 
percent of State expenditures for MES design, development, 
installation, or enhancement, including for such State costs as are 
necessary to use the VCI Hub service. In CHIP, administrative expenses, 
including those related to system operations, maintenance, design, 
development, installation, and enhancement, are matched at the regular 
CHIP enhanced FMAP. States that use a joint Medicaid and CHIP 
eligibility system should cost allocate VCI Hub service expenses 
between the programs. Prior to incurring MES development and 
operational costs for the VCI Hub service, the State must submit an 
Advance Planning Document requesting enhanced Federal match to us for 
review and approval, in accordance with regulation at 45 CFR part 95, 
subpart F. We intend to provide States with operational guidance with 
options for how to comply with any new requirement finalized. We note 
that the VCI Hub service use is considered to be a State Medicaid and 
CHIP agency function, and therefore a cost for these agencies only when 
the eligibility determination is initiated by the State agency. Costs 
should be allocated to the requesting entity that is making the request 
to the VCI Hub service, such that States are only liable for the cost 
of the VCI Hub service responses for pings that originated from the 
State Medicaid and CHIP agency. For example, if an applicant initiates 
an application at HealthCare.gov or a State Exchange, but is then 
transferred to a State Medicaid agency, those costs would be the 
responsibility of HHS or the State Exchange and not the State Medicaid 
agency.
    Finally, we propose that the interpretation characterizing use of 
the VCI Hub service as a function of State Exchanges and Medicaid and 
CHIP agencies and not an HHS function be effective on July 1, 2024. We 
recognize that this implementation date may be difficult for States, 
especially those with biennial budget cycles. However, given our 
determination that eligibility verifications using CSI data by State 
Exchanges and Medicaid and CHIP agencies is most appropriately 
characterized as a function of these agencies and not an HHS function, 
we believe it is appropriate to move forward with this change as 
expeditiously as possible, while giving States some time to plan for 
the change. For this reason, we have opted to propose a July 1, 2024 
effective date for this provision.
    We seek comment on these proposed changes, including whether we 
should make this interpretation effective as of July 1, 2024, or a 
different date. We are also interested in learning how this change may 
impact States' use of the VCI Hub service. Will State Exchanges and 
Medicaid and CHIP agencies seek to cease or restrict their use of the 
VCI Hub service, possibly using it as a last resort? What impact might 
these proposed changes have on the amount of time it takes applicants 
to verify their income or the time it takes for States to make an 
eligibility determination? We would also be interested in learning the 
extent to which States may be interested in potential avenues to reduce 
operational burdens or address budget challenges facing State Exchanges 
and Medicaid and CHIP agencies. Namely, we are interested in whether 
States would be

[[Page 82578]]

interested in opportunities to pay an additional fee that would allow 
them to reuse VCI Hub service verification results across multiple 
Federally-funded and State-administered human service programs (with 
cost allocation across those programs); whether States have separate, 
direct access to the same or similar source of VCI Hub services, and 
the cost of such direct access; and whether States anticipate that 
reuse of verification data, coupled with cost allocation across 
program, would reduce operational burdens or address budget challenges 
facing State Exchanges and Medicaid and CHIP agencies.
13. Eligibility Redetermination During a Benefit Year (Sec.  
155.330(d))
    At Sec.  155.330, we propose to redesignate paragraph (d)(3) as 
paragraph (d)(3)(i) and add paragraph (d)(3)(ii) to require Exchanges 
to conduct periodic checks for deceased enrollees twice yearly and 
subsequently end deceased enrollees' QHP coverage beginning with the 
2025 calendar year. Additionally, we propose to add Sec.  
155.330(d)(3)(iii) to grant the Secretary the authority to temporarily 
suspend the periodic data-matching (PDM) requirement during certain 
situations or circumstances that lead to the unavailability of data 
needed to conduct PDM.
    Under Sec.  155.330(d), Exchanges are required to periodically 
examine available data sources, referred to as PDM, to identify whether 
enrollees become deceased, and to identify whether enrollees on whose 
behalf APTC or CSRs are being paid have been found eligible for or are 
enrolled in Medicare, Medicaid, CHIP, or the BHP, if a BHP is operating 
in the service area of the Exchange.
    Currently, Sec.  155.330(d)(3) defines ``periodically'' only for 
PDM activities that identify enrollment in Medicare, Medicaid, CHIP, 
and, if applicable, BHP, meaning that Exchanges must conduct Medicare 
PDM, Medicaid or CHIP PDM, and, if applicable, BHP PDM, twice a year. 
The current regulation does not specify the frequency by which PDM 
activities to identify deceased enrollees must occur, but the 2019 
Program Integrity Rule requires that Death PDM be conducted once 
annually, and we noted that we intend to update the frequency for Death 
PDM in future rulemaking. As explained in the 2019 Program Integrity 
Rule, we did not require Exchanges to perform PDM for death at least 
twice in a calendar year so that Exchanges could prioritize the 
implementation of the new requirement to conduct PDM for Medicare, 
Medicaid, CHIP and, if applicable, BHP eligibility or enrollment at 
least twice yearly. In this proposed rule, we are now proposing to add 
Sec.  155.330(d)(3)(ii) to require Exchanges beginning with the 2025 
calendar year to conduct periodic checks for deceased enrollees twice 
yearly and subsequently end deceased enrollees' QHP coverage after 
following the procedure specified in Sec.  155.330(e)(2)(i).
    Periodic checks for deceased enrollees help ensure Exchange program 
integrity. This proposal would not only align with current Federal 
Exchange policy and operations but would also prevent overpayment of 
QHP premiums and APTC/CSRs, and accurately capture household QHP 
eligibility based on household size. Additionally, by conducting Death 
PDMs twice a year, Exchanges can prevent future auto re-enrollments or 
policy effectuation for deceased enrollees for the next plan year.
    Additionally, we propose to add Sec.  155.330(d)(3)(iii) to grant 
the Secretary the authority to temporarily suspend the PDM requirement 
during certain situations or circumstances that lead to an 
unavailability of data needed to conduct PDM. PDMs are conducted as a 
program integrity measure where the prerequisite for conducting a 
proper PDM is assurance of data quality. We recognize that during 
certain circumstances data quality may be incomplete or lagging. During 
the COVID-19 Public Health Emergency, State and local agencies had to 
strain their resources to address backlogs due to job losses and other 
administrative gaps further slowing down response times,\172\ thereby, 
increasing the risk of the Exchanges making inaccurate eligibility 
determinations due to potential data lags. In such cases, using such 
data could pose a risk of improper termination of coverage or APTC/CSRs 
for large numbers of enrollees. These improper terminations may be 
particularly harmful during situations such as a public health 
emergency. These potential harms can be even more likely to occur when 
the additional burdens of DMI resolution are imposed on Medicare and 
Medicaid beneficiaries, who can be vulnerable and underserved and more 
likely to encounter gaps in coverage or a complete lack of coverage as 
a result of failing to resolve the DMIs.\173\ Allowing the Secretary 
the flexibility to temporarily suspend the PDM requirement during 
certain situations may be able to prevent an inadvertent increase in 
the uninsured population, largely consisting of vulnerable consumers. 
We would notify Exchanges of such a suspension of PDM activities, and a 
resumption of PDM activities, through subregulatory guidance.
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    \172\ McDerrmott, D., Cox, C., Rudowitz, R, and Garfield, R. 
(2020, Dec. 9). How Has the Pandemic Affected Health Coverage in the 
U.S.? KFF. https://www.kff.org/policy-watch/how-has-the-pandemic-affected-health-coverage-in-the-u-s/.
    \173\ Hirsch, M. (1994). Health Care of Vulnerable Populations 
Covered by Medicare and Medicaid. Health Care Finance Rev.,15(4):1-
5. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4193433/.
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    We anticipate most State Exchanges would be able to meet the 
proposed requirements for Death PDM based on operations already 
reported through the State-based Marketplace Annual Reporting Tool 
(SMART) as well as discussions we have had with the State Exchanges on 
PDM. We also anticipate that changes, including a suspension of the PDM 
requirement, would be well received by the Exchanges and issuers, as it 
is important that consumer information, such as eligibility for APTC or 
QHP coverage, be accurate to avoid expending administrative resources 
on complex processes to correct errors. Eleven State Exchanges reported 
in their 2022 SMART submissions that they curtailed PDM checks only due 
to the exigency resulting from the COVID-19 Public Health Emergency, 
which expired in May of 2023. Furthermore, we do not anticipate the new 
periodicity requirement for the Death PDM to result in a significant 
administrative burden for State Exchanges because States previously 
conducted PDM checks for deceased enrollees.
    Under section 1313(a)(4) of the ACA, if HHS determines that an 
Exchange has engaged in serious misconduct with respect to compliance 
with Exchange requirements, it has the option to rescind up to 1 
percent of payments due to a State under any program administered by 
HHS until such misconduct is resolved. These existing authorities would 
apply to the proposed PDM requirements in Sec.  155.330(d). If HHS were 
to determine that it is necessary to apply this authority due to non-
compliance by an Exchange with Sec.  155.330(d), HHS would also 
determine the HHS-administered program from which it would rescind 
payments that are due to that State. However, if State Exchanges do not 
comply with the proposed PDM requirements, we would generally first 
direct a State Exchange to take corrective action. We utilize specific 
oversight tools (for example, the SMART, independent external 
programmatic & financial audits) to ensure compliance and that State 
Exchanges take appropriate corrective action. HHS also provides 
technical

[[Page 82579]]

assistance and ongoing monitoring to track those actions until the 
State Exchange remediates the issue fully.
    We seek comment on this proposal.
14. Incorporation of Catastrophic Coverage Into the Auto Re-Enrollment 
Hierarchy (Sec.  155.335(j))
    We propose to amend Sec.  155.335(j)(1) and (2) to require 
Exchanges to re-enroll individuals who are enrolled in catastrophic 
coverage as defined in section 1302(e) of the ACA into a new QHP for 
the coming plan year. We believe that some Exchanges already re-enroll 
these enrollees, including Exchanges on the Federal platform when 
issuers include plan crosswalk information for catastrophic plans when 
they submit the information as part of the annual QHP certification 
process. However, explicitly incorporating catastrophic plan enrollees 
into the rules at Sec.  155.335(j) would help ensure continuity of 
coverage in cases where the issuer does not offer the catastrophic plan 
for the subsequent plan year, and individuals enrolled in catastrophic 
coverage do not actively select a different QHP. We also propose to add 
new Sec.  155.335(j)(5) to establish that an Exchange may not newly 
auto re-enroll into catastrophic coverage an enrollee who is currently 
enrolled in coverage of a metal level as defined in section 1302(d) of 
the ACA. This is consistent with the practice of the Exchanges on the 
Federal platform, and we believe that State Exchanges likely also 
adhere to this practice, but that all interested parties would benefit 
from clear regulation on this aspect of the re-enrollment process.
    If this proposal is finalized, we would also update the Federally-
facilitated Exchange (FFE) Enrollment Manual to incorporate 
catastrophic coverage into the re-enrollment hierarchy for alternate 
enrollments, which we use to implement the regulation to crosswalk 
enrollees whose current issuer no longer offer plans available to them 
through the Exchanges on the Federal platform under Sec.  
155.335(j)(3).\174\
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    \174\ For the 2023 plan year, see CMS. (2023, July 12). 
Federally-facilitated Exchange (FFE) Enrollment Manual. CMS. Section 
3.2.4, pp 29-30. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf.
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    In the 2013 Patient Protection and Affordable Care Act; Standards 
Related to Essential Health Benefits, Actuarial Value, and 
Accreditation Final Rule (78 FR 12833), we set forth Exchange and 
issuer standards related to coverage of essential health benefits and 
actuarial value to reflect section 1302 of the ACA, which specifies 
levels of coverage or ``actuarial values'' that health plans in the 
individual and small group markets, both inside and outside of an 
Exchange, must meet as part of the requirement to cover an EHB package 
beginning in 2014. Specifically, the final rule codified section 
1302(d)(1) of the ACA, which specifies that actuarial values must be 60 
percent for a bronze plan, 70 percent for a silver plan, 80 percent for 
a gold plan, and 90 percent for a platinum plan.
    In the 2013 Patient Protection and Affordable Care Act; Health 
Insurance Market Rules; Rate Review Final Rule (78 FR 13405), we 
established standards for catastrophic plans offered in the individual 
market, consistent with section 1302(e) of the ACA, and codified the 
statutory criteria identified in section 1302(e)(2) of the ACA listing 
the two categories of individuals eligible to enroll in a catastrophic 
plan. The first category includes individuals who are younger than age 
30 before the beginning of the plan year. The second category includes 
individuals who have been certified as exempt from the individual 
responsibility payment because they cannot afford minimum essential 
coverage or because they are eligible for a hardship exemption. Section 
1302(e) of the ACA does not specify an actuarial value requirement for 
a catastrophic plan, but states that a health plan not providing a 
bronze, silver, gold, or platinum level of coverage shall be treated as 
meeting the requirements of subsection (d) for any plan year if it 
meets the requirements at section 1302(e)(1) of the ACA, providing an 
option for basic protections for young adults and people who cannot 
otherwise afford health insurance or have a hardship. However, section 
36B(c)(3)(A) of the Code provides that PTC is not allowed for 
individuals who enroll in catastrophic coverage described in section 
1302(e) of the ACA. Consequently, those individuals are not eligible 
for APTC.
    In the 2014 Patient Protection and Affordable Care Act; Annual 
Eligibility Redeterminations for Exchange Participation and Insurance 
Affordability Programs; Health Insurance Issuer Standards Under the 
ACA, Including Standards Related to Exchanges (79 FR 52994, 52998 
through 53001), we established the Exchange re-enrollment hierarchy at 
Sec.  155.335(j) to help ensure continuous coverage for consumers who 
opt not to make an active plan selection for the upcoming year.\175\ 
This final rule provided standards that Exchanges must follow to place 
current enrollees whose current year plan is no longer available, and 
who do not terminate coverage or select a different QHP, into a new 
plan for the coming year based on their current product, and their 
current year plan's metal level and plan network type. For example, an 
Exchange must place an enrollee whose current QHP is not available 
through the Exchange, in a QHP within the same product as their current 
year plan, and at the same metal level as the enrollee's current QHP. 
The final rule also specified requirements at Sec.  155.335(j)(2) for 
cases in which an enrollee's current product is no longer available. 
For example, an Exchange must place an enrollee whose current product 
is no longer available in a QHP at the same metal level as the 
enrollee's current QHP, in the product offered by the same issuer that 
is the most similar to the enrollee's current product.\176\
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    \175\ This final rule also made a technical correction to 
catastrophic coverage regulation at Sec.  156.155 to incorporate 
language in section 1302(e) of the ACA indicating that a 
catastrophic plan provides ``no benefits'' for any plan year (except 
for providing coverage for at least three primary care visits and 
preventive health services in accordance with section 2713 of the 
PHS Act) until the individual has incurred cost-sharing expenses in 
an amount equal to the annual limitation on cost sharing in effect 
under section 1302(c)(1) of the ACA.
    \176\ ``Product'' means a discrete package of health insurance 
coverage benefits that are offered using a particular product 
network type (such as health maintenance organization, preferred 
provider organization, exclusive provider organization, point of 
service, or indemnity) within a service area. 45 CFR 144.103.
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    In the 2017 Payment Notice (81 FR 12203), we amended Sec.  
155.335(j) to provide for automatic re-enrollment in a QHP offered by 
another issuer through the Exchange for enrollees whose current QHP 
issuer no longer offered a QHP through the Exchange in the enrollee's 
service area. This policy helped ensure that enrollees could maintain 
coverage with APTC and income-based CSRs, as opposed to losing coverage 
or re-enrolling in a plan outside the Exchange in cases where their 
current issuer offered off-Exchange coverage. This rule at Sec.  
155.335(j)(3) provides that the Exchange may direct these re-
enrollments, to the extent permitted by applicable State law, into a 
QHP from a different issuer as directed by the applicable State 
regulatory authority, or, if the applicable State regulatory authority 
declines to direct this activity, directed by the Exchange.
    In the 2023 Payment Notice (87 FR 27273), we solicited comments on 
incorporating certain cost factors into the re-enrollment hierarchy, 
including net premium, maximum out-of-pocket amount (MOOP), deductible, 
and total

[[Page 82580]]

out-of-pocket cost.\177\ We also solicited comments on additional ways 
we could ensure that the Exchange hierarchy for re-enrollment aligns 
with plan generosity and consumer needs, such as re-enrolling a current 
bronze QHP enrollee into a silver QHP with a lower net premium and 
higher plan generosity offered by the same QHP issuer.
---------------------------------------------------------------------------

    \177\ MOOP refers to the limit on cost sharing an enrollee must 
pay for covered services in a plan year. After the enrollee spends 
this amount on cost sharing for in-network essential health 
benefits, the health plan pays 100 percent of the costs of covered 
essential health benefits. For purposes of this section of preamble, 
the term total out-of-pocket costs refers to net premium and out-of-
pocket costs attributable to cost sharing and excludes any costs 
attributable to balance billing.
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    In the 2024 Payment Notice (87 FR 25740, 25821 through 25822), we 
added Sec.  155.335(j)(4) to allow Exchanges to modify their re-
enrollment hierarchies such that enrollees who are eligible for CSRs in 
accordance with Sec.  155.305(g) and who would otherwise be 
automatically re-enrolled in a bronze-level QHP without CSRs, would 
instead be automatically re-enrolled in a silver-level QHP (with 
income-based CSRs) in the same product provided that certain conditions 
are met.\178\ We also required Exchanges to ensure that enrollees whose 
QHPs are no longer available to them and enrollees who would be re-
enrolled into a silver-level QHP to receive income-based CSRs are re-
enrolled into plans with the most similar network to the plan they had 
in the previous year.
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    \178\ Additional conditions at Sec.  155.335(j)(4) include that 
the silver plan must have the same provider network, and a lower or 
equivalent premium after the application of APTC, as the bronze 
level QHP into which the Exchange would otherwise re-enroll the 
enrollee under paragraph (j)(1) or (2) of this section.
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    We propose to amend the regulations at Sec.  155.335(j)(1) and (2) 
to require Exchanges to re-enroll individuals enrolled in catastrophic 
coverage as defined in section 1302(e) of the ACA into QHP coverage for 
the coming plan year. Section 155.335(j) currently specifies re-
enrollment requirements for enrollees in coverage of a specific metal 
level as defined by section 1302(d) of the ACA, but does not address 
auto re-enrollment for catastrophic coverage enrollees nor does it 
address a scenario in which a catastrophic coverage enrollee would lose 
eligibility for catastrophic coverage in the coming plan year either 
because they exceed the 30-year age limit or lose eligibility for the 
exemption that allowed them to enroll in a catastrophic plan in spite 
of exceeding the age limit.\179\
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    \179\ See Sec.  155.305(h).
---------------------------------------------------------------------------

    To make this change, we propose to add new Sec.  155.335(j)(1)(v) 
and (j)(2)(iv). We propose paragraph (j)(1)(v) to specify that if the 
enrollee's current QHP is a catastrophic plan as described in section 
1302(e) of the ACA, and the enrollee would no longer meet the criteria 
for enrollment in a catastrophic plan as described in section 
1302(e)(2) of the ACA, the Exchange would re-enroll the enrollee into a 
bronze metal level QHP in the same product as the enrollee's current 
QHP that has the most similar network compared to the enrollee's 
current QHP; or if no bronze plan is available through this product, 
the Exchange would re-enroll the enrollee in the QHP with the lowest 
coverage level offered under the product in which the enrollee's 
current QHP is offered in which the enrollee is eligible to enroll and 
that has the most similar network compared to the enrollee's current 
QHP.
    We propose paragraph (j)(2)(iv) to specify that if the enrollee's 
current QHP is a catastrophic plan as described in section 1302(e) of 
the ACA, and the enrollee would no longer meet the criteria for 
enrollment in a catastrophic plan as described in section 1302(e)(2) of 
the ACA, and if no bronze QHP is available in the same product as the 
enrollee's current QHP, the Exchange would re-enroll the enrollee into 
a bronze plan offered by the same issuer through the Exchange that has 
the most similar network compared to the enrollee's current QHP, in the 
product offered that is the most similar to the enrollee's current 
product.
    We also propose to amend Sec.  155.335(j)(1)(ii) to (iv) and 
(j)(2)(i) to (iii) to use the term ``coverage level'' instead of 
``metal level'' so that the rules in this section are inclusive of 
catastrophic coverage enrollees to whom proposed paragraphs (j)(1)(v) 
and (j)(2)(iv) would not apply. For example, this change would ensure 
that paragraph (j)(1)(ii) requires an Exchange, if possible, to re-
enroll a catastrophic coverage enrollee who would remain eligible for 
catastrophic coverage in the coming plan year into another catastrophic 
plan within the same product as their current QHP that has the most 
similar network compared to their current QHP.
    In practice, we permit and encourage issuers as part of the annual 
QHP Certification process to submit a crosswalk option for enrollees in 
catastrophic coverage and for enrollees who would otherwise lose 
eligibility for their catastrophic plan. While most issuers submit this 
information, it is currently not required under the existing 
regulation. For PY 2023, one issuer on HealthCare.gov did not submit a 
crosswalk option for enrollees losing catastrophic coverage 
eligibility, which resulted in the Exchanges not auto re-enrolling 37 
people. By including catastrophic coverage and loss of eligibility for 
catastrophic coverage in regulation at Sec.  155.335(j)(1) and (2), 
Exchanges would require issuers to submit crosswalk plans for the 
scenarios described in Sec.  155.335(j) and ensure auto re-enrollment 
for all Exchange enrollees. It also improves transparency by 
incorporating the current practice of auto re-enrolling catastrophic 
enrollees in future year coverage to all issuers.
    Finally, we propose adding a new Sec.  155.335(j)(5) to establish 
that, for purposes of this section, catastrophic coverage is not a 
coverage level that is considered higher or lower than metal level 
coverage when moving an enrollee to a plan that is a metal level higher 
or lower than their current plan, and an Exchange may not re-enroll an 
enrollee that has coverage under section 1302(d) into catastrophic 
coverage. For example, when applying paragraphs (j)(1)(iii)(B), or 
(2)(ii), an Exchange may enroll bronze enrollees into silver level 
coverage but not catastrophic level coverage. When applying paragraphs 
(j)(1)(iv) or (2)(iii), an Exchange may enroll enrollees into a QHP 
other than catastrophic. This rule reflects our re-enrollment process 
for Exchanges on the Federal platform, and we believe it appropriately 
reflects enrollees' decision to enroll in coverage with benefits beyond 
those that catastrophic coverage provides, and the operational 
processes to determine catastrophic coverage eligibility for a coming 
plan year.
    We solicit comment on these proposals, including from State 
Exchanges regarding whether the proposals reflect their current auto 
re-enrollment practices. If either or both of the policies proposed in 
paragraphs (j)(1)(v) and (j)(2)(iv) do not reflect current practices 
and would impose an implementation burden for State Exchanges or for 
other interested parties, we solicit comment on whether to provide 
flexibility on making this provision effective for plan years beginning 
on or after January 1, 2025. We solicit comment on strategies for 
helping enrollees who transition from catastrophic coverage into 
coverage through a metal level QHP on how to understand and apply APTC 
to their monthly premiums if they are eligible and wish to do so.
    We also solicit comment on whether we should consider proposing 
changes to the auto re-enrollment hierarchy to prioritize re-enrollment 
in catastrophic coverage for enrollees who remain eligible for 
catastrophic coverage in a

[[Page 82581]]

way that is similar to current prioritization of silver level coverage. 
That is, Sec.  155.335(j)(1)(ii) specifies that if an enrollee's 
current QHP is a silver plan that will not be available for the coming 
plan year, and the enrollee's current product will no longer include a 
silver level QHP, then the Exchange will re-enroll the enrollee in a 
silver level QHP under a different product offered by the same QHP 
issuer that is most similar to the enrollee's current product. We seek 
comment on whether it would be appropriate to prioritize continuity of 
catastrophic coverage in a similar way. Finally, we solicit comment on 
additional strategies to help ensure continuity of coverage for 
enrollees in catastrophic QHPs, including those who lose eligibility 
for catastrophic coverage.
15. Premium Payment Deadline Extensions (Sec.  155.400(e)(2))
    We propose to amend Sec.  155.400(e)(2) to codify that the 
flexibility for issuers experiencing billing or enrollment problems due 
to high volume or technical errors, or issuers directed to do so by 
applicable State or Federal authorities, is not limited to extensions 
of the binder payment.
    Section 155.400(e) specifies that Exchanges may require, and the 
FFEs and SBE-FPs will require, enrollees to make a binder payment to 
effectuate enrollment, and paragraph (e)(1) specifies the range of 
dates within which an issuer may establish a deadline to pay binder, 
depending on whether coverage is being effectuated under regular, 
prospective, or retroactive effective dates. In the 2018 Payment Notice 
(81 FR 94058), we added paragraph (e)(2) to address situations in which 
an issuer is unable to timely process binder payments submitted by 
enrollees, which may impact an enrollee's ability to effectuate 
coverage. Specifically, we noted that based on our experience during 
several Open Enrollment Periods, issuers occasionally experience 
technical errors, or a processing backlog caused by an unusually high 
volume of enrollments. As a result, enrollees may be temporarily unable 
to submit premium payments, or the issuer may be unable to process 
payments in a timely manner. We thus established an option for issuers 
to implement a reasonable extension of binder payment deadlines,\180\ 
which ensures that enrollees do not have coverage cancelled due to non-
payment when the enrollee did not have adequate time to pay the binder 
payment.
---------------------------------------------------------------------------

    \180\ We also stated that we do not anticipate extensions to be 
greater than 45 calendar days.
---------------------------------------------------------------------------

    Although we only addressed extensions to the binder payment 
deadlines in Sec.  155.400(e)(1), we did not intend to exclude other 
premium payment scenarios in which Exchanges could, and the Exchanges 
on the Federal platform would, provide similar flexibility. In 
published guidance, such as the 2023 Federally-facilitated Exchange 
(FFE) Enrollment Manual,\181\ we stated that we will exercise 
enforcement discretion with regard to regulatory requirements such as 
the binder payment and the deadline for payment of premiums under grace 
periods if an issuer is complying with a State regulatory authority's 
request to extend premium payment deadlines and delay termination of 
coverage due to a natural disaster or other emergency within the State.
---------------------------------------------------------------------------

    \181\ CMS. (2023, July 12). 2023 Federally-facilitated Exchange 
(FFE) Enrollment Manual. CMS. Section 6.1.3, p. 89, and Section 
6.10, p. 110. https://www.cms.gov/files/document/ffe-enrollment-manual-2023-5cr-071323.pdf.
---------------------------------------------------------------------------

    For example, in connection with the COVID-19 Public Health 
Emergency declared by the Secretary, HHS exercised enforcement 
discretion \182\ regarding issuers extending premium payment deadlines 
and delaying cancellations or terminations of coverage with the 
permission of the applicable State regulatory authority. We propose to 
codify that Exchanges may, and Exchanges on the Federal platform would, 
provide flexibility in such circumstances, including circumstances in 
which an issuer is directed to do so by applicable State or Federal 
authorities.
---------------------------------------------------------------------------

    \182\ Pate, R. (2020, March 24). Payment and Grace Period 
Flexibilities Associated with the COVID-19 National Emergency. CMS. 
https://www.cms.gov/files/document/faqs-payment-and-grace-period-covid-19.pdf.
---------------------------------------------------------------------------

    Because current paragraph (e)(2) may be read to limit the 
flexibility Exchanges could provide issuers regarding payments other 
than the binder payment, we also propose to add the phrase ``and other 
premium payment deadlines.'' Doing so would clarify for interested 
parties, particularly issuers, that Exchanges may, and Exchanges on the 
Federal platform would, provide flexibility regarding premium payment 
requirements other than the binder payment, such as the requirement to 
trigger a grace period to enrollees receiving APTC under Sec.  
156.270(d) if enrollees fail to pay premiums timely.
    We request comments on this proposal.
16. Initial and Annual Open Enrollment Periods (Sec.  155.410)
    At Sec.  155.410, we propose to amend paragraph (e)(4)(ii) to 
revise parameters around the adoption of an alternative open enrollment 
period by a State Exchange. We propose to require that for benefit 
years beginning on or after January 1, 2025, State Exchanges must adopt 
an open enrollment period that begins on November 1 of the calendar 
year preceding the benefit year and ends no earlier than January 15 of 
the applicable benefit year, with the option to extend the open 
enrollment period beyond January 15 of the applicable benefit year.
    In part 3 of the 2022 Payment Notice final rule (86 FR 53429 
through 53432), where we extended the open enrollment period for the 
Exchanges on the Federal platform to January 15, we noted several 
observations regarding a 6-week open enrollment period ending on 
December 15. However, we also noted that for an open enrollment period 
ending in December, certain consumers may be subjected to unexpected 
plan cost increases that they may not be notified about until January, 
after open enrollment concludes. We also observed that extending the 
open enrollment period for the Exchanges on the Federal platform to 
January 15 would ensure ample time for Navigators, assisters, certified 
application counselors, agents, and brokers to fully assist all 
interested consumers. We further noted that ending open enrollment on 
January 15 would give consumers additional time to react to updated 
plan cost information and more time to seek enrollment assistance, 
which could improve access to health coverage, particularly for those 
in underserved communities who face additional barriers to accessing 
health coverage.
    We believe these observations hold true as to State Exchanges and 
warrant requiring that their open enrollment periods also end no 
earlier than January 15. Since we extended the open enrollment period 
for Exchanges on the Federal platform in part 3 of the 2022 Payment 
Notice final rule, four States have transitioned to the State Exchange 
model, and we anticipate that there will be additional State Exchanges 
in future benefit years, which increases the potential for differing 
open enrollment periods. While most of the State Exchanges already hold 
an open enrollment period that ends on or after January 15 of the 
benefit year, we believe that the risk of shorter open enrollment 
periods in the future requires ensuring a minimum open enrollment 
period across all Exchanges,

[[Page 82582]]

including State Exchanges. Notably, this proposal would impose a 
minimal burden on most of the State Exchanges.
    Additionally, we believe that ensuring State Exchanges' open 
enrollment periods begin on November 1 of the calendar year and 
continue through at least January 15 of the benefit year--thereby 
ensuring substantial overlap between all Exchange open enrollment 
periods--would reduce consumer confusion in States with State Exchanges 
that currently hold open enrollment periods that are shorter than the 
open enrollment period for the Exchanges on the Federal platform, or 
that begin before November 1 and end earlier than January 15. Consumers 
in these States would benefit from a longer open enrollment period by 
having an increased opportunity to enroll in coverage or reducing 
missed opportunities to enroll due to confusion about when open 
enrollment begins and ends. The combined benefits of this proposal in 
terms of reducing consumer confusion, building in additional time for 
consumers to enroll, and aligning open enrollment periods with Medicare 
and most employer open enrollment periods, could further increase 
Exchange enrollment and potentially have downstream impacts like 
improving the uninsured rate in States.
    We seek comment on this proposal.
17. Special Enrollment Periods
a. Effective Dates of Coverage (Sec.  155.420(b))
    We propose amending Sec.  155.420(b)(1) and (b)(3)(i) to align the 
effective dates of coverage after selecting a plan during certain 
special enrollment periods across all Exchanges, including State 
Exchanges. In order to consolidate and integrate the requirements in 
Sec.  155.420(b)(3), without affecting any rights or obligations, we 
also propose to include the requirements currently in paragraph 
(b)(3)(ii) into proposed paragraph (b)(3)(i) and to delete paragraph 
(b)(3)(ii). For ease of consumer experience and to prevent coverage 
gaps, particularly for consumers transitioning between different 
Exchanges or from other insurance coverage, we propose amending Sec.  
155.420(b)(1) and(b)(3)(i) so that qualifying individuals or enrollees 
who select and enroll in a QHP during certain special enrollment 
periods receive coverage beginning the first day of the month after the 
consumer selects a QHP.
    In accordance with Sec.  155.420(b)(3)(i), in the FFEs, SBE-FPs, as 
well as several State Exchanges, during a special enrollment period, 
consumers who select a QHP through the Exchange to which regular 
effective dates specified in Sec.  155.420(b) apply have the plan's 
coverage begin on the first day of the month after the consumer's 
selection. For example, if a consumer selects a QHP on March 31, their 
QHP coverage would start April 1.
    However, in some State Exchanges, a consumer's coverage is only 
made effective on the first day of the month after the consumer has 
selected a plan during a special enrollment period to which regular 
effective dates specified in Sec.  155.420(b) apply if the consumer 
selects their plan between the 1st day and the 15th day of the previous 
month, per Sec.  155.420(b)(1). In these State Exchanges, if a consumer 
selects a plan between the 16th day and the last day of the month, 
coverage will not become effective until the first day of the second 
month after plan selection. For example, for these State Exchanges, if 
a consumer selects a plan on March 1, Exchange QHP coverage would start 
April 1, but if that consumer selected a plan on March 16, their 
Exchange QHP coverage would start on May 1. This may result in a 
coverage gap of more than a month for these consumers.
    As consumers typically qualify for special enrollment periods due 
to a life event that may disrupt their previous coverage (such as a 
move to a new State, or a change in household size due to birth or 
divorce, or a loss of other health insurance, such as a loss of 
Medicaid), these consumers are less likely to have health insurance 
coverage while they wait for their selected QHP coverage to begin.
    In addition, when transitioning between Exchanges, such as from an 
Exchange in a State that operates on the Federal platform to a State 
Exchange that does not offer first-of-the-following-month coverage, 
consumers may expect that their coverage becomes effective on the first 
day of the month after selecting a QHP. These consumers might not be 
aware that the effective dates of coverage may differ between 
Exchanges, and they might not take appropriate steps to maintain or 
access alternate coverage while waiting for their QHP to become 
effective. As a result, these consumers may be at risk of coverage gaps 
due to the existing policies governing effective dates of coverage.
    To address this, we propose amending Sec.  155.420(b)(1) and 
(b)(3)(i) to align effective dates of coverage across all Exchanges 
under these special enrollment periods. The proposal would require all 
State Exchanges, beginning on January 1, 2025, or an earlier date at 
the option of the Exchange to provide coverage that is effective on the 
first day of the month following plan selection, if a consumer enrolls 
in a QHP during a Special Enrollment Period to which regular effective 
dates specified in Sec.  155.420(b) apply.
    We seek comment on this proposal.
b. Monthly Special Enrollment Period for APTC-Eligible Qualified 
Individuals With a Household Income At or Below 150 Percent of the 
Federal Poverty Level
    At Sec.  155.420, we propose to amend paragraph (d)(16) to revise 
the parameters around the availability of a special enrollment period 
(SEP) for APTC-eligible qualified individuals with a projected 
household income at or below 150 percent of the Federal Poverty Level 
(FPL) hereinafter referred to as the ``150 percent FPL SEP.'' We are 
proposing to amend the current text from ``no greater than'' to ``at or 
below'' for improved readability and understanding. Specifically, we 
are proposing to remove the limitation that this SEP be only available 
during periods of time when APTC is available such that the applicable 
taxpayers' applicable percentage is set to zero.
    As background, in part 3 of the 2022 Notice of Benefit and Payment 
Parameters (86 FR 53429 through 53432), we finalized, at the option of 
an Exchange, a monthly SEP for APTC-eligible qualified individuals with 
a projected household income at or below 150 percent of the FPL. We 
also finalized a provision stating that this SEP is available only 
during periods of time during which APTC is available such that the 
applicable taxpayers' applicable percentage is set at zero, such as 
during tax years 2021 through 2025, as provided by section 9661 of the 
American Rescue Plan (ARP) and extended by the Inflation Reduction Act 
(IRA).\183\ We also amended Sec.  147.104(b)(2)(i) to specify that 
issuers are not required to provide the SEP in the individual market 
with respect to coverage offered outside of an Exchange.
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    \183\ Public Law 117-169.
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    As a result of the enhanced financial assistance established by the 
ARP and extended by the IRA until December 31, 2025, many consumers 
with lower household incomes with a projected household income at or 
below 150 percent of the FPL, have the opportunity to enroll in a much 
wider range of affordable coverage. Specifically, as a result of the 
legislative changes passed by Congress in the ARP and IRA, more 
consumers have access to Exchange and QHP coverage with zero-dollar 
premiums after financial subsidies, including more opportunities to 
enroll in zero-dollar silver-level plans with

[[Page 82583]]

significant levels of CSRs. To provide these consumers--many of whom 
might have had difficulty enrolling during standard SEP timelines due 
to lack of awareness or other logistical difficulties--with the chance 
to access this generous Exchange coverage, we finalized the 150 percent 
FPL SEP.
    We remain committed to ensuring that affordable Exchange coverage 
is available for individuals with lower household incomes and who are 
uninsured, and we believe that the availability of the 150 percent FPL 
SEP has made significant strides in ensuring that this population has 
real opportunities to enroll in free or extremely low cost Exchange 
coverage.
    Executive Order (E.O.) 14070, signed on April 5, 2022 (which 
expanded upon E.O. 15009 signed on January 28, 2021), directs Federal 
agencies to identify ways to continue to expand the availability of 
affordable health coverage, to improve the quality of coverage, to 
strengthen benefits, and to help more Americans enroll in quality 
health coverage. To that end, this proposed change may further ensure 
continued improved access to affordable coverage for this population.
    Continuing to make this SEP available also may continue to help 
consumers who lose other MEC coverage, especially those disenrolling 
from Medicaid or CHIP coverage to regain health care coverage. We are 
aware of the challenges many consumers disenrolling from Medicaid or 
CHIP coverage have faced due to the end of the Medicaid continuous 
enrollment condition as of March 31, 2023. During this time period, we 
have observed, and expect to continue to observe, a higher than usual 
volume of individuals with lower household incomes transitioning from 
Medicaid or CHIP coverage to coverage through Exchanges due to the end 
of the Medicaid continuous enrollment condition. As discussed in our 
guidance released on January 27, 2023, consumers disenrolling from 
Medicaid or CHIP because of the Medicaid continuous enrollment 
condition are especially vulnerable and may face challenges with 
transitioning from Medicaid or CHIP into other forms of coverage, such 
as Exchange coverage.\184\ These challenges may include consumers' 
confusion as to why their Medicaid coverage is ending due to irregular 
or untimely communications from State Medicaid agencies about the 
termination of coverage or coverage options for individuals with lower 
household incomes. Due to these factors, consumers may be unable to 
make an informed decision about their coverage options within the 60-
day window provided by the SEPs at Sec.  155.420(c)(1) and (d)(1) or 
within the 90-day window provided at the option of the Exchange at 
Sec.  155.420(c)(6) beginning on January 1, 2024. Given our 
observations of these challenges, we believe that the existence of the 
150 percent FPL SEP provides an additional safety-net, particularly for 
consumers impacted by the Medicaid continuous enrollment condition, but 
also generally for those who have historically faced challenges 
transitioning from Medicaid or CHIP into other coverage, like Exchange 
coverage.
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    \184\ CMS. (2023, Jan. 27). Temporary Special Enrollment Period 
(SEP) for Consumers Losing Medicaid or the Children's Health 
Insurance Program (CHIP) Coverage Due to Unwinding of the Medicaid 
Continuous Enrollment Condition--Frequently Asked Questions (FAQ). 
CMS. https://www.cms.gov/technical-assistance-resources/temp-sep-unwinding-faq.pdf.
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    Finally, our experience with the 150 percent FPL SEP strongly 
suggests that the policy has been successful. Based on our analysis, 
between October 2022 and August 2023, about 1.3 million consumers who 
reside in States with Exchanges on the Federal platform were APTC-
eligible, and had projected household incomes at or below 150 percent 
of the FPL, enrolled in Exchange coverage under the 150 percent FPL 
SEP. In 2022, 41.8 percent of enrollees on Exchanges on the Federal 
platform had a projected household income of less than 150 percent of 
the FPL, compared to 46.9 percent of Exchange enrollees in 2023, after 
the implementation of the 150 percent FPL SEP. We believe the current 
150 percent FPL SEP is one factor that significantly contributed to the 
increase in the enrollees on the Federal platform with a projected 
household income at or below 150 percent of the FPL.
    In previous rulemaking, we expressed concern about offering the 150 
percent FPL SEP when APTC does not always reduce the applicable 
percentage of a taxpayer with projected annual household income at or 
below 150 percent FPL to zero. We were also receptive to concerns 
raised by issuers that this SEP would impact the Exchange risk pool, 
lead to higher premiums, and impact the population with household 
incomes above 400 percent FPL with higher premium contributions as the 
APTC phases out. The possible increasing premiums also present a risk 
of financial hardship for consumers who purchase insurance off Exchange 
including those who are not eligible for APTC due to immigration 
status, or any other consumers who would purchase unsubsidized plans, 
or only receive small subsidies. At the time, we believed that the risk 
for adverse selection was mitigated because consumers would not have an 
incentive to drop their Exchange plans when healthy and resume coverage 
when sick using the 150 FPL SEP since they would be enrolled in zero-
dollar premium plans due to the enhanced financial subsidies provided 
by the ARP and IRA. Previously, we estimated that the adverse selection 
risk may result in issuers increasing premiums by approximately 0.5 to 
2 percent, and a corresponding increase in APTC outlays and decrease in 
income tax revenues of approximately $250 million to $1 billion 
annually, when the enhanced APTC provisions of the ARP (and later 
extended by the IRA) are in effect. While it is challenging to predict 
the future nature of the Exchanges in 2026, we estimate that some 
adverse selection, though unknowable at this time, may occur once 
enhanced subsidies sunset on December 31, 2025, and may result in 
issuers increasing premiums. We acknowledge that there is a wide range 
of predictions for an increase to premiums due to the adverse selection 
risk associated with this proposed change and discuss this further in 
the regulatory impact analysis section of this rule.
    However, an analysis of the plans available to consumers in 2020, 
just before implementation of the enhanced subsidies, suggests that the 
risk of adverse selection we acknowledged may be lower than expected, 
and therefore downstream impacts of that risk may be mitigated. When 
consumers with household incomes at or below 150 percent of the FPL are 
no longer eligible for enhanced subsidies, these consumers may still be 
eligible for low-cost silver or bronze plans with zero-dollar premiums 
after regular subsidies. In 2020, before the ARP provided enhanced 
financial assistance in the form of enhanced subsidies, about 900,000 
consumers were enrolled in bronze plans, which were fully subsidized by 
APTC and where the consumer portion of premium was zero dollars. 
Additionally, in 2020, 77 percent of the consumer population at or 
below 150 percent FPL had access to a zero-dollar bronze plan with 16 
percent of the same population having access to a zero-dollar silver 
plan in addition to the zero-dollar bronze plan. We believe that if the 
majority of consumers with income at or below 150 percent FPL would be 
eligible for a zero-dollar premium plan absent the enhanced subsidies 
provided under the ARP and IRA, then such consumers

[[Page 82584]]

would be unlikely to use the proposed 150 FPL SEP in a way that caused 
adverse selection. In other words, we believe that the availability of 
these zero-dollar bronze plans for consumers at or below 150 percent 
FPL mitigates the risk pool impact this proposed change might cause in 
addition to mitigating downstream hardships for consumers who purchase 
insurance without subsidies or with only small subsidies. Therefore, we 
are proposing to make the 150 percent FPL SEP, at the option of an 
Exchange, permanent by amending Sec.  155.420(d)(16) to remove the 
requirement that the SEP only be available during periods of time when 
the applicable taxpayer's applicable percentage for purposes of 
calculating the premium assistance amount, as defined in section 
36B(b)(3)(A) of the Code, is set at zero.
    We seek comment on this proposal.
18. Termination of Exchange Enrollment or Coverage (Sec.  155.430)
    We propose to add Sec.  155.430(b)(1)(iv)(D) to permit enrollees on 
Exchanges using the Federal platform to retroactively terminate their 
enrollment in a QHP through the Exchange \185\ when the enrollee 
enrolls in Medicare Parts A or B retroactively effective to the day 
before the date Medicare coverage begins. We also propose making 
implementation of this proposal optional for State Exchanges and 
request comment on whether it should instead be mandatory.
---------------------------------------------------------------------------

    \185\ When an enrollee retroactively terminates QHP coverage, 
State law generally requires that the premiums paid in the months 
for which coverage is retroactively terminated be refunded by the 
QHP issuer.
---------------------------------------------------------------------------

    In the 2017 Payment Notice (81 FR 12203), we implemented 
regulations at Sec.  155.430(b)(1)(iv) to permit Exchange enrollees to 
retroactively terminate coverage in the following circumstances: (1) 
the enrollee demonstrates to the Exchange that the enrollee attempted 
to terminate the enrollee's coverage or enrollment in a QHP and 
experienced a technical error that did not allow the enrollee to 
terminate the enrollee's coverage or enrollment through the Exchange; 
(2) the enrollee demonstrates to the Exchange that the enrollee's 
enrollment in a QHP through the Exchange was unintentional, 
inadvertent, or erroneous and was the result of the error or misconduct 
of an officer, employee, or agent of the Exchange or HHS, its 
instrumentalities, or a non-Exchange entity providing enrollment 
assistance or conducting enrollment activities; and (3) the enrollee 
demonstrates to the Exchange that the enrollee was enrolled in a QHP 
without the enrollee's knowledge or consent by any third party, 
including third parties who have no connection with the Exchange. 
Additionally, Sec.  155.430(d)(2)(v) authorizes Exchanges to 
retroactively terminate QHP coverage effective the day before Medicaid, 
CHIP, or BHP eligibility begins, though the Exchanges on the Federal 
platform do not permit retroactive terminations in this scenario. While 
SBE-FPs generally are required to follow the Exchanges on the Federal 
platform in matters of enrollment and disenrollment policy and 
operations, because this regulation relates to Medicaid, CHIP, or BHP 
programs, with which States are more closely involved than we are, we 
have provided SBE-FPs the option to implement retroactive terminations 
in these circumstances, despite the Federal platform not doing so.
    Currently, we do not permit enrollees in Exchanges on the Federal 
platform to retroactively terminate QHP coverage due to retroactive 
enrollment in other coverage, including Medicare. When coverage is 
retroactively terminated, claims submitted during the period of 
terminated coverage will be reversed by the QHP issuer and become the 
responsibility of the enrollee, who must ensure claims are submitted by 
the provider to the new insurance provider, if coverage is effective 
retroactively.\186\ State law would generally require that QHP issuers 
refund the enrollee any premiums paid during the months in which 
coverage is retroactively terminated.
---------------------------------------------------------------------------

    \186\ Providers are generally required to submit claims to 
Medicare no later than 12 months after the date of service. However, 
in situations where Medicare Part A or B entitlement did not exist 
at the time service was furnished, or the beneficiary receives 
notice of Medicare Part A or B entitlement after the date of 
service, the 12-month limit may be extended for 6 months following 
the month in which the beneficiary receives notice of Medicare Part 
A or Part B entitlement. CMS. (rev. 2023, Jan. 19). Medicare Claims 
Processing Manual, 100-04, Chapter 1, Section 70.7.2 ``Retroactive 
Medicare Entitlement.'' https://www.cms.gov/regulations-and-guidance/guidance/manuals/downloads/clm104c01.pdf.
---------------------------------------------------------------------------

    In the 2017 Payment Notice (81 FR 12203), we stated that 
retroactive terminations would be limited to situations in which an 
enrollee was prevented from terminating coverage due to error or 
misconduct, and was not intended for enrollees who did not understand 
the rules of their enrollment and wished to avoid tax liability for 
APTC for which they were ineligible, nor for enrollees who seek 
retroactive termination of coverage at the end of the plan year because 
they did not use the coverage. We continue to believe that it is 
important to limit the scenarios in which enrollees can seek 
retroactive termination of coverage, in part to address concerns raised 
by issuers of adverse selection if healthy enrollees are able to 
retroactively terminate coverage they did not use. However, we 
regularly receive requests from Exchange enrollees through the 
Marketplace Call Center to retroactively terminate QHP coverage because 
they enrolled retroactively in Medicare, and these requests are denied 
because they are not currently authorized by regulation. Unlike 
enrollees who enroll in Medicare prospectively when they turn 65, 
individuals who enroll in Medicare retroactively did not have the 
opportunity to prospectively terminate Exchange coverage, and thus, did 
not merely fail to understand the terms of their QHP enrollment.
    Generally, consumers who become eligible for Medicare once they 
turn 65 can enroll prospectively, and those who are enrolled in 
Exchange coverage can normally terminate coverage prospectively so that 
there is no overlap between the two. In accordance with Sec.  
155.430(d)(2)(iii), Exchange enrollees may request same-day or 
prospective termination of coverage,\187\ and Exchange communications 
instruct enrollees to terminate coverage once they learn they will be 
enrolled in other coverage to avoid an overlap. Exchange enrollees 
approaching their 65th birthday also receive communications from the 
Exchange advising them that they will be ineligible for APTC if they 
enroll in Medicare and instructing them to terminate Exchange coverage 
if they do not wish to have an overlap between the two. However, there 
are scenarios in which a consumer may retroactively enroll in Medicare 
Parts A or B coverage. For example, consumers can become eligible for 
retroactive Medicare Parts A and B due to retroactive eligibility for 
SSDI benefits, in which case the consumer is entitled to Medicare Parts 
A and B beginning with the 25th month of SSDI entitlement (that is, 
receipt of the SSDI benefit). If the SSA determines the consumer to be 
eligible more than 25 months back, the consumer will receive Medicare 
Part A automatically beginning with the 25th month of SSDI entitlement 
and will have the option of enrolling in Part B Medicare retroactive to 
the 25th month of SSDI entitlement (though they also have the choice to 
enroll in Part B

[[Page 82585]]

prospectively). In addition, when a consumer has not been automatically 
enrolled in Medicare Part A and applies for Medicare Part A after their 
65th birthday, their entitlement to Part A begins (that is, when 
coverage starts) up to six months prior to the date of the application 
but no sooner than the consumer's 65th birthday.
---------------------------------------------------------------------------

    \187\ Although this regulation permits QHP enrollees to request 
prospective terminations, limitations in operations in the Exchanges 
on the Federal platform prevent one enrollee in an enrollment group 
from ending coverage prospectively when the other enrollees in the 
group intend to remain enrolled.
---------------------------------------------------------------------------

    Because consumers who enroll retroactively in Medicare Parts A or B 
may not be able to avoid an overlap in coverage by prospectively 
terminating their Exchange coverage, we believe it is appropriate to 
allow them to retroactively terminate Exchange coverage back to the day 
before Medicare coverage begins. Allowing consumers to request 
retroactive terminations in these scenarios ensures they can avoid an 
overlap between Exchange and Medicare coverage and avoid paying premium 
unnecessarily (if the consumer owes premium after the application of 
APTC). However, we note that consumers would not be required to request 
a retroactive termination and could maintain both Exchange and Medicare 
coverage if they wish. Consumers who enroll in Medicare retroactively 
are not categorically excluded from PTC eligibility for the period of 
retroactive coverage, and thus may not be required to repay APTC for 
the months of overlap when they file their taxes, in accordance with 26 
CFR 1.36B-2(c)(2)(iv); however, a QHP enrollee receiving APTC who is 
voluntarily requesting and is granted a retroactive QHP termination 
relieves the government of subsidizing two forms of coverage, as the 
APTC is recouped for the terminated QHP coverage months.
    Although it is also possible for consumers to become retroactively 
eligible for Medicaid, and have an unavoidable overlap with Exchange 
coverage, we believe it is appropriate to limit the applicability of 
this provision in the Exchanges on the Federal platform to Medicare. We 
previously allowed retroactive terminations of Exchange coverage due to 
enrollment in Medicaid, CHIP, and the BHP, but removed this option for 
the FFEs in the 2019 Payment Notice (83 FR 16930). This option was 
retained for State Exchanges and SBE-FPs, which as previously mentioned 
are more closely integrated into their State-administered Medicaid 
programs. In response to commenters who opposed this change, we noted 
that although consumers in these cases may wish to recoup premiums paid 
during the period of overlapping coverage, there is significant risk 
that providers who participate in the consumer's Exchange coverage do 
not participate in Medicaid, CHIP, or BHP, which would leave the 
consumer with unexpected out-of-pocket costs. However, because Medicare 
is accepted by many, if not most, providers, it is less likely that a 
retroactive QHP disenrollment would leave consumers responsible for 
claims made during the period of retroactive Medicare enrollment.
    We note that in the FFEs and SBE-FPs, Marketplace Call Center 
workers and caseworkers have system-based evidence of both QHP and 
Medicare eligibility dates and would be able to verify that an enrollee 
requesting retroactive termination is enrolled in Medicare and approve 
retroactive requests. This would ensure that enrollees cannot 
retroactively terminate their QHP coverage for other, unauthorized 
reasons such as low utilization of coverage, which could create an 
adverse selection risk. We also note that, similar to retroactive 
Medicare enrollment, consumers who retroactively enroll in Medicaid 
coverage are not required to repay APTC for the months in which they 
retroactively enrolled when they file their taxes, consistent with 26 
CFR 1.36B-2(c)(2)(iv).
    Finally, in recognition of the challenges associated with 
retroactively adjusting coverage for preceding years, we propose to 
require that enrollees must request retroactive termination of coverage 
within 60 days of the date they retroactively enroll in Medicare (the 
date the enrollment occurs, not the Medicare coverage effective date). 
In the 2017 Payment Notice (81 FR 12203), we requested comment on and 
finalized a similar requirement for the other retroactive enrollment 
scenarios permitted under Sec.  155.430(b)(1)(iv). We believe 
implementing this requirement would be appropriate here as well. 
Permitting retroactive enrollments too far in the past can be 
operationally burdensome for Exchanges, and for issuers that must 
reverse claims and refund premiums for the months of terminated 
coverage. We believe that a window of 60 days provides an appropriate 
amount of time for an enrollee who retroactively enrolls in Medicare 
coverage to request retroactive termination of Exchange coverage and is 
consistent with the limitation placed on requests for the other 
permissible retroactive termination scenarios at Sec.  
155.430(b)(1)(iv).
    We request comments on this proposal. Specifically, we request 
comment on whether the public benefits of this proposal to honor an 
enrollee's choice, recoup APTC for duplicative coverage, and protect 
the individual market risk pool outweighs the risk that an enrollee 
would be left with uncovered claims for the overlapping period. We also 
request comment on the best way to ensure that enrollees have the 
necessary information to make an informed decision about whether to 
retroactively terminate coverage. If this proposal is finalized, we 
intend to monitor the impact to minimize harm to consumers. We also 
seek comment on whether this provision should be mandatory for State 
Exchanges, rather than optional, and if so, how State Exchanges would 
verify retroactive Medicare enrollment dates.
19. Establishment of Exchange Network Adequacy Standards (Sec.  
155.1050)
    We propose to require that State Exchanges and SBE-FPs establish 
and impose quantitative time and distance QHP network adequacy 
standards that are at least as stringent as the FFEs' time and distance 
standards established for QHPs under Sec.  156.230. We also propose 
that State Exchanges and SBE-FPs be required to conduct quantitative 
network adequacy reviews prior to certifying any plan as a QHP, 
consistent with the reviews conducted by the FFEs under Sec.  156.230. 
We further propose to require State Exchanges and SBE-FPs to permit 
issuers that are unable to meet the specified network adequacy 
standards to participate in a justification process after submitting 
their initial network adequacy data to account for variances and 
potentially earn QHP certification. Finally, we propose to mandate that 
State Exchanges and SBE-FPs require all issuers seeking QHP 
certification to submit information to the State Exchange or SBE-FP 
about whether network providers offer telehealth services.
    Understanding that some State Exchanges or SBE-FPs may need to 
promulgate regulations to comply with the proposed provisions requiring 
State Exchanges and SBE-FPs to impose quantitative network adequacy 
standards and conduct quantitative network adequacy reviews, as well as 
the requirement related to QHP issuer submission of telehealth 
information, we propose that these provisions would be effective for 
plan years beginning on or after January 1, 2025, to accommodate the 
time it may take for a State Exchange or SBE-FP to come into 
compliance. We are of the view that strong network adequacy time and 
distance standards across all Exchanges would enhance consumer access 
to quality, affordable care through the Exchanges.

[[Page 82586]]

a. Federal Network Adequacy Policy Under the Affordable Care Act
    Section 1311(c)(1)(B) of the ACA directs the Secretary of HHS to 
establish by regulation certification criteria for QHPs, including 
criteria that require QHPs to ensure a sufficient choice of providers 
(in a manner consistent with applicable provisions under section 
2702(c) of the PHS Act) and provide information to current and 
prospective enrollees on the availability of in-network and out-of-
network providers. Federal network adequacy standards were first 
detailed in the Exchange Establishment Rule (77 FR 18418) and codified 
at Sec.  156.230.
    In the Exchange Establishment Rule (77 FR 18418), we established 
the minimum network adequacy criteria that plans must meet to be 
certified as QHPs at Sec.  156.230. The Exchange Establishment Rule (77 
FR 18409 through 18420) provided that an issuer of a QHP that uses a 
provider network must maintain a network that is sufficient in number 
and types of providers, including providers that specialize in mental 
health and substance use disorder services, to ensure that all services 
will be accessible to enrollees without unreasonable delay. In the 2016 
Payment Notice (80 FR 10830 through 10833), we modified Sec.  
156.230(a) in part to specify that network adequacy requirements only 
apply to QHPs that use a provider network, and that a provider network 
includes only providers that are contracted as in-network. For PYs 2015 
through 2017, the FFEs conducted network adequacy reviews of time and 
distance standards for QHP issuers.
    The 2017 Market Stabilization final rule (82 FR 18371 through 
18372) deferred reviews of network adequacy for QHPs to States that we 
determined to have a sufficient network adequacy review process, an 
approach that was expanded on in the 2019 Payment Notice (83 FR 17024 
through 17026). In the 2019 Payment Notice (83 FR 17024 through 17026), 
we deferred reviews of network adequacy for QHPs to States that 
possessed sufficient legal authority to enforce standards that were at 
least equal to the reasonable access standard defined in Sec.  156.230 
and that had the means to assess the adequacy of plans' provider 
networks. In States without the legal authority or means to assess and 
ensure network adequacy, we relied on an issuer's accreditation 
(commercial or Medicaid) from an HHS-recognized accreditation body to 
determine compliance with network adequacy requirements. For PYs 2018 
through 2022, we determined that all States had sufficient legal 
authority and means to assess the adequacy of QHP provider networks.
    In part 1 of the 2022 Payment Notice (86 FR 6154 through 6155), we 
provided a clarification to the network adequacy rules to reflect that 
Sec.  156.230 does not apply to plans seeking QHP certification that do 
not differentiate benefits based on whether or not enrollees receive 
covered services from providers that are members of the plan's provider 
network.
    The network adequacy review policy finalized in the 2019 Payment 
Notice was challenged in City of Columbus, et al. v. Cochran, 523 F. 
Supp. 3d 731 (D. Md. 2021). Specifically, on March 4, 2021, the United 
States District Court for the District of Maryland vacated the 2019 
Payment Notice's policy that deferred to States the Federal 
government's reviews of the network adequacy of QHPs and plans seeking 
QHP certification to be offered through the FFEs. With the FFE QHP 
certification cycle for PY 2022 beginning on April 22, 2021, we were 
not able to fully implement the aspects of the court's decision 
regarding network adequacy in time for issuers to design plans and for 
us to be prepared to consider whether to certify such plans as QHPs for 
PY 2022. However, we noted in part 2 of the 2022 Payment Notice (86 FR 
24264 through 24265) that we planned to propose specific steps to 
address implementation of this aspect of the court's decision in future 
rulemaking.
    In the 2023 Payment Notice (87 FR 27322), we finalized network 
adequacy standards for issuers in the FFEs that would apply for PYs 
2023 and later. Specifically, in that rule (87 FR 27323 through 27328), 
we finalized that we would evaluate plans seeking certification as QHPs 
in all States served by an FFE, including conducting network adequacy 
reviews based on time and distance standards. In PY 2023,\188\ we 
assessed time and distance standards at the county level and classified 
counties into five county type designations: Large Metro, Metro, Micro, 
Rural, and Counties with Extreme Access Considerations (CEAC). We used 
a county type designation method that is based upon the population size 
and density parameters of individual counties. To assess whether QHPs 
complied with these standards, we reviewed provider data for in network 
providers that QHP issuers submitted to us via our ECP/NA 
template.\189\ For each specialty and time and distance standard, we 
reviewed the issuer-submitted data to ensure that the plan provided 
access within specified times and distances to at least one provider in 
each of the provider type categories for at least 90 percent of 
enrollees. If a QHP did not meet one or more of the time and distance 
standards, the issuer could (1) add more contracted providers to the 
network to come into alignment with the standards and re-submit their 
updated ECP/NA template to us, and/or (2) submit a completed Network 
Adequacy Justification Form.\190\ This justification process required 
issuers that did not yet meet the time and distance standards to 
detail: (1) the reasons that one or more time and distance standards 
were not met; (2) the mitigating measures the issuer is taking to 
ensure enrollee access to respective provider specialty types; (3) 
information regarding enrollee complaints regarding network adequacy; 
and (4) the issuer's efforts to recruit additional providers. We used 
the provider's data submitted on the ECP/NA template and the completed 
Network Adequacy Justification Form submitted as part of the 
certification process to assess whether the issuer met the regulatory 
requirement, prior to making the certification decision.
---------------------------------------------------------------------------

    \188\ 2023 Final Letter to Issuers in the Federally-facilitated 
Exchanges. https://www.cms.gov/cciio/resources/regulations-and-guidance/downloads/final-2023-letter-to-issuers.pdf.
    \189\ Essential Community Providers and Network Adequacy. 
https://www.qhpcertification.cms.gov/s/ECP%20and%20Network%20Adequacy.
    \190\ Id.
---------------------------------------------------------------------------

    In the 2023 Payment Notice (87 FR 27328), we also finalized that, 
starting in PY 2025, we would also evaluate QHPs for compliance with 
appointment wait time standards.In the 2023 Payment Notice (87 FR 
27323), we finalized that CMS would not evaluate network adequacy in 
States performing plan management functions that elect to perform their 
own reviews of plans seeking QHP certification in their State, provided 
that the State applies and enforces quantitative network adequacy 
standards that are at least as stringent as the federal network 
adequacy standards established for QHPs under 45 CFR 156.230, and that 
reviews are conducted prior to plan confirmation to support timely QHP 
certification.
    In response to the network adequacy proposals proposed in the 2023 
Payment Notice proposed rule, many commenters also requested that we 
extend Federal network adequacy standards to State Exchanges in future 
rulemaking (87 FR 27334). Several commenters suggested that State 
alignment with Federal standards would be ideal, and that Federal 
standards

[[Page 82587]]

should offer minimum standards, or a ``strong floor,'' that all States 
must meet.
    In the 2024 Payment Notice (87 FR 78285 through 78287), we 
finalized that all individual market QHPs, including individual market 
stand-alone dental plans (SADPs), and all SHOP QHPs across all 
Exchanges must use a network of providers that complies with the 
standards described in Sec. Sec.  156.230 and 156.235 (with a limited 
exception for certain SADP issuers as specified under Sec.  
156.230(a)(4)). We also further deferred the imposition of appointment 
wait time standards to PY 2025.
b. Network Adequacy Standards and Reviews Across Exchanges
    Network adequacy is a key factor affecting consumers' access to 
care. While the FFEs impose uniform network adequacy standards across 
the States they serve that require QHP issuers to meet quantitative 
metrics, a similarly uniform network adequacy standard does not exist 
for States served by State Exchanges and SBE-FPs. Indeed, these 
circumstances prompted the National Association of Insurance 
Commissioners to develop the NAIC Health Benefit Plan Network Access 
and Adequacy Model Act (Model Act).\191\ The Model Act includes 
recommendations for qualitative network adequacy standards to which 
States could hold their issuers accountable and that require submission 
of access plans. The Model Act, however, does not specify what 
constitutes network adequacy, and, currently, only a few State 
Exchanges and SBE-FPs have adopted the full Model Act, resulting in the 
lack of a strong floor for network adequacy standards among State 
Exchanges and SBE-FPs.
---------------------------------------------------------------------------

    \191\ Health Benefit Plan Network Access and Adequacy Model Act. 
(2015, 4th Quarter). https://www.nh.gov/insurance/legal/documents/naic_model_act_network_adequacy.pdf.
---------------------------------------------------------------------------

    State Exchanges and SBE-FPs currently have a mix of network 
adequacy policies in place, and approximately 25 percent of those fail 
to impose any quantitative standard. Quantitative network adequacy 
standards can be monitored relatively easily and applied objectively 
and may include standards that measure provider-to-enrollee ratios, 
time and distance, or appointment wait times.\192\ On the other hand, a 
qualitative approach to network adequacy typically articulates a broad, 
general standard of adequacy and typically grants regulators or 
insurers discretion to determine how to measure compliance.\193\ State 
regulators using this approach may require issuers to simply articulate 
how they determine and measure adequacy in their networks.\194\ Once 
regulators approve an issuer's network adequacy plan using this 
approach, they then typically let issuers self-monitor their own 
compliance.\195\ As opposed to conducting routine audits or requiring 
periodic reports of compliance, State regulators usually rely on 
consumer complaints to highlight situations that might require 
investigation.\196\
---------------------------------------------------------------------------

    \192\ Hall, Ginsburg. (2017, Sep.). A Better Approach to 
Regulating Provider Network Adequacy. https://www.brookings.edu/wp-content/uploads/2017/09/regulatory-options-for-provider-network-adequacy.pdf.
    \193\ Id.
    \194\ Id.
    \195\ Id.
    \196\ Id.
---------------------------------------------------------------------------

    Based on our experience conducting network adequacy reviews and 
regulating QHPs, as well as feedback from interested parties, including 
the many commenters who requested in the 2023 Payment Notice (87 FR 
27334) that HHS extend Federal network adequacy standards to State 
Exchanges in future rulemaking, we are now of the view that no matter 
the State in which a QHP is offered, some quantitative analysis is 
necessary for an Exchange to objectively monitor network adequacy and 
determine whether a QHP provides enrollees in that State with access to 
an adequate network of providers.
    Moreover, the proliferation in recent years of QHP issuers with 
narrower provider networks raises several consumer protection concerns. 
QHPs with narrower networks may lack access to specific provider 
specialties in-network, resulting in significant out-of-pocket expenses 
for consumers who must seek care out-of-network or resulting in 
consumers forgoing care to avoid these expenses. We have also been made 
aware, through communications with interested parties, of issues faced 
by consumers where in-network emergency physicians and mental health 
providers are in limited supply or, in the case of in-network emergency 
physicians, not available at in-network hospitals. Additionally, the 
proliferation of narrower networks risks consumers being enrolled in 
plans whose networks do not have sufficient capacity to serve them or 
whose providers are too geographically dispersed to be reasonably 
accessible.
    Therefore, we propose to establish a national floor of quantitative 
network adequacy standards and network adequacy reviews. Although a 
number of State Exchanges and SBE-FPs have taken meaningful steps 
towards ensuring the adequacy of QHP networks, we are of the view that 
every Exchange should apply quantitative network adequacy standards and 
conduct a thorough review and analysis of issuer compliance with these 
standards to effectively evaluate the adequacy of QHP networks in order 
to ensure that all consumers, regardless of which State they live in, 
have timely access to providers to manage their health care needs.
c. Proposals Related to State Exchange and SBE-FP Network Adequacy 
Standards and Reviews
    We propose that for PY 2025 and future plan years, State Exchanges 
and SBE-FPs must (1) establish and impose quantitative time and 
distance network adequacy standards for QHPs that are at least as 
stringent as standards for QHPs participating on the FFEs under Sec.  
156.230; and (2) conduct reviews of a plan's compliance with those 
quantitative network adequacy standards prior to certifying any plan as 
a QHP, consistent with the manner in which the FFEs review the network 
adequacy of plans under Sec.  156.230.
i. Quantitative Network Adequacy Time and Distance Standards
    For plans years beginning on or after January 1, 2025, we propose 
that State Exchanges and SBE-FPs establish and impose quantitative time 
and distance network adequacy standards that are at least as stringent 
as the FFEs' time and distance standards established for QHPs under 
Sec.  156.230.
    For purposes of this proposal, ``at least as stringent as'' means 
time and distance standards that use a specialty list that includes at 
least the same specialties as our provider specialty lists and time and 
distance parameters that are at least as short as our parameters. 
States would be permitted to implement network adequacy standards that 
are more stringent than those performed by the FFEs under Sec.  
156.230. In other words, States could use a specialty list that is 
broader than our specialty lists, but it must include all the provider 
specialties included in our lists. Similarly, the time and distance 
parameters could also be narrower than our parameters, meaning they 
could require shorter time and/or distances, but they cannot be less 
demanding than our time and distance parameters.
    Quantitative time and distance standards help strengthen QHP 
enrollees' timely access to a variety of providers to meet their health 
care needs, which in turn helps ensure that enrollees can receive 
health care services without unreasonable delay. Additionally, 
quantitative time and

[[Page 82588]]

distance standards, when varied by county type, provide a useful 
assessment of whether QHPs provide reasonable access to care and a more 
comprehensive evaluation of the adequacy of QHPs' networks.
    In the 2023 Payment Notice (87 FR 27322), we adopted time and 
distance standards that the FFEs would use to assess whether plans to 
be certified as QHPs in the FFEs meet network adequacy standards. The 
proposed provider specialty lists for time and distance standards for 
PY 2023 were informed by prior HHS network adequacy requirements, 
consultation with interested parties, and other Federal and State 
health care programs, such as Medicare Advantage and Medicaid. The 
provider specialty lists that were finalized for PY 2023 covered more 
provider types than previously evaluated under FFE standards so that 
QHP networks would be robust, comprehensive, and responsive to QHP 
enrollees' needs. We believe that these provider specialty lists 
promote access to a variety of provider types and as a result 
strengthen consumer access to health care services without unreasonable 
delay. To establish a national floor for quantitative network adequacy 
standards, we propose that the provider specialty list that State 
Exchanges and SBE-FPs use must include, at a minimum, the providers in 
the provider specialty lists for the FFEs that were applicable to PY 
2023. Those lists are included in this preamble, as well.
    Consistent with the standards for the FFEs and to strengthen QHP 
enrollees' timely access to a variety of providers to meet their health 
care needs, we propose that State Exchanges and SBE-FPs' time and 
distance standards would be calculated at the county level and vary by 
county designation. State Exchanges and SBE-FPs would be required to 
use a county type designation method that is based on the population 
size and density parameters of individual counties. Under our proposal, 
the time and distance standards State Exchanges and SBE-FPs would 
establish and impose would apply to the provider specialty lists 
contained in Tables 10 and 11. To count towards meeting the time and 
distance standards, individual and facility providers listed on Tables 
10 and 11 would have to be appropriately licensed, accredited, or 
certified to provide services in their State, as applicable, and would 
need to have in-person services available.
BILLING CODE 4120-01-P

[[Page 82589]]

[GRAPHIC] [TIFF OMITTED] TP24NO23.022

[GRAPHIC] [TIFF OMITTED] TP24NO23.023

BILLING CODE 4120-01-P
    The county-specific time and distance parameters that QHPs would be 
required to meet would be detailed in future guidance, in the annual 
CMS Letter to Issuers in the Federally-facilitated Exchanges. We would

[[Page 82590]]

consider industry standards in developing these standards.
ii. Quantitative Network Adequacy Reviews
    For plans years beginning on or after January 1, 2025, we propose 
that State Exchanges and SBE-FPs be required to conduct quantitative 
network adequacy reviews prior to QHP certification, and that they 
conduct them consistent with network adequacy reviews conducted by the 
FFEs under Sec.  156.230. Specifically, when we refer to the review 
being consistent with the network adequacy reviews conducted by the 
FFEs under Sec.  156.230, we propose that State Exchanges and SBE-FPs 
would be required to conduct, prior to QHP certification, quantitative 
network adequacy reviews to evaluate compliance with requirements under 
Sec.  156.230(a)(1)(ii) and (iii), and (a)(2)(i)(A), while providing 
QHP certification applicants the flexibilities described under Sec.  
156.230(a)(2)(ii) and (a)(3) and (4). Under this proposal, State 
Exchanges and SBE-FPs would be prohibited from accepting an issuer's 
attestation as the only means for plan compliance with network adequacy 
standards. We further propose that State Exchanges and SBE-FPs would 
make available to SADP applicants the limited exception available to 
SADPs under Sec.  156.230(a)(4), pursuant to which SADPs may not be 
required to meet FFE network adequacy standards under Sec.  
156.230(a)(4), for the same reasons we made this exception available in 
the FFEs in the 2024 Payment Notice (88 FR 25878 through 25879). This 
exception is not available to medical QHP issuers.
iii. Quantitative Network Adequacy Review Justification Process
    We acknowledge that State-specific challenges may necessitate 
exceptions, and so we propose to require State Exchanges and SBE-FPs to 
permit issuers that are unable to meet the specified standards to 
participate in a justification process after submitting their initial 
data to account for variances, consistent with the processes specified 
under Sec.  156.230(a)(2)(ii) and (a)(3) and (4). State-specific 
challenges could include barriers beyond an issuer's control, such as 
provider supply shortages or topographic barriers.
    The issuer would include this justification as part of its QHP 
application and describe how the plan's provider network provides an 
adequate level of service for enrollees and how the plan's provider 
network will be strengthened and brought closer to compliance with the 
network adequacy standards prior to the start of the plan year. The 
issuer would be required to provide information as requested by the 
State Exchange or SBE-FP to support this justification. State Exchanges 
and SBE-FPs would be required to review the issuer's justification to 
determine whether making such health plan available through the 
Exchange is in the interests of qualified individuals in the State or 
States in which such Exchange operates as specified under Sec.  
156.230(a)(3). In making this determination, the factors State 
Exchanges and SBE-FPs could consider include whether the exception is 
reasonable based on circumstances such as the local availability of 
providers and variables reflected in local patterns of care. If the 
State Exchange or SBE-FP determines that making such health plan 
available through its Exchange is in the interests of qualified 
individuals in the State or States in which such Exchange operates, it 
could then certify the plan as a QHP.
iv. Exception Process for State Exchanges and SBE-FPs
    We are aware that some States Exchanges employ robust, quantitative 
network adequacy standards that differ from those used by the FFEs, but 
still ensure that QHPs provide consumers with reasonable, timely access 
to practitioners and facilities to manage their health care needs, 
consistent with the ultimate aim of these proposals. In light of this, 
we propose a framework for granting exceptions to the requirements that 
State Exchanges and SBE-FPs are required to establish and impose 
network adequacy time and distance standards for QHPs that are at least 
as stringent as the standards applicable to QHPs in FFEs and conduct 
quantitative network adequacy reviews that are consistent with those 
carried out by the FFEs under Sec.  156.230. We propose that HHS could 
grant State Exchanges and SBE-FPs an exception if it determines that 
the Exchange applies and enforces quantitative network adequacy 
standards that are different from the FFEs' but ensure reasonable 
access as defined under Sec.  156.230. The exception would be available 
only to State Exchanges and SBE-FPs that conduct quantitative reviews 
of network adequacy prior to certifying plans as QHPs. Exchanges 
seeking to employ alternative network adequacy standards would be 
required to submit an exception request, in a form and manner specified 
by HHS, and to support their exception request with evidence-based data 
demonstrating that such standards ensure access as defined under Sec.  
156.230.
    For example, if a State were to provide quantitative evidence that 
their network adequacy time and distance standards that measure access 
by service types provide consumers with equal access to providers as 
the Federal network adequacy standards under Sec.  156.230 that measure 
access by provider types, we may grant the respective State's request 
for an exception from measuring access by provider types. Additionally, 
if a State were to use different county type designations than the five 
county type designations that we use to assess QHP time and distance 
standards at the county level (that is, Large Metro, Metro, Micro, 
Rural, CEAC), we would consider the respective State's request for an 
exemption from using the same five county type designations only if the 
State were to provide evidence that their alternative county type 
designations provide consumers with equal access to providers as the 
Federal network adequacy standards under Sec.  156.230. Alternative 
quantitative network adequacy standards that we would review for 
potentially qualifying for the exemption must be supported by evidence-
based data, demonstrating that such standards provide enrollees with a 
level of access to providers that is equal to or greater than that 
ensured by the FFE network adequacy standards under Sec.  156.230.
    Although we propose to establish minimum standards related to 
network adequacy in this proposed rule, we solicit comment on how 
States may be able to develop a combination of data-driven quantitative 
and qualitative standards, developed with input from interested 
parties, to assess network adequacy. In the 2020 Medicaid Program; 
Medicaid and Children's Health Insurance Program (CHIP) Managed Care 
final rule (85 FR 72754, 72802), we provided States the flexibility to 
develop quantitative network adequacy standards for determining network 
adequacy. In that rule, we noted that in some situations, time and 
distance may not be the most effective type of standard for determining 
network adequacy and that some States have found that the time and 
distance analysis produces results that may not accurately reflect 
provider availability. For example, a State that has a heavy reliance 
on telehealth in certain areas of the State may find that a health care 
provider-to-enrollee ratio is more useful in measuring meaningful 
access to all services without unreasonable delay, as the time it would 
take the enrollee, and the distance the enrollee would have to travel, 
to access

[[Page 82591]]

the provider in-person could be well beyond applicable time and 
distance standards, but the enrollee may still be able to easily and 
quickly access many different providers on a virtual basis. (85 FR 
72802) We seek comment on how we should administer the process for 
Exchanges to apply for these exceptions, including the appropriate 
timelines, and the data that would be required to be submitted as part 
of this request. We also seek comment on how we should evaluate the 
provider access offered by QHP issuers in a State that requests an 
exception to establish and impose quantitative network adequacy 
standards that are different from the FFEs', whether and how to measure 
the access provided by those different standards over time, and how 
long an approved exemption should last.
    To ensure compliance with these proposed quantitative time and 
distance QHP network adequacy standards and review requirements, we 
would coordinate with State Exchanges and SBE-FPs to provide technical 
assistance to support their compliance with the requirements of this 
proposal and work with them should it be necessary to remedy any gaps 
in compliance. However, if a State Exchange or SBE-FP fails to comply 
with these standards, HHS could seek to take remedial action under its 
authorities related to Exchange program integrity.
d. Proposal Related to QHP Reporting on Telehealth Services
    We propose to require State Exchanges and SBE-FPs to require that 
all issuers seeking certification of plans to be offered as QHPs submit 
information to the respective State Exchanges or SBE-FPs about whether 
network providers offer telehealth services. We propose that this 
requirement would be applicable beginning with the QHP certification 
cycle for PY 2025. This data would be for informational purposes; it 
would be intended to help inform the future development of telehealth 
standards and would not be displayed to consumers. We believe this 
information could be relevant to State Exchange and SBE-FP analysis of 
whether a QHP meets network adequacy standards. We note that this 
proposal is not intended to suggest that telehealth services would be 
counted in place of in-person service access for the purpose of meeting 
network adequacy standards for PY 2025. While we acknowledge the 
growing importance of telehealth, we want to ensure that telehealth 
services do not reduce the availability of in-person care.
    For this purpose, telehealth encompasses professional 
consultations, office visits, and office psychiatry services delivered 
through technology-based methods, including virtual check-ins, remote 
evaluation of pre-recorded patient data, and inter-professional 
internet consultations. Currently, for issuers in FFEs to comply with 
telehealth reporting standards, issuers must indicate whether each 
provider offers telehealth with the options ``Yes,'' ``No,'' or 
``Requested information from the provider, awaiting their response.'' 
We are proposing that State Exchanges and SBE-FPs also impose this same 
standard.
    We seek comment on this proposal, including comments on how we 
might incorporate telehealth availability into network adequacy 
standards in future plan years.
f. Additional Network Adequacy Standards
    To reduce burden on State Exchanges and SBE-FPs that are not yet 
conducting quantitative network adequacy reviews, we are not proposing 
at this time that State Exchanges and SBE-FPs enforce appointment wait 
time standards or that State Exchanges and SBE-FPs ensure that the 
provider network of each QHP meets applicable standards specified in 
Sec.  156.230(b) through (e). However, we seek comment to inform any 
potential future enforcement of appointment wait time standards as well 
as the standards specified in Sec.  156.230(b) through (e), and look 
forward to capturing a wide range of perspectives on these topics from 
various interested parties. We are especially interested in comments 
about how State Exchanges and SBE-FPs may enforce quantitative network 
adequacy standards for appointment wait times, as well as the impact 
enforcing these standards may have on issuers and consumers.
    We also seek comment on our proposal for State Exchanges and SBE-
FPs to establish and impose quantitative time and distance QHP network 
adequacy standards that are at least as stringent as the FFEs' time and 
distance standards established for QHPs under Sec.  156.230 and to 
conduct quantitative network adequacy reviews, prior to QHP 
certification, that are consistent with the reviews conducted by the 
FFEs under Sec.  156.230, including comment on whether we should amend 
Sec.  156.230 in addition to Sec.  155.1050 to directly apply the same 
standards applicable to issuers on FFEs to issuers in State Exchanges 
and SBE-FPs for plan years beginning on or after January 1, 2025.

E. 45 CFR Part 156--Health Insurance Issuer Standards Under the 
Affordable Care Act, Including Standards Related to Exchanges

1. FFE and SBE-FP User Fee Rates for the 2025 Benefit Year (Sec.  
156.50)
    For the 2025 benefit year, we propose to retain the 2024 benefit 
year FFE user fee rate of 2.2 percent of total monthly premiums and an 
SBE-FP user fee rate of 1.8 percent of the total monthly premiums.
    Section 1311(d)(5)(A) of the ACA permits an Exchange to charge 
assessments or user fees on participating health insurance issuers as a 
means of generating funding to support its operations. If a State does 
not elect to operate an Exchange or does not have an approved Exchange, 
section 1321(c)(1) of the ACA directs HHS to operate an Exchange within 
the State. Accordingly, in Sec.  156.50(c), we state that a 
participating issuer offering a plan through an FFE or SBE-FP must 
remit a user fee to HHS each month that is equal to the product of the 
annual user fee rate specified in the annual HHS notice of benefit and 
payment parameters for FFEs and SBE-FPs for the applicable benefit year 
and the monthly premium charged by the issuer for each policy where 
enrollment is through an FFE or SBE-FP. OMB Circular A-25 established 
Federal policy regarding user fees and what the fees can be used 
for.\197\ OMB Circular A-25 provides that a user fee charge will be 
assessed against each identifiable recipient of special benefits 
derived from Federal activities beyond those received by the general 
public.
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    \197\ See Circular No. A-25 Revised. https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf.
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a. FFE User Fee Rates for the 2025 Benefit Year
    Based on estimated costs, enrollment (including anticipated 
establishment of SBE-FPs or shifts to State Exchanges in certain States 
in which FFEs or SBE-FPs currently are operating), and premiums for the 
2025 benefit year, we propose a 2025 user fee rate for all 
participating FFE issuers of 2.2 percent of total monthly premiums.
    Section 156.50(c)(1) provides that, to support the functions of 
FFEs, an issuer offering a plan through an FFE must remit a user fee to 
HHS, in the timeframe and manner established by HHS, equal to the 
product of the monthly user fee rate specified in the annual HHS notice 
of benefit and payment parameters for the applicable benefit year and 
the monthly premium

[[Page 82592]]

charged by the issuer for each policy where enrollment is through an 
FFE. As in benefit years 2014 through 2024, issuers seeking to 
participate in an FFE in the 2025 benefit year will receive two special 
benefits not available to issuers offering plans in State Exchanges: 
(1) the certification of their plans as QHPs; and (2) the ability to 
sell health insurance coverage through an FFE to individuals determined 
eligible for enrollment in a QHP. For the 2025 benefit year, issuers 
participating in an FFE will receive special benefits from the 
following Federal activities:
    <bullet> Provision of consumer assistance tools;
    <bullet> Consumer outreach and education;
    <bullet> Management of a Navigator program;
    <bullet> Regulation of agents and brokers;
    <bullet> Eligibility determinations;
    <bullet> Enrollment processes; and
    <bullet> Certification processes for QHPs (including ongoing 
compliance verification, recertification, and decertification).
    Activities performed by the Federal government that do not provide 
issuers participating in an FFE with a special benefit are not covered 
by the FFE user fee.
    The proposed user fee rate reflects our estimates for the 2025 
benefit year of costs for operating the FFEs, premiums, enrollment, and 
transitions in Exchange models from the FFE and SBE-FP models to either 
the SBE-FP or State Exchange models. The total enrollment in Exchanges 
in States anticipated to transition from operating an SBE-FP to a State 
Exchange model represents premiums for which we will no longer collect 
user fees, and the total enrollment in Exchanges in States anticipated 
to transition from an FFE to an SBE-FP model represents premiums for 
which we will assess user fees at the lower SBE-FP rate. Thus, these 
anticipated transitions impact our total projected collections and may 
affect the FFE and SBE-FP rates and are considered as part of our 
calculation of our proposed user fee amounts.
    To develop the proposed 2025 benefit year FFE user fee rates, we 
considered a range of costs, premiums, and enrollment projections.\198\ 
For the proposed 2025 benefit year user fee rates, we estimated a 
reduction in contract costs partially or fully funded out of FFE and 
SBE-FP user fees from the 2024 benefit year due to the HHS funding for 
Exchange outreach activities related to Medicaid unwinding ending in 
2024. We took several factors into consideration in choosing which 
premium and enrollment projections would inform the proposed 2025 FFE 
user fee rates. The enhanced PTC subsidies in section 9661 of the ARP 
were extended in section 12001 of the IRA through the 2025 benefit 
year. The extension of enhanced PTC subsidies significantly influenced 
our development of the 2025 enrollment and premium projections. We 
expect this provision of the IRA to sustain the higher enrollment 
levels observed in the 2021 and 2022 benefit years after the ARP was 
established and, as a result, we expect the projected total premiums 
where the user fee applies to increase, thereby increasing the amount 
of user fees that will be collected. Our 2025 enrollment estimates also 
account for the projected transitions of States from FFEs or SBE-FPs to 
State Exchanges, the enrollment impacts of section 1332 waivers, and 
transitioning Medicaid Expansion States.\199\ We project that 2025 
benefit year premiums will generally increase at the rate of medical 
inflation. After considering the range of costs, premiums, and 
enrollment projections, we propose a 2025 user fee rate that will 
ensure adequate funding for Federal Exchange operations.
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    \198\ We considered the most recent projections from the 
Congressional Budget Office (https://www.cbo.gov/system/files/2023-05/51298-2023-05-healthinsurance.pdf) and, as we have in prior 
rulemakings, our own internal data. See, for example, 88 FR 25845.
    \199\ In 2023, South Dakota implemented the Medicaid expansion 
provision of the ACA, extending Medicaid eligibility to adults in 
that State under the age of 65 with incomes up to 138 percent of the 
Federal poverty level. North Carolina is expected to implement 
Medicaid expansion in 2024.
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    We note that if any events significantly change our estimates 
around costs, premiums, or enrollment projections between this proposed 
rule and the final rule, we may modify the FFE and SBE-FP user fee 
rates that are proposed in this rule. For example, if enrollment during 
the open enrollment period for the 2024 plan year is significantly 
larger or smaller than anticipated, we would revise our enrollment 
projections, which could result in a modification of the FFE and SBE-FP 
proposed rates. The proposed FFE user fee rate for 2025 is 2.2 percent 
of total monthly premiums and is the same user fee rate as for the 2024 
benefit year. After accounting for the impact of the proposed user fee 
rate, we estimate that we would have sufficient funding available to 
fully fund user-fee-eligible FFE activities.
    We seek comment on the proposed 2025 FFE user fee rate.
b. SBE-FP User Fee Rates for the 2025 Benefit Year
    We propose to charge issuers offering QHPs through an SBE-FP a user 
fee rate of 1.8 percent of the monthly premium charged by the issuer 
for each policy under plans offered through an SBE-FP for the 2025 
benefit year.
    In Sec.  156.50(c)(2), we specify that an issuer offering a plan 
through an SBE-FP must remit a user fee to HHS, in the timeframe and 
manner established by HHS, equal to the product of the monthly user fee 
rate specified in the annual HHS notice of benefit and payment 
parameters for the applicable benefit year and the monthly premium 
charged by the issuer for each policy where enrollment is through an 
SBE-FP. SBE-FPs enter into a Federal platform agreement with HHS to 
leverage the systems established for the FFEs to perform certain 
Exchange functions and enhance efficiency and coordination between 
State and Federal programs. The benefits provided to issuers in SBE-FPs 
by the Federal government include use of the FFE information technology 
and call center infrastructure used in connection with eligibility 
determinations for enrollment in QHPs and other applicable State health 
subsidy programs, as defined at section 1413(e) of the ACA, and QHP 
enrollment functions under 45 CFR part 155, subpart E. The user fee 
rate for SBE-FPs is calculated based on the proportion of total FFE 
costs associated with Federal activities that provide SBE-FP issuers 
with special benefits, including costs that are associated with the FFE 
information technology infrastructure, the consumer call center 
infrastructure, and eligibility and enrollment services.
    To calculate the proposed SBE-FP rates for the 2025 benefit year, 
we used the same assumptions related to contract costs, enrollment, and 
premiums as we used for the proposed FFE user fee rates. As we 
explained previously in this section, the user fee rate for SBE-FPs is 
calculated based on the proportion of the total FFE costs associated 
with Federal activities that provide SBE-FP issuers with special 
benefits, which we estimate to be approximately 80 percent of total FFE 
costs. These FFE costs associated with Federal activities that provide 
SBE-FP issuers with special benefits include the costs associated with 
the FFE information technology infrastructure, the consumer call center 
infrastructure, and eligibility and enrollment services. Based on this 
methodology, the proposed 2025 SBE-FP user fee rate is the same user 
fee rate of 1.8 percent of

[[Page 82593]]

premiums that we established for the 2024 benefit year. The proposed 
user fee rate for SBE-FP issuers for the 2025 benefit year also 
includes assumptions about States transitioning from either the FFE 
model to an SBE-FP, or from an SBE-FP to a State Exchange for the 2025 
benefit year, which impacts the SBE-FP enrollment projections. As 
mentioned above, we also note that if any events significantly change 
our estimates around costs, premiums, or enrollment projections between 
this proposed rule and the final rule, we may modify the FFE and SBE-FP 
rates that are proposed in this rule.
    We seek comment on the proposed 2025 SBE-FP user fee rate.
2. State Selection of EHB-Benchmark Plans for Plan Years Beginning on 
or After January 1, 2027 (Sec.  156.111)
    For benefit years beginning on or after January 1, 2027, we propose 
to revise the standards for the State selection of EHB-benchmark plans 
at Sec.  156.111 to: consolidate the options for States to change EHB-
benchmark plans at Sec.  156.111(a); revise the scope of benefit 
requirements at Sec.  156.111(b)(2); and amend Sec.  156.111(e)(3) to 
require States to submit a formulary drug list as part of its 
application to change EHB-benchmark plans only if the State is seeking 
to change its prescription drug EHB.
    Section 1302 of the ACA provides for the establishment of an EHB 
package that includes coverage of EHBs (as defined by the Secretary of 
HHS), cost-sharing limits, and AV requirements. Among other 
requirements, the law directs that the EHBs be equal in scope to the 
benefits provided under a typical employer plan, and that they include 
at least the following 10 general categories and the items and services 
covered within the categories: ambulatory patient services; emergency 
services; hospitalization; maternity and newborn care; mental health 
and substance use disorder services, including behavioral health 
treatment; prescription drugs; rehabilitative and habilitative services 
and devices; laboratory services; preventive and wellness services and 
chronic disease management; and pediatric services, including oral and 
vision care.
    We established requirements relating to the coverage of EHBs in the 
EHB Rule (78 FR 12834). In the 2019 Payment Notice (83 FR 17009), we 
added Sec.  156.111 to provide States with additional options from 
which to select an EHB-benchmark plan for plan years beginning on or 
after January 1, 2020. In the 2023 Payment Notice (87 FR 27290), we 
revised Sec.  156.111 to require States to notify HHS of the selection 
of a new EHB-benchmark plan by the first Wednesday in May of the year 
that is 2 years before the effective date of the new EHB-benchmark 
plan, and stated that if a State did not provide such notification to 
HHS, the State's EHB-benchmark plan for the applicable plan year would 
be that State's EHB-benchmark plan applicable for the prior year. In 
the EHB RFI (87 FR 74097), we solicited public comment on a variety of 
topics related to the scope of benefits in health plans subject to the 
EHB requirements of the ACA, including the description of the EHB, the 
scope of benefits covered in typical employer plans, the review of EHB, 
coverage of prescription drugs, and substitution of EHB.
    Section 156.111(a) describes three options for States to change 
their EHB-benchmark plan. States may: (1) select the EHB-benchmark plan 
that another State used for the 2017 plan year under Sec. Sec.  156.100 
and 156.110; (2) replace one or more categories of EHBs established at 
Sec.  156.110(a) in the State's EHB-benchmark plan used for the 2017 
plan year with the same category or categories of EHB from the EHB-
benchmark plan that another State used for the 2017 plan year under 
Sec. Sec.  156.100 and 156.110; or (3) otherwise select a set of 
benefits that would become the State's EHB-benchmark plan.
    Among other requirements, a State changing its EHB-benchmark plan 
must comply with two scope of benefit requirements at Sec.  
156.111(b)(2)(i) and (ii). The first scope of benefit requirement at 
Sec.  156.111(b)(2)(i), also known as the typicality standard, requires 
the State's proposed EHB-benchmark plan to provide a scope of benefits 
equal to the scope of benefits provided under a typical employer 
plan,\200\ in accordance with section 1302(b)(2) of the ACA. As defined 
at Sec.  156.111(b)(2)(i)(A) and (B), a typical employer plan is 
either: one of the selecting State's 10 base-benchmark plan options 
established at Sec.  156.100 and available for the selecting State's 
selection for the 2017 plan year or the largest health insurance plan 
by enrollment within one of the five largest large group health 
insurance products by enrollment in the State.\201\ The second scope of 
benefit requirement at Sec.  156.111(b)(2)(ii), also known as the 
generosity standard, requires the State's proposed EHB-benchmark plan 
to provide a scope of benefits that does not exceed the generosity of 
the most generous among a set of comparison plans, including: the 
State's EHB-benchmark plan used for the 2017 plan year, and any of the 
State's base-benchmark plan options for the 2017 plan year described in 
Sec.  156.100(a)(1), supplemented as necessary under Sec.  156.110.
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    \200\ The scope of benefits of the State's new EHB-benchmark 
plan may exceed the scope of benefits of the typical employer-
sponsored or other job-based plans only to the extent any 
supplementation is required to provide coverage within each EHB 
category at Sec.  156.110(a).
    \201\ Provided that the product has at least 10 percent of the 
total enrollment of the five largest large group health insurance 
products in the State; the plan provides minimum value, as defined 
under Sec.  156.145; the benefits are not excepted benefits, as 
established under Sec.  146.145(b) and Sec.  148.220; and the 
benefits in the plan are from a plan year beginning after December 
31, 2013.
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    Under Sec.  156.111(e)(3), if a State is selecting its EHB-
benchmark plan by selecting a set of benefits that would become the 
State's EHB-benchmark plan under Sec.  156.111(a)(3), the State must 
submit a formulary drug list in a format and manner specified by HHS.
    Nine States have changed their EHB-benchmark plans since 2018 by 
complying with the requirements at Sec.  156.111.\202\ Based on 
interactions with these States and feedback received in response to the 
EHB RFI,\203\ we understand that certain aspects of the process to 
change EHB-benchmark plans may impose unanticipated difficulty on and 
create confusion for States. We understand there are concerns that the 
typicality standard, as implemented, is a burdensome way to ensure a 
State's EHB-benchmark plan selection is equal in scope to a typical 
employer plan. In addition, in limiting EHB-benchmark plan selections, 
we understand that the generosity standard may also impede the ability 
of States to select an EHB-benchmark that is equal in scope to the 
benefits provided under a typical employer plan in the State, which we 
understand States often find have become more generous over time. We 
also understand that requiring States to submit a formulary drug list 
to HHS as part of the documentation required under Sec.  156.111(e) can 
be particularly onerous when a State is not seeking to change its 
prescription drug EHBs.
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    \202\ For more information on the changes States have made to 
their EHB-benchmark plans, see https://www.cms.gov/CCIIO/Resources/Data-Resources/ehb.
    \203\ For example, see https://www.regulations.gov/comment/CMS-2022-0186-0270; https://www.regulations.gov/comment/CMS-2022-0186-0412; and https://www.regulations.gov/comment/CMS-2022-0186-0559.
---------------------------------------------------------------------------

    As a result of that feedback, we are now proposing changes to Sec.  
156.111 to reduce State burden to change EHB-benchmark plans. For 
benefit years beginning on or after January 1, 2027, we propose three 
revisions to the

[[Page 82594]]

standards for State selection of EHB-benchmark plans at Sec.  156.111. 
First, we propose to consolidate the options for States to change EHB-
benchmark plans at Sec.  156.111(a) to reduce the burden on States to 
decide between three functionally identical choices. Second, we propose 
to revise the typicality standard at Sec.  156.111(b)(2) so that, in 
demonstrating that a State's new EHB-benchmark plan provides a scope of 
benefits that is equal to the scope benefits of a typical employer plan 
in the State, the scope of benefits of a typical employer plan in the 
State would be defined as any scope of benefits that is as or more 
generous than the scope of benefits in the State's least generous 
typical employer plan (supplemented by the State as necessary to 
provide coverage within each EHB category at Sec.  156.110(a)), and as 
or less generous than the scope of benefits in the State's most 
generous typical employer plan (supplemented by the State as necessary 
to provide coverage within each EHB category at Sec.  156.110(a)), 
among the typical employer plans currently defined at Sec.  
156.111(b)(2)(i)(A) and (B). We also propose to remove the generosity 
standard at Sec.  156.111(b)(2)(ii) and to make a technical revision to 
the language regarding supplementation at Sec.  156.111(b)(2)(i). 
Third, we propose to revise Sec.  156.111(e)(3) to require States to 
submit a formulary drug list as part of their documentation to change 
EHB-benchmark plans only if the State is seeking to change its 
prescription drug EHB.
a. Consolidating the State EHB-Benchmark Plan Options
    First, we propose to consolidate the choices for States to change 
their EHB-benchmark plan by revising Sec.  156.111(a) to add a new 
paragraph (a)(2) which would simply state that, subject to paragraphs 
(b), (c), (d), and (e) of Sec.  156.111, for plan years beginning on or 
after January 1, 2027, a State may change its EHB-benchmark plan by 
selecting a set of benefits that would become the State's EHB-benchmark 
plan. The language at current Sec.  156.111(a) would be redesignated as 
Sec.  156.111(a)(1) and would be revised to provide that this paragraph 
applies to plan years beginning on or after January 1, 2020, through 
December 31, 2026. Further, the language currently at Sec.  
156.111(a)(1) through (3) would be redesignated as Sec.  
156.111(a)(1)(i) through (iii).
    This proposal would not substantively change the options for States 
to change their EHB-benchmark plans, as current Sec.  156.111(a)(3) 
already allows States to select a set of benefits that would become the 
State's EHB-benchmark plan and this option functionally encompasses the 
options at current Sec.  156.111(a)(1) and (a)(2), which allow States 
to select the EHB-benchmark plan that another State used for the 2017 
plan year under Sec. Sec.  156.100 and 156.110, in whole or in part. 
Under this proposal, a State selecting a set of benefits to become the 
State's EHB-benchmark plan that wants to use an EHB-benchmark plan from 
another State, either in whole or in part, could still do so. The 
flexibility that current Sec.  156.111(a)(3) offers is why all nine 
States that have changed their EHB-benchmark plans since 2018 relied on 
Sec.  156.111(a)(3) to do so, though they often made that decision 
after spending time and resources to deliberate on the differences 
between the three options. Therefore, we propose to revise Sec.  
156.111(a) to reduce this burden on States without substantively 
changing their options to select an EHB-benchmark plan.
    Under 42 CFR 440.347, Medicaid ABPs authorized under section 1937 
of the Act are required to meet EHB standards. Similarly, under 42 CFR 
600.405, in States that elect to operate a BHP, the standard health 
plans must meet EHB standards. The changes to State EHB-benchmark plan 
options would also be applicable to States when choosing a benchmark 
plan used to define EHBs in a Medicaid ABP or BHP standard health plan.
    We seek comment on the proposal to consolidate State EHB-benchmark 
plan options under Sec.  156.111(a).
b. Scope of Benefit Requirements
    Second, we propose to revise the scope of benefit requirements at 
Sec.  156.111(b)(2) for plan years beginning on or after January 1, 
2027, with corresponding proposed revisions to the actuarial 
requirements at Sec.  156.111(e)(2). Specifically, we propose that a 
State's new EHB-benchmark plan would be required to provide a scope of 
benefits that is equal to the scope of benefits of a typical employer 
plan in the State, and that the scope of benefits of a typical employer 
plan in the State would be defined as any scope of benefits that is as 
or more generous than the scope of benefits in the State's least 
generous typical employer plan (supplemented by the State as necessary 
to provide coverage within each EHB category at Sec.  156.110(a)), and 
as or less generous than the scope of benefits in the most generous 
typical employer plan in the State (supplemented by the State as 
necessary to provide coverage within each EHB category at Sec.  
156.110(a)), among the typical employer plans currently defined at 
Sec.  156.111(b)(2)(i)(A) and (B). We also propose to remove the 
generosity standard at Sec.  156.111(b)(2)(ii) and to make a technical 
revision to the language regarding supplementation at Sec.  
156.111(b)(2)(i).
    Since the effective date of the 2019 Payment Notice, States have 
been required to perform detailed actuarial analyses to demonstrate 
that their EHB-benchmark plans offer a scope of benefits equal to, or 
greater than, to the extent any supplementation is required to provide 
coverage within each EHB category at Sec.  156.110(a), the scope of 
benefits provided under a typical employer plan from among the typical 
employer plans identified in the regulation. To demonstrate this, a 
State must first assess the value of the current EHB-benchmark plan. 
Next, the State must determine how that valuation increases or 
decreases depending on their proposed plan modifications. Finally, the 
State must assess the value of each typical employer plan option to 
identify an exact match for the expected value offered by the proposed 
plan. To find such a match, the State may need to assess the value of 
many typical employer plan options, and determine whether 
supplementation is necessary, which requires both additional time and 
potentially additional costs for actuarial services. Additionally, the 
typical employer plan options available to the State may not yield an 
exact match to the benefit changes the State wishes to make, requiring 
the State to then modify its proposed benefit changes to be exactly 
equal in value to one of the available typical employer plan options. 
In this way, the existing typicality standard can inhibit the ability 
of States to innovate benefits in the State's EHB-benchmark plan by 
generally requiring an exact actuarial match. In contrast, under the 
proposed approach to typicality, each State would need to assess only 
two typical employer plan options (the most and least generous 
available) to establish a range of scopes of benefits that would be 
considered typical employer plans within which the State EHB-benchmark 
plan values could then match. We believe that requiring States to 
actuarially assess only two typical employer plan options would reduce 
both the time and cost to States of seeking to update their EHB-
benchmark plans and support a wider range of possible benefit changes, 
thereby enabling States to more easily propose such updates if and when 
they deem it appropriate to do so.
    As an example, a State seeks to add benefits to an existing EHB-
benchmark

[[Page 82595]]

plan that currently provides a scope of benefits equivalent to the 
State's least generous typical employer plan. The benefits that the 
State seeks to add to the existing EHB-benchmark plan would make it no 
longer equivalent to the State's least generous typical employer plan. 
The additional benefits would also result in an EHB-benchmark plan that 
is still less generous than the State's most generous typical employer 
plan. Under the current rules, the State could not add these benefits 
to their existing EHB-benchmark unless there is another typical 
employer plan listed in the regulation that provides an equivalent 
scope of benefits that accounts for the State's proposed additions. 
This could mean that the State's proposed EHB-benchmark plan would be 
out of compliance with the typicality standard simply because it does 
not provide a scope of benefits equivalent to one of the remaining 
State's typical employer plans, even though the scope of benefits in 
the State's proposed EHB-benchmark plan is more generous than the 
State's least generous typical employer plan and less generous than the 
State's most generous typical employer plan. States have expressed 
frustration that this approach to the typicality standard is 
unnecessarily restrictive.
    We agree with States that this approach to the typicality standard 
can lead to unnecessary burden for States to ensure compliance with 
section 1302(b)(2) of the ACA. Accordingly, we propose to revise the 
scope of benefits requirements at Sec.  156.111(b)(2) to redesignate 
Sec.  156.111(b)(2)(i) and (ii) as Sec.  156.111(b)(2)(i)(A) and (B) 
and to specify at redesignated Sec.  156.111(b)(2)(i) that these 
provisions would apply for plan years beginning on or after January 1, 
2020, through December 31, 2026. We further propose to add new Sec.  
156.111(b)(2)(ii) to provide that, for plan years beginning on or after 
January 1, 2027, States may select an EHB-benchmark plan that provides 
a scope of benefits equal to that of a typical employer plan in the 
State, where the scope of benefits of a typical employer plan is any 
scope of benefits within a continuous range of the scope of benefits 
that is as or more generous than that provided by State's least 
generous typical employer plan (supplemented by the State as necessary 
to provide coverage within each EHB category at Sec.  156.110(a)) and 
as or less generous than that provided by the State's most generous 
typical employer plan (supplemented by the State as necessary to 
provide coverage within each EHB category at Sec.  156.110(a)), among 
the plans described at the proposed Sec.  156.111(b)(2)(ii)(A) and (B). 
Under this proposal, at proposed Sec.  156.111(b)(2)(ii)(A) and (B), a 
State would identify the least and most generous typical employer plans 
among the same typical employer plans currently defined at Sec.  
156.111(b)(2)(i)(A) and (B) to determine the permissible continuous 
range of the scope of benefits for a State's EHB-benchmark plan 
selection. We believe that this approach would significantly reduce 
State burden in changing EHB-benchmark plans while still ensuring that 
they provide a scope of benefits in accordance with section 1302(b)(2) 
of the ACA.
    As noted above, we are not proposing to change the list of typical 
employer plans in this proposed rule. Under current Sec.  
156.111(b)(2)(i)(B) and proposed Sec.  156.111(b)(2)(ii)(B), for 
purposes of complying with the proposed typicality standard, a State 
may use the largest health insurance plan by enrollment within one of 
the five largest large group health insurance products by enrollment in 
the State, provided that the benefits in the plan are from a plan year 
beginning after December 31, 2013.\204\ Nonetheless, if the scope of 
benefits in these large group employer plans changes over time and such 
plans are among a State's most generous typical employer plans, the 
upper bound of that State's available scope of benefits could change 
accordingly.\205\ We have received feedback from States that indicates 
that the scope of benefits in some of these large group plans has 
increased since 2017, so we believe it is appropriate to allow States 
to select an EHB-benchmark plan with a scope of benefit requirement 
that tracks with such changes to employer plans in the States, to the 
extent they exist.
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    \204\ In addition, the product must have at least 10 percent of 
the total enrollment of the five largest large group health 
insurance products in the State; the plan must provide minimum 
value, as defined under Sec.  156.145; and the benefits must not be 
excepted benefits, as established under Sec. Sec.  146.145(b) and 
148.220. See Sec.  156.111(b)(2)(i)(B)(1) through (3).
    \205\ It is our expectation that the changes to the scope of 
benefits in these large group plans would only impact the upper 
bound of EHB-benchmark plans' scope of benefits. We expect the small 
group typical employer-sponsored or other job-based plans at Sec.  
156.100(a)(1), which are only from PY 2017, to consistently be among 
the least generous typical employer-sponsored or other job-based 
plans.
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    We continue to believe that this list of plans appropriately 
represents the scope of benefits provided under typical employer plans. 
Based on our research on how the scope of benefits in employer-
sponsored or other job-based coverage has changed since 2014, which 
includes our review of the comments submitted in response to the EHB 
RFI, we believe that the scope of benefits in employer-sponsored or 
other job-based coverage has either remained the same or increased 
incrementally overall since 2014. To the extent it has increased in 
certain States or certain regions, we believe that the scope of 
benefits in employer-sponsored or other job-based coverage increasingly 
tends to provide coverage for telehealth services, gender-affirming 
care, bariatric surgery, hearing aids, infertility treatment, routine 
non-pediatric dental services, and travel-related benefits for certain 
conditions.\206\
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    \206\ We emphasize that, under current Sec.  156.111, States 
that change their EHB-benchmark plan are generally permitted to 
select a set of benefits as their EHB-benchmark plan without regard 
to the specific benefits that the State's selected typical employer-
sponsored or other job-based plan covers. As implemented under Sec.  
156.111(b)(2)(i) and (e)(2)(i), the State is only required to 
provide an actuarial certification and an associated actuarial 
report from an actuary, who is a member of the American Academy of 
Actuaries, in accordance with generally accepted actuarial 
principles and methodologies, that affirms that the State's EHB-
benchmark plan is actuarially equal to the scope of benefits under a 
typical employer-sponsored or other job-based plan.
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    When we finalized the addition of Sec.  156.111 in the 2019 Payment 
Notice (83 FR 17009), we also included the generosity standard at Sec.  
156.111(b)(2)(ii) among the scope of benefit requirements for State 
EHB-benchmark plans. As described at Sec.  156.111(b)(2)(ii), the 
generosity standard requires that the scope of benefits in a State's 
proposed new EHB-benchmark plan not exceed the generosity of the most 
generous among a set of comparison plans, including: the State's EHB-
benchmark plan used for the 2017 plan year, and any of the State's 
base-benchmark plan options for the 2017 plan year described in Sec.  
156.100(a)(1), supplemented as necessary under Sec.  156.110. In the 
2019 Payment Notice (83 FR 17011), we supported the addition of the 
generosity standard by stating that it would appropriately limit the 
range of benefits that can be considered EHB. Ever since, we have 
received significant feedback from States and interested parties that 
the generosity standard ``hinders the ability of States to add 
innovative benefits to their EHB-benchmark plans.'' \207\ States have 
also shared that the generosity standard is not necessary to ensure the 
State EHB-benchmark plan selections are not unbounded given that the 
typicality standard can function as both a ceiling and floor to limit a 
State's EHB selections. Specifically, the typicality standard alone 
limits the

[[Page 82596]]

potential generosity of a State's EHB-benchmark plan to be no greater 
than the generosity provided by the most generous typical employer 
plan, because a State would be unable to demonstrate that a more 
generous plan was equal in scope to any of the typical employer plans 
defined at Sec.  156.111(b)(2)(i).
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    \207\ See, for example, https://www.regulations.gov/comment/CMS-2022-0186-0412.
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    Based on this feedback and our experience working with the nine 
States that have changed their EHB-benchmark plans under Sec.  156.111, 
we propose to remove the generosity standard from the scope of benefit 
requirements at Sec.  156.111(b)(2), for plan years beginning on or 
after January 1, 2027. Under this proposal, the scope of benefits in 
the State's new EHB-benchmark plan would no longer be restricted by the 
generosity of the set of prescribed comparison plans at Sec.  
156.111(b)(2)(ii)(A) and (B), which should provide States with 
significant flexibility to more easily select a new EHB-benchmark plan 
and remove a burdensome step of the actuarial analysis that States are 
required to complete under the existing generosity standard when 
selecting a new EHB-benchmark plan. However, we still believe that it 
is appropriate to limit the range of benefits that can be considered 
EHB to ensure the affordability of the EHB, and believe that the 
proposal to revise the typicality standard so that States may select an 
EHB-benchmark plan that provides a scope of benefits along a continuous 
range of the scope of benefits provided by a State's least and most 
generous typical employer plans is a more appropriate way to limit 
State EHB-benchmark plan selections in accordance with section 
1302(b)(2) of the ACA. The proposed revisions to the typicality 
standard and the proposed removal of the generosity standard would also 
establish an upper bound for State EHB-benchmark plan selections that 
better tracks with the scope of benefits in typical employer plans as 
they change over time.
    When we finalized the addition of Sec.  156.111 in the 2019 Payment 
Notice, we also published an acceptable methodology for States to 
comply with the scope of benefits requirements.\208\ If the proposals 
contained in this proposed rule are finalized, this methodology would 
no longer be applicable after the May 1, 2024 deadline for States to 
notify us of a new EHB-benchmark plan selection for plans effective 
beginning on or after January 1, 2027. Given that the proposed 
revisions to the scope of benefit requirements are designed to reduce 
State burden, we do not believe it is necessary to issue a new 
standalone methodology at this time. We believe States could more 
easily comply with these proposed requirements, if finalized, by 
identifying the least and most generous typical employer plans at Sec.  
156.111(b)(2) (supplemented by the State as necessary to provide 
coverage within each EHB category at Sec.  156.110(a)) and assessing 
their scope of benefits in some quantitative manner in accordance with 
generally accepted actuarial principles and methodologies. The State 
would then assess the scope of benefits in its selected EHB-benchmark 
plan in the same manner. The State would be in compliance with the 
proposed scope of benefit requirement if the assessed scope of benefits 
in its proposed EHB-benchmark plan is as or more generous than the 
least generous typical employer plan in the State (supplemented by the 
State as necessary to provide coverage within each EHB category at 
Sec.  156.110(a)) and as or less generous than the most generous 
typical employer plan in the State (supplemented by the State as 
necessary to provide coverage within each EHB category at Sec.  
156.110(a)). For a State adding benefits to its existing EHB-benchmark 
plan, an acceptable analysis under the proposed revisions to Sec.  
156.111 could involve the State calculating the expected premium for 
covering all the benefits in the State's proposed EHB-benchmark plan 
and in the State's least and most generous typical employer plans at 
Sec.  156.111(b)(2) at 100 percent actuarial value, in accordance with 
generally accepted actuarial principles and methodologies. This 
analysis would allow the State to confirm, on an estimated premium 
basis, that the scope of benefits in the proposed EHB-benchmark plan is 
as or more generous than the scope of benefits in the least generous 
typical employer plan and as or less generous than the scope of 
benefits in the most generous typical employer plan in the State 
(supplemented by the State as necessary to provide coverage within each 
EHB category at Sec.  156.110(a)). We anticipate that we would continue 
working closely with States to provide technical assistance to comply 
with the scope of benefit requirements at proposed Sec.  156.111(b)(2).
---------------------------------------------------------------------------

    \208\ ``Example of an Acceptable Methodology for Comparing 
Benefits of a State's EHB-benchmark Plan Selection in Accordance 
with 45 CFR 156.111(b)(2)(i) and (ii)''. https://www.cms.gov/cciio/resources/regulations-and-guidance/downloads/final-example-acceptable-methodology-for-comparing-benefits.pdf.
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    In addition, we propose corresponding edits to Sec.  156.111(e)(2) 
to require States to submit an actuarial certification and an 
associated actuarial report from an actuary, who is a member of the 
American Academy of Actuaries, in accordance with generally accepted 
actuarial principles and methodologies, that affirms that the State's 
EHB-benchmark plan complies with the scope of benefits requirements at 
proposed 156.111(b)(2).
    We also propose a technical clarification to the language regarding 
supplementation at Sec.  156.111(b)(2)(i), which currently states that 
a State's new EHB-benchmark plan must ``provide a scope of benefits 
equal to, or greater than, to the extent any supplementation is 
required to provide coverage within each EHB category at Sec.  
156.110(a), the scope of benefits provided under a typical employer 
plan'' (emphasis added). We have found that the language regarding 
supplementation is consistently misunderstood as allowing a State's 
EHB-benchmark plan to be greater than the scope of benefits under a 
typical employer plan for any reason. A State's EHB-benchmark plan may 
only exceed the scope of benefits in a typical employer plan when 
supplementation is required to provide coverage in the typical employer 
plan within each category at Sec.  156.110(a). To address the confusion 
created by this provision, we propose to make a technical clarification 
at Sec.  156.111(b)(2)(i) (which would apply to State selections of 
EHB-benchmark plans through plan year 2026) to state that a State's 
EHB-benchmark plan must provide a scope of benefits equal to the scope 
of benefits provided under a typical employer plan (supplemented by the 
State as necessary to provide coverage within each EHB category at 
Sec.  156.110(a)). This proposed technical clarification would not 
substantively change the existing requirement regarding supplementation 
at Sec.  156.111(b)(2)(i).
    Under 42 CFR 440.347, Medicaid ABPs authorized under section 1937 
of the Act are required to meet EHB standards. Under 42 CFR 600.405, in 
States that elect to operate a BHP, the standard health plans are 
required to meet EHB standards. The changes to State EHB-benchmark plan 
requirements would also be applicable to States when choosing a 
benchmark plan used to define EHBs in a Medicaid ABP or a BHP standard 
health plan.
    We seek comment on the proposals to revise the typicality standard 
at Sec.  156.111(b)(2)(i), remove the generosity standard at Sec.  
156.111(b)(2)(ii), make corresponding edits to Sec.  156.111(e)(2), and 
make a technical revision to the language regarding supplementation at 
Sec.  156.111(b)(2)(i).

[[Page 82597]]

c. Drug Formularies
    We propose to revise Sec.  156.111(e)(3) to require States to 
submit a formulary drug list as part of their documentation provided to 
change EHB-benchmark plans only if the State is seeking to change its 
prescription drug EHB. Currently, we require States to submit a 
formulary drug list if the State is selecting its EHB-benchmark plan 
using the option at current Sec.  156.111(a)(3), even if the State is 
not seeking to change its prescription drug EHB. We understand that 
creation and submission of this formulary drug list creates a 
significant amount of burden for the State. Since we can carry over the 
State's existing prescription drug EHB, as defined under Sec.  156.122, 
without substantial input from the State if the State is not seeking to 
change its prescription drug EHB, we propose to revise Sec.  
156.111(e)(3) as specified to reduce the burden on States.
    We seek comment on this proposal.
3. Provision of EHB (Sec.  156.115)
    We propose to remove the regulatory prohibition at Sec.  156.115(d) 
on issuers from including routine non-pediatric dental services as an 
EHB.
    In the EHB Rule, we finalized at Sec.  156.115(d) that issuers of a 
plan offering EHB may not include, among other services and benefits, 
routine non-pediatric dental services as an EHB, even if the State's 
current EHB-benchmark plan includes such services as covered benefits. 
Section 1302(b)(2) of the ACA directs the Secretary, in defining the 
EHB, to ensure that they are equal in scope to the benefits provided 
under a typical employer plan. In the proposed EHB Rule (77 FR 70644), 
in support of the prohibition at Sec.  156.115(d), we stated that 
routine non-pediatric dental services are not typically included in the 
medical plans offered by employers and are often provided as excepted 
benefits by the employer. We now believe a more natural reading of this 
provision is one that considers all the benefits typically covered by 
employers, regardless of whether such benefit is historically 
considered a ``health benefit'' or whether such benefit is ``typically 
covered'' by an employer's major medical plan or, for example, by a 
limited scope excepted benefits plan. Given that oral health has a 
significant impact on overall health and quality of life,\209\ and 
several commenters on the EHB RFI \210\ advocated for adult dental EHB 
coverage, we propose specifically to remove the regulatory prohibition 
on issuers including routine non-pediatric dental services as an EHB. 
We seek comment on whether similar changes should be proposed with 
regard to routine non-pediatric eye exam services and long-term/
custodial nursing home care benefits as well.
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    \209\ Spanemberg, J.C., Cardoso, J.A., Slob, E.M.G.B, & 
L[oacute]pez-L[oacute]pez, J. (2019). Quality of life related to 
oral health and its impact in adults. Journal of Stomatology, Oral 
and Maxillofacial Surgery, 120(3), 234-239. https://doi.org/10.1016/j.jormas.2019.02.004.
    \210\ For example, see https://www.regulations.gov/comment/CMS-2022-0186-0567; https://www.regulations.gov/comment/CMS-2022-0186-0586; and https://www.regulations.gov/comment/CMS-2022-0186-0626.
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    In 2020, approximately 110 million Americans had private dental 
coverage.\211\ Of the Americans that have private dental coverage, 
about 91 percent get their dental benefits through their employer or 
through affiliation with an entity such as the American Association of 
Retired Persons (AARP).\212\ According to National Financial Partners 
(NFP)'s 2023 US Benefits Trend Report, approximately two out of every 
three employers offer at least one dental plan, with 46 percent 
offering one plan, 18 percent offering two plans, and 3 percent 
offering three or more plans.\213\ Furthermore, according to KFF,\214\ 
among firms offering health benefits in 2019 included in the report, 59 
percent of small firms (3-199 workers) and 92 percent of large firms 
(200 or more workers) offered a dental insurance program to their 
workers separate from the health plan(s).\215\ Therefore, it appears 
that routine non-pediatric dental services are commonly covered as an 
employer-sponsored or other job-based benefit to a degree that warrants 
removing the prohibition on their provision as an EHB. We solicit 
comment on this understanding of the inclusion of routine non-pediatric 
dental services in employer-sponsored or other job-based benefits.\216\ 
Additionally, we believe that prohibiting the inclusion of routine non-
pediatric dental services as an EHB on the basis that they are not 
often covered by typical employer plans is a more restrictive reading 
of section 1302(b)(2) of the ACA than is warranted by a plain reading 
of the statute. Section 1302(b)(2) of the ACA states that, in defining 
the EHB, the Secretary shall ensure that the scope of the EHB is equal 
to the scope of benefits provided under a typical employer plan, as 
determined by the Secretary and as informed by a survey by the 
Secretary of Labor of employer-sponsored or other job-based coverage to 
determine the benefits typically covered by employers. In considering 
the benefits typically covered by employers, this statutory section 
does not require the Secretary to consider only those benefits provided 
in major medical plans. It also does not require the Secretary to 
consider only those benefits that are strictly ``health benefits,'' if 
such a term excludes coverage of routine non-pediatric dental services. 
Therefore, we no longer believe that the prohibition on non-pediatric 
dental services as an EHB is warranted. Accordingly, we propose to 
remove the regulatory prohibition on including routine non-pediatric 
dental services as an EHB at Sec.  156.115(d).
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    \211\ National Association of Dental Plans (2023). Understanding 
Dental Benefits. https://www.nadp.org/about-dental-plans-care/understanding-dental-benefits/.
    \212\ See supra note 15. Also note that another 8.8 percent buy 
individual dental coverage, while less than 1 percent obtain dental 
benefits as part of a medical plan.
    \213\ National Financial Partners. (2023). US Benefits Trend 
Report 2023. https://www.nfp.com/Portals/25/2023USBenefitsTrendReport.pdf?ver=H3zZIbZ5N2KDLhC0UfyiYA%3D%3D.
    \214\ Formerly the Kaiser Family Foundation. See KFF ``About 
Us.'' https://www.kff.org/about-us/.
    \215\ KFF (2019, September 25). 2019 Employer Health Benefits 
Survey. https://www.kff.org/report-section/ehbs-2019-section-2-health-benefits-offer-rates/#figure217.
    \216\ Section 156.115(d) also currently prohibits routine non-
pediatric eye exam services, long-term/custodial nursing home care 
benefits, and non-medically necessary orthodontia as EHB. We are not 
proposing to remove the prohibition on such services as EHB in this 
proposed rule; however, we solicit comment on the extent to which 
employer-sponsored or other job-based benefits provide coverage for 
these services.
---------------------------------------------------------------------------

    Removing the prohibition on issuers from including routine non-
pediatric dental services as an EHB would remove regulatory and 
coverage barriers to expanding access to routine non-pediatric dental 
benefits for those plans that must cover EHB. This would allow States 
to work to improve adult oral health and overall health outcomes, which 
are disproportionately low among marginalized communities such as 
people of color and people with low incomes.\217\ Lack of dental 
insurance remains one of the primary barriers to accessing dental 
care,\218\ and this proposed policy would help mitigate this barrier. 
Oral health and overall health are inextricably linked; untreated oral 
health conditions can increase risk for and complicate the management 
of

[[Page 82598]]

other chronic conditions.\219\ For example, studies have shown that 
periodontal disease and tooth loss are strongly associated with heart 
health, and oral health care can reduce the risk for cardiovascular 
disease,\220\ atrial fibrillation, and heart failure.\221\ 
Additionally, research indicates that oral health care has implications 
for substance use disorder (SUD) treatment. Individuals who receive 
comprehensive oral health care during SUD treatment have been shown to 
remain in treatment longer and have improved treatment outcomes at 
discharge, including an increase in employment and drug abstinence, as 
well as a reduction in homelessness.\222\ Furthermore, access to oral 
health care impacts employment prospects. Approximately 30 percent of 
low-income adults in the U.S. and nearly 60 percent of Medicaid 
beneficiaries without access to dental coverage report that the 
appearance of their mouth and teeth limits their ability to interview 
for a job.\223\
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    \217\ Northridge, M.E., Kumar, A., & Kaur, R. (2020). 
Disparities in Access to Oral Health Care. Annual review of public 
health, 41, 513-535. https://doi.org/10.1146/annurev-publhealth-040119-094318.
    \218\ Agency for Healthcare Research and Quality. (2022). 2022 
National Healthcare Quality and Disparities Report. https://www.ahrq.gov/sites/default/files/wysiwyg/research/findings/nhqrdr/2022qdr.pdf.
    \219\ Kapila Y.L. (2021). Oral health's inextricable connection 
to systemic health: Special populations bring to bear multimodal 
relationships and factors connecting periodontal disease to systemic 
diseases and conditions. Periodontology 2000, 87(1), 11-16. https://doi.org/10.1111/prd.12398. Periodontal disease has been associated 
with diabetes, metabolic syndrome, obesity, eating disorders, liver 
disease, cardiovascular disease, Alzheimer disease, rheumatoid 
arthritis, adverse pregnancy outcomes, and cancer.
    \220\ Dietrich, T., Webb, I., Stenhouse, L., Pattni, A., Ready, 
D., Wanyonyi, K.L., White, S., & Gallagher, J.E. (2017). Evidence 
summary: the relationship between oral and cardiovascular disease. 
British dental journal, 222(5), 381-385. https://doi.org/10.1038/sj.bdj.2017.224.
    \221\ Chang, Y., Woo, H.G., Park, J., Lee, J.S., & Song, T.J. 
(2020). Improved oral hygiene care is associated with decreased risk 
of occurrence for atrial fibrillation and heart failure: A 
nationwide population-based cohort study. European journal of 
preventive cardiology, 27(17), 1835-1845. https://doi.org/10.1177/2047487319886018.
    \222\ Hanson, G.R., McMillan, S., Mower, K., Bruett, C.T., 
Duarte, L., Koduri, S., Pinzon, L., Warthen, M., Smith, K., Meeks, 
H., & Trump, B. (2019). Comprehensive oral care improves treatment 
outcomes in male and female patients with high-severity and chronic 
substance use disorders. Journal of the American Dental Association 
(1939), 150(7), 591-601. https://doi.org/10.1016/j.adaj.2019.02.016.
    \223\ Families USA in partnership with the American Dental 
Association (ADA), Health Policy Institute (HPI), and Community 
Catalyst. (2021, July). Making the Case for Dental Coverage for 
Adults in All State Medicaid Programs. https://familiesusa.org/wp-content/uploads/2021/07/HPI-CC-FUSA-WhitePaper_0721.pdf.
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    This proposed policy would also align with CMS' Oral Health Cross 
Cutting Initiative, which aims to implement policy changes and consider 
opportunities through existing authorities to expand access to oral 
health coverage.\224\ Additionally, it would align with the request of 
several commenters on the EHB RFI (87 FR 74097) for us to remove 
regulatory and coverage barriers to expanding access to routine non-
pediatric dental care.
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    \224\ CMS. (n.d.) Strategic Plan Cross-Cutting Initiatives. 
https://www.cms.gov/files/document/strategic-plan-overview-fact-sheet.pdf.
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    We emphasize that the removal of this prohibition would not, by 
itself, mean that routine non-pediatric dental services would be an 
EHB, even in States with an EHB-benchmark plan that currently describes 
routine non-pediatric dental services as a non-EHB covered benefit. We 
stress that this proposal would not require any State to add such 
services as an EHB, nor would we consider any existing language 
regarding routine non-pediatric dental services in any State's current 
EHB-benchmark plan to have the effect of adding such services as an 
EHB. Under this proposal, a State seeking to provide any routine non-
pediatric dental services as an EHB would be required to update its 
EHB-benchmark plan to include such services as an EHB pursuant to Sec.  
156.111. If a State does not update its EHB-benchmark plan to add 
coverage of routine non-pediatric dental services as an EHB, then such 
services would not be an EHB, even if the current benchmark plan 
document includes routine non-pediatric dental services. However, we 
believe this proposal would incentivize States to add routine non-
pediatric dental services as an EHB by updating their EHB-benchmark 
plans pursuant to Sec.  156.111.
    Under this proposal, we would expect States, in determining whether 
it is appropriate to update their EHB-benchmark plan to add routine 
non-pediatric dental services as an EHB, to weigh the advantages of 
expanded dental services against the challenges of providing such 
services. States should consider the ability of plans to add such 
services as an EHB, which, as with pediatric oral care, may require 
plans to establish new networks of dental providers. Alternatively, 
issuers could comply with this policy by contracting with issuers of 
SADPs to administer these services, as long as it is seamless to the 
enrollee. This contracting arrangement would not be required, but it 
could be permitted as an option. In addition, States should consider 
that some health plans may not currently have infrastructure or 
experience working with Current Dental Terminology (CDT) codes that 
report dental procedures to dental payers.
    We note that while section 1302(b)(4)(F) of the ACA permits a 
medical QHP sold on the Exchange to omit coverage of pediatric dental 
EHB services if a SADP is offered through an Exchange,\225\ there is no 
statutory basis to extend this exception to routine non-pediatric 
dental services. Thus, plans subject to an EHB-benchmark plan that 
includes routine non-pediatric dental services as an EHB may not omit 
such coverage on the basis that a SADP already provides such coverage 
through an Exchange.
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    \225\ See section 1311(d)(2)(B)(ii) of the ACA for more 
information on offering SADP benefits.
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    This proposal, if finalized, may impact plans that are not directly 
subject to the EHB requirements, such as self-insured group health 
plans and fully-insured group health plans in the large group market, 
that are required to comply with the annual limitation on cost sharing 
and restrictions on annual or lifetime dollar limits in accordance with 
applicable regulations with respect to such EHBs.\226\ If a State 
updates its EHB-benchmark plan to add coverage of routine non-pediatric 
dental services as an EHB and the sponsor of a self-insured group 
health plan or fully-insured group health plan in the large group 
market selects that EHB-benchmark plan, any routine non-pediatric 
dental services covered by such a group health plan would generally be 
subject to the limitation on cost sharing and restrictions on annual or 
lifetime dollar limits. However, if the sponsors of such plans offer 
coverage of routine non-pediatric dental services through an excepted 
benefit under 26 CFR 54.9831-1(c)(3), 29 CFR 2590.732(c)(3), and 45 CFR 
146.145(b)(3), including a limited-scope dental plan, that benefit is 
generally excepted from complying with the group market reforms, 
including the limitation on cost sharing and restrictions on annual or 
lifetime dollar limits.
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    \226\ See parallel requirements to Sec.  147.126 at 26 CFR 
54.9815-2711, and 29 CFR 2590.715-2711. Additionally, section 
2707(b) of the PHS Act, as added by the ACA, was incorporated by 
reference into section 9815 of the Code and section 715 of ERISA.
---------------------------------------------------------------------------

    Additionally, under 42 CFR 440.347, Medicaid ABPs authorized under 
section 1937 of the Act are required to meet EHB standards. Under 42 
CFR 600.405, in States that elect to operate a BHP, the standard health 
plans are required to meet EHB standards. Under this proposal, States 
would be permitted to include routine non-pediatric dental services as 
EHB for purposes of their ABPs or BHP standard health plans.
    We seek comment on the proposal to revise Sec.  156.115(d) to 
remove the regulatory prohibition on issuers from including routine 
non-pediatric dental services as an EHB, including the impact this 
proposal would have, if

[[Page 82599]]

finalized, on health insurance coverage in the individual, small group, 
and large group markets, as well as self-insured plans.
4. Prescription Drug Benefits (Sec.  156.122)
    We propose revisions to certain EHB prescription drug benefit 
requirements at Sec.  156.122, including proposals to revise the 
minimum membership standards for pharmacy & therapeutics (P&T) 
committees and to codify EHB policy related to prescription drugs in 
excess of the benchmark. We seek comment on these proposals as well as 
a possible future policy proposal to replace the United States 
Pharmacopeia (USP) Medicare Model Guidelines (MMG) with the USP Drug 
Classification system (DC) to classify the prescription drugs required 
to be covered as EHB under Sec.  156.122(a)(1).
a. Classifying the Prescription Drug EHB
    We seek public comment to confirm or further expand our 
understanding of the risks and benefits associated with replacing the 
reference to the USP MMG with a reference to the USP DC as a means of 
classifying the drugs required to be covered as EHB under Sec.  
156.122(a)(1). As finalized in the EHB Rule (78 FR 12845 through 
12846), to provide EHB, a plan must comply with Sec.  156.122(a)(1) and 
cover at least the same number of prescription drugs in every USP 
category and class as covered by the State's EHB-benchmark plan, or one 
drug in every category and class, whichever is greater. We stated in 
the EHB Rule (78 FR 12845 through 12846) that plans could exceed the 
minimum number of drugs required to be covered and that additional 
drugs would still be considered EHB. In that final rule, we chose to 
use USP MMG Version 5.0 (USP Guidelines) to classify the drugs required 
to be covered as EHB under Sec.  156.122(a)(1). In so doing, we noted 
in the EHB Rule (78 FR 12845 through 12846) that ``[w]hile there was 
concern among commenters on the use of USP as the system, there was no 
universal system identified as a potential alternative. We chose the 
current version of USP Medicare Model Guidelines (version 5) because it 
is publicly available, and many pharmacy benefit managers are familiar 
with it. We believe the USP model best fits the needs for the years 
2014 and 2015 during the transitional EHB policy.''
    In the 2016 Payment Notice (80 FR 10814), we solicited comments on 
whether to replace the USP Guidelines with a standard based on the 
American Hospital Formulary Service (AHFS) or another drug 
classification system. We ultimately decided in the 2016 Payment Notice 
(80 FR 10815) to retain the USP Guidelines classification system 
because ``[i]ssuers have already developed 2 years of formularies based 
on it, States have already developed systems to review those 
formularies, and interested parties are familiar with the system. Thus, 
while AHFS had the benefit of being updated more frequently and 
incorporating a broader set of classes and subclasses, commenters did 
not uniformly support its use because of several issues, including a 
lack of transparency, the need to supplement certain classes when 
compared with USP, and the complexity of the AHFS system.'' In 2017, 
the USP developed a second drug classification system, the USP DC, an 
independent drug classification system ``developed in response to input 
from interested parties that it would be helpful to have a 
classification system beyond the MMG to assist with formulary support 
outside of Medicare Part D.'' \227\
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    \227\ USP Drug Classification. https://www.usp.org/health-quality-safety/usp-drug-classification-system.
---------------------------------------------------------------------------

    In the EHB RFI (87 FR 74097 through 74102), we sought input from 
the public regarding a variety of topics related to the scope of 
benefits in health plans subject to the EHB requirements of the ACA, 
including whether we should consider using an alternative prescription 
drug classification standard for defining the EHB prescription drug 
category, such as the USP DC or others. Most commenters supported the 
transition from the USP MMG, as currently used for EHB purposes and for 
Medicare Part D, to USP DC as the standard for defining the EHB 
prescription drug category. Commenters noted that USP DC is more 
inclusive of drug classes relevant to the private insurance patient 
base and is updated annually, while USP MMG is only updated once every 
three years. In particular, advocacy groups and provider groups stated 
that USP DC was developed to support formularies outside of the 
Medicare Part D population, which is another advantage over the current 
classification system designed specifically with Medicare beneficiaries 
in mind. They noted that USP MMG inappropriately limits access to FDA-
approved therapies such as anti-obesity medications (AOMs), resulting 
in fewer treatment options. A few commenters encouraged us to consider 
implementing an annual review and update process that includes input 
from consumers and other interested parties, to ensure USP DC continues 
to remain current with the prescription drug landscape. Some commenters 
recommended that we retain the USP MMG drug classification system. 
These same commenters expressed concern regarding the potential 
administrative burden with changing drug classification systems, 
explained that both government and commercial plans have broad 
experience with USP MMG, and stated that issuers would need to 
undertake potentially significant information technology work and 
expense to remap their data warehouses to include the new drug 
categories. A few commenters also noted that changing to a new 
classification standard could have negative consequences for patients 
as issuers could be required to cover high-cost drugs with low clinical 
value, increasing the total cost of care and potentially increasing 
premiums for members.
    Additionally, some commenters stated that new and expanded 
categories and classes under USP DC include anti-obesity agents, 
infertility agents, and several new classes of combination products, 
the latter of which often are comprised of brand name drugs paired with 
other drugs or devices and are more expensive coverage options than the 
individual generic products. Some commenters recommended that we retain 
the USP MMG drug classification system but noted that we should 
consider adoption of a new classification system, while a few 
commenters urged us to develop our own prescription drug classification 
standards rather than relying on those developed by private entities 
stating that our continued reliance on the USP does not address 
substantial gaps in coverage of medically necessary drugs. Lastly, a 
few commenters noted that replacement of USP MMG with the AHFS or USP 
DC would not address certain prescription drug access issues and 
instead recommended that the protected classes policy utilized in the 
Medicare Part D prescription drug program be incorporated into the 
prescription drug benefit.
    After reviewing these comments, we agree that using the USP DC to 
categorize the drugs provided as EHB would assist in strengthening the 
drug benefit due to its inclusion of additional drug categories and 
classes relevant to enrollees within the private insurance market. The 
USP MMG was created for use by prescription drug plans for the Medicare 
Part D population (eligibility for Medicare enrollment is 65) and not 
designed with the health needs of the population covered by plans 
subject to the requirement to cover EHB, which includes those receiving 
coverage through the Exchanges, such as women

[[Page 82600]]

of reproductive age and children whose health needs are significantly 
different than those of Medicare Part D beneficiaries, in mind. In 
addition, the USP MMG includes notable gaps in coverage related to the 
treatment of chronic conditions such as obesity, infertility agents, 
and sexual disorder agents. We also note that inclusion of additional 
categories and classes of drugs used to manage chronic conditions would 
assist in mitigating future risks and complications associated with a 
lack of access to these therapies, particularly for vulnerable 
populations.
    In addition, USP DC is updated annually instead of every three 
years, allowing for a more rapid incorporation of new prescription 
drugs, drugs that are newly or no longer used for a particular 
indication, or discontinued drugs. While we are aware that the USP DC 
system has many features that may be beneficial to consumers and meet 
evolving public health challenges, we recognize the concerns as noted 
by commenters to the EHB RFI regarding the potential challenges of 
switching drug classification systems from USP MMG to USP DC for 
defining EHB, including the administrative burdens to issuers and 
negative premium impacts to patients. We seek public comment to confirm 
or further expand our understanding of the risks and benefits 
associated with potentially replacing USP MMG with USP DC.
    Further, we seek comment regarding concerns noted by interested 
parties in response to the EHB RFI related to the challenges that 
issuers may experience transitioning from USP MMG to USP DC to include 
administrative burdens, particularly relating to disruptive impacts to 
issuer operations and systems to incorporate new drug categories and 
classes into their formulary review process. Lastly, we seek comment on 
a reasonable timeline for impacted entities to potentially migrate from 
USP MMG to USP DC.
    CMS and the USP developed the USP Guidelines in 2004 to implement 
the Medicare Part D Prescription Drug Program,\228\ and as such, the 
system was designed for the Medicare population. Section 1860D-2(e) of 
the Act defines a ``covered part D drug'' for purposes of the Medicare 
Part D program, and the statutory definition excludes drugs used for 
anorexia, weight loss, weight gain, fertility, cosmetic purposes or 
hair growth, symptomatic relief of cough and colds, smoking cessation, 
prescription vitamins and mineral products, nonprescription drugs, 
certain covered outpatient drugs, barbiturates, benzodiazepines, and 
drugs for the treatment of sexual or erectile 
dysfunction.<SUP>229 230</SUP> Consequently, the USP Guidelines do not 
include categories and classes to classify these excluded drugs, and as 
a result, these drugs are not required to be covered as EHB under Sec.  
156.122(a)(1), though there may be coverage requirements for a limited 
subset of these drugs based on other requirements such as the 
requirement to cover preventive services under section 2713 of the PHS 
Act. However, certain types of AOMs may still be covered as EHB but 
under a different drug category (for example, AOMs classified and 
covered under the category for central nervous system drugs). 
Additionally, nothing prevents issuers from voluntarily covering these 
drugs as EHB. However, the variation in classification for these drugs 
leads to potential coverage gaps for consumers.
---------------------------------------------------------------------------

    \228\ USP Medicare Model Guidelines. https://www.usp.org/health-quality-safety/usp-medicare-model-guidelines.
    \229\ See section 1860D-2(e)(2) of the Act.
    \230\ See section 1927(d)(2) of the Act. The list of drugs 
subject to restriction include drugs used for anorexia, weight loss, 
weight gain, fertility, cosmetic purposes or hair growth, 
symptomatic relief of cough and colds, smoking cessation, 
prescription vitamins and mineral products, nonprescription drugs, 
certain covered outpatient drugs, barbiturates, benzodiazepines, and 
drugs for the treatment of sexual or erectile disfunction.
---------------------------------------------------------------------------

    We recognize that there could be formulary challenges if we were to 
change drug classification systems, particularly as it relates to 
issuers' coverage and issuers' affordability of AOMs through the 
formulary benefit design. Specifically, although issuers would not 
necessarily be required to cover one of the more expensive AOMs looking 
solely at the policy at Sec.  156.122(a)(1), under Sec.  
156.122(a)(3)(iii)(H)(2), P&T committees are required to ensure that 
issuer formulary drug lists provide appropriate access to drugs that 
are included in broadly accepted treatment guidelines and that are 
indicative of general best practices at the time. We have included a 
review of current guidelines on pharmacological interventions for 
adults with obesity to highlight some of the issues that issuers and 
P&T committees would need to consider should we move from USP MMG to 
USP DC. We solicit comment on the data summarized as well on additional 
clinical data that we should review as we continue to consider possible 
future policy proposals related to the EHB prescription drug benefit 
requirements.
    Two guidelines, one by the American College of Cardiology/American 
Heart Association/The Obesity Society, and the other by the American 
Association of Clinical Endocrinologists/American College of 
Endocrinology are considered the standard of care in the management of 
overweight and obesity in adults.\231\ In November 2022, the American 
Gastroenterological Association (AGA) issued a new clinical practice 
guideline on pharmacological interventions for adults with 
obesity.\232\ This guideline advances those evidence-based 
recommendations from the American College of Cardiology/American Heart 
Association/The Obesity Society, the American Association of Clinical 
Endocrinologists/American College of Endocrinology, and the Endocrine 
Society. These guidelines note that AOMs used with lifestyle 
modifications produce greater and more sustained weight loss when 
compared with lifestyle modifications alone. Further, the authors of 
the AGA guideline reiterate that AOM selection should be based on each 
patient's needs and highlight that AOMs are generally used chronically 
to treat the chronic disease of obesity. In addition, the AGA 
guidelines note that Wegovy, Saxenda, Qsymia, and Contrave, which are 
classified in USP DC 2023 as anti-obesity agents had a balance of 
weight loss over harm that favored their use. The guidelines further 
state, ``given the magnitude of net benefit, Wegovy may be prioritized 
over other approved [anti-obesity medications] for the long-term 
treatment of obesity for most patients.'' \233\ Additionally, the 
guidelines recommend against the use of Xenical. Four drugs are 
currently available in the United States for short-term weight loss: 
phentermine, benzphetamine, diethylpropion, and phendimetrazine. 
Although the American Association of Clinical Endocrinologists/American 
College of Endocrinology guidelines recommend against use of these 
treatments, the Endocrine Society guideline endorses the use of long-
term treatment with phentermine that is contingent upon several 
conditions being met. The AGA guideline also provides a qualified 
endorsement of long-term use of phentermine, noting a low quality of 
evidence for this recommendation.

[[Page 82601]]

Phentermine is not FDA-approved for long-term treatment of obesity.
---------------------------------------------------------------------------

    \231\ Cornier, M. (2002). A Review of Current Guidelines for the 
Treatment of Obesity. Am J Manag Care, 28(15), S288-S296. 
doi:10.37765/ajmc.2022.89292.
    \232\ Grunvald, E., Shah, R., Hernaez, R., Chandar, A.K., 
Pickett-Blakely, O., Teigen, L.M., Harindhanavudhi, T., Sultan, S., 
Singh, S., Davitkov, P, (2022). AGA Clinical Practice Guideline on 
Pharmacological Interventions for Adults With Obesity. 
Gastroenterology, 163(5), 1198-1225. doi:10.1053/
j.gastro.2022.08.045.
    \233\ Id.
---------------------------------------------------------------------------

    Although some issuers may cover AOMs, we are aware that demand for 
effective AOMs is high and expected to increase.\234\ We seek comment 
on the potential financial effects of covering AOMs by issuers should 
we adopt the USP DC classification system to define EHB; in particular, 
we are interested in understanding estimated enrollee medication uptake 
within plans, associated total spending cost, overall impact to the 
medical and prescription drug benefit as well as premium impact to 
patients. Further, we seek comment on the estimated premium impact to 
patients if issuers were required to cover drugs in additional 
categories/classes of the USP DC such as infertility drugs, sexual 
disorder agents and combination drugs as part of the transition from 
USP MMG. Additionally, we seek comment on how issuers would try to 
balance prescription benefit costs of these newly added categories and 
classes within the USP DC with providing members access to affordable, 
clinically proven medications. For example, if an issuer were to employ 
utilization management strategies (for example, step therapy, prior 
authorization, and quantity limits) to ensure that the appropriate 
patient populations receive and benefit from these treatments, we are 
interested in understanding how issuers determine which of these newly 
added medications would require the implementation of utilization 
management strategies and what would be included in the clinical 
coverage criteria developed for prior authorization or step therapy as 
well as quantity limit guidelines.
---------------------------------------------------------------------------

    \234\ Duncan, I., Kerr, D., Aggarwal R., & Huynh, N. New Drugs 
for Obesity, Is the Excitement Affordable? Population Health 
Management. Oct 2023. 356-357.http://doi.org/10.1089/pop.2023.0086.
---------------------------------------------------------------------------

b. Coverage of Prescription Drugs as EHB
    We propose to amend Sec.  156.122 to codify that prescription drugs 
in excess of those covered by a State's EHB-benchmark plan are 
considered EHB. As a result, they would be subject to requirements 
including the annual limitation on cost sharing and the restriction on 
annual and lifetime dollar limits, consistent with Sec.  156.130, 
unless the coverage of the drug is mandated by State action and is in 
addition to EHB pursuant to Sec.  155.170, in which case the drug would 
not be considered EHB.
    In the EHB Rule (78 FR 12845), in response to commenter concerns 
regarding how plans must address new prescription drugs that come onto 
the market during the course of a plan year pursuant to Sec.  156.122, 
we stated that while plans must offer at least the greater of one drug 
for each USP category and class or the number of drugs in the EHB-
benchmark plan, plans are permitted to go beyond the number of drugs 
offered by the benchmark plan without exceeding EHB. Therefore, if the 
plan is covering drugs beyond the number of drugs covered by the 
benchmark, all drugs in excess of the drug count standard at Sec.  
156.122(a) are considered EHB, such that they are subject to EHB 
protections and must count towards the annual limitation on cost 
sharing. Additionally, we noted this policy in the preamble of the 2016 
Payment Notice (80 FR 10749) during a discussion of requirements 
related to Sec.  156.122(c).
    We believed that this policy as noted in both the EHB Rule and 
preamble of the 2016 Payment Notice was clearly understood by issuers 
until we received comments in response to the EHB RFI that included a 
significant number of requests from interested parties to clarify this 
policy in rulemaking. In addition, a small number of commenters noted 
concerns regarding some plans in the individual, small group, and large 
group markets that have stated that some drugs in excess of the drug 
count standard at Sec.  156.122(a) are not EHB and have developed 
programs to provide some drugs as ``non-EHB,'' outside of the terms of 
the rest of the coverage. We seek comment regarding how widespread 
these practices are.
    To resolve these concerns, we propose to amend Sec.  156.122 to add 
paragraph (f), which would explicitly state that drugs in excess of the 
benchmark are considered EHB. To the extent that a health plan covers 
drugs, in any circumstance, in excess of the benchmark, these drugs 
would be considered an EHB and would be required to count towards the 
annual limitation on cost sharing. This policy would apply unless the 
coverage of the drug is mandated by State action and is in addition to 
EHB pursuant to Sec.  155.170, in which case the drug would not be 
considered EHB.
    We have been made aware of a few plans within the individual and 
small group markets that have either developed or are offering programs 
that provide some drugs as ``non-EHB.'' As we have only recently begun 
receiving comments from interested parties regarding this issue, we do 
not believe that there are a large number of plans that offer these 
types of programs; however, we seek comment regarding how widespread 
these programs are.
    We seek comment on this proposal.
c. Pharmacy and Therapeutics Committee Standards
    For plan years beginning on or after January 1, 2026, we propose to 
amend Sec.  156.122 to provide that the P&T committee must include a 
consumer representative.
    In the 2016 Payment Notice (80 FR 10749), we required plans 
providing EHB to establish P&T committees to review and update plan 
formularies in conjunction with the USP MMG. At Sec.  156.122(a)(3)(i), 
we require P&T committees to: (a) have members that represent a 
sufficient number of clinical specialties to adequately meet the needs 
of enrollees; (b) consist of a majority of individuals who are 
practicing physicians, practicing pharmacists, and other practicing 
healthcare professionals who are licensed to prescribe drugs; (c) 
prohibit any member with a conflict of interest with respect to the 
issuer or a pharmaceutical manufacturer from voting on any matters for 
which the conflict exists; and (d) require at least 20 percent of its 
membership to have no conflict of interest with respect to the issuer 
and any pharmaceutical manufacturer.
    Many of the P&T committee requirements are also found in the 
Principles of a Sound Drug Formulary System, which was first developed 
in September 1999 by a coalition of national organizations representing 
healthcare professionals, government, and business leaders and later 
adopted in 2000 by the Academy of Managed Care Pharmacy (AMCP), 
Alliance of Community Health Plans, American Medical Association, 
American Society of Health-Systems Pharmacists, Department of Veterans 
Affairs, Pharmacy Benefits Management Strategic Healthcare Group, 
National Business Coalition on Health, and U.S. Pharmacopeia.\235\ 
Since that time, best practices for P&T committees have matured 
throughout the healthcare system. In 2019, AMCP convened a group of 
thought leaders, clinicians, academics, patient advocacy organizations, 
payer organizations, and members of the pharmaceutical industry to 
consider P&T committee best practices in today's evolving healthcare 
system.\236\ Specifically, the group

[[Page 82602]]

provided perspectives on: (a) P&T committee composition and relevant 
interested parties, (b) evaluation of emerging evidence for formulary 
decisions and recommendations around training of P&T committee members, 
and (c) characteristics and best practices of successful committees.
---------------------------------------------------------------------------

    \235\ Hawkins, B., ed. (2011). Principles of a sound drug 
formulary system. Best Practices for Hospital and Health System 
Pharmacy: Positions and Guidance Documents of ASHP. American Society 
of Health-System Pharmacists. https://www.ashp.org/-/media/assets/policy-guidelines/docs/endorsed-documents/endorsed-documents-principles-sound-drug-formulary-system.pdf.
    \236\ AMCP Partnership Forum: Principles for Sound Pharmacy and 
Therapeutics (P&T) Committee Practices: What's Next? (2020). J Manag 
Care Spec Pharm, 26(1), 48-53. https://doi.org/10.18553/jmcp.2020.26.1.48.
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    While a P&T committee is usually composed of actively practicing 
physicians, pharmacists, and other healthcare professionals, forum 
participants stated that a well-structured committee should also 
include patient representation since it provides additional insight 
into the patient perspective regarding the practical use of therapies 
and effect on quality-of-life outcomes which can be a helpful component 
of the formulary evaluation process. Additionally, participants noted 
that the patient perspective should be considered a key voice in 
formulary decisions as they are directly affected by P&T committee 
decisions and can assist the committee in better understanding the 
value of different treatments and medications for patients.
    While we are aware that the inclusion of consumers in the P&T 
committee process is not common, it has been observed in different 
healthcare systems. One example of this practice includes the Uniform 
Formulary Beneficiary Advisory Panel (UFBAP), which provides 
independent advice and recommendation on the development of the TRICARE 
Uniform formulary.\237\ Members of the UFBAP include nongovernmental 
organizations and associations that represent the views and interests 
of a large number of eligible covered beneficiaries, contractors 
responsible for the TRICARE retail pharmacy program, contractors 
responsible for the national mail-order pharmacy program, and TRICARE 
network providers. Additional examples of States that include 
clinicians such as physicians, pharmacists, and other specialists along 
with consumer or patient representatives as members within their 
respective P&T committees include Pennsylvania,\238\ Connecticut,\239\ 
and New York.\240\
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    \237\ Charter: Uniform Formulary Beneficiary Advisory Panel. 
https://health.mil/Military-Health-Topics/Access-Cost-Quality-and-Safety/Pharmacy-Operations/BAP.
    \238\ The Pennsylvania Department of Human Services Pharmacy and 
Therapeutics Committee. See: https://www.dhs.pa.gov/about/DHS-Information/Pages/Stakeholders/Pharmacy-Committee.aspx.
    \239\ The Connecticut Medical Assistance Program Pharmaceutical 
and Therapeutics Committee. See: https://www.cga.ct.gov/current/pub/chap_319v.htm#sec_17b-274d and https://www.ctdssmap.com/CTPortal/Portals/0/StaticContent/Publications/CT_PT_COMMITTEE_BYLAWS_v2.pdf.
    \240\ New York State Department of Health Drug Utilization 
Review (DUR). See: https://www.health.ny.gov/health_care/medicaid/program/dur/docs/board_membership.pdf.
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    P&T committee decisions have the power to impact a consumer's 
overall quality of life and encompass important elements of care and 
cost for the consumer. Therefore, we propose to add paragraph 
(a)(3)(i)(E) to Sec.  156.122 to update P&T membership standards to 
require the P&T committee to include a consumer representative as part 
of its membership for plan years beginning on or after January 1, 2026. 
In addition, we propose to specify at Sec.  156.122(a)(3)(E)(1) through 
(4) membership standards for consumer representatives. Specifically, 
the consumer representative would be required to represent the consumer 
perspective as a member of the P&T committee and would be required to 
have an affiliation with and/or demonstrate active participation in 
consumer or community-based organizations. Some examples of these types 
of organizations include those that are representative of a community 
or significant segments of a community that provide educational or 
related direct services to individuals in the community as well as 
organizations that protect consumer rights via advocacy, research, or 
outreach efforts. As a P&T committee member, the consumer 
representative would assume responsibility for highlighting and 
addressing any potential risks and benefits observed that could have a 
direct impact on consumers as a result of issues and actions before the 
P&T committee. In addition, an affiliation with and/or active 
participation in a consumer or community-based organization would 
provide the consumer representative with the necessary background to 
represent consumers' perspectives. If this rule is finalized as 
proposed, issuers would also be required to select a consumer 
representative who has experience in the analysis and interpretation of 
complex data and is able to understand its public health significance, 
bearing in mind that one of the duties as a member of a P&T committee 
includes thoughtful consideration of clinical criteria, such as drug 
safety and efficacy data, when making a recommendation regarding 
products under review. This individual would also be required to have 
no fiduciary obligation to a health facility or other health agency and 
have no material financial interest in the rendering of health care 
services. This conflict-of-interest standard is intended to ensure 
that, as a member of the P&T committee, the consumer representative is 
free from financial interests or other relationships that could 
compromise the objectivity of the members of the committee as they 
perform their duties. Nothing in this proposal would prevent the P&T 
committee from defining additional membership standards pertaining to 
the position of consumer representative.
    We believe that proposed Sec.  156.122(a)(3)(i)(E) would ensure 
that the consumer experience with a disease or condition is considered 
in the design of formulary benefits. Consumer representatives would be 
able to offer insight into real consumer experiences that P&T 
committees may be unaware of that would help the committee better 
understand consumer challenges related to medication use as well as 
assist them in exploring solutions to these challenges during the 
formulary development process. We also note that broader inclusion of 
perspectives on the P&T committee would align with other groups, 
including the AMCP.
    We seek comment on these proposals. The consumer representative, as 
a member of the P&T committee, would be subject to the conflict-of-
interest standards as specified in Sec.  156.122(a)(3); however, we are 
interested in comments regarding whether we should further define 
additional membership standards for the consumer representative. In 
particular, we seek comments on the qualifications necessary to serve 
as a consumer representative on a P&T committee, to include if the 
representative should have a clinical background, have served as a 
representative of organizations with a regional or Statewide 
constituency, or have been involved in activities related to health 
care consumer advocacy, including issues affecting individual and small 
group market enrollees. We also seek comment on whether the current 
conflict-of-interest provision is sufficient as applied to this 
proposed role, or whether the consumer representative role should be 
subject to additional conflict-of-interest standards. We seek comment 
on whether a consumer representative should have a background for more 
than one condition or disease to sufficiently represent the

[[Page 82603]]

concerns of a diverse population. Additionally, we seek comment on the 
number of consumer representatives who should be included on a 
committee and if that number should be directly proportional to the 
size of the committee. We also recognize that a requirement to develop 
additional P&T committee standards, solicit for applicants for this new 
position, and provide any necessary training to new members would 
require lead time for States, issuers, and pharmacy benefit managers to 
implement and we seek comment on the proposed timing for 
implementation.
5. Publication of the 2025 Premium Adjustment Percentage, Maximum 
Annual Limitation on Cost Sharing, Reduced Maximum Annual Limitation on 
Cost Sharing, and Required Contribution Percentage in Guidance (Sec.  
156.130)
    As established in part 2 of the 2022 Payment Notice (86 FR 24238), 
we will publish the premium adjustment percentage, the required 
contribution percentage, and maximum annual limitations on cost sharing 
and reduced maximum annual limitation on cost sharing, in guidance 
annually starting with the 2023 benefit year. We note that these 
parameters are not included in this rulemaking, as we do not propose 
changing the methodology for these parameters for the 2025 benefit 
year. Therefore, we will publish these parameters in guidance no later 
than January 2024.
6. Standardized Plan Options (Sec.  156.201)
    HHS proposes to exercise its authority under sections 1311(c)(1) 
and 1321(a)(1)(B) of the ACA to make minor updates to the standardized 
plan options for PY 2025. Specifically, we propose to make minor 
updates to the plan designs for PY 2025 to ensure these plans have AVs 
within the permissible de minimis range for each metal level, and we 
propose to maintain a high degree of continuity with the approach to 
standardized plan options finalized in the 2023 and 2024 Payment 
Notices. We do not propose to amend Sec.  156.201.
    Section 1311(c)(1) of the ACA directs the Secretary to establish 
criteria for the certification of health plans as QHPs. Section 
1321(a)(1)(B) of the ACA directs the Secretary to issue regulations 
that set standards for meeting the requirements of title I of the ACA 
for, among other things, the offering of QHPs through such Exchanges.
    In the 2024 Payment Notice (88 FR 25847 through 25855), we 
maintained a large degree of continuity with the approach to 
standardized plan options finalized in the 2023 Payment Notice, aside 
from several minor changes to the plan designs. Specifically, in 
contrast to the policy finalized in the 2023 Payment Notice, we 
finalized, for PY 2024 and subsequent plan years, to no longer include 
a standardized plan option for the non-expanded bronze metal level, 
primarily due to severe AV constraints. Thus, for PY 2024 and 
subsequent PYs, we finalized standardized plan options for the 
following metal levels: one bronze plan that meets the requirement to 
have an AV up to five points above the 60 percent standard, as 
specified in Sec.  156.140(c)(2) (known as an expanded bronze plan), 
one standard silver plan, one version of each of the three income-based 
silver CSR plan variations, one gold plan, and one platinum plan.
    Consistent with our approach in the 2023 Payment Notice, in the 
2024 Payment Notice (88 FR 25847 through 25848), we did not finalize 
standardized plan options for the AI/AN CSR plan variations as provided 
for at Sec.  156.420(b), given that the cost-sharing parameters for 
these plan variations are already largely specified. However, we 
continued requiring issuers to offer these plan variations for all 
standardized plan options offered, and we removed the regulation text 
language that stated that standardized plan options for these plan 
variations were not required to be offered. In the 2024 Payment Notice 
(88 FR 25847 through 25848), we further clarified that while issuers 
must continue to offer AI/AN CSR plan variations based on standardized 
plan options under Sec.  156.420(b), those plan variations will 
themselves not be standardized plan options based on designs specified 
in that rulemaking.\241\ Instead, similar to how all the cost sharing 
values for income-based silver CSR plan variations are automatically 
imputed based on the corresponding standard silver plan when an issuer 
enters required data into the Plans and Benefits Template as part of 
QHP certification, all the cost sharing values for standardized plan 
option AI/AN CSR plan variations will be automatically imputed based on 
the corresponding standardized plan option standard silver plan.
---------------------------------------------------------------------------

    \241\ See also QHP Certification Standardized Plan Options FAQs, 
https://www.qhpcertification.cms.gov/s/Standardized%20Plan%20Options%20FAQs.
---------------------------------------------------------------------------

    Similar to the approach taken in the 2023 Payment Notice, in the 
2024 Payment Notice (88 FR 25848), we finalized standardized plan 
options that once again resembled the most popular QHP offerings that 
millions were already enrolled in by taking the following steps: 
selecting the most popular cost-sharing type for each benefit category; 
selecting enrollee-weighted median values for each of these benefit 
categories based on refreshed PY 2023 cost sharing and enrollment data; 
modifying these plans to ensure they comply with State cost-sharing 
laws; and decreasing the AVs for these plan designs to be at the floor 
of each AV de minimis range, primarily by increasing deductibles.
    Furthermore, in the 2024 Payment Notice (88 FR 25848), we finalized 
two sets of standardized plan options at the aforementioned metal 
levels, with the same sets of designs applying to issuers in the same 
sets of States as in the 2023 Payment Notice. Specifically, the first 
set of standardized plan options continued applying to FFE and SBE-FP 
issuers in all FFE and SBE-FP States, excluding those in Delaware, 
Louisiana, and Oregon, and the second set of standardized plan options 
continued applying to Exchange issuers in Delaware and Louisiana.
    Also consistent with our approach in PY 2023, in the 2024 Payment 
Notice (88 FR 25848), we continued requiring issuers in the individual 
market Exchanges on the Federal platform to offer the standardized plan 
options specified in the 2023 Payment Notice, but we did not apply this 
requirement to issuers in the small group market SHOPs. We also 
continued exempting issuers offering QHPs through FFEs and SBE-FPs that 
were already required to offer standardized plan options under State 
action taking place on or before January 1, 2020, such as issuers in 
the State of Oregon,\242\ from the requirement to offer the 
standardized plan options included in the 2024 Payment Notice. We also 
continued not requiring State Exchange issuers to offer the 
standardized plan options included in the 2024 Payment Notice.
---------------------------------------------------------------------------

    \242\ See Or. Admin. R. 836-053-0009. https://secure.sos.state.or.us/oard/displayDivisionRules.action?selectedDivision=3778.
---------------------------------------------------------------------------

    Furthermore, consistent with the policy finalized in the 2023 
Payment Notice, in the 2024 Payment Notice (88 FR 25848), we stated 
that we would continue differentially displaying standardized plan 
options on HealthCare.gov pursuant to Sec.  155.205(b)(1), including 
those standardized plan options required under State action taking 
place on or before January 1, 2020. We also stated that we would 
continue enforcing the standardized plan options display requirements 
for approved web-brokers and QHP issuers using a direct

[[Page 82604]]

enrollment pathway to facilitate enrollment through an FFE or SBE-FP--
including both the Classic DE and EDE Pathways--at Sec. Sec.  
155.220(c)(3)(i)(H) and 156.265(b)(3)(iv), respectively.
    As such, web-brokers and QHP issuers were required to 
differentially display the PY 2024 standardized plan options in 
accordance with the requirements under Sec.  155.205(b)(1) in a manner 
consistent with how standardized plan options are displayed on 
HealthCare.gov, unless we approved a deviation, beginning with the 2024 
benefit year open enrollment period. Consistent with the PY 2023 
policy, the 2024 Payment Notice (88 FR 25848) provided that any 
requests from web-brokers and QHP issuers seeking approval for an 
alternate differentiation format will continue to be reviewed based on 
whether the same or similar level of differentiation and clarity would 
be provided under the requested deviation as is provided on 
HealthCare.gov.
    Consistent with the approach to plan designs in the 2023 Payment 
Notice, in the 2024 Payment Notice (88 FR 25848), we continued using 
the following four tiers of prescription drug cost sharing in the 
standardized plan options: generic drugs, preferred brand drugs, non-
preferred brand drugs, and specialty drugs. We explained that we 
believed that continued use of four tiers of prescription drug cost 
sharing in standardized plan options would result in more predictable 
and understandable drug coverage. We also explained that we believed 
that continuing to use four tiers of prescription drug cost sharing 
would play an important role in helping consumers make informed QHP 
selections by allowing consumers to more easily compare formularies 
between plans and make year-to-year comparisons with their current 
plan. We also explained that the continued use of four tiers would 
minimize issuer burden since, for PY 2023, issuers had already created 
standardized plan options with formularies that included only four 
tiers of prescription drug cost sharing.
    We refer readers to the preambles to the 2023 and 2024 Payment 
Notices discussing Sec.  156.201 (87 FR 27310 through 27322 and 88 FR 
25847 through 25855, respectively) for more detailed discussion 
regarding approaches to standardized plan options in PY 2024 and 
previous PYs.
    For PY 2025, we propose to follow the approach finalized in the 
2024 Payment Notice concerning standardized plan option metal levels, 
and to otherwise maintain continuity with our approach to standardized 
plan options finalized in the 2023 and 2024 Payment Notices. We propose 
to make only minor updates to the plan designs for PY 2025 to ensure 
these plans have AVs within the permissible de minimis range for each 
metal level. Our proposed updates to plan designs for PY 2025 are 
detailed in Tables 12 and 13, later in this section. We propose to 
maintain a high degree of continuity with the approach to standardized 
plan options finalized in the 2023 and 2024 Payment Notices for several 
reasons.
    We are continuing to require FFE and SBE-FP issuers to offer 
standardized plan options in large part due to continued plan 
proliferation, which has only increased since the standardized plan 
option requirements were finalized in the 2023 Payment Notice. In light 
of this continued plan proliferation, it is increasingly important to 
continue to attempt to streamline and simplify the plan selection 
process for consumers on the Exchanges. We believe these standardized 
plan options continue to play a meaningful role in that simplification 
by reducing the number of variables that consumers must consider when 
selecting a plan option, making it easier for consumers to compare 
available plan options.
    More specifically, with these standardized plan options, consumers 
continue to be able to more quickly and more easily consider meaningful 
factors, such as networks, formularies, and premiums, when selecting a 
plan. We further believe these standardized plan options include 
several distinctive features, such as enhanced pre-deductible coverage 
for several benefit categories and copayments instead of coinsurance 
rates for a greater number of benefit categories, that will continue to 
play an important role in reducing barriers to access, combatting 
discriminatory benefit designs, and advancing health equity. Including 
enhanced pre-deductible coverage for these benefit categories 
(specifically, primary care visits, specialist visits, speech therapy, 
occupational and physical therapy, and generic drugs at all metal 
levels, with an increasing number of benefit categories exempt at 
higher metal levels) ensures consumers are more easily able to access 
these services without first meeting their deductibles. Furthermore, 
using copayments instead of coinsurance rates for a greater number of 
benefit categories reduces the risk of unexpected financial expenses 
sometimes associated with coinsurance rates.
    Additionally, we propose to maintain a high degree of continuity 
with many of the standardized plan option policies previously finalized 
in the 2024 Payment Notice in order to reduce the risk of disruption 
for all involved interested parties, including issuers, agents, 
brokers, States, and enrollees. We believe making major departures from 
the methodology used to create the standardized plan options finalized 
in the 2023 and 2024 Payment Notices could result in drastic changes in 
these plan designs that may create undue burden for interested parties. 
For example, if the standardized plan options that we create vary 
significantly from year to year, those enrolled in these plans could 
experience unexpected financial harm if the cost sharing for services 
they rely upon differs substantially from the previous year. 
Ultimately, we believe consistency in standardized plan options is 
important to allow issuers and enrollees to become accustomed to these 
plan designs.
    We seek comment on our proposed approach to standardized plan 
options for PY 2025. Additionally, we seek comment on requiring issuers 
offering QHPs in individual market State Exchanges to offer, in a 
future plan year, some version of standardized plan options, while not 
necessarily subjecting them to the full scope of standardized plan 
option requirements applicable to issuers on the FFEs or SBE-FPs under 
Sec.  156.201. In particular, we seek comment on requiring issuers 
offering QHPs in individual market State Exchanges that are not already 
required to offer standardized plan options under State requirements to 
offer some version of standardized plan options, even if these plan 
designs differ from the requirements of those included in the 
applicable Payment Notice for that plan year. We also seek comment on 
requiring States that intend to transition their Exchange model type 
from an FFE or SBE-FP to a State Exchange to require their issuers to 
offer standardized plan options as one condition of this transition. As 
such, we are particularly interested in comments from individual market 
State Exchanges that do not currently require QHP issuers to offer 
standardized plan options, States with an FFE or SBE-FP Exchange model 
type that intend to transition their Exchange model type to a State 
Exchanges, and issuers offering QHPs through State Exchanges.
    While we recognize that State Exchanges are best positioned to set 
requirements that serve the nuances of their respective individual 
markets, we underscore the benefits of offering at least some version 
of standardized plan options, which we discussed in greater detail in 
the preamble discussion of Sec.  156.201 in the 2023 Payment Notice

[[Page 82605]]

(87 FR 27316). We also believe that the fact that over half of State 
Exchanges currently require issuers to offer standardized plan options 
in one form or another suggests that they, too, see value in 
standardized plan options.
BILLING CODE 4120-01-P
[GRAPHIC] [TIFF OMITTED] TP24NO23.024


[[Page 82606]]


[GRAPHIC] [TIFF OMITTED] TP24NO23.025

BILLING CODE 4120-01-C
7. Non-Standardized Plan Option Limits (Sec.  156.202)
    HHS proposes to exercise its authority under sections 1311(c)(1) 
and 1321(a)(1)(B) of the ACA to amend Sec.  156.202 by adding 
paragraphs (d) and (e) to introduce an exceptions process that would 
allow issuers to offer additional non-standardized plan options (in 
excess of the limit of two) per product network type, metal level, 
inclusion of dental and/or vision benefit coverage, and service area 
for PY 2025 and subsequent plan years, if issuers demonstrate that 
these additional non-standardized plans have specific design features 
that would substantially benefit consumers with chronic and high-cost 
conditions. Under this proposal, issuers would not be limited in the 
number of exceptions permitted per product network type, metal level, 
inclusion of dental and/or vision benefit coverage, and service area, 
so long as they meet specified criteria. Section 1311(c)(1) of the ACA 
directs the Secretary to establish criteria for the certification of 
health plans as QHPs. Section 1321(a)(1)(B) of the ACA directs the 
Secretary to issue regulations that set standards for meeting the 
requirements of title I of the ACA for, among other things, the 
offering of QHPs through such Exchanges.
    In the 2024 Payment Notice (88 FR 25855 through 25865), we 
finalized requirements limiting the number of non-standardized plan 
options that issuers of QHPs can offer through Exchanges on the Federal 
platform (including SBE-FPs) to four non-standardized plan options per 
product network type (as described in the definition of ``product'' at 
Sec.  144.103), metal level (excluding catastrophic plans), inclusion 
of dental and/or vision benefit coverage, and service area for PY 2024, 
and two for PY 2025 and subsequent plan years.
    We explained that we phased in this limit over 2 plan years 
(instead of adopting the limit of two in PY 2024) primarily to decrease 
the risk of disruption for both issuers and enrollees, and to provide 
increased flexibility to issuers. Many commenters supported adopting a 
more gradual approach in which the number of non-standardized plan 
options that issuers can offer is incrementally decreased over a span 
of 2 plan years, instead of

[[Page 82607]]

adopting a limit of two for PY 2024. Additionally, regarding the 
modification to factor the inclusion of dental and vision benefits into 
this limit, issuers have frequently offered these specific benefit 
categories as additional benefits in otherwise identical plan options, 
accounting for the vast majority of product ID-based variations 
(approximately 84 percent of such variation) offered by issuers within 
a given metal level, network type, and service area in PY 2022. We 
refer readers to the preamble of the 2024 Payment Notice discussing 
Sec.  156.202 (88 FR 25855 through 25865) for more detailed discussion 
of our approach to non-standardized plan option limits for PY 2024 and 
related background.
    As a result of the limit on the number of non-standardized plan 
options that issuers can offer through the Exchanges being reduced from 
four in PY 2024 to two in PY 2025, we estimate (based on current PY 
2024 plan offering data) that the weighted average number of non- 
standardized plan options available to each consumer will be reduced 
from 67.3 in PY 2024 to approximately 41.7 in PY 2025. Furthermore, we 
estimate that the weighted average total number of plans, including 
standardized and non-standardized plan options, available to each 
consumer will be reduced from 91.8 in PY 2024 to approximately 66.2 in 
PY 2025.\243\
---------------------------------------------------------------------------

    \243\ The weighted average total number of plans available to 
each consumer was 107.8 in PY 2022, prior to the introduction of 
standardized plan option requirements, and 113.6 in PY 2023, the 
first year that standardized plan option requirements were 
introduced.
---------------------------------------------------------------------------

    Furthermore, based on current QHP submission data for PY 2024, we 
estimate that approximately 28,275 of the total 109,229 non-
standardized plan option plan-county combinations \244\ (25.9 percent) 
will be discontinued as a result of this limit in PY 2025. Relatedly, 
based on trended enrollment data from PY 2023 (which we rely on for 
purposes of this estimate because PY 2024 enrollment data is currently 
unavailable), we estimate that approximately 1.78 million of the 14.94 
million enrollees on the FFEs and SBE-FPs (11.9 percent) will be 
affected by these discontinuations in PY 2025.
---------------------------------------------------------------------------

    \244\ Plan-county combinations are the count of unique plan ID 
and FIPS code combinations. This measure was used because a single 
plan may be available in multiple counties, and specific limits on 
non-standardized plan options or specific dollar deductible 
difference thresholds may have different impacts on one county where 
there are four plans of the same product network type and metal 
level versus another county where there are only two plans of the 
same product network type and metal level, for example.
---------------------------------------------------------------------------

    In the 2024 Payment Notice (88 FR 25858 through 25859), we also 
announced our intent to propose an exceptions process in the 2025 
Payment Notice proposed rule that would allow issuers to offer non-
standardized plan options in excess of the limit of two per product 
network type, metal level, inclusion of dental and/or vision benefit 
coverage, and service area for PY 2025 and subsequent plan years.
    As such, in this proposed rule, we propose an exceptions process at 
new Sec.  156.202(d) and (e) that would permit FFE and SBE-FP issuers 
to offer more than two non-standardized plan options per product 
network type, metal level, inclusion of dental and/or vision benefit 
coverage, and service area for PY 2025 and subsequent plan years, if 
issuers demonstrate that these additional non-standardized plans beyond 
the limit at Sec.  156.202(b) have specific design features that would 
substantially benefit consumers with chronic and high-cost conditions. 
Issuers would not be limited in the number of exceptions permitted per 
product network type, metal level, inclusion of dental and/or vision 
benefit coverage, and service area, so long as they meet specified 
criteria.
    Specifically, pursuant to proposed Sec.  156.202(d), issuers would 
be permitted to offer more than two non-standardized plan options if 
these additional plans' cost sharing for benefits pertaining to the 
treatment of chronic and high-cost conditions (including benefits in 
the form of prescription drugs, if pertaining to the treatment of the 
condition(s)) is at least 25 percent lower, as applied without 
restriction in scope throughout the plan year, than the cost sharing 
for the same corresponding benefits in an issuer's other non-
standardized plan option offerings in the same product network type, 
metal level, and service area. The reduction could not be limited to a 
part of the year, or an otherwise limited scope of benefits. Instead, 
issuers would be required to apply the reduced cost sharing for these 
benefits any time the covered item or service is furnished. For 
example, an issuer could not reduce cost sharing for the first three 
office visits or drug fills and then increase it for remaining visits 
or drug fills. Furthermore, issuers would be prohibited from 
conditioning reduced cost sharing for these benefits on a particular 
diagnosis. That is, although the benefit design would have reduced cost 
sharing to address one or more articulated conditions, the reduced cost 
sharing must be available to all enrolled in the plan who receive the 
service(s) covered by the benefit.
    Under this proposal, no other plan design features (such as the 
inclusion of additional benefit coverage, different provider networks, 
different formularies, or reduced cost sharing for benefits provided 
through the telehealth modality) would be evaluated under this 
exceptions process, meaning no other differences in plan design 
features would allow issuers to be excepted from the limit to the 
number of non-standardized plan options offered per product network 
type, metal level, inclusion of dental and/or vision benefit coverage, 
and service area.
    Additionally, as part of this exceptions process, at proposed Sec.  
156.202(e), issuers would be required to submit a written justification 
in a form and manner and at a time prescribed by HHS that provides 
additional details and explains how the particular plan design the 
issuer desires to offer above the non-standardized plan option limit of 
two satisfies the proposed standards for receiving an exception to this 
limit--namely, how the particular plan would substantially benefit 
consumers with chronic and high-cost conditions. We would provide 
issuers with a justification form upon publication of the final rule 
and when the QHP templates for the applicable plan year are released.
    This justification form would ask the issuer to (1) identify the 
specific condition(s) for which cost sharing is reduced, (2) explain 
which benefits would have reduced annual enrollee cost sharing (as 
opposed to reduced cost sharing for a limited number of visits) for the 
treatment of the specified condition(s) by 25 percent or more relative 
to the cost sharing for the same corresponding benefits in an issuer's 
other non-standardized plan offerings in the same product network type, 
metal level, and service area, and (3) explain how the reduced cost 
sharing for these services pertains to clinically indicated guidelines 
for treatment of the specified chronic and high-cost condition(s). 
Additionally, to allow the Exchange adequate time to review these 
justification forms, issuers would need to submit their QHP application 
in a form and manner and at a time specified by us. We anticipate 
requesting that issuers submit QHP applications for non-standardized 
plan options that exceed the two-plan limit by the QHP certification 
Early Bird deadline.
    We propose for PY 2025 to allow exceptions only for plans that meet 
the previously described requirements for benefits pertaining to the 
treatment of conditions that are chronic and high-cost in nature. We 
clarify that, for purposes of this standard, chronic conditions are 
those that have an average duration of one year or more and require 
ongoing medical attention or limit activities of daily living, or

[[Page 82608]]

both.\245\ We also clarify that, for purposes of this standard, high-
cost conditions are those that account for a disproportionately high 
portion of total Federal health expenditures. We note that the four 
chronic and high-cost conditions included in the prescription drug 
adverse tiering for PY 2025 (specifically, hepatitis C virus, HIV, 
multiple sclerosis, and rheumatoid arthritis) are examples of 
conditions that we would consider to be chronic and high-cost in nature 
for purposes of this standard. However, for purposes of this standard, 
we clarify that we would also consider additional conditions to be 
chronic and high-cost in nature. Additional representative examples of 
conditions that we would consider to be chronic and high-cost in nature 
for purposes of this proposal include Alzheimer's disease, kidney 
disease, osteoporosis, heart disease, diabetes, and all kinds of 
cancer. Examples of conditions that we would not consider chronic and 
high-cost in nature would be those that are generally acute in nature, 
including bronchitis, the flu, pneumonia, strep throat, and respiratory 
infections.
---------------------------------------------------------------------------

    \245\ National Center for Chronic Disease Prevention and Health 
Promotion. About Chronic Diseases, July 21, 2022, https://www.cdc.gov/chronicdisease/about/index.htm.
---------------------------------------------------------------------------

    We propose this approach for several reasons. Considering that 
chronic and high-cost conditions (including the examples previously 
discussed) affect a comparatively low number of consumers, we 
anticipate that a significant portion of the non-standardized plan 
options that may be discontinued due to having comparatively lower 
rates of enrollment among each issuer's portfolio of offerings could 
potentially be those that have plan design features that benefit 
consumers with these chronic and high-cost conditions (such as plans 
with some combination of enhanced pre-deductible coverage for relevant 
services, reduced cost sharing for relevant services, lower MOOPs, 
lower deductibles, more comprehensive provider networks with more 
specialized providers, more generous formularies with more specialized 
medications, higher AVs, and higher premiums).
    Even with comparatively lower rates of enrollment, we believe that 
these non-standardized plan options can still fulfill an important role 
in addressing chronic and high-cost conditions, which are responsible 
for a disproportionate amount of health care expenditures.\246\ Thus, 
we believe this proposed exceptions process could play an important 
role in enhancing the quality of life for those affected by these 
conditions, combatting health disparities, advancing health equity, and 
reducing health care expenditures. We further believe that introducing 
such an exceptions process while also reducing the non-standardized 
plan option limit to two for PY 2025 would balance the dual aims of 
reducing the risk of plan choice overload while simultaneously ensuring 
that truly innovative plan designs that may benefit consumers with 
chronic and high-cost conditions can continue to be offered.
---------------------------------------------------------------------------

    \246\ Waters, H, & Graf, M. (2018). The Cost of Chronic Disease 
in the U.S. Milken Institute. https://milkeninstitute.org/sites/default/files/reports-pdf/ChronicDiseases-HighRes-FINAL2.pdf.
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    We further believe that not limiting the number of permitted 
exceptions per issuer, product network type, metal level, inclusion of 
dental and/or vision benefit coverage, and service area (instead of 
allowing exceptions for only two such plans, for example) would ensure 
that issuers are not restricted in the number of innovative plans they 
can offer. This would in turn help ensure that a greater portion of 
consumers with chronic and high-cost conditions have access to plans 
that reduce barriers to access to care for services critical to the 
treatment of their conditions.
    Although issuers would not be limited in the number of exceptions 
they may be granted under this proposal, we anticipate that most 
issuers would determine that the burden of creating and certifying 
additional non-standardized plans intended to benefit a comparatively 
small population of consumers would outweigh the benefit of doing so. 
We also previously solicited comments on innovative plan designs, such 
as in the 2024 Payment Notice proposed rule. In response to this 
comment solicitation, we received only two examples of plan designs 
that commenters considered to be innovative in nature: plan designs 
that have reduced cost sharing for benefits provided through 
telehealth, and plan designs that have reduced cost sharing for 
services and medications related to the treatment of diabetes (such as 
in the form of insulin). We clarify that the former example (reduced 
cost sharing for benefits provided through the telehealth) would not 
qualify for this exceptions process, while the latter example (reduced 
cost sharing for benefits related to the treatment of diabetes) could 
potentially qualify for this exceptions process, if the specified 
criteria are met.
    Regardless, given that we only received two examples of plan 
designs that particular issuers considered to be innovative in nature, 
we do not anticipate that issuers will seek to have a substantial 
number of non-standardized plan options excepted from the non-
standardized plan option limit. As a result, we do not anticipate this 
proposal would result in an increased risk of plan choice overload for 
consumers interested in plans with better benefits for qualifying 
conditions.
    We further believe that permitting exceptions solely based on 
whether a non-standardized plan option has reduced cost sharing of 25 
percent or more for benefits pertaining to the treatment of chronic and 
high-cost conditions, as opposed to considering other factors (such as 
specialized networks, specialized formularies, or specialized benefit 
packages), is appropriate since the current standardized plan option 
requirements do not limit issuers in the number of standardized plan 
options they can offer per product network type, metal level, or 
service area. Standardized plan option requirements do not permit 
issuers to deviate from the specified cost sharing parameters for 
standardized plan options--meaning issuers would not be able to offer 
standardized plan options with reduced cost sharing of 25 percent or 
more for the treatment of specific conditions if the benefit category's 
cost sharing does not comply with the specified standards.
    As a result, issuers already have the flexibility to offer 
specialized networks, formularies, and benefit packages (including 
those that decrease barriers to access for the treatment of chronic and 
high-cost conditions--such as by including additional specialized 
providers, prescription drugs, or benefits) as standardized plan 
options. We further believe that the cost sharing difference threshold 
of 25 percent or more is appropriate since we have observed that cost 
sharing differences below this threshold represent normal variation 
within a particular metal level, while differences at or above this 
threshold are more often associated with cost sharing differences 
between different metal levels. Altogether, we do not believe that a 
difference in a cost sharing amount that is of the same magnitude as 
normal variation within a particular metal level (specifically, less 
than 25 percent) would warrant being excepted from the non-standardized 
plan option limit.
    We note that under this proposed exceptions process, if additional 
plans were permitted to be offered in excess of the limit of two non-
standardized plan options, in accordance with the guaranteed 
availability requirements at

[[Page 82609]]

Sec.  147.104(a), these plans would also be required to be made 
available on the same basis to consumers without these chronic and 
high-cost conditions. Further, we emphasize that these plans would be 
prohibited from discriminating in accordance with the nondiscrimination 
requirements at Sec. Sec.  147.104(e), 156.125, and 156.200(e).\247\ To 
meet these non-discrimination requirements, these plans would be 
required to apply preferential cost sharing to all enrolled in the 
plan, without regard to diagnosis. Furthermore, although we acknowledge 
that non-standardized plan options excepted under this proposal would 
primarily benefit consumers with chronic and high-cost conditions, we 
believe that a sufficiently satisfactory range of both non-standardized 
and standardized plan options currently exist that are primarily 
intended for consumers without chronic and high-cost conditions. As a 
result, we are not concerned that any risk of discrimination created by 
this exceptions process would negatively impact consumers, including 
but not limited to consumers with chronic and high-cost conditions.
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    \247\ The nondiscrimination requirements at Sec.  147.104(e) 
apply to health insurance issuers offering non-grandfathered group 
or individual health insurance coverage, and their officials, 
employees, agents, and representatives. The nondiscrimination 
requirements at Sec.  156.200(e) apply to QHPs in the individual and 
small-group markets, and the nondiscrimination requirements at Sec.  
156.125(b) apply to issuers providing EHB.
---------------------------------------------------------------------------

    We seek comment on this proposed approach. Specifically, we seek 
comment on the proposed exceptions process, and whether there should be 
any exceptions at all to the limit on the number of non-standardized 
plan options that issuers can offer through the Exchanges. In addition, 
we are particularly interested in comments on the following topics: 
whether exceptions should be permitted only for a specific set of 
chronic and high-cost conditions as opposed to any chronic and high-
cost condition; whether there are other plan attributes we should 
consider outside of sufficiently differentiated cost sharing, such as 
the inclusion of alternative payment models or sufficiently 
differentiated benefits, networks, or formularies; the specific 
difference threshold for these cost-sharing amounts, including whether 
a threshold higher or lower than 25 percent would be more appropriate; 
the specific components of the justification form that issuers would be 
required to submit; the deadline for issuers to submit the materials 
necessary for us to consider whether non-standardized plan options 
should be excepted from the limit; and whether we should require that 
non-standardized plan options excepted from the limit be visually 
differentiated from other non-standardized plan options not excepted 
from the limit--such as by differentially displaying these excepted 
plans on HealthCare.gov, or by requiring these excepted plans to adopt 
a particular plan marketing name that accurately conveys how these 
plans would substantially benefit consumers with chronic and high-cost 
conditions (for example, by requiring that an excepted plan that 
reduces cost sharing for the treatment of diabetes have a corresponding 
plan marketing name related to diabetes).
    We also seek comment on other ways to balance the dual aims of 
reducing the risk of plan choice overload while simultaneously ensuring 
that truly innovative plan designs that may benefit consumers with 
chronic and high-cost conditions can continue to be offered. 
Specifically, we seek comment on whether we should limit the number of 
exceptions available such that issuers are only permitted to offer one 
or several additional plans pursuant to the proposed exceptions process 
above the limit of two non-standardized plans--as opposed to not 
limiting the number of exceptions permitted per product network type, 
metal level, inclusion of dental and/or vision benefit coverage, and 
service area.
8. CO-OP Loan Terms (Sec.  156.520)
    We propose to amend Sec.  156.520(f) to enable CMS to approve 
requests by CO-OP borrowers to voluntarily terminate their loan 
agreement with CMS, and thereby cease to constitute a qualified non-
profit health insurance issuer (QNHII),\248\ for the purpose of 
permitting the loan recipient to pursue innovative business plans that 
are not otherwise consistent with the governance requirements and 
business standards applicable to a CO-OP borrower, provided certain 
conditions are met as described in this section.
---------------------------------------------------------------------------

    \248\ Section 1322(c)(1)(B) of the ACA and 42 U.S.C. 
18042(c)(1)(B) define a QNHII.
---------------------------------------------------------------------------

    Section 1322 of the ACA requires a CO-OP loan recipient, or QNHII, 
to be, among other things, an entity ``substantially all of the 
activities of which consist of the issuance of qualified health plans 
in the individual and small group markets in each State in which it is 
licensed to issue such plans.'' \249\ This requirement is set forth in 
regulations which require that at least two-thirds of the policies or 
contracts for health insurance coverage issued by a CO-OP in each State 
in which it is licensed be qualified health plans offered in the 
individual and small group markets.\250\
---------------------------------------------------------------------------

    \249\ 42 U.S.C. 18042(c)(1)(B).
    \250\ See Sec.  156.515(c)(1).
---------------------------------------------------------------------------

    The ACA also mandates that a QNHII be subject to governance by ``a 
majority vote of its members.'' \251\ Accordingly, Sec.  156.515(b) 
imposes governance requirements for each CO-OP that include a 
requirement that the entity remain under member control, such that a 
majority of its directors are elected by a majority vote of the CO-OP's 
members. A CO-OP ``member'' is an individual covered by a health 
insurance policy issued by a CO-OP.\252\ A CO-OP's voting members 
consist of all persons covered by health insurance policies issued by 
the CO-OP who are 18 years of age or older.\253\
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    \251\ ACA section 1322(c)(3)(A); 42 U.S.C. 18042(c)(3)(A).
    \252\ See Sec.  156.505.
    \253\ See Sec.  156.515(b)(1).
---------------------------------------------------------------------------

    Section 1322 of the ACA mandates that the Secretary require an 
entity receiving a CO-OP loan to enter into a loan agreement with the 
Secretary. The required loan agreement must obligate the borrower to 
``meet, and to continue to meet'' the requirements of a QNHII, and 
``any other requirements contained in the agreement.'' \254\ No more is 
specified concerning the required contents of the loan agreement.\255\ 
The requirement that a CO-OP be subject to a majority vote of its 
members is, accordingly, imposed by regulation, at Sec.  156.515(b), as 
well as the CO-OP loan agreement. Specifically, Section 18.2 of the CO-
OP loan agreement prohibits any ``[o]rganizational [c]hange . . . that 
would result in . . . implementing a governance structure that does not 
meet the governance standards codified at 45 CFR 156.515(b).''
---------------------------------------------------------------------------

    \254\ 42 U.S.C. 18042(b)(2)(C).
    \255\ 42 U.S.C. 18042(b)(2)(C)(iii) contains specific 
prohibitions, and concomitant penalty, that are not relevant here.
---------------------------------------------------------------------------

    As a result of these requirements, a CO-OP cannot pursue new 
business arrangements that would impose a governance structure under 
which it is possible for a majority of directors to be elected by a 
majority vote of persons who are not covered by health insurance 
policies issued by the CO-OP. A CO-OP also cannot enter into new 
business arrangements under which voting members need not be 
individuals covered by policies issued by the CO-OP. It is also not 
possible for a CO-OP to enter into a business plan under which less 
than two-thirds (``substantially all'') of the company's

[[Page 82610]]

activities potentially may not consist of issuing qualified health 
plans.
    The loan agreements currently in force only permit a CO-OP to 
initiate voluntary termination of its loan agreement on grounds that 
the loan recipient believes that it cannot create a viable and 
sustainable CO-OP.\256\ The inability to create a viable or sustainable 
CO-OP would consist of a failure to become or remain licensed as a 
health insurance company, a failure to qualify as a QHP issuer, or a 
failure to become or remain financially solvent. There is no avenue 
currently for a CO-OP to request to terminate its loan agreement for 
the purpose of pursuing new business ventures that involve a governance 
structure or business model inconsistent with CO-OP governance or 
operational standards.
---------------------------------------------------------------------------

    \256\ CO-OP loan agreement, section 16.1.1(a).
---------------------------------------------------------------------------

    Informed by 8 years of experience with business operations for the 
CO-OP program, we have become aware of opportunities that may be 
available to CO-OPs to terminate their loan agreement, cease to 
constitute a QNHII, and thus become able pursue new opportunities that 
appear well-calculated to expand operations from regional areas within 
a State to Statewide operations, and also improve consumer access to 
other health insurance products, while remaining a non-profit, member-
focused entity.
    We therefore propose to amend Sec.  156.520(f) to add Sec.  
156.520(f)(2) which would enable CMS, in its sole discretion, to 
approve requests by CO-OP borrowers to voluntarily terminate their loan 
agreement with CMS, and thereby cease to constitute a QNHII, for the 
purpose of permitting the loan recipient to pursue innovative business 
plans that are not otherwise consistent with the governance 
requirements and business standards of a CO-OP borrower, provided that 
(1) all outstanding CO-OP loans issued to the loan recipient are repaid 
in full prior to termination of the loan agreement, and (2) we believe 
granting the request would meaningfully enhance consumer access to 
quality, affordable, member-focused, non-profit health care options in 
affected markets. We propose to move the current regulation text at 
Sec.  156.520(f) to new Sec.  156.520(f)(1).
    As a general matter, we anticipate that plans could be deemed 
innovative and likely to enhance consumer access to quality, 
affordable, member-focused health care if they appear to be well-
calculated to lead directly to marketing non-profit, member-focused 
health plans in new regions of a State, or to offer health plans on a 
Statewide basis for the first time, or to expand operations into new 
States, or to enhance consumer access to new non-profit products that 
are not qualified health plans. These examples of innovative business 
plans are illustrative, and not exclusive.
9. Conforming Amendment to Netting Regulation To Include Federal IDR 
Administrative Fees (Sec.  156.1215)
    We propose conforming amendments to the payment and collections 
process set forth at Sec.  156.1215 to align with the policies and 
regulations proposed in the Federal Independent Dispute Resolution 
Operations proposed rules (88 FR 75744). If finalized, these amendments 
would provide that the administrative fees for utilizing the No 
Surprises Act \257\ Federal IDR process for health insurance issuers 
that participate in financial programs under the Patient Protection and 
Affordable Care Act would be subject to netting as part of HHS' 
integrated monthly payment and collections cycle.\258\
---------------------------------------------------------------------------

    \257\ The Consolidated Appropriations Act, 2021 (CAA) was 
enacted on December 27, 2020. Title I, also known as the No 
Surprises Act, and title II (Transparency) of Division BB of the CAA 
amended chapter 100 of the Code, Part 7 of ERISA, and title XXVII of 
the PHS Act. Administrative fees are charged in accordance with 45 
CFR 149.510(d)(2), 26 CFR 54.9816-8T(d)(2), and 29 CFR 2590.716-
8(d)(2).
    \258\ 88 FR 75798. The effective date of any finalized proposal 
related to netting of amounts owed to the Federal government from 
health insurance issuers for administrative fees for utilizing the 
No Surprises Act Federal IDR process would be no earlier than a time 
at which both the proposals related to netting proposed in the 
Federal Independent Dispute Resolution Operations proposed rule and 
the proposed amendments to Sec.  156.1215 in this proposed rule are 
finalized.
---------------------------------------------------------------------------

    To implement this policy, we propose to amend Sec.  156.1215(b) to 
allow HHS to net payments owed to issuers and their affiliates \259\ 
operating under the same tax identification number (TIN) against 
amounts due to the Federal Government from the issuers and their 
affiliates operating under the same TIN for APTC, advance payments of 
and reconciliation of CSRs, payment of FFE user fees, payment of SBE-FP 
user fees, HHS risk adjustment, reinsurance, and risk corridors 
payments and charges, and administrative fees from these issuers and 
their affiliates for utilizing the Federal IDR process in accordance 
with Sec.  149.510(d)(2). Additionally, we propose to amend Sec.  
156.1215(c) to provide that any amount owed to the Federal Government 
by an issuer and its affiliates for unpaid administrative fees due to 
the Federal Government from these issuers and their affiliates for 
utilizing the Federal IDR process in accordance with Sec.  
149.510(d)(2), after HHS nets amounts owed by the Federal Government 
under these programs, would be the basis for calculating a debt owed to 
the Federal Government.
---------------------------------------------------------------------------

    \259\ ``Affiliate'' refers to any affiliated issuer that 
operates under the same taxpayer identification number as an issuer, 
such as when there are multiple Health Insurance Oversight System 
(HIOS) identifiers operating under the same taxpayer identification 
number. See the 2015 Payment Notice proposed rule (78 FR 72371).
---------------------------------------------------------------------------

    We seek comment on the proposed amendments to Sec.  156.1215(b) and 
(c).

IV. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. To 
fairly evaluate whether an information collection should be approved by 
OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 
requires that we solicit comment on the following issues:
    <bullet> The need for the information collection and its usefulness 
in carrying out the proper functions of the agency.
    <bullet> The accuracy of our estimate of the information collection 
burden.
    <bullet> The quality, utility, and clarity of the information to be 
collected.
    <bullet> Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    We are soliciting public comment on each of these issues for the 
following sections of this document that contain information collection 
requirements (ICRs).

A. Wage Estimates

    To derive wage estimates, we generally use data from the Bureau of 
Labor Statistics to derive average labor costs (including a 100 percent 
increase for the cost of fringe benefits and overhead) for estimating 
the burden associated with the ICRs.\260\ Table 14 presents the median 
hourly wage, the cost of fringe benefits and overhead, and the adjusted 
hourly wage.
---------------------------------------------------------------------------

    \260\ See May 2022 Bureau of Labor Statistics, Occupational 
Employment Statistics, National Occupational Employment and Wage 
Estimates. https://www.bls.gov/oes/current/oes_stru.htm.
---------------------------------------------------------------------------

    As indicated, employee hourly wage estimates have been adjusted by 
a factor of 100 percent. This is necessarily a rough adjustment, both 
because fringe benefits and overhead costs vary significantly across 
employers, and because methods of estimating these costs vary widely 
across studies. Nonetheless, there is no practical alternative, and we 
believe that

[[Page 82611]]

doubling the hourly wage to estimate total cost is a reasonably 
accurate estimation method.
[GRAPHIC] [TIFF OMITTED] TP24NO23.026

B. ICRs Regarding Proposed Amendments to Normal Public Notice 
Requirements (31 CFR 33.112, 31 CFR 33.120 and 45 CFR Part 155.1312, 
and 45 CFR 155.1320)

    The Departments propose amendments to the section 1332 waiver 
implementing regulations to set forth flexibilities related to State 
public notice requirements and post-award public participation 
requirements. Current regulations at 31 CFR 33.112 and 45 CFR 155.1312 
specify State public notice and comment period and participation 
requirements for proposed section 1332 waiver requests, and 31 CFR 
33.116(b) and 45 CFR 155.1316(b) specify the public notice and comment 
period and approval requirements under the accompanying Federal 
process.
    However, this proposed rule does not propose to alter any of the 
requirements related to section 1332 waiver applications, compliance 
and monitoring, or evaluation in a way that would impose any additional 
costs or burdens for States seeking waiver approval or those States 
with approved waiver plans that have not already been captured in prior 
burden estimates. The Departments anticipate that implementing these 
provisions, if finalized, would not significantly change or decrease 
the associated burden currently approved under OMB control number: 
0938-1389, expiration date: February 29, 2024.

C. ICRs Regarding Basic Health Program Regulations (42 CFR 600.320)

    We propose at 42 CFR 600.320(c)(1) through (3) that a State 
operating a BHP must establish a uniform method of determining the 
effective date of eligibility for enrollment in a standard health plan 
which follows: (1) the Exchange effective date standards at 45 CFR 
155.420(b)(1); (2) the Medicaid effective date standards at 42 CFR 
435.915 exclusive of Sec.  435.915(a); or (3) an effective date of 
eligibility of the first day of the month following the month in which 
BHP eligibility is determined. We note that only 42 CFR 600.320(c)(3) 
is a new proposal. The options under 42 CFR 600.320(c)(1) and (2) 
exist.
    We estimate that the proposal under 42 CFR 600.320(c)(3) would have 
no impact on the information collection burden. We note that any cost 
would be incurred 100 percent by the State, as Federal BHP funds cannot 
be used for program administration. We seek comment on these 
assumptions.

D. ICRs Regarding Election To Operate an Exchange After 2014 (45 CFR 
155.106)

    We propose amending Sec.  155.106(a)(2) to add new paragraphs 
(a)(2)(i) and (ii) to require that, as part of a State's activities for 
its establishment of a State Exchange, the State provide supporting 
documentation demonstrating progress

[[Page 82612]]

toward meeting State Exchange Blueprint requirements, or documentation 
that details a State's plans for how it intends to implement and meet 
the Exchange functional requirements as laid out in the State Exchange 
Blueprint. This could include a State submitting detailed plans 
regarding its State Exchange consumer assistance programs and 
activities, such as information on its direct-to-consumer outreach 
plans, for HHS to assess comparability to the FFEs' consumer assistance 
programs and activities while allowing for State flexibility in its 
approach to best serve the State's consumers. Additionally, we are 
proposing to require that that when a State submits its State Exchange 
Blueprint application to HHS for approval, the State must provide the 
public with notice and a copy of its State Exchange Blueprint 
application. Further, at some point following a State's submission of 
its State Exchange Blueprint application to HHS, a State must conduct 
at least one public engagement (such as a townhall meeting or public 
hearing), in a timeline and manner considered effective by the State, 
with concurrence from HHS, at which interested parties can learn about 
the State's intent to establish a State Exchange and the State's 
progress toward executing that transition. We also propose to require 
that while a State is in the process of establishing a State Exchange 
and until HHS has approved or conditionally approved the State Exchange 
Blueprint application, a State conduct periodic public engagements at 
which interested parties can continue to learn about the State's 
progress towards establishing a State Exchange, in a timeline and 
manner considered effective by the State, with concurrence from HHS. 
These proposals, if finalized, would impact States that are 
considering, or are in the process of, establishing a State Exchange 
for PY 2025 and subsequent years. However, if finalized, we anticipate 
minimal burden on these States, as we believe they would have 
sufficient time to plan for such public-facing State Exchange 
engagements and activities if not already in their plans.

E. ICRs Regarding Adding and Amending Language To Ensure Web-Brokers 
Operating in State Exchanges Meet Certain Requirements Applicable in 
the FFEs and SBE-FPs (45 CFR 155.220)

    The following proposed changes will be submitted to OMB for review 
under OMB control number 0938-New (CMS-#####). We seek comment on these 
burden estimates.
    We propose to amend Sec.  155.220 to apply to web-brokers operating 
in State Exchanges, and consequently in State Exchanges, for both the 
State Exchange's Individual Exchange and SHOP, certain existing Federal 
standards governing web-brokers use of non-Exchange website to assist 
consumers with enrolling in QHPs and applying for APTC/CSRs in a manner 
that constitutes enrollment through the Exchange. The burden associated 
with these proposed changes includes costs for web-brokers 
participating in States with State Exchanges to meet the requirements 
described in new proposed Sec.  155.220(n) and for State Exchanges 
related to the development and oversight of web-broker programs within 
their State. We anticipate that the same number of web-brokers 
operating in the Exchanges on the Federal platform (20) would also 
operate in the 5 State Exchanges and would be required to incur this 
burden for each of the 5 State Exchanges they may operate in. We 
estimate the relevant costs based on current Federal costs. These 
estimates are described below.
    These proposals would impose burdens on web-brokers participating 
in State Exchanges for costs related to web-development to meet the 
website display requirements proposed to be extended to web-brokers 
operating in these State Exchanges and costs associated with creating 
and submitting audit documentation for the applicable Exchange's 
review. Although we have allowed States certain flexibility for State 
Exchanges with regards to establishing procedures and requirements for 
website displays and demonstration of operational readiness, we expect 
the costs can be reasonably estimated based on the Federal costs as 
follows. We also solicit feedback from State Exchanges regarding these 
burden estimates and the number of web-brokers expected to participate 
in State Exchanges pursuant to this proposal.
    We estimate it would take 15 hours for a Business Operations 
Specialist at an hourly rate of $73.12 to implement the standardized 
disclaimers required under Sec.  155.220(c)(3)(i)(A) and (G), along 
with 45 hours at an hourly rate of $80.04 for a Web and Digital 
Interface Designer to modify the website to implement the standardized 
disclaimers across 5 State Exchanges. Therefore, for the standardized 
disclaimers under Sec.  155.220(c)(3)(i)(A) and (G), we estimate each 
web-broker operating in State Exchanges that operate their own 
eligibility and enrollment platform would incur a cost of $4,698.60 (15 
hours x $73.12 per hour + 45 hours x $80.04 per hour). We estimate a 
cumulative burden of $93,972 for the anticipated 20 web-brokers 
operating across the State Exchanges ($4,698.60 x 20 web-brokers). 
Additionally, proposed new paragraph Sec.  155.220(n)(1) allows State 
Exchanges the flexibility to add State-specific information to the 
standardized disclaimers that does not conflict with the HHS-provided 
language. We solicit feedback from State Exchanges regarding how these 
flexibilities would impact these burden estimates.
    Additionally, we anticipate it would take up to 100 hours at an 
hourly rate of $80.04 for a Web and Digital Interface Designer to 
modify the website to implement and display the standardized QHP 
comparative information required under Sec.  155.220(c)(3)(i)(A) 
(including the quality ratings assigned by HHS and enrollee 
satisfaction survey) across 5 State Exchanges. Therefore, for the 
display of the QHP comparative information on web-broker non-Exchange 
websites, we estimate each web-broker operating in State Exchanges 
would incur a cost of $8,004 (100 hours x $80.04 per hour). We estimate 
a cumulative burden of $160,080 for the anticipated 20 web-brokers 
operating across the State Exchanges ($8,400 x 20 web-brokers).
    We anticipate it would take 50 hours for a Web and Digital 
Interface Designer at an hourly rate of $80.04 to modify the website to 
display the APTC and CSR eligibility information required under Sec.  
155.220(c)(3)(i)(I) across 5 State Exchanges. Therefore, for changes 
related to implementation of the Federal minimum web-broker standards 
related to display of consumer APTC and CSR eligibility information, we 
estimate each web-broker operating in States with State Exchanges would 
incur a cost of $4,002 (50 hours x $80.04). We therefore estimate a 
cumulative burden of $80,040 for the anticipated 20 web-brokers 
operating across the 5 State Exchanges ($4,002 x 20 web-brokers). 
Additionally, proposed new paragraph Sec.  155.220(n)(1) allows State 
Exchanges the flexibility to add State-specific information to the 
standardized disclaimers that does not conflict with the HHS-provided 
language and to define and review how consumer education information 
about the State Exchange is customized and presented on web-brokers 
websites. We solicit feedback from State Exchanges regarding how these 
flexibilities would impact these burden estimates.
    New proposed paragraph (c)(4)(iii) would extend certain downstream 
agent and broker requirements at Sec.  155.220(c)(4)(i) that currently 
apply to web-brokers in FFE and SBE-FP States and govern the use of the 
web-broker's

[[Page 82613]]

non-Exchange website by other agents or brokers assisting Exchange 
consumers to also apply to web-brokers, and their downstream agents and 
brokers in State Exchanges. Under the proposed new provision, web-
brokers that permit other agents or brokers, through a contract or 
other arrangement, to use the web-broker's non-Exchange website to help 
and applicant or enrollee complete a QHP selection or complete the 
Exchange eligibility application would be required to meet the 
standards at Sec.  155.220(c)(4)(i)(A), (B), (D), and (F) when 
assisting consumers in States with State Exchanges. This includes 
extension of requirements for web-brokers to verify that any agent or 
broker accessing or using the website is licensed in the State in which 
the consumer is selecting the QHP and has completed training and 
registration and has signed all required agreements with the applicable 
State Exchange. It would also require web-brokers to terminate the 
agent or broker's access to its website if the applicable State 
Exchange determines the agent or broker is in violation of the 
provisions described in this section and/or if the applicable State 
Exchange terminates any required agreement with the agent or broker. In 
addition, it would also extend a requirement for web-brokers to provide 
State Exchanges with a list of agents and brokers who enter into such a 
contract or other arrangement to use the web-broker's non-Exchange 
website, in a form and manner to be specified by the State Exchanges 
similar to the requirement in Sec.  155.220(c)(4)(i)(A) for web-brokers 
in FFE and SBE-FP States to report the same information to HHS. We 
understand that web-brokers who work with and allow other agents and 
brokers to use the web-brokers' non-Exchange websites to assist 
Exchange consumers typically obtain and manage information on each of 
their downstream agents or brokers as part of an onboarding process. As 
a result, we expect web-brokers would already have the necessary data 
to provide a list to the applicable State Exchange of each of the other 
agents or brokers that allows to use the web-brokers' non-Exchange 
websites to assist Exchange consumers. We estimate that it would take 
up to 240 hours at an hourly cost of $94.04 for a computer programmer 
to perform the necessary programming to comply with these requirements 
in Sec.  155.220(c)(4)(i)(A), (B), and (D), and 20 hours at an hourly 
cost of $118.30 for a senior manager to develop a listing of affiliated 
third-party agents and brokers across all 5 State Exchanges. Therefore, 
for changes related to implementation of these Federal minimum web-
broker standards related to downstream agents or brokers, we estimate 
each web-broker operating in State Exchanges would incur a cost of 
$24,935.60 per web-broker (($94.04 x 240 hours) + ($118.30 x 20 
hours)). We estimate a cumulative burden of $598,454.40 for an 
anticipated 24 web-brokers operating across the State Exchanges 
($24,935.60 x 24 web-brokers).
    We estimate it would take 95 hours for a Business Operations 
Specialist at an hourly rate of $73.12 to oversee and monitor 
compliance with the operational readiness requirements established by 
State Exchange, as required by new Sec.  155.220(n)(2) across 5 State 
Exchanges. Therefore, for compliance requirements, we estimate each 
web-broker operating in States with State Exchanges would incur a cost 
of $6,946.40 (95 hours x $73.12) for the proposed operational readiness 
requirements. We estimate a cumulative burden of $138,928 for the 
anticipated 20 web-brokers operating across the 5 State Exchanges 
($6,946.40 x 20 web-brokers). These burden estimates are provided based 
on the estimates of the cost for DE entities to comply with the 
operational readiness requirements established by HHS. Proposed new 
paragraph Sec.  155.220(n)(2) would allow State Exchanges to define and 
establish the form and manner for their web-brokers to establish 
operational readiness. Although we anticipate State Exchanges would 
establish requirements similar to the requirements for demonstrating 
operational readiness to operate in the FFE or SBE-FPs, we solicit 
feedback from State Exchanges regarding how well these burden estimates 
reflect their anticipated requirements.
    Therefore, we estimate each web-broker operating in all 5 State 
Exchanges would incur a one-time burden in PY 2025 of 565 hours at a 
cost of $48,586.60. We estimate a cumulative burden of 11,300 hours at 
an estimated cost of $1,071,474.40 for all 20 web-brokers operating 
across the 5 State Exchanges. We seek comment on the number of State 
Exchanges that would be interested in establishing a web-broker program 
to allow web-brokers to host non-Exchange websites to assist Exchange 
consumers in their State and on the number of web-brokers interested in 
operating in those State Exchanges.
    New proposed paragraph 155.220(n) requires State Exchanges to 
comply with the Federally-facilitated Exchange standards described 
above and in the preamble. Proposed paragraph 155.220(n)(1) allows 
State Exchanges the flexibility to add State-specific information to 
the standardized disclaimers that does not conflict with the HHS-
provided language and provides flexibility for the State Exchanges to 
define how consumer educational information is displayed on websites by 
web-brokers in State Exchanges. Proposed paragraph (2) under this new 
section also requires State Exchanges to establish the form and manner 
for their web-brokers to demonstrate operational readiness and 
compliance with applicable requirements, in the form and manner 
specified by the Exchange. The burden associated with these proposed 
changes includes costs for existing and future State Exchanges related 
to drafting new policy, updating standards, and potentially hiring 
additional staff to perform functions not currently being performed by 
the State Exchange, such as for drafting web-broker disclaimer 
language, drafting consumer-facing educational content, and engaging 
web-brokers in operational readiness, that would now incur new costs 
related to establishment of a web-broker program and ongoing monitoring 
of web-brokers to enforce the minimum Federal standards and any 
additional State-specific requirements.
    We estimate the relevant costs based on current Federal costs as 
follows. We estimate that 5 States will opt to host a web-broker 
program for their State Exchanges. We anticipate the total burden 
associated with the State Exchanges developing the associated policies 
and procedures, including providing web-brokers with examples and 
technical assistance (including technical implementation guidance such 
as providing the quality ratings assigned and enrollee satisfaction 
survey data) to be up to 528 hours per State. This assumes 480 hours 
for a GS-13, Step 5 employee at an hourly rate of $121.66 (the hourly 
wage rate for a GS-13, Step 5 employee in the Washington, DC area,\261\ 
doubled to account for fringe benefits and overhead) and 48 hours for a 
GS-15, Step 5 employee at an hourly rate of $169.10 (the hourly wage 
rate for a GS-15, Step 5 employee in the Washington, DC area,\262\ 
doubled to account for fringe benefits and overhead). In total, for the 
5 State Exchanges anticipated to participate, we estimate a burden of 
2,640 hours (5

[[Page 82614]]

State Exchanges x 528 hours per State Exchange) at a cost of $332,568 
(2,400 hours x $121.66 + 240 x $169.10).
---------------------------------------------------------------------------

    \261\ OPM. (2023, January). Salary Table 2023-DCB Incorporating 
the 4.1% General Schedule Increase and a Locality Payment of 32.49% 
For the Locality Pay Area of Washington-Baltimore-Arlington, DC-MD-
VA-WV-PA Total Increase: 4.86%. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB_h.pdf.
    \262\ Id.
---------------------------------------------------------------------------

    We estimate it would take 40 hours each for the State Exchange 
equivalent of 2 GS-13, Step 5 employees at an hourly rate of $121.66 
(the hourly wage rate for a GS-13, Step 5 employee in the Washington, 
DC area,\263\ doubled to account for fringe benefits and overhead) to 
complete initial documentation review related to all web-broker 
requirements pursuant to this proposal, for a total cost to State 
governments of $9,732.8 (2 x 40 hours x $121.66) per State Exchange. We 
estimate it would take 8 hours for the equivalent of 1 GS-15, Step 5 
employee at an hourly rate of $169.10 (the hourly wage rate for a GS-
15, Step 5 employee in the Washington, DC area,\264\ doubled to account 
for fringe benefits and overhead) to provide managerial review and 
oversight, for a total cost to State governments of $1,352.8 (1 x 8 
hours x $169.10) per State Exchange. Additionally, we estimate the 
total burden for each State government for State contract and 
contractors ongoing reviews for oversight would include 1,087 hours at 
GS-12, Step 5 with an hourly rate of $102.30 (the hourly wage rate for 
a GS-12, Step 5 employee in the Washington, DC area,\265\ doubled to 
account for fringe benefits and overhead) and 2,305 hours at GS-13, 
Step 5 with an hourly rate of $121.66 (the hourly wage rate for a GS-
13, Step 5 employee in the Washington, DC area,\266\ doubled to account 
for fringe benefits and overhead), and the total burden across all 5 
States to be 16,960 hours. Therefore, we estimate a cost to each State 
governments of $469,225.60, with a total estimated cost to State 
governments of $2,346,128 (5 States x $469,225.60). We seek comment 
from State Exchanges on these burden estimates.
---------------------------------------------------------------------------

    \263\ Id.
    \264\ Id.
    \265\ Id.
    \266\ Id.
---------------------------------------------------------------------------

    We recognize that some State Exchanges may utilize web-brokers 
already participating in the FFEs and SBE-FPs, and encourage State 
Exchanges to leverage web-broker operational readiness demonstrated to 
participate in the FFEs or SBE-FPs when possible, as to minimize both 
burden on the State Exchanges and their web-brokers.

F. ICRs Regarding Establishing Requirements for DE Entities Mandating 
HealthCare.gov Changes To Be Reflected on DE Entity Non-Exchange 
Websites Within a Notice Period Set by HHS (45 CFR 155.221(b))

    The following proposed changes will be submitted to OMB for review 
under OMB control number 0938-New (CMS-#####). We seek comment on these 
burden estimates.
    As discussed in the preamble of this proposed rule, we propose to 
add language to Sec.  155.221 requiring that display changes adopted by 
HealthCare.gov be reflected on DE entity non-Exchange websites within a 
time period specified by HHS, unless HHS approves a deviation.
    Based on our experience with operating the DE program on the FFEs 
and SBE-FPs over the past several years, we estimate that approximately 
three or fewer display changes would be required annually. We estimate 
that a total of 100 web-brokers and QHP issuers participating in DE in 
FFE and SBE-FP States would be required to comply with these 
requirements. These display changes may range from changes such as, but 
not limited to, relatively simple text-based updates to more complex 
display changes involving the website's backend display methodology or 
algorithms. We estimate approximately two simpler and one more complex 
display change annually. We estimate that it would take a Web and 
Digital Interface Designer 30 hours annually, at a cost of $80.04 per 
hour, to implement these changes, at a total annual cost of 
approximately $2,401.20 ($80.04 x 30 hours) per web-broker or QHP 
issuer. We therefore estimate a total annual burden of 3,000 hours (30 
x 100) at a cost of $240,120 (3,000 hours x $80.04 per hour) for all 
applicable web-brokers and QHP issuers.
    We recognize that system constraints may prevent DE entity websites 
from conforming to the minimum standards defined by HHS for certain 
HealthCare.gov display changes, and that DE entities may have an idea 
for implementation that does not meet the standards but would 
effectively communicate the same information to consumers. We propose 
DE entities participating in FFE and SBE-FPs that intend to deviate 
from the standards defined by HHS would be required to submit a 
deviation request. Those requests would be subject to review by HHS in 
advance of implementation of any alternative website displays.
    Based on internal data, we estimate that 25 web-brokers and QHP 
issuers participating in FFE or SBE-FP States would submit a request to 
deviate from the standards defined by HHS annually. We estimate it 
would take a compliance officer approximately 3 hours annually, at a 
rate of $68.94 per hour, to prepare and submit the request to deviate 
from the communicated standards, including preparing the rationale 
explaining for the request. We therefore estimate the total annual 
burden for all web-brokers and issuers in completing and submitting a 
request to deviate to be approximately $5,170.50 annually.
    We do not expect this proposal to impose a new burden on EDE 
entities, if finalized, as EDE entities are already following the 
process outlined in this proposal through the change request processes 
described in the Third Party Auditor Guidelines.
    If the proposal to add and amend language to ensure DE entities 
participating in Exchanges, at proposed new Sec.  155.221(j), is 
finalized, we estimate that DE entities may incur burden related to the 
website development needed to implement changes made to State Exchange 
websites per the standards defined by the State Exchange. We anticipate 
that the web-development costs cited above would apply for each DE 
entity assisting consumers in State Exchanges. As described in the 
preamble, there may be burden associated with maintaining DE 
environments tailored to each States' display requirements. However, 
based on our experience conducting oversight of DE entity websites, it 
is our understanding that DE entities are familiar with and capable of 
tailoring website displays based on specific criteria and, as such, we 
anticipate entities are capable of tailoring website displays to the 
requirements of the State the consumer is seeking assistance in. We 
anticipate a total annual burden of $1,226,452.50 for DE entities 
participating in States with State Exchanges associated with 
implementing display changes and submitting requests to deviate from 
the standards defined by the State Exchange across 5 State Exchanges 
($245,290.50 x 5 State Exchanges). Deviation requests would be subject 
to review by the State Exchange in advance of implementation of any 
alternative website displays. We seek comment on the burden of this 
proposal on DE entities planning to operate in State Exchanges.

G. ICRs Regarding Adding and Amending Language To Ensure DE Entities 
Operating in State Exchanges Meet Certain Standards Applicable in the 
FFEs and SBE-FPs (45 CFR 155.221)

    The following proposed changes will be submitted to OMB for review 
under

[[Page 82615]]

OMB control number 0938-New (CMS-#####). We seek comment on these 
burden estimates.
    We propose to amend Sec.  155.221 to apply to DE entities operating 
in State Exchanges, and consequently State Exchanges that choose to 
implement a DE program, certain existing Federal standards regarding DE 
entities assisting consumers with enrolling in QHPs and applying for 
APTC/CSRs, both for the State Exchange's Individual Exchange and SHOP 
program. We anticipate that the same number of DE entities operating in 
the Exchanges on the Federal platform (100) would also operate in the 5 
State Exchanges and would be required to incur this burden for each of 
the 5 State Exchanges they may operate in. The burden associated with 
these proposed changes includes costs for DE entities participating in 
State Exchanges to meet the requirements described in new proposed 
Sec.  155.221(j) and for State Exchanges related to the development and 
oversight of DE programs within their State. We estimate relevant costs 
based on current Federal costs. These estimates are described below.
    The burden associated with operating a DE program includes costs 
for DE entities related to web-development to meet the website display 
requirements being applied to DE entities operating in States with 
State Exchanges and costs for creating, storing, and submitting 
operational readiness documentation for Exchange review. Although these 
proposals allow States certain flexibility for State Exchanges with 
regards to establishing procedures and requirements for website 
displays and demonstration of operational readiness, we expect the 
costs to reasonably be estimated based on the Federal costs as follows.
    We estimate it would take 15 hours for a DE entity's Business 
Operations Specialist at an hourly rate of $73.12 to implement the 
standardized disclaimer required under Sec.  155.221(b)(2), along with 
20 hours at an hourly rate of $80.04 for a Web and Digital Interface 
Designer to modify the DE entity non-Exchange website to implement the 
standardized disclaimer across 5 State Exchanges. Therefore, for the 
standardized disclaimer under Sec.  155.221(b)(2), we estimate each DE 
entity operating in State Exchanges that operate their own eligibility 
and enrollment platform would incur a burden of 35 hours at an 
estimated cost of $2,697.60 (15 hours x $73.12 per hour + 20 hours x 
$80.04 per hour). We estimate the anticipated 100 DE entities would 
incur a cumulative burden 3500 hours at an estimated cost of $269,760 
($2,697.60 x 100 DE entities).
    Costs related to demonstrating operational readiness at new 
proposed Sec.  155.221(j) would depend on the DE entity's desired 
enrollment pathway and the options made available by the State 
Exchange. Although we are allowing States the flexibility to establish 
operational readiness requirements, including the form and manner for 
their DE entities to demonstrate operational readiness, we encourage 
State Exchanges to leverage the existing items in Sec.  
155.220(b)(4)(i) and (ii) as the starting point for their operationally 
readiness reviews. If State Exchanges leverage these items, we 
anticipate the burden associated with DE entity demonstration of 
operational readiness can be estimated based on the Federal costs as 
follows. We estimate it would take up to 360 hours for an Auditor at an 
hourly rate of $75.00 to submit business audit documentation across 5 
State Exchanges, and we estimate 4 DE entities would participate in a 
manner that would trigger this information collection, resulting in an 
estimated cost of $27,000 per DE entity (360 hours x $75.00). We 
estimate it would take up to 610 hours for an Auditor at an hourly rate 
of $75.00 to submit a security and privacy audit documentation across 5 
State Exchanges, and we estimate 14 DE entities would participate in a 
manner that would trigger this information collection, resulting in an 
estimated cost of $45,750 per DE entity (610 hours x $75.00). We 
estimate it would take 45 hours for a Business Operations Specialist to 
complete and submit a typical Enhanced Direct Enrollment (EDE) 
documentation package and related information across 5 State Exchanges 
at an hourly rate of $73.12, and 77 DE entities would participate in a 
manner that would trigger this information collection, resulting in an 
estimated cost of $3,290.40 per DE entity (45 hours x $73.12). 
Therefore, for a DE entity to demonstrate operational readiness and 
compliance with applicable requirements to State Exchanges, we estimate 
each DE entity would incur a burden of up to 1,015 hours at an 
estimated cost of up to $76,040.40 (360 hours x $75.00 per hour + 610 
hours x $75.00 per hour + 45 hours x $73.12), but many DE entities 
would incur a lower burden and cost due to not participating in a 
manner that would trigger some of these information collection costs. 
We estimate a cumulative burden of 13,445 hours at an estimated cost of 
$1,001,860.80 for all applicable DE entities operating across the 5 
State Exchanges ($27,000 x 4 DE entities + $45,750 x 14 DE entities + 
$3,290.40 x 77 entities). We solicit feedback from State Exchanges with 
regards to how the form and manner of documentation they would require 
DE entities to submit to demonstrate operational readiness, along with 
the estimated burden associated with those submissions.
    We estimate it would take 100 hours for a Web and Digital Interface 
Designer at a rate of $80.04 per hour to modify the DE entity's non-
Exchange website to comply with the requirements to display and market 
QHPs offered through the Exchange, individual health insurance 
coverage, and any other products on at least three separate websites 
pages in accordance with Sec. Sec.  155.221(b)(1) and (3) and (c) 
across 5 State Exchanges. Therefore, for these website display 
requirements, we estimate each DE entity operating in State Exchanges 
would incur an estimated cost of $8,004 (100 hours x $80.04 per hour). 
We estimate 40 DE entities would trigger this information collection 
with a cumulative burden of 4,000 hours at an estimated cost of 
$320,160 across the State Exchanges ($8,004 x 40 DE entities).
    The burden associated with this change also includes costs for DE 
entities operating in State Exchanges with oversight of direct 
enrollment entity application assisters, as described in Sec.  
155.221(d) (citing Sec.  155.415(b)), for those DE entities that opt to 
use these application assisters. As described in the preamble, the 
requirements at 155.415(b)(2) and (b)(3) are already applicable to DE 
entities operating in all Exchanges and therefore do not represent a 
new burden for DE entities. The extension of Sec.  155.221(d) to DE 
entities operating in State Exchanges would require DE entities' 
application assisters to complete appropriate State-required training 
and registration in a manner specified by the State Exchange consistent 
with Sec.  155.415(b)(1). We estimate that up to 1,000 application 
assisters will operate in each State that opts to implement a DE 
program and allows DE entity application assisters to assist Exchange 
consumers. Accordingly, we anticipate that 5,000 application assisters 
across an estimated 5 States will participate. We estimate the burden 
for 100 DE entities to comply with this requirement at 3 hours per 
assister for a total annual burden of 15,000 hours for a Compliance 
Officer at an hourly wage of $68.94 for a total cost of $51,705 per 
entity. We estimate a cumulative burden of 75,000 hours at an estimated 
cost of $5,170,500 for 100 DE entities operating across the 5 State 
Exchanges ($51,705 x 100 entities).

[[Page 82616]]

    Proposed new paragraph Sec.  155.221(j)(3) extends requirements for 
DE entities operating in State Exchanges to implement and prominently 
display changes adopted for display on the State Exchanges' websites 
and with standards defined by State Exchange, unless the State Exchange 
approves a deviation. The costs associated with DE entities 
implementing this proposal in State Exchanges is discussed in the ICR 
section related to new proposed paragraph Sec.  155.221(b)(6).
    Regarding new proposed paragraph Sec.  155.221(a) extending 
requirements under Sec.  156.1230(a) to DE QHP issuers operating in 
State Exchanges, we do not anticipate additional burden for QHP 
issuers, beyond the estimated burdens for the website display 
requirements described above, to provide consumers with correct 
information, without omission of material fact, regarding the 
Exchanges, QHPs offered through the Exchanges, and insurance 
affordability programs, or to refrain from marketing or conduct that is 
misleading, coercive, or discrimination based on race, color, national 
origin, disability, age, or sex.
    Therefore, we estimate each DE entity operating in State Exchanges 
would incur a one-time burden in PY 2025 of up to 1,900 hours at a cost 
of up to $138,447 for an overall total for all DE entities operating 
across the State Exchanges of up to 95,945 hours at an estimated cost 
of $6,762,280.80 to comply with these proposed requirements. We seek 
comment on the burden of this proposal on DE entities planning to 
participate in State Exchanges. For the purposes of better determining 
burden estimates, we also seek comment on the number of State Exchanges 
that operate their own eligibility and enrollment platforms and would 
be interested in implementing a DE program in their State and on the 
number of DE entities interested in operating in those State Exchanges.
    New proposed paragraph Sec.  155.221(j) requires State Exchanges to 
comply with the Federally-facilitated Exchange standards described 
above and in the preamble. Sec.  155.221(j)(1) allows State Exchanges 
the flexibility to add State-specific information to the standardized 
disclaimer that does not conflict with the HHS-provided language. 
Proposed paragraph (2) under this new section also requires State 
Exchanges to establish the form and manner for their DE entities to 
demonstrate operational readiness and compliance with applicable 
requirements, in the form and manner specified by the Exchange. 
Proposed paragraph (3) requires State Exchanges establish requirements 
for their DE entities to implement and prominently display changes 
adopted for display on the State Exchanges' website at the direction of 
the State Exchange. The burden associated with these proposed changes 
includes costs for State Exchanges related to drafting new policy, 
updating standards, and potentially hiring additional staff to perform 
functions not currently being performed by the State Exchange, such as 
for drafting DE entity program requirements and guidelines, including 
establishment of DE entity operational readiness programs, 
establishment of procedures related to defining and communicating 
standards for required display changes, establishment of any State-
specific disclaimer text, and ongoing monitoring of DE entity 
compliance with applicable Federal standards and any additional State-
specific requirements. DE entities operating in States transitioning 
off of the Federal Platform to a State Exchange would likely have fewer 
costs as they should already be meeting the Federal minimum 
requirements. No State Exchange has implemented DE to date, so we are 
not able to provide precise costs estimates of the burden associated 
with these proposed changes for State Exchanges. However, we anticipate 
that operational costs related to establishing polices and adding staff 
in order to operate a compliant DE program under Sec.  155.221 may be 
estimated based on Federal platform costs and would be added to the 
costs and burdens of transitioning to State Exchange.
    We estimate that 5 States will opt to host a DE program for their 
State Exchanges. We anticipate the total burden associated with the 
State Exchanges developing the associated policies and procedures to be 
up to 528 hours per State. This assumes 480 hours for a GS-13, Step 5 
employee at an hourly rate of $121.66 (the hourly wage rate for a GS-
13, Step 5 employee in the Washington, DC area,\267\ doubled to account 
for fringe benefits and overhead) and 48 hours for a GS-15, Step 5 
employee at an hourly rate of $169.10 (the hourly wage rate for a GS-
15, Step 5 employee in the Washington, DC area,\268\ doubled to account 
for fringe benefits and overhead). In total, for the 5 State Exchanges 
anticipated to participate, we estimate a burden of 2,640 hours (5 
State Exchanges x 528 hours per State Exchange) at a cost of $332,568 
(2,400 hours x $121.66 per hour + 240 hours x $169.10 per hour).
---------------------------------------------------------------------------

    \267\ OPM. (2023, January). Salary Table 2023-DCB Incorporating 
the 4.1% General Schedule Increase and a Locality Payment of 32.49% 
For the Locality Pay Area of Washington-Baltimore-Arlington, DC-MD-
VA-WV-PA Total Increase: 4.86%. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB_h.pdf.
    \268\ Id.
---------------------------------------------------------------------------

    Based on the Federal platform costs, we estimate it would take 60 
hours each for the State Exchange equivalent of 2 GS-13, Step 5 
employees at an hourly rate of $121.66 (the hourly wage rate for a GS-
13, Step 5 employee in the Washington, DC area,\269\ doubled to account 
for fringe benefits and overhead) to complete initial documentation 
review related to all DE entity requirements pursuant to this proposal, 
for a total cost to State governments of $14,599.20 (2 employees x 60 
hours per employee x $121.66 per hour) per State Exchange. We estimate 
it would take 12 hours for the equivalent of 1 GS-15, Step 5 employee 
at an hourly rate of $169.10 (the hourly wage rate for a GS-15, Step 5 
employee in the Washington, DC area,\270\ doubled to account for fringe 
benefits and overhead) to provide managerial review and oversight, for 
a total cost to State governments of $2,029.20 (12 hours x $169.10 per 
hour) per State Exchange. Additionally, we estimate the total burden 
for each State government for State contract and contractors ongoing 
reviews for oversight would include 1,631 hours for a GS-12, Step 5 
employee with an hourly rate of $102.30 (the hourly wage rate for a GS-
12, Step 5 employee in the Washington, DC area,\271\ doubled to account 
for fringe benefits and overhead) and 3,458 hours for a GS-13, Step 5 
employee with an hourly rate of $121.66 (the hourly wage rate for a GS-
13, Step 5 employee in the Washington, DC area,\272\ doubled to account 
for fringe benefits and overhead). We estimate a burden to each State 
government of 5,089 hours at an estimated cost of $587,551.58 for State 
contracts and contractors ongoing reviews for oversight. Therefore, 
each State would incur a burden of 5,749 hours at an estimated cost of 
$670,693.58 ($66,513.60 + $14,599.20 + $2,029.20 + $587,551.58) in 
total for these proposals, and all 5 States would incur a total burden 
of 28,745 hours at an estimated cost of $3,353,468 (5 States x 
$670,693.58). We seek comment from State Exchanges on these burden 
estimates.
---------------------------------------------------------------------------

    \269\ Id.
    \270\ Id.
    \271\ Id.
    \272\ Id.
---------------------------------------------------------------------------

    We recognize that some State Exchanges may decide to utilize DE 
entities already participating in the FFEs and SBE-FPs and encourage 
State Exchanges to leverage DE operational readiness demonstrated to 
participate in the FFEs or SBE-FPs when possible, so

[[Page 82617]]

as to minimize burden on both the State Exchanges that operate their 
own eligibility and enrollment platform and their DE entities.

H. ICRs Regarding Failure To File and Reconcile Process (45 CFR 
155.305(f)(4))

    We propose amending Sec.  155.305(f)(4) to provide that State 
Exchanges must notify a tax filer that has been identified as having 
FTR status for one-year of the requirement to file and reconcile their 
APTC, or risk losing their eligibility for APTC if they remain FTR for 
the subsequent tax-year. This proposed requirement would ensure that 
State Exchanges provide notifications, similar to how Exchanges on the 
Federal platform do, and that tax filers on State Exchanges are 
adequately educated on the requirement to file and reconcile. The 
proposed rule, if finalized, would impact State Exchange FTR noticing 
processes for PY 2025 and subsequent years. For State Exchanges, FTR 
would be conducted in the same manner it had previously been conducted 
with respect to collection of information, with minimal changes to the 
language of the Exchange application questions necessary to obtain 
relevant information; as such, we anticipate that the proposed 
amendment, if finalized, would not impact the existing information 
collection requirements (OMB control number: 0938-1191) or burden for 
consumers.
    Under previous FTR policy, State Exchanges were already required to 
notify tax filers identified as FTR at a minimum of once per year. As 
such, we do not anticipate this requirement increasing State Exchanges' 
burden of noticing beyond their existing FTR processes. We seek comment 
on these assumptions.

I. ICRs Regarding Verification Process Related to Eligibility for 
Enrollment in a QHP Through the Exchange (45 CFR 155.315(e))

    The following proposed changes will be submitted to OMB for review 
under OMB control number 0938-1312 (CMS-10593). We seek comment on 
these burden estimates.
    We propose several revisions to Sec.  155.315(e) that, if 
finalized, would allow Exchanges to accept consumer attestation of 
incarceration status without further verification or, alternatively, to 
propose an alternative data source for incarceration verification for 
HHS approval. Exchanges that elect to verify incarceration status would 
continue to be required to use the DMI process if the data source 
provides a mismatch against the consumer attestation of incarceration 
status or other information provided by the applicant or in the records 
of the Exchange. Should a State Exchange choose to propose using an 
alternative electronic data source for verifying incarceration status, 
HHS would review such proposals for consistency with the proposed 
standard in Sec.  155.315(e)(2).
    Of the 18 State Exchanges (operating in 12 States and the District 
of Columbia) that have incarceration verification processes, 8 conduct 
incarceration verifications similar to the one used to date by 
Exchanges on the Federal platform, and 5 have connected to an 
individual State or local incarceration facility for verifications and 
have received approval to do so from HHS. Additionally, 3 States are 
currently in process of transitioning to State Exchanges for PY 2024 or 
beyond and may choose to connect to an alternative incarceration 
verification data source with HHS approval. Subtracting the 5 Exchanges 
with preexisting approvals, we anticipate 11 State Exchanges could 
connect to an alternative incarceration verification data source, 
should they assess that an alternative data source exists and want to 
continue verification of consumer incarceration status using it.
    For the purposes of assessing whether an alternative data source 
should be used, we estimate that a Management Analyst would spend 20 
hours, at an hourly rate of $91.62, to synthesize a cost-benefit 
analysis regarding whether the Exchange should continue to verify 
incarceration status using an approved data source instead of accepting 
a consumer's attestation that they are not incarcerated. If the 
Exchange finds a viable alternative data source and determines that it 
should be used, we anticipate that a Business Operations Specialist 
would take about 2 hours, at an hourly rate of $73.12, to submit a 
request for HHS approval. We also anticipate that it would take a Chief 
Executive equivalent for the Exchange 1 hour, at an hourly rate of 
$182.24, to approve the paperwork for submission to request HHS 
approval of the alternative incarceration data source. In total, the 
assessment of whether the Exchange should continue to verify 
incarceration status using an alternative data source instead of 
accepting consumer attestation would take 20 hours at a cost of 
$1,832.40, and the process of approving and submitting a request for 
HHS approval would take 3 hours at a cost of $328.48. Therefore, the 
total one-time burden for each Exchange that elects to verify 
incarceration status using an HHS-approved data source in 2025 would be 
23 hours at a cost of approximately $2,161, and the total burden across 
all 11 State Exchanges would be 253 hours at a cost of approximately 
$23,770.

J. ICRs Regarding Eligibility Redetermination During a Benefit Year (45 
CFR 155.330(d))

    The following proposed changes will be submitted to OMB for review 
under OMB control number 0938-1207 (CMS-10468). We seek comment on 
these burden estimates.
    We propose amending Sec.  155.330(d) to require that Exchanges 
periodically examine available data sources described in Sec. Sec.  
155.315(b)(1) and 155.320(b) to identify changes related to death of an 
applicant on whose behalf advance payments of the premium tax credit or 
cost-sharing reductions are being provided. The Exchanges have 
developed electronic data exchanges to support obtaining this 
information to determine the applicant's eligibility at the point of 
application and could reuse those data exchanges here. Consequently, we 
estimate costs associated with this requirement to be minimal.
    However, State Exchanges not already conducting death PDM with the 
required frequency or not deemed in compliance with the newly proposed 
PDM requirements would be required to engage in IT system development 
activity to communicate with these programs and act on enrollment data 
either in a new way, or in the same way more frequently. Thus, there 
may be additional associated administrative cost for these State 
Exchanges to implement the proposed PDM requirement.
    Based on experience with other PDMs, for each State Exchange not 
already conducting death PDM at least twice a year, we estimate that it 
would take 40 hours by a Computer Systems Analyst at an hourly rate of 
$98.30 to implement this proposed provision, for a cost of $3,932 per 
State Exchange. Therefore, for all 11 State Exchanges not currently 
meeting the proposed requirement, we estimate a total burden of 440 
hours at a cost of $43,252. We assume that this burden would be 
incurred primarily in 2025.

K. ICRs Regarding Establishment of Exchange Network Adequacy Standards 
(45 CFR 155.1050)

    The burden associated with subjecting QHP issuers in State 
Exchanges and SBE-FPs to time and distance standards as proposed at 
Sec.  155.1050 is covered by the information collection currently 
approved under OMB control number 0938-1312 (CMS-10593). We note that 
we are also revising the information

[[Page 82618]]

collection currently approved under OMB control number 0938-1415 (CMS-
10803) regarding appointment wait time standards encompassed in 
previously finalized regulations at 45 CFR 156.230(a)(2)(B). We seek 
comment on these burden estimates.
    Effective for plan years beginning on or after January 1, 2025, we 
propose to amend Sec.  155.1050 to require that State Exchanges and 
SBE-FPs establish and impose quantitative time and distance QHP network 
adequacy standards that are at least as stringent as the FFEs' time and 
distance standards established for QHPs under Sec.  156.230. We also 
propose that State Exchanges and SBE-FPs be required to conduct 
quantitative network adequacy reviews prior to certifying any plan as a 
QHP, consistent with the reviews conducted by the FFEs under Sec.  
156.230. Specifically, when we refer to the review being consistent 
with the network adequacy reviews conducted by the FFEs under Sec.  
156.230, we propose that State Exchanges and SBE-FPs would be required 
to conduct, prior to QHP certification, quantitative network adequacy 
reviews to evaluate compliance with requirements under Sec.  
156.230(a)(1)(ii) and (iii), and (a)(2)(i)(A), while providing QHP 
certification applicants the flexibilities described under Sec.  
156.230(a)(2)(ii) and (a)(3) and (4). Under this proposal, State 
Exchanges and SBE-FPs would be prohibited from accepting an issuer's 
attestation as the only means for plan compliance with network adequacy 
standards. We further propose to require State Exchanges and SBE-FPs to 
permit issuers that are unable to meet the specified network adequacy 
standards to participate in a justification process after submitting 
their initial network adequacy data, consistent with the processes 
specified under Sec.  156.230(a)(2)(ii) and (a)(3) and (4), to account 
for variances and potentially earn QHP certification. In addition, for 
States Exchanges that employ robust, quantitative network adequacy 
standards that differ from those used by the FFEs, but still ensure 
that QHPs provide consumers with reasonable, timely access to 
practitioners and facilities to manage their health care needs, we 
propose a framework for granting exceptions to the requirements that 
State Exchanges and SBE-FPs are required to establish and impose 
network adequacy time and distance standards for QHPs that are at least 
as stringent as the standards applicable to QHPs in FFEs and conduct 
quantitative network adequacy reviews that are consistent with those 
carried out by the FFEs under Sec.  156.230. Finally, we propose to 
mandate that State Exchanges and SBE-FPs require all issuers seeking 
QHP certification to submit information to the State Exchange or SBE-FP 
about whether network providers offer telehealth services.
    We estimate that the total annual burden associated with State 
Exchanges and SBE-FPs establishing and imposing the proposed network 
adequacy standards, conducting the network adequacy reviews as 
proposed, collecting telehealth information from issuers seeking QHP 
certification, and submitting any exception to be up to 900 hours. 
Assuming the compliance officer average hourly rate of $68.94 per hour, 
we estimate the cost of the data collection, operations, and 
maintenance pertaining to these proposed requirements on each State 
Exchange and SBE-FP to be $62,046 per year (900 hours x $68.94 per 
hour). In total, for the 19 State Exchanges and 3 SBE-FPs anticipated 
to be operational in 2025, we estimate a burden of 19,800 hours (22 
State Exchanges and SBE-FPs x 900 hours per Exchange) at a cost of 
$1,365,012 (22 State Exchanges and SBE-FPs x 900 hours per Exchange x 
$68.94 per hour).
    We estimate that the burden for QHP issuers in State Exchanges and 
SBE-FPs to gather and submit the time and distance data, including any 
justification, to the respective State Exchanges or SBE-FPs would be 10 
hours in total for each medical QHP issuer (a QHP issuer that is not an 
SADP issuer) and 2 hours in total for each SADP issuer submitted by a 
compliance officer at a rate of $68.94 per hour. The 10-hour estimate 
includes the burden associated with the requirement that all issuers 
seeking QHP certification submit information to the State Exchange or 
SBE-FP about whether network providers offer telehealth services.
    Approximately half of the parent companies of issuers on the State 
Exchanges also offer Medicare Advantage plans. Since Medicare Advantage 
offers a telehealth credit for network adequacy, we expect those 
issuers would already have telehealth information available for their 
providers. We further believe that those QHP issuers that do not 
currently collect this information may do so using the same means and 
methods by which they already collect information from their network 
providers relevant to time and distance standards and provider 
directory information. For these reasons, we estimate that any 
additional burden relative to the requirement that all issuers seeking 
QHP certification submit information to the State Exchange or SBE-FP 
about whether network providers offer telehealth services would lead to 
a minimal increase in burden for many issuers.
    The requirement that all issuers seeking QHP certification submit 
information to the State Exchange or SBE-FP about whether network 
providers offer telehealth services would account for 3 of the total 10 
hours we estimate for gathering and submitting the time and distance 
data to the respective State Exchange or SBE-FP for medical QHP issuers 
and 30 minutes of the total 2 hours we estimate for SADP issuers. We 
believe the cost estimates of 3 hours for medical QHP issuers and 30 
minutes for SADP issuers to be a maximum and that the burden could be 
less to issuers that are already collecting telehealth data for other 
purposes.
    We estimate that the total annual burden associated with QHP 
issuers in State Exchanges and SBE-FPs to gather and submit the time 
and distance and telehealth data to the respective State Exchanges or 
SBE-FPs for up to 149 medical QHP issuers in State Exchanges and SBE-
FPs would be up to 1,490 hours (10 hours x 149 medical QHP issuers). 
Assuming the compliance officer average hourly rate of $68.94 per hour, 
we estimate that the cost of gathering and submitting this network 
adequacy data for an individual medical QHP issuer could be up to 
$689.40 (10 hours x $68.94 per hour), and for all 149 medical QHP 
issuers in State Exchanges and SBE-FPs, up to $102,720.60 (149 medical 
QHP issuers x 10 hours per issuer x $68.94 per hour). We estimate that 
the total annual burden associated with this requirement for 89 SADP 
issuers in State Exchanges and SBE-FPs would be up to 178 hours (2 
hours x 89 SADP issuers). Assuming the compliance officer average 
hourly rate of $68.94 per hour, we estimate that the cost of gathering 
and submitting the network adequacy data for an individual SADP could 
be up to $137.88 (2 hours x $68.94 per hour), and for all 89 SADP 
issuers in State Exchanges and SBE-FPs, up to $12,271.32 (89 SADP 
issuers x 2 hours per issuer x $68.94 per hour). We estimate the total 
annual burden associated with this proposed requirement across both 
medical QHP and SADP issuers in State Exchanges and SBE-FPs beginning 
in 2025 would be approximately $114,992.

L. ICRs Regarding the State Selection of EHB-Benchmark Plans for Plan 
Years Beginning on or After January 1, 2027 (45 CFR 156.111)

    The existing OMB approval (0938-1174) PRA package, for which we are

[[Page 82619]]

seeking a renewal for use beginning in March 2024, would remain in 
effect until the proposed changes to Sec.  156.111 would come into 
effect, if finalized, for the State selection of EHB-benchmark plans in 
2025, impacting plans that are effective beginning on January 1, 2027. 
We seek comment on these burden estimates.
    We propose several revisions to Sec.  156.111 that, if finalized as 
proposed, would reduce the burden associated with State selection of 
EHB-benchmark plans. For plan years beginning on or after January 1, 
2027, we propose to revise the standards for State selection of EHB-
benchmark plans at Sec.  156.111 to consolidate the options for States 
to change EHB-benchmark plans at Sec.  156.111(a); revise the scope of 
benefit requirements at Sec.  156.111(b)(2); and revise Sec.  
156.111(e)(3) to require States to submit a formulary drug list as part 
of their application to change EHB-benchmark plans only if the State is 
seeking to change their prescription drug EHB. We also propose 
revisions to the actuarial certification requirements at Sec.  156.111 
to reflect the proposed scope of benefit changes. If the proposed 
changes to Sec.  156.111 are finalized as proposed, they would not be 
effective until 2025, and the anticipated reduction in burden to States 
would not be realized until that time.
    If the proposed changes to Sec.  156.111 are finalized as proposed, 
we anticipate an overall reduction in burden on States to change their 
EHB-benchmark plans in accordance with the revisions to Sec.  156.111. 
If finalized as proposed in this rule, the revisions to Sec.  156.111 
would remove the requirement that States report which option under 
Sec.  156.111(a) they are using as a basis to change their EHB-
benchmark plans, their methodology for confirming compliance with the 
generosity standard at current Sec.  156.111(b)(2)(ii), and the 
submission of a formulary drug list under Sec.  156.111(e)(3) unless 
the State is seeking to make changes to their prescription drug EHB. We 
would also change the information States submit to HHS to confirm 
compliance with the scope of benefit requirements at Sec.  
156.111(b)(2), for which we estimate an overall reduction in burden.
    These proposals would not change the number of documents States 
would be required to submit to change their EHB-benchmark plans under 
Sec.  156.111(e)(3), unless the State is not seeking to make changes to 
its prescription drug EHB, in which case, the State would not be 
required to submit a formulary drug list as specified in Sec.  
156.111(e)(3). In addition, a response would not be required from all 
States under current Sec.  156.111 and its proposed revisions, if 
finalized as proposed in this rule. Only States choosing to modify the 
State's EHB-benchmark plan would need to submit this information to 
HHS.
    Since finalizing the addition of Sec.  156.111 in the 2019 Payment 
Notice, between one and three States have changed their EHB-benchmark 
plan each year between 2019 and 2023. While we anticipate that the 
proposed revisions to Sec.  156.111 would reduce overall burden on 
States and incentivize more frequent changes to EHB-benchmark plans, we 
anticipate that at most 5 States would choose to make a change to their 
EHB-benchmark plans in any given year (15 States over 3 years within 
the authorization of this ICR).
    To change an EHB-benchmark plan, a State currently provides 
confirmation that the State's EHB-benchmark plan selection complies 
with certain requirements, including those under Sec.  156.111(a), (b), 
and (c). This information collection would be revised under the 
proposals in this rule, if finalized. To comply with the proposed 
requirement, we estimate that a financial examiner would require 4 
hours (at a rate of $79.04 per hour) to fill out, review, and transmit 
a complete and accurate document. We estimate that it would cost each 
State approximately $316.16 to meet the proposed reporting requirement, 
with a total annual burden for all 5 States of 20 hours and an 
associated total cost of $1,580.80.
    Section 156.111(e)(2) currently requires States to submit an 
actuarial certification and associated actuarial report of the methods 
and assumptions when selecting options under Sec.  156.111(a). 
Presently, before compiling this report, States must consider which of 
the options provided at current Sec.  156.111(a) best facilitate their 
intended EHB-benchmark changes. This deliberation often involves both 
research and discussion within the State and between the State and HHS. 
The proposed consolidation of the options currently available at Sec.  
156.111(a) into one overarching approach for EHB-benchmark plan updates 
would eliminate the need for, and time spent by, States contemplating 
the merits of one option or another. This actuarial certification and 
associated actuarial report must also demonstrate compliance with 
section Sec.  156.111(b)(2)(i), which requires a State's EHB-benchmark 
plan to provide a scope of benefits that is equal in scope to the scope 
of benefits under one of the typical employer plans at Sec.  
156.111(b)(2)(i)(A) and (B). While the proposed revisions to Sec.  
156.111(b)(2)(i) would still require a State's EHB-benchmark plan to 
provide benefits that are equal in scope to the scope of benefits under 
a typical employer plan, they would also allow a State to select any 
scope of benefits that is as or more generous than the scope of 
benefits in the least generous plan (supplemented by the State as 
necessary to provide coverage within each EHB category at Sec.  
156.110(a)), and as or less generous than the scope of benefits in the 
most generous plan in the State (supplemented by the State as necessary 
to provide coverage within each EHB category at Sec.  156.110(a)), 
among the plans currently defined at Sec.  156.111(b)(2)(i)(A) and (B). 
We anticipate that these proposed revisions would substantially reduce 
the burden on States to perform the required actuarial analyses. Under 
this proposed revision, we anticipate that a State would typically only 
need to perform three actuarial analyses to determine the scope of 
benefits in the least and most generous plans among the plans currently 
defined at Sec.  156.111(b)(2)(i)(A) and (B), and the scope of benefits 
in the State's new EHB-benchmark plan. Under current regulation, a 
State may need to perform an indeterminate number of actuarial analyses 
of the plans defined at Sec.  156.111(b)(2)(i)(A) and (B) until the 
State identifies a plan with a scope of benefits equal to the State's 
EHB-benchmark plan. This proposed revision would significantly reduce 
the likelihood that a State would need to perform as many actuarial 
analyses. Accordingly, we would anticipate a reduction in the estimated 
burden on States to perform the actuarial analysis to confirm 
compliance with Sec.  156.111(b)(2)(i).
    This actuarial certification and associated actuarial report must 
also demonstrate compliance with Sec.  156.111(b)(2)(ii), which 
currently requires a State's EHB-benchmark plan to not exceed the 
generosity of the most generous among a set of comparison plans. For 
benefit years beginning on or after January 1, 2027, we are proposing 
to remove this requirement and would revise this estimate to reflect a 
reduced burden on States that would no longer need perform the 
actuarial analyses required to confirm compliance with Sec.  
156.111(b)(2)(ii).
    The actuarial certification that would be collected under this ICR 
would be required to include an actuarial report that complies with 
generally accepted actuarial principles and methodologies. This 
estimate includes complying with all applicable actuarial standards of 
practice (ASOPs) (including ASOP 41 on actuarial communications). For

[[Page 82620]]

example, ASOP 41 on actuarial communications includes disclosure 
requirements, including those that apply to the disclosure of 
information on the methods and assumptions being used for the actuarial 
certification and report. The actuarial certification for this 
requirement currently includes an attestation that the standard 
actuarial practices have been followed or that exceptions have been 
noted. The signing actuary is required to be a Member of the American 
Academy of Actuaries. These requirements would continue to apply if 
this policy is finalized as proposed.
    We estimate that an actuary, who is a member of the American 
Academy of Actuaries, would be required to complete 12 hours of work 
(at a rate of $109.60 per hour) on average for Sec.  156.111(e)(2). 
This would include the certification and associated actuarial report 
from an actuary to affirm, in accordance with generally accepted 
actuarial principles and methodologies that the State's EHB-benchmark 
plan must provide a scope of benefits that is equal to the scope of 
benefits provided under a typical employer plan. For these 
calculations, the actuary would need to conduct the appropriate 
calculations to create and review an actuarial certification and 
associated actuarial report, including minimal time required for 
recordkeeping. The precise level of effort for the actuarial 
certification and associated actuarial report under Sec.  156.111(e)(2) 
would likely vary depending on the State's approach to its EHB-
benchmark plan and this certification requirement, but we are 
estimating 12 hours of work for the actuary to complete the actuarial 
certification and associated report in this proposed rule in 
recognition that the definition of typical employer plan may require 
the actuary to determine whether the typical employer plan meets 
minimum value requirements. We estimate that it would cost each State 
approximately $1,315.20 to meet this reporting requirement, with a 
total annual burden for all 5 States of 60 hours and an associated 
total cost of $6,576.
    We estimate that a financial examiner would require 1 hour (at a 
rate of $79.04 per hour) to review, combine, and electronically 
transmit these documents to HHS, as part of a State's EHB-benchmark 
plan submission. We estimate that each State would incur a burden of 1 
hour with an associated cost of $79.04 with a total annual burden for 5 
States of 5 hours at associated total cost of $395.20.
    We require at Sec.  156.111(e)(3) that each State submit its new 
EHB-benchmark plan documents. The level of effort associated with this 
requirement could depend on the State's selection of the EHB-benchmark 
plan options under the regulation at Sec.  156.111(a). However, for the 
purposes of this estimate, we estimate that it would require a 
financial examiner (at a rate of $79.04 per hour) 12 hours on average 
to create, review, and electronically transmit the State's EHB-
benchmark plan document that accurately reflects the benefits and 
limitations, resulting in a burden of 12 hours and an associated cost 
of $948.48, with a total annual burden for all 5 States of 60 hours and 
an associated cost of $4,742.40. This estimate of 12 hours would also 
include the burden necessary for a State to submit a formulary drug 
list for the State's EHB-benchmark plan in a format and manner 
specified by HHS, in accordance with Sec.  156.111(e)(3). However, we 
propose to revise Sec.  156.111(e)(3) in this proposed rule to require 
a State to submit this formulary drug list only if the State is 
changing the prescription drug EHB. We do not anticipate that all 
States would change prescription drug EHB, so we anticipate this burden 
would be lower for some States. To collect the formulary drug list, the 
State would be required to use the template provided by HHS and must 
submit the formulary drug list as a list of RxNorm Concept Unique 
Identifiers (RxCUIs).
    Section 156.111(e)(4) requires a State to submit the documentation 
necessary to operationalize the State's EHB-benchmark plan. This 
reporting requirement includes the EHB summary file that is currently 
posted on CCIIO's website and is used as part of the QHP certification 
process and is integrated into HHS' IT Build systems that feeds into 
the data that is displayed on HealthCare.gov.\273\ We estimate that it 
requires a financial examiner 12 hours, on average, (at a rate of 
$79.04 per hour) to create, review, and electronically submit a 
complete and accurate document to HHS resulting in a burden of 12 hours 
and an associated cost of $948.48, with a total annual burden for all 5 
States of 60 hours and an associated cost of $4,742.40.
---------------------------------------------------------------------------

    \273\ Information on Essential Health Benefits (EHB) Benchmark 
Plans. Accessed at https://www.cms.gov/CCIIO/Resources/Data-Resources/ehb.html.
---------------------------------------------------------------------------

    We estimate that the total number of respondent States would be 5 
per year, for a total yearly burden of 205 hours \274\ and an 
associated cost of approximately $18,036 \275\ to meet these reporting 
requirements.
---------------------------------------------------------------------------

    \274\ This is calculated as follows: (29 hours for the financial 
examiner + 12 hours for the actuary) x 5 States = 205 hours.
    \275\ This is calculated as follows: ($11,460.80 for the 
financial examiner + $6,576.00 for the actuary) x 5 States = 
$18,036.80.
---------------------------------------------------------------------------

M. ICRs Regarding Non-Standardized Plan Option Limits (45 CFR 156.202)

    The following proposed changes will be submitted to OMB for review 
under OMB control number 0938-New (CMS-#####). We seek comment on these 
burden estimates.
    As was previously discussed in the preamble to this proposed rule, 
we propose to permit issuers to offer non-standardized plan options in 
excess of the limit of two per product network type, metal level, 
inclusion of dental and/or vision benefit coverage, and service area 
for PY 2025 and subsequent years, if issuers demonstrate that these 
additional non-standardized plans beyond the limit at Sec.  156.202(b) 
have specific design features that would substantially benefit 
consumers with chronic and high-cost conditions.
    Specifically, issuers would be permitted to offer more than two 
non-standardized plan options if these additional plans' cost sharing 
for benefits pertaining to the treatment of chronic and high-cost 
conditions (including benefits in the form of prescription drugs, if 
pertaining to the treatment of the condition(s)) is at least 25 percent 
lower, as applied without restriction in scope throughout the plan 
year, than the cost sharing for the same corresponding benefits in an 
issuer's other non-standardized plan option offerings in the same 
product network type, metal level, and service area. The reduction 
could not be limited to a part of the year, or an otherwise limited 
scope of benefits. Instead, issuers would be required to apply the 
reduced cost sharing for these benefits any time the covered item or 
service is furnished. For example, an issuer could not reduce cost 
sharing for the first three office visits or drug fills and then 
increase it for remaining visits or drug fills. Furthermore, issuers 
would be prohibited from conditioning reduced cost sharing for these 
benefits on a particular diagnosis. That is, although the benefit 
design would have reduced cost sharing to address one or more 
articulated conditions, the reduced cost sharing must be available to 
all enrolled in the plan who receive the service(s) covered by the 
benefit.
    Under this proposal, no other plan design features (such as the 
inclusion of additional benefit coverage, different provider networks, 
different formularies, or reduced cost sharing for

[[Page 82621]]

benefits provided through the telehealth modality) would be evaluated 
under this exceptions process, meaning no other differences in plan 
design features would allow issuers to be excepted from the limit to 
the number of non-standardized plan options offered per product network 
type, metal level, inclusion of dental and/or vision benefit coverage, 
and service area.
    Additionally, as part of this exceptions process, issuers would be 
required to submit a written justification in a form and manner and at 
a time prescribed by HHS that provides additional details and explains 
how the particular plan design the issuer desires to offer above the 
non-standardized plan option limit of two satisfies the proposed 
standards for receiving an exception to this limit--namely, how the 
particular plan would substantially benefit consumers with chronic and 
high-cost conditions. We would provide issuers with a justification 
template upon publication of the final rule and when the QHP templates 
for the applicable plan year are released. We anticipate requesting 
that issuers submit QHP applications for non-standardized plan options 
that exceed the two-plan limit by the QHP certification Early Bird 
deadline.
    This justification form would ask the issuer to: (1) identify the 
specific condition(s) for which cost sharing is reduced, (2) explain 
which benefits would have reduced annual enrollee cost sharing (as 
opposed to reduced cost sharing for a limited number of visits) for the 
treatment of the specified condition(s) by 25 percent or more relative 
to the cost sharing for the same corresponding benefits in an issuer's 
other non-standardized plan offerings in the same product network type, 
metal level, and service area, and (3) explain how the reduced cost 
sharing for these services pertains to clinically indicated guidelines 
for treatment of the specified chronic and high-cost condition(s).
    In order for an issuer to complete the necessary documentation to 
submit a request to be excepted from the non-standardized plan option 
limit at Sec.  156.202(b) in accordance with the proposed requirements 
at Sec.  156.202(d), we estimate that it would take an actuary (OES 
occupational code 15-2011) 5 hours annually at a median hourly cost of 
$109.60 per hour (amounting to $548 annually) to create a new plan 
design with sufficiently differentiated cost sharing and to set the 
premium rate for this plan; a general internal medicine physician (OES 
occupational code 29-1216) 2 hours annually at a median hourly cost of 
$206.22 (amounting to $412.44 annually) to complete the justification 
form for this exceptions process; and a general and operations manager 
(OES occupational code 11-1021) 10 hours annually at a median hourly 
cost of $94.32 per hour (amounting to $943.20 annually) to review and 
submit the justification form, including all required data, as part of 
an issuer's portfolio of plan offerings that it seeks certification of 
during QHP certification.
    Altogether, we estimate a total burden of 17 hours at a cost of 
$1,903.64 per issuer annually to submit a request for each additional 
non-standardized plan option to be excepted from the non-standardized 
plan option limit. Although issuers would not be limited in the number 
of potential exceptions they may be granted under this proposal, we do 
not anticipate that issuers would seek to have more than one additional 
non-standardized plan options excepted from the limit. We further 
estimate that approximately 50 FFE and SBE-FP issuers (of the 228 
issuers based on current PY 2024 plan offering data, amounting to 
approximately 22 percent) would request to be excepted from the non-
standardized plan option limit in order to offer these additional plans 
annually, at a total burden of 850 hours and associated cost of $95,182 
for all issuers annually. We estimate that only 50 issuers would submit 
a request to be excepted from the non-standardized plan option limit 
since we anticipate that most issuers would believe that the burden of 
creating and certifying additional plans intended to benefit a 
comparatively small population of consumers would outweigh the benefit 
of doing so.

N. Summary of Annual Burden Estimates for Proposed Requirements

[[Page 82622]]

[GRAPHIC] [TIFF OMITTED] TP24NO23.027

O. Submission of PRA-Related Comments

    We have submitted a copy of this proposed rule to OMB for its 
review of the rule's information collection and recordkeeping 
requirements. These requirements are not effective until they have been 
approved by the OMB.
    To obtain copies of the supporting statement and any related forms 
for the proposed collections discussed above, please visit our website 
at www.cms.hhs.gov/PaperworkReductionActof1995, or call the Reports 
Clearance Office at 410-786-1326.
    We invite public comments on these potential information collection 
requirements. If you wish to comment, please submit your comments 
electronically as specified in the ADDRESSES section of this proposed 
rule and identify the rule (CMS-9895-P), the ICR's CFR citation, CMS ID 
number, and OMB control number.
    ICR-related comments are due January 16, 2024.

V. Response to Comments

    Because of the large number of public comments we normally receive 
on Federal Register documents, we are not able to acknowledge or 
respond to them individually. We will consider all comments we receive 
by the date and time specified in the DATES section of this preamble, 
and when we proceed with a subsequent document, we will respond to the 
comments in the preamble to that document.

VI. Regulatory Impact Analysis

A. Statement of Need

    This rule proposes to make several HHS risk adjustment updates, 
such as to use the 2019, 2020, and 2021 data for recalibration of the 
HHS risk adjustment models for benefit year 2025; to update and retain 
the AI/AN CSR adjustment factors for benefit year 2025 and beyond, 
unless changed through notice-and-comment rulemaking; to establish the 
risk adjustment user fee for benefit year 2025; and to give HHS the 
authority to require corrective action plans for certain observations 
identified as a result of high-cost risk pool audits. The rule further 
proposes State Exchange and agent, broker, web-broker, and DE entity 
standards; requiring State Exchanges and State Medicaid and CHIP 
agencies to pay to access and use optional CSI data from the Hub for 
income verification; eligibility and auto re-enrollment standards; open 
enrollment period and special enrollment period standards; and 
permitting enrollees to retroactively terminate their enrollment in a 
QHP through the Exchange when the enrollee enrolls in Parts A or B 
Medicare retroactively effective to the date Medicare coverage begins. 
Additionally, the rule proposes the FFE and SBE-FP user fee rates for 
the 2025 benefit year, as well as EHB-benchmark plan selection updates, 
other EHB updates, minor updates to the standardized plan options for 
PY 2025, an exceptions process for issuers to offer additional non-
standardized plan options in excess of the limit of two for PY 2025, 
Consumer Operated and Oriented Plan (CO-OP) loan term revisions, and 
modifications to section 1332 waiver implementing regulations governing 
public hearing procedures.

B. Overall Impact

    We have examined the impacts of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993), 
Executive Order 13563 on Improving Regulation and Regulatory Review 
(January 18, 2011), Executive Order 14094 entitled ``Modernizing 
Regulatory Review'' (April 6, 2023), the Regulatory Flexibility Act 
(RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, 
section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 
1995; Pub. L. 104-4), and Executive Order 13132 on Federalism (August 
4, 1999).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory

[[Page 82623]]

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). The April 6, 2023 Executive Order on Modernizing 
Regulatory Review \276\ amends Section 3(f) of Executive Order 12866 to 
define a ``significant regulatory action'' as an action that is likely 
to result in a rule that may: (1) have an annual effect on the economy 
of $200 million or more (adjusted every 3 years by the Administrator of 
OMB's Office of Information and Regulatory Affairs (OIRA) for changes 
in gross domestic product), or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, territorial, or 
tribal governments or communities; (2) create a serious inconsistency 
or otherwise interfere with an action taken or planned by another 
agency; (3) materially alter the budgetary impacts of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raise legal or policy issues for which 
centralized review would meaningfully further the President's 
priorities or the principles set forth in the Executive Order, as 
specifically authorized in a timely manner by the Administrator of OIRA 
in each case.
---------------------------------------------------------------------------

    \276\ Executive Order 14094. https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/.
---------------------------------------------------------------------------

    A regulatory impact analysis (RIA) must be prepared for significant 
rules. OMB's OIRA has determined that this rulemaking is `significant' 
as measured by the $200 million threshold under section 3(f)(1). We 
have prepared an RIA that to the best of our ability presents the costs 
and benefits of the rulemaking. OMB has reviewed these proposed 
regulations, and the Departments have provided the following assessment 
of their impact.

C. Impact Estimates of the Payment Notice Provisions and Accounting 
Table

    As required by OMB Circular A-4 (available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.), we have prepared an accounting statement in 
Table 16 showing the classification of the impact associated with the 
provisions of this proposed rule.
    This proposed rule implements standards for programs that will have 
numerous effects, including providing consumers with access to 
affordable health insurance coverage, reducing the impact of adverse 
selection, and stabilizing premiums in the individual and small group 
(including merged) health insurance markets and in Exchanges. We are 
unable to quantify all the benefits and costs of this proposed rule. 
The effects in Table 16 reflect qualitative assessment of impacts and 
estimated direct monetary costs and transfers resulting from the 
provisions of this proposed rule for health insurance issuers and 
consumers. The annual monetized transfers described in Table 16 include 
changes to costs associated with the risk adjustment user fee paid to 
HHS by issuers.

[[Page 82624]]

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[[Page 82625]]


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[[Page 82626]]


[GRAPHIC] [TIFF OMITTED] TP24NO23.030


[[Page 82627]]


[GRAPHIC] [TIFF OMITTED] TP24NO23.031

1. Proposed Amendments to Normal Public Notice Requirements (31 CFR 
33.112, 31 CFR 33.120, 45 CFR 155.1312, and 45 CFR 155.1320)
    In this proposed rule, the Departments propose modifications to the 
section 1332 waiver implementing regulations to set forth flexibilities 
in the public notice requirements and post-award public participation 
requirements for section 1332 waivers. However, this proposed rule does 
not propose to alter any of the requirements related to section 1332 
waiver applications, compliance and monitoring, or evaluation in a way 
that would create any additional costs or burdens for States submitting 
proposed waiver applications or those States with approved waiver plans 
that have not already been captured in prior burden estimates. The 
Departments are of the view that both States with approved section 1332 
waivers and States that apply for section 1332 waivers would be 
minimally impacted or would benefit from reduced burden by these 
proposed changes in policy, if finalized. The Departments anticipate 
that implementing these provisions would not significantly change the 
associated burden currently approved under OMB control number: 0938-
1389, Expiration date: February 29, 2024. The Departments are of the 
view that section 1332 waivers help increase State innovation, which in 
turn could lead to more affordable health coverage for individuals and 
families in States that consider implementing a section 1332 waiver 
program.
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    \277\ Reinsurance collections ended in FY 2018 and outlays in 
subsequent years reflect remaining payments, refunds, and allowable 
activities.
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    The Departments seek comment on these impacts and assumptions.
2. Increase State Flexibility in the Use of Income and Resource 
Disregards for Non-MAGI Populations (42 CFR 435.601)
    Current 42 CFR 435.601(d) authorizes States to apply less 
restrictive methodologies than those that would otherwise be required 
to be considered in the individual's eligibility determination. 
Paragraph (d)(4) requires that the application of less restrictive 
methodologies by State Medicaid agencies be comparable for all persons 
within each Medicaid eligibility group. For example, if a State wants 
to apply an income disregard to an eligibility group serving 
individuals who are 65 years old or older, it must either agree to 
apply the income disregard to all members of the eligibility group who 
are 65 years old or older or forego application of the disregard.
    In this proposed rule, we propose to remove the requirement that 
less restrictive methodologies be comparable for all members of an 
eligibility group. This would allow States that want to expand their 
Medicaid eligibility rules through the use of less restrictive 
methodologies to have more flexibility in managing the extent to which 
their programs are expanded.
    This proposed rule, however, would not create an entirely new State 
option, but, instead, would permit States to exercise an existing 
option in a more limited manner. Additionally, the proposed rule, if 
finalized, would not require new State plan material or impose any new 
administrative tasks for States in their development and submission of 
State plan amendments. We therefore do not anticipate that implementing 
this provision would create any new information collection burden for 
States.
    Estimating the impact on Medicaid enrollment and expenditures is 
difficult. Notably, it is not known how many States would use this new 
authority, and the extent to which they would use this. Some States may 
be interested in using this flexibility to make a significant expansion 
to coverage, and in turn, spending on Medicaid services. Other States 
may not use these options at all or may use them to a limited degree. 
Moreover, how States use this authority--which populations would be 
affected, the number of people in these groups, and the underlying 
healthcare needs of these individuals--is also unknown. Therefore, we 
have estimated a range of potential impacts as part of the regulatory 
impact analysis.
    At the low end of the range, we have assumed that the impact on 
enrollment and Medicaid expenditures would be 0 (or negligible). In 
this scenario, we assume that States do not make any substantial 
changes under this new authority, and as a result there is no 
measurable increase in enrollment or spending. Historically, States 
have had many options in expanding coverage, including but not limited 
to other authorities to use income and resource disregards and section 
1115 waivers. Recent State plan amendments to expand the use of income 
disregards (either broadly or targeted to certain groups) have been 
modest, ranging from estimated impacts of $0 million to $49 million per 
year. Thus, it may be possible that the use of these flexibilities is 
limited and the impacts relatively small.
    On the other hand, it is possible that States may be more active in 
using these proposed options. To estimate the high end of the range, we 
made the following assumptions. First, we assumed that 10 States would 
take up these options. Second, we assumed that States would apply these 
options to non-MAGI populations (mainly enrollees age 65 and over, and 
enrollees qualifying on the basis of a disability) and have an average 
increase of 1 percent in enrollment among these groups. We assumed the 
average total, Federal, and State Medicaid costs for these enrollees

[[Page 82628]]

would be equal to the national average for these groups.
    Under these assumptions, we project that enrollment would increase 
by 36,000 to 38,000 across 10 States (or 3,600 to 3,800 per State) and 
Medicaid expenditures would increase by about $4,660 million over the 
first 5 years ($2,700 million Federal, $1,960 million State share). 
(The estimates rely on projections of enrollment and spending from the 
Mid-Session Review of the President's FY 2024 Budget.)
[GRAPHIC] [TIFF OMITTED] TP24NO23.032

    It is important to note that there is a wide range of outcomes due 
to the flexibility afforded in the proposed rule. We expect actual 
costs and enrollment impacts to fall within the range shown here, but 
the effects are highly dependent on which States would take up these 
options and how extensively such options are used.
    We seek comment on these impacts and assumptions.
3. Changes to the Basic Health Program Regulations (42 CFR 600.320)
    Section 1331 of the ACA (42 U.S.C. 18051) requires the Secretary to 
establish a BHP, and section 1331(c)(4) specifically provides that a 
State shall coordinate the administration of, and provision of benefits 
under the BHP with other State programs. These proposed regulations 
build from previous BHP regulations to provide for options for BHP 
implementation and operations beginning with program year 2024.
    In this proposed rule, we propose to add an option for a State 
establishing a uniform method of determining the effective date of 
eligibility for enrollment in a standard health plan. We believe this 
proposal would provide additional flexibility for States when 
implementing their BHP. If the State chooses to follow this new 
effective date of eligibility option, we believe this proposal would 
also benefit enrollees by providing coverage sooner than if the State 
were to follow the Exchange effective date of eligibility option. We do 
not anticipate any costs to States because of this proposal, as we are 
only proposing to provide another option by which a State could 
determine the effective date of eligibility for purposes of its BHP. We 
seek comment on these impacts and assumptions.
4. HHS Risk Adjustment (45 CFR 153.320)
    We propose to recalibrate the HHS risk adjustment models for the 
2025 benefit year using the 2019, 2020, and 2021 enrollee-level EDGE 
data. We believe that continuing to maintain the approach of blending 
(or averaging) 3 years of separately solved coefficients provides 
stability within the HHS-operated risk adjustment program and minimizes 
volatility in changes to risk scores from the 2024 benefit year to the 
2025 benefit year. We also propose to continue applying a market 
pricing adjustment to the plan liability associated with Hepatitis C 
drugs in the HHS risk adjustment models, consistent with the approach 
adopted beginning with the 2020 benefit year HHS risk adjustment 
models.
    We propose to recalibrate the CSR adjustment factors for AI/AN 
zero-cost sharing and limited cost sharing CSR plan variant enrollees 
for the 2025 benefit year, and to retain the proposed AI/AN CSR 
adjustment factors, if finalized, for all future benefit years unless 
changed through notice-and-comment rulemaking. We also propose to 
maintain the current CSR adjustment factors for silver plan variant 
enrollees (70 percent, 73 percent, 87 percent, and 94 percent AV plan 
variants) \278\ for the

[[Page 82629]]

2025 benefit year and beyond, unless changed through notice-and-comment 
rulemaking. In addition, we affirm that for plan liability risk score 
calculations under the State payment transfer formula, we use the CSR 
adjustment factors that align with the AV of the plan. Thus, for unique 
State-specific plans that have higher plan liability than the standard 
silver plan variants (for example, CSR wrap-around and Medicaid-
expansion plans), we would continue to apply the applicable CSR 
adjustment factor that corresponds to the plan's AV, as determined by 
HHS in consultation with the applicable State Departments of Insurance 
and other relevant State institutions.
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    \278\ See 83 FR 16930 at 16953; 84 FR 17478 through 17479; 85 FR 
29190; 86 FR 24181; 87 FR 27235 through 27236; and 88 FR 25772 
through 25774.
---------------------------------------------------------------------------

    We anticipate that this proposal would result in an increase in 
overall individual market risk pool HHS risk adjustment transfers under 
the State payment transfer formula in States with a sizable share of 
AI/AN enrollees. All things being equal, we anticipate that 
recalibrating the AI/AN CSR adjustment factors as proposed would 
increase transfer payments (or decrease transfer charges) to the 
issuers with the larger shares of the AI/AN subpopulation and increase 
transfer charges (or decrease transfer payments) under the State 
payment transfer formula for the issuers with smaller shares of the AI/
AN subpopulation. Therefore, we anticipate that issuers with larger 
shares of AI/AN enrollees would have the ability to lower premium rates 
slightly, as the additional plan liability associated with AI/AN CSR 
recipients would be offset by the increase in HHS risk adjustment 
transfer payments (or decrease in transfer charges) to these issuers.
    Based on internal analyses, the States with the highest proportion 
of AI/AN enrollees as a percentage of member months in the 2021 benefit 
year were Oklahoma (15 percent), Alaska (4 percent), Montana (2 
percent), South Dakota (2 percent), and North Dakota (1 percent). Based 
on internal analyses of 2021 enrollee-level EDGE data, we anticipate 
that recalibrating the AI/AN CSR adjustment factors as proposed would 
increase total transfers under the State payment transfer formula by 8 
percent in Oklahoma, 2.5 percent in Alaska, 2 percent in Montana, and 
less than 0.5 percent in South Dakota and North Dakota. We further 
anticipate that these transfer impacts would result in modest decreases 
in premiums among issuers that enroll a high proportion of AI/AN 
consumers, as issuers with larger AI/AN enrollment would benefit from 
increased transfer payments (or decreased transfer charges) under the 
State payment transfer formula. We do not anticipate that States with a 
low proportion of AI/AN enrollees would experience a transfer or 
premium impact due to the very low number of enrollees (less than 1 
percent) who would be impacted by the proposed recalibrated CSR 
adjustment factors for this population in those States.
    We seek comment on these impacts and assumptions.
5. HHS Risk Adjustment User Fee for 2025 Benefit Year (45 CFR 
153.610(f))
    For the 2025 benefit year, HHS will operate risk adjustment in 
every State and the District of Columbia. As described in the 2014 
Payment Notice (78 FR 15416 through 15417), HHS' operation of risk 
adjustment under section 1343 of the ACA on behalf of States is funded 
through a risk adjustment user fee. For the 2025 benefit year, we 
propose to use the same methodology to estimate our administrative 
expenses to operate the HHS risk adjustment program as was used in the 
2024 Payment Notice. As discussed previously in this proposed rule, 
risk adjustment user fee costs for the 2025 benefit year are expected 
to increase from the prior 2024 benefit year estimates. However, we 
project higher enrollment than our prior estimates in the individual 
and small group (including merged) markets in the 2024 and 2025 benefit 
years due to the enhanced PTC subsidies provided for in section 9661 of 
the ARP \279\ and extended through the 2025 benefit year pursuant to 
section 12001 of the IRA.
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    \279\ Public Law 117-2.
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    We estimate that the total cost for HHS to operate the risk 
adjustment program on behalf of all States and the District of Columbia 
will increase from $60 million in 2024 to approximately $65 million in 
2025. However, we believe that the increased enrollment projections 
will more than offset the increased risk adjustment user fee costs, and 
therefore, the proposed risk adjustment user fee would be reduced from 
the $0.21 PMPM for the 2024 benefit year to $0.20 PMPM for the 2025 
benefit year. We expect the proposed risk adjustment user fee for the 
2025 benefit year to reduce the amount transferred from issuers of risk 
adjustment covered plans to the Federal government by approximately 
$3.5 million.
    We seek comment on these impact estimates and assumptions.
6. Audits and Compliance Reviews of Risk Adjustment Covered Plans (45 
CFR 153.620(c))
    We propose amending Sec.  153.620(c)(4) to require issuers of risk 
adjustment covered plans to complete, implement, and provide to HHS 
written documentation of any corrective action plans when required by 
HHS if a high-cost risk pool audit results in the inclusion of a 
finding or certain observations in the final audit report. Based on 
data from the 2018 benefit year high-cost risk pool audits, we estimate 
that each issuer audited may receive approximately 2 observations on 
average in future benefit years of high-cost risk pool audits where 
there is evidence of non-compliance with applicable Federal 
requirements, thereby triggering the proposed requirement for the 
issuer to take corrective action. We also estimate that it would take 
approximately 4 hours by a business operations specialist (at $73.12 
per hour), 2 hours by a compliance officer (at $68.94 per hour), and 2 
hours by a computer systems analyst (at $98.30 per hour) to complete, 
implement, and provide documentation to HHS of a corrective action plan 
for 2 observations. This results in a total cost per issuer of $626.96 
(4 hours x $73.12 per hour + 2 hours x $68.94 per hour + 2 hours x 
$98.30 per hour). We estimate that we may conduct high-cost risk pool 
audits for approximately 40 issuers for each benefit year. Therefore, 
the total estimated cost to issuers of risk adjustment covered plans 
for each benefit year being audited would be approximately $25,078.40 
(40 issuers x $626.96 per issuer).
    We seek comment on these burden estimates and assumptions.
7. Approval of a State Exchange (45 CFR 155.105)
    We propose to add a requirement that a State seeking to transition 
to a State Exchange must first operate an SBE-FP, meeting all 
requirements under Sec.  155.200(f), for at least one plan year, 
including its first open enrollment period.
    We do not anticipate this proposal would create an additional 
burden to the States that are currently transitioning to a State 
Exchange, since those States have already operated an SBE-FP for at 
least 1 year or will first be operating an SBE-FP. Since PY 2020, all 
States that have transitioned to a State Exchange have first 
transitioned to an SBE-FP for one or more plan years. Furthermore, 
based on our experience, the costs for a State to transition from the 
FFE to operating an SBE-FP is relatively low in comparison to the costs 
a State would incur to transition from an FFE, or an SBE-FP, to 
establishing a State Exchange. This is due to the significant 
investment of costs incurred in implementing and operating a State

[[Page 82630]]

Exchange consumer-facing website, eligibility and enrollment technology 
platform, and associated eligibility and enrollment support 
infrastructure, such as the State Exchange's consumer call center 
technology and resources, that FFEs and SBE-FPs rely on HHS to provide. 
We would also expect the impact and costs to States that are 
considering, or may consider, establishing a State Exchange in the 
future to be minimal because we believe there would be sufficient time 
to plan for operating as an SBE-FP before operating as a State 
Exchange.
    We believe that one of the primary benefits of States operating an 
SBE-FP prior to implementing and operating a State Exchange lies in the 
investment of time and resources that a State transitioning to, and 
operating, an SBE-FP makes in the establishment of direct relationships 
with their consumers, assisters, issuers, and other interested parties 
that will ultimately help in the successful implementation and 
operation of its State Exchange. Furthermore, we believe that the 
benefit of these activities to a State and its consumers and partners 
far outweigh the relatively low cost for the State to first transition 
to, and operate, an SBE-FP for at least one year before implementing 
and operating a State Exchange. We are also of the view that this 
proposal would mitigate the significant risk and disruption, for 
consumers, assisters, issuers, and other interested parties, associated 
with a scenario where a State wishes to transition from an FFE to 
establishing and operating a State Exchange in a timeframe of less than 
a year or otherwise not in alignment with the timelines associated with 
the approval of a State Exchange specified in Sec.  155.106.
    We seek comment on these assumptions of the financial impact of 
this proposal, if finalized, on States that transition to an SBE-FP for 
at least one plan year before operating a State Exchange pursuant to 
this proposal, if finalized.
8. Election To Operate an Exchange After 2014 (45 CFR 155.106)
    As discussed in the preamble, we propose to add that we may require 
that a State submitting a Blueprint Application to implement a State 
Exchange provide supplemental documentation demonstrating progress 
toward meeting State Exchange Blueprint requirements, or documentation 
that details a State's implementation of its State Exchange Blueprint 
requirements. This could include a State submitting detailed plans 
regarding its State Exchange consumer assistance, such as information 
on its direct outreach plans.
    We do not anticipate additional burden associated with this 
proposal, as HHS already has the authority to request any evidence it 
determines necessary for the State to show progress towards 
implementing the required Exchange functionality in the State Exchange 
Blueprint, or documentation that details the implementation of the 
required Exchange functionality. In this proposal, we are merely 
seeking to codify in our regulations a clear expectation for a State 
establishing a State Exchange that, as part of the State's submission 
of a State Exchange Blueprint Application. The information collection 
burden associated with this proposal is already accounted for under 
approved OMB control number: 0938-1172, Expiration date: August 31, 
2025.
    Further, as discussed in the preamble, we propose to require that 
when a State submits its State Exchange Blueprint application to HHS 
for approval, the State must provide the public with notice and a copy 
of its State Exchange Blueprint application. We also propose to require 
that at some point following a State's submission of its State Exchange 
Blueprint application to HHS, a State must conduct at least one public 
engagement (such as a townhall meeting or public hearing), in a 
timeline and manner considered effective by the State, with concurrence 
from HHS, at which interested parties can learn about the State's 
intent to transition to a State Exchange and the State's progress 
toward effectuating that transition. We also propose to require that 
while a State is making this transition and until HHS has approved or 
conditionally approved the State Exchange Blueprint application, a 
State conducts periodic public engagements at which interested parties 
can continue to learn about the State's progress toward finalizing its 
transition to a State Exchange, in a timeline and manner, either in-
person or virtually, considered effective by the State.
    We do not anticipate significant additional burden associated with 
these proposals, as States are currently required to submit a State 
Exchange Blueprint application to HHS for approval, and so the impact 
of sharing a copy of the submitted Exchange Blueprint application with 
the public using their website would be de minimis. Further, we believe 
that since States seeking to establish, or are in the process of 
establishing, a State Exchange for PY 2025 or in subsequent years would 
be given broad flexibility to design the public engagements in a manner 
that best suits their respective State, for meeting the interested 
party consultation requirement under Sec.  155.130, that States will 
design their public engagements in a manner such that the additional 
burden incurred by the State would be minimal. The goal of the proposed 
changes at Sec.  155.106(a)(2)(ii) is to clearly state, for States who 
are seeking to establish State Exchanges, HHS' expectations of the 
State engaging with the public regarding its transition to a State 
Exchange, thus strengthening the transparency requirements of the State 
Exchange Blueprint review and approval process. We believe this 
proposal would help States that establish a State Exchange meet the 
consultation requirements of interested parties at Sec.  155.130 during 
the period when the State is establishing a State Exchange, by 
formalizing a process whereby States and interested parties communicate 
about the State's establishment of a State Exchange throughout the 
transition process. As such, we believe the impact of this proposal 
would be de minimis.
    We seek comment on this burden estimate and assumptions.
9. Additional Required Benefits (45 CFR 155.170)
    We propose to amend Sec.  155.170(a)(2) to provide that benefits 
covered in a State's EHB-benchmark plan would not be considered in 
addition to EHB and thus would not be subject to defrayal by the State 
beginning with PY 2025. We believe that this revision would have a 
mixed effect on the cost to the Federal government. In States that 
update EHB-benchmark plans to include benefits, the costs of which are 
currently being defrayed, the percentage of premium attributable to 
coverage of EHB for purpose of calculating APTC may increase just as if 
the State updated its EHB-benchmark plan through the process set forth 
in Sec.  156.111 and any increase remains subject to the typicality 
requirement in that section. In a State that enacts a mandate for a 
benefit that is currently covered in its EHB-benchmark plan, there will 
be no effect on Federal government expense as the benefit was already 
included in the percentage of premium attributable to coverage of EHB 
for purpose of calculating APTC since it was EHB. States may choose to 
evaluate the overlap between mandates and EHB benchmark-plans for 
benefits they are currently defraying the costs of but are not required 
to. Issuers may have to make modifications to their plan designs and 
plan filings to reflect any possible changes in designation of benefits 
as EHB because of this

[[Page 82631]]

proposal, if finalized, in the regular course of updating those annual 
materials. We do not anticipate an additional burden on States or 
issuers associated with this proposal.
    We seek comment on these impacts and assumptions.
10. Consumer Assistance Tools and Programs of an Exchange (45 CFR 
155.205)
    As discussed in the preamble, we propose additional minimum 
standards for Exchange call center operations, such that Exchanges, 
other than SBE-FPs and SHOP Exchanges that do not provide for 
enrollment in SHOP coverage through an online SHOP enrollment platform, 
meet the following additional requirements: their call center must 
provide consumers with access to a live call center representative 
during the Exchanges' published hours of operation and their live call 
center representatives must be able to assist consumers with submitting 
their application for QHP coverage.
    We believe this proposal would support the intent of sections 
1311(d)(4)(B) and 1413(b)(1)(A)(ii) of the ACA by codifying the 
requirement that a consumer must be able to obtain live call center 
support with submitting an application for QHP coverage during 
reliable, published hours of operation. It is our presumption that 
speaking to a live representative would better aid in troubleshooting 
consumer QHP application issues, provide a real time opportunity for a 
live representative to explain QHP application terminology to a 
consumer, provide for a live representative to ensure the consumer 
provides the most correct information to the QHP application (thereby 
alleviating unnecessary follow-up), and provide greater overall 
consumer satisfaction.
    As stated in the preamble, we believe that all State Exchanges 
already meet these proposed minimum standards, and we know that the 
Exchanges on the Federal platform do. As such, we do not anticipate an 
additional burden associated with this proposal.
    We seek comment on these impacts and assumptions.
11. Requirement for Centralized Exchange Eligibility and Enrollment 
Platform on the Exchange's Website (45 CFR 155.205(b) and 
155.302(a)(1))
    We propose to amend Sec.  155.205(b)(4) to require that an Exchange 
operate a centralized eligibility and enrollment platform on the 
Exchange's website (or, for an SBE-FP, through the Federal eligibility 
and enrollment platform) such that the Exchange allows for the 
submission of the single, streamlined application for enrollment in a 
QHP and insurance affordability programs by consumers, in accordance 
with Sec.  155.405, through the Exchange's website and performs 
eligibility determinations for all consumers based on submissions of 
the single, streamlined application. Further, we propose to amend Sec.  
155.302(a)(1) to clarify that the Exchange, through the centralized 
eligibility and enrollment platform operated on the Exchange's website 
(or, for an SBE-FP, the Federal eligibility and enrollment platform) is 
the entity responsible for making all determinations regarding the 
eligibility for QHP coverage and insurance affordability programs 
regardless of whether an individual files an application for enrollment 
in a QHP on the Exchange's website, or on a website operated by an 
entity described under Sec.  155.220, such as a web-broker defined at 
Sec.  155.20, or a direct enrollment entity or QHP issuer described 
under Sec.  155.221. This amendment to Sec.  155.302(a)(1) would also 
clarify that only entities that an Exchange elects to contract with to 
operate its centralized eligibility and enrollment platform can perform 
this function on behalf of an Exchange and would prohibit Exchanges 
from solely relying on non-Exchange entities, including a web-broker 
(defined at Sec.  155.20) or other entities under Sec.  155.220 or 
Sec.  155.221, from making such eligibility determinations on behalf on 
an Exchange.
    We also propose to amend Sec.  155.205(b)(5) to require that an 
Exchange operate a centralized eligibility and enrollment platform 
through the Exchange's website (or, for an SBE-FP, by relying on the 
Federal eligibility and enrollment platform) so that the Exchange (or, 
for an SBE-FP, the Federal eligibility and enrollment platform) meets 
the requirement under Sec.  155.400(c) to maintain records of all 
effectuated enrollments in QHPs, including changes in effectuated QHP 
enrollments.
    Since all Exchanges, including State Exchanges, SBE-FPs, and FFEs, 
currently provide access to a centralized eligibility and enrollment 
platform and process for consumers that they serve, and all Exchanges 
also currently perform all eligibility determinations through the 
operation of a centralized eligibility and enrollment platform on their 
websites, we believe the burden of this proposal on Exchanges and 
interested parties would be minimal.
    We seek comment on the assumptions and estimated impacts of this 
proposal.
12. Adding and Amending Language To Ensure Web-Brokers Operating in 
State Exchanges Meet Certain Standards Applicable in the FFEs and SBE-
FPs (45 CFR 155.220)
    We propose to amend Sec.  155.220 to apply to web-brokers operating 
in State Exchanges, and consequently in State Exchanges, for both the 
State Exchange's Individual Exchange and SHOP, certain existing Federal 
standards governing use of web-brokers' non-Exchange websites to assist 
consumers with enrolling in QHPs and applying for APTC/CSRs in a manner 
that constitutes enrollment through an Exchange. As discussed in the 
preamble of this proposed rule, the proposed regulatory amendments 
would require these State Exchanges to draft policy, update standards, 
and potentially hire more staff to perform functions not currently 
being performed by the State Exchange as a result of applying the 
identified Sec.  155.220 standards to web-brokers participating in 
State Exchanges. These proposed changes would also require web-brokers 
hosting non-Exchange websites in these State Exchanges to perform web-
development and oversight to ensure compliance with the Federal minimum 
standards this rulemaking proposes to extend to these web-brokers. 
These proposed changes would also require web-brokers in State 
Exchanges who want to assist consumers with enrolling in QHPs and 
applying for ATPC and CSRs to display standardized disclaimers, display 
QHP comparative information, display information pertaining to a 
consumer's eligibility for APTC or CSRs, to participate in operational 
readiness reviews and potentially maintain relevant documentation, and 
to extend downstream agent and broker requirements to web-brokers 
operating in State Exchanges. Although these proposals allow States 
certain flexibility for State Exchanges with regards to establishing 
procedures and requirements for website displays (including flexibility 
to add State-specific information to required disclaimers and for the 
State Exchange to determine how consumer educational information is 
displayed), downstream agent and broker access to and use of web-broker 
non-Exchange websites, and demonstration of operational readiness, we 
expect the impact and costs to be reasonably based on the impacts seen 
on the FFEs and SBE-FPs.
    Although there would be some additional burden for web-brokers 
operating in State Exchanges, amounting to approximately $48,586.60 per 
web-broker as discussed in the

[[Page 82632]]

information collection requirements section of this proposed rule, we 
anticipate that some of these State Exchanges may utilize web-broker 
entities already participating in the FFEs and SBE-FPs, which would 
help provide administrative savings related to the approval process if 
the State Exchange does not impose additional State-specific 
requirements beyond the HHS minimum standards. We encourage State 
Exchanges to leverage web-broker operational readiness demonstrated for 
the FFEs and SBE-FPs when possible. Additionally, we expect those web-
brokers already participating in the FFEs and SBE-FPs to be able to 
leverage their existing web-development work with additional burden and 
costs only required for tailoring the website display, operational 
readiness, and downstream agent and broker access to any State-specific 
requirements adopted by the applicable State Exchange. Additionally, as 
described in the accompanying ICR discussion, we anticipate an impact 
on State governments totaling $2,346,128 for 5 States to opt to host a 
web-broker program for their State Exchange.
    We estimate a total cumulative burden of $1,071,474.40 associated 
with this proposal for an estimated 20 web-brokers operating across the 
5 State Exchanges. We anticipate these proposed changes to extend 
certain HHS minimum standards governing web-broker participation in 
FFEs and SBE-FPs to also apply to State Exchanges and their web-brokers 
would be beneficial to consumers by establishing uniform, baseline 
requirements for agent, broker, and web-broker participation across all 
Exchange types. These proposed changes would allow State Exchanges to 
leverage the framework that has already been established and currently 
applies to FFEs and SBE-FPs, thereby decreasing the burden to these 
State Exchanges to establish such a program, while providing some 
flexibility for these State Exchanges to tailor the new requirements to 
include State-specific content (such as the updating disclaimer 
language to refer to the State Exchange website rather than the 
HealthCare.gov website). Additionally, these proposed changes would 
establish administrative and operational consistency throughout the 
Exchanges, which is beneficial to agents, brokers, and web-brokers by 
allowing them to expand their business into States with State Exchanges 
in a more streamlined fashion, as well as to Exchanges and their 
consumers.
    We seek comment on these estimated impacts and assumptions.
13. Ability of States To Permit Agents and Brokers and Web-Brokers To 
Assist Qualified Individuals, Qualified Employers, or Qualified 
Employees Enrolling in QHPs (45 CFR 155.220(h))
    As discussed in the preamble to this proposed rule, we propose to 
revise and add language to Sec.  155.220(h) to specify that the CMS 
Administrator, a principal officer, would review agent, broker, and 
web-broker requests for reconsideration of decisions to terminate their 
Exchange agreement(s) under Sec.  155.220(h)(3). We propose that the 
CMS Administrator's determination would be final and binding. We 
believe this proposal would positively impact agents, brokers, and web-
brokers by ensuring entities who utilize the FFE and SBE-FPs know, 
through increased transparency, who would be responsible for handling 
these reconsideration decisions under Sec.  155.220(h)(3).
14. Establishing Requirements for DE Entities Mandating HealthCare.gov 
Changes Be Reflected on DE Entity Non-Exchange Websites Within a Notice 
Period Set by HHS (45 CFR 155.221(b))
    We propose to amend Sec.  155.221 to require that DE Entity non-
Exchange websites implement and prominently display website changes in 
manner consistent with that adopted by HHS for HealthCare.gov by 
implementing standards defined by HHS within a notice period set by 
HHS, unless HHS approves a deviation. We also propose to require State 
Exchanges implement a similar process to require display changes on 
State Exchange websites be reflected on the websites of their DE 
entities, with the procedures for defining standards defined by the 
State Exchange
    As discussed in the preamble of this proposed rule, this proposal 
would require web-brokers and QHP issuers participating in DE to update 
their non-Exchange websites to incorporate website display changes that 
mirror those adopted by HHS for HealthCare.gov by conforming with 
standards defined by HHS. This proposal would provide DE entities 
flexibility in their user interface graphic design, provided that their 
design complies with the standards defined by HHS. This proposal would 
also allow DE entities to submit a deviation request for review and 
approval by HHS if they would like to implement a display that does not 
meet those standards. We anticipate an average of three or fewer 
required display changes annually, with the majority of changes being 
simpler website display changes that are relatively easy to implement. 
Furthermore, HHS would provide examples and associated disclaimer text 
with the release of any required website display changes pursuant to 
this proposal, and therefore we expect the overall impact of these 
simple website display changes to be minimal. As described in the 
information collection requirements section of this proposed rule, we 
estimate a total cumulative annual burden of $240,120 associated with 
the requirement for DE entity non-Exchange websites to incorporate 
website display changes that mirror those adopted by HHS for 
HealthCare.gov and a burden of $5,171 associated with completing and 
submitting a request to deviate from the HealthCare.gov display.
    As discussed in the preamble for this rule, we continue to support 
DE entities' use of innovative decision-support tools and user 
interface designs, and this proposal is not intended to prohibit the 
implementation of display features beyond the baseline provided by 
HealthCare.gov. As such, there may be occasions where some web-brokers 
and QHP issuers participating in direct enrollment may have implemented 
the standards of the desired display before the change was made on 
HealthCare.gov. In these instances where the DE entity non-Exchange 
website is already meeting the minimum standards associated with the 
website display changes communicated by HHS pursuant to this proposal, 
the entity would not have to make any further website updates. We also 
anticipate approximately one more complex display change per plan year, 
potentially involving updates to backend UI algorithms and display 
methodologies. Although more complex display changes may represent 
additional burden for DE entities, we would ease the burden by 
providing them with examples of HealthCare.gov's display, technical 
implementation guidance (including Marketplace API (MAPI) or Public Use 
Files (PUF) data integration guidance), and technical assistance as 
needed. We anticipate that giving examples of a user interface design 
that meets HHS' standards will ease the burden of implementation as 
compared to solely providing HHS' standards and relying on DE entities 
to determine how to configure their websites to meet those standards.
    The proposed new Sec.  155.221(j) would extend this new proposed DE 
entity non-Exchange website display requirement to require State 
Exchanges to require their DE entities to implement and prominently 
display changes adopted for display on the State Exchanges' websites on 
their non-

[[Page 82633]]

Exchange websites for purposes of assisting consumers with DE in QHPs 
offered through the Exchange in a manner that constitutes enrollment 
through the Exchange. This would require State Exchanges to establish 
requirements for DE entities operating in State Exchanges to reflect 
changes to the State Exchange website on their DE entity non-Exchange 
websites. This change would also require State Exchanges to establish 
processes for communicating and defining standards and for setting 
advance notice periods. We also encourage State Exchanges to consider 
the same factors (that is, complexity of the change and the urgency 
with which the change must be reflected on the DE entity's non-Exchange 
website) when setting advance notice periods. Similarly, we encourage 
State Exchanges to provide DE entities operating in their States 
examples of the State Exchange display, and technical assistance, 
including technical implementation guidance, to ease the burden of 
required display changes.
    We anticipate this proposal would benefit consumers by codifying 
and expanding our existing EDE HHS-initiated change request process to 
apply to all DE entities and ensuring that all Exchange consumers 
receive consistent, clear, and accurate information in a timely fashion 
as they navigate the QHP selection and enrollment process. We are 
further of the view that this proposal would mitigate the risk that 
consumers receive different, and possibly confusing or misleading, 
information based on the platform they choose to utilize when enrolling 
in or applying for coverage. This proposal would help ensure consumers 
using the DE pathways benefit from policies we introduce to improve the 
HealthCare.gov website display, and in State Exchanges the State 
Exchange website, by enhancing the consumer experience, increasing 
consumer understanding, and simplifying the plan selection process.
    As discussed in the ICR for this proposal, the cumulative cost 
estimate as a result of this proposal would be approximately $1,226,453 
for 100 entities operating in the Exchanges (including State Exchanges 
under new proposed paragraph Sec.  155.221(j)(3)) in the 2025 benefit 
year. Entities that submit a request to deviate from the display 
approach adopted by HealthCare.gov, or in State Exchanges, the State 
Exchange website, would incur a cumulative cost of approximately 
$31,023 annually.
    We seek comment on the estimated impacts associated with this 
proposal.
15. Adding and Amending Language To Ensure DE Entities Operating in 
State Exchanges Meet Certain Standards Applicable in the FFEs and SBE-
FPs (45 CFR 155.221)
    We propose to amend Sec.  155.221 to apply to DE entities operating 
in State Exchanges, and consequently State Exchanges that utilize DE 
entities, certain existing Federal standards regarding DE entities 
assisting consumers with enrolling in QHPs and applying for APTC/CSRs, 
both for the State Exchange's Individual Exchange and SHOP.
    As discussed earlier in this proposed rule, the proposed regulatory 
amendments would require these State Exchanges to draft policy, update 
standards, and potentially hire additional staff to perform functions 
not currently being performed by the State Exchange because of applying 
certain Sec.  155.221 standards to State. The proposal would also 
require DE entities participating in DE programs in State Exchanges to 
perform web-development to ensure compliance with the Federal minimum 
standards this rulemaking proposes to extend to these DE entities, 
along with any State-specific requirements that may be adopted under 
the proposed flexibility provided to State Exchanges in this 
rulemaking.
    Although there will be additional burden for DE entities operating 
in State Exchanges, amounting to approximately $138,447 per DE entity, 
as discussed in the information collection requirements section of this 
proposed rule, we anticipate that some of these State Exchanges may 
utilize DE entities already participating in the FFEs and SBE-FPs, 
which would help provide administrative savings related to the approval 
process under Sec.  155.221(b)(4) if the State does not impose 
additional State-specific requirements beyond the Federal standards. We 
encourage State Exchanges to leverage DE operational readiness 
demonstrated for the FFEs and SBE-FPs when possible. Additionally, we 
expect those DE entities already participating in the FFEs and SBE-FPs 
to be able to leverage their existing web-development work with 
additional burden only required for tailoring the website display to 
any State-specific requirements adopted by the State Exchange (for 
example, updating website disclaimers to reference the State Exchange 
website rather than the HealthCare.gov website). Although these 
proposals allow States certain flexibility for State Exchanges with 
regards to establishing procedures and requirements for website 
displays and demonstration of operational readiness, we expect the 
impact and costs to be reasonably based on the impacts seen on the FFEs 
and SBE-FPs. As described in the information collection requirements 
section, we anticipate a total cumulative burden of $6,762,281 for DE 
entities in State Exchanges to comply with this proposal to ensure DE 
entities operating in these State Exchanges are meeting certain 
requirements applicable in the FFEs and SBE-FPs. Additionally, we 
anticipate this proposal would have an impact on State governments 
totaling $3,353,467.90 for 5 States to opt to host a DE program for 
their State Exchange.
    We anticipate that these proposed changes to extend certain minimum 
Federal standards governing DE entity participation in FFEs and SBE-FPs 
to also apply to State Exchanges would benefit consumers by 
establishing uniform, baseline requirements for DE entity participation 
across all Exchange types. These proposed changes would allow State 
Exchanges to leverage the framework that has already been established 
and currently applies to FFEs and SBE-FPs, thereby decreasing the 
burden to these State Exchanges to establish such a program, while 
providing some flexibility for these State Exchanges to tailor the 
applicable standards to include State-specific content. Additionally, 
this proposal would establish administrative and operational 
consistency throughout the Exchanges, which benefits DE entities by 
allowing them to expand their business into States with State Exchanges 
with minimal costs and burdens. Consumers would also benefit by the 
expansion of entities and enrollment pathways available to assist with 
enrolling in health insurance coverage.
    We seek comment on these estimated impacts and assumptions.
16. Failure To Reconcile (FTR) Process (45 CFR 155.305(f)(4))
    We are proposing in connection with the FTR process described in 
Sec.  155.305(f)(4) that Exchanges would be required to send notices to 
tax filers for the first year in which they failed to reconcile APTC as 
an initial warning to inform and educate tax filers that they need to 
file and reconcile, or risk being determined ineligible for APTC if 
they fail to file and reconcile for a second consecutive year.
    Under this policy, Exchanges on the Federal platform would continue 
to send notices to tax filers for the year in which they have failed to 
reconcile APTC as an initial warning to inform and educate tax filers 
that they need to file and reconcile, or risk being

[[Page 82634]]

determined ineligible for APTC if they fail to file and reconcile for a 
second consecutive tax year. Our proposal to codify this practice and 
require it of all Exchanges, including State Exchanges, would ensure 
that tax filers who have been determined to have FTR status for 1 year 
are adequately educated on the file and reconcile requirement, and have 
ample opportunity to address the issue and file and reconcile their 
APTC before they are determined to have FTR status for 2 consecutive 
years. We request comment on how best to conduct outreach to tax filers 
who need more intensive assistance in understanding FTR status, 
including directing them to resources such as Navigator or Assisters 
that could help explain what they need to do to reconcile their APTC.
    This proposal would support compliance with the filing and 
reconciling requirement under 36B(f) of the Code and its implementing 
regulations at 26 CFR 1.36B-4(a)(1)(i) and (a)(1)(ii)(A), minimize the 
potential for APTC recipients to incur large tax liabilities over time, 
and support eligible enrollees' continuous enrollment in Exchange 
coverage with APTC by avoiding situations where enrollees become 
uninsured when their APTC is terminated. Additionally, this proposal 
would better align State Exchanges' failure to reconcile processes with 
that of the Exchanges on the Federal platform.
    We are aware of seven States that will operate their own State 
Exchange for PY 2025 and have not yet fully implemented the 
infrastructure to run FTR operations for plan years through 2024 due to 
the flexibility the Exchanges were given to temporarily pause FTR 
operations due to the COVID-19 PHE. We are seeking comment on the 
estimated one-time costs for these States to fully implement the 
functionality and infrastructure to conduct FTR operations, and the 
estimated annual costs to maintain FTR operations.
17. Verification Process Related to Eligibility for Enrollment in a QHP 
Through the Exchange (45 CFR 155.315(e))
    We believe that the proposal to revise Sec.  155.315(e) so that 
Exchanges can accept incarceration attestations without further 
verification and verify incarceration status using an HHS-approved data 
source only if they choose to, would minimize administrative costs and 
burdens for Exchanges. Flexibility in verifying incarceration status 
for Exchanges would result in significant cost savings through not 
creating and processing incarceration DMIs. The current incarceration 
verification process resulted in a high number of DMIs, almost all of 
which are resolved in favor of the applicant and has been burdensome 
and costly for the Exchanges to implement. By revising the current 
incarceration verification process, this proposal would also eliminate 
undue burdens and barriers to care for applicants, particularly 
formerly incarcerated people, a population comprised of a significant 
number of people with disabilities.\280\ Many documents that can prove 
incarceration status cannot be obtained without an unexpired proof of 
identity document, and most cannot be obtained without submitting non-
refundable payments. Incarceration may inhibit one's financial savings, 
and formerly incarcerated individuals are less likely to secure 
employment.\281\ As discussed further in the information collection 
requirements section for this proposal, we anticipate a one-time cost 
to 11 State Exchanges of approximately $23,770 to conduct analyses to 
determine whether to accept consumer attestation of incarceration 
status or use an alternative data source to verify incarceration status 
and to submit such request to HHS, and make associated changes to their 
eligibility systems and processes to implement the option they choose.
---------------------------------------------------------------------------

    \280\ Robert Apel, Gary Sweeten, The Impact of Incarceration on 
Employment during the Transition to Adulthood, Social Problems, 
Volume 57, Issue 3, 1 August 2010, Pages 448-479, https://doi.org/10.1525/sp.2010.57.3.448.
    \281\ Id.
---------------------------------------------------------------------------

    From PY 2018 to 2019, there were 110,802 incarceration DMIs 
generated. In PY 2019, nearly 38,000 out of 78,000 applicants submitted 
documents to attempt to resolve the incarceration DMI. Conducting an 
intensive incarceration verification check through the DMI process for 
each DMI caused HHS to incur additional costs totaling about $0.57 
million per year for verification of incarceration along with the PUPS 
annual maintenance and transaction fees. The additional costs 
associated with generating incarceration DMIs include the costs to 
inform applicants of their DMI through their eligibility determination 
notice, and to process the DMI and any documentation mailed by the 
applicants. State Exchanges have likely incurred similar costs. Of the 
13 State Exchanges (operating in 12 States and the District of 
Columbia) with incarceration verification processes, eight conduct 
incarceration verifications similar to those conducted by the Exchanges 
on the Federal platform. We estimate that incarceration DMI processing 
costs approximately $9,561,000 annually across all eight of these State 
Exchanges. Of the 13 State Exchanges with incarceration verification 
processes, five State Exchanges connected to an individual State or 
local incarceration facility for verifications and fully process 
incarceration DMIs. These State Exchanges currently incur DMI 
processing costs, including costs associated with noticing the 
applicant of their DMIs and costs associated with DMI and appeals 
casework. Based on costs incurred by the Exchanges on the Federal 
platform to process DMIs, we estimate that incarceration DMI processing 
costs State Exchanges approximately $7,171,000 annually across all 5 of 
these State Exchanges. Finally, 3 States are transitioning to State 
Exchanges. We anticipate their incarceration verification operations 
would cost approximately $3,585,000 annually. In total, the costs to an 
anticipated 16 State Exchanges would be approximately $20,317,000 
annually if current policy continued.
    By providing flexibility to Exchanges to verify incarceration 
status and allowing Exchanges to accept applicant attestations without 
verification, this proposal would enable HHS and Exchanges to avoid 
incurring the aforementioned costs associated with DMI creation and 
processing. Exchanges would not have to invest resources into building 
data transfer connections with an alternative incarceration 
verification data source and would not have to invest in providing DMI 
notices and support to applicants. Therefore, the cost savings to State 
Exchanges associated with this proposal would be approximately 
$20,317,000.
    As previously mentioned, conducting an intensive incarceration 
verification check through the DMI process for each DMI caused HHS to 
incur additional costs totaling approximately $570,000 per year for 
verification of incarceration along with the PUPS annual maintenance 
and transaction fees. While overall, this proposal would reduce the 
burden and costs associated with incarceration verification operations 
and data sourcing, there would be a modest up-front cost of $1,200,000 
to HHS to modify the Federal platform's current incarceration 
verification processes for the purposes of verifying eligibility for 
QHP, and it would cost $340,000 to update the Federal platform's system 
logic for HHS to stop sending incarceration verification requests to 
PUPS. Once these operations and noticing have stopped, no further costs 
should be incurred by HHS, or by Exchanges that opt to act on the 
flexibilities provided by this proposal.

[[Page 82635]]

In total, we anticipate a cost of $1,540,000 to HHS because of this 
proposal. We reiterate that this cost would be overshadowed by the 
expected savings of approximately $20,317,000 as a result of this 
proposal, if finalized.
    We seek comment on these estimates.
18. Verification Process Related to Eligibility for Insurance 
Affordability Programs (45 CFR 155.320)
    We are proposing to amend Sec.  155.320(c) by adding a new 
requirement at paragraph (c)(1)(iii) to now require that State 
Exchanges pay in advance for their utilization of the CSI data provided 
by the VCI Hub service to verify a tax household's attested annual 
income and, or the current income of the Medicaid household for an 
application member due to our reinterpretation of State Exchange and 
State Medicaid and CHIP agency use of the Hub to access and use the 
income data provided by the optional VCI Hub service as a State 
Exchange or a State Medicaid and CHIP agency function. We propose that 
beginning on July 1, 2024, State Exchanges will be required to pay in 
advance for 100 percent of the costs of their utilization of the CSI 
data. We anticipate working with States to develop an estimate of their 
annual usage of the CSI data service. States that notify HHS that they 
want to continue to use the CSI data through the VCI Hub service must 
pay in advance to HHS for the total each respective State Exchange's 
anticipated annual utilization, specifically the anticipated number of 
successful transactions to the VCI Hub service that return usable CSI 
data, as defined by the criteria discussed above in preamble, 
multiplied by the fixed price. We are also planning that beginning on 
July 1, 2024, State Medicaid agencies and HHS will share in the costs 
with State Medicaid agencies being responsible for 25 percent of the 
cost of the utilization of the VCI Hub service and HHS responsible for 
the remaining 75 percent of the costs.
    Because the price per transaction for CSI data is proprietary 
information, we are unable to provide those numbers, or the precise 
utilization rates for State Exchanges and State Medicaid agencies as 
this would be a direct conflict of the contract that HHS holds with the 
CSI contractor. However, based on HHS' own analysis, in fiscal year 
(FY) 2022, State Exchange utilization of the VCI Hub service led to 
costs of approximately $26 million dollars. Similarly, in FY 2022, 
State Medicaid agency utilization of the VCI Hub service resulted in 
costs of approximately $77 million dollars. We also estimate that by 
having State Medicaid agencies pay for 25 percent of their transaction 
costs, the Federal government can save between $32 to $55 million per 
year. By having State Exchanges pay for 100 percent of their 
transaction costs, we estimate savings to the Federal government could 
be between $39 and $67 million per year; this cost estimate includes an 
assumption of one to two States transitioning to State Exchanges in 
future years. Assuming one to two new States transition to a State 
Exchange in the next 4 years, we applied a 5 percent increase to 
estimate the additional pings from these additional States. We estimate 
that taken together, this proposed policy would result in a transfer of 
between $72 to $122 million per year of costs from the Federal 
government to States beginning in 2024.
    We are aware that six State Exchanges currently only have one 
connection for both their State Exchange and State Medicaid agency, 
which may pose a challenge when determining which VCI Hub transactions 
are attributable to the State Exchange, and which are attributed to the 
State Medicaid agency. We anticipate that one to three State Exchanges 
may elect to build a separate connection in order to accurately account 
for which VCI Hub transactions originate from their State Exchange and 
their State Medicaid agency and we estimate about $1 to 3 million in 
one-time costs in 2024 to build the IT infrastructure for a second Hub 
connection, totaling about $3 to 6 million in one-time costs for the 
one to three States that choose to make any changes with how they 
currently access the VCI Hub service. States that do not elect to build 
a separate connection would instead need to develop a cost allocation 
methodology to track VCI Hub transaction volume from their State 
Exchange and State Medicaid agency and communicate this to HHS so that 
HHS can invoice accurately and appropriately.
    As noted in preamble, under this proposal, States would pay 
annually in advance for their anticipated utilization of the optional 
VCI Hub service. States would be required to reconcile with HHS on an 
annual basis the anticipated utilization of CSI data provided by the 
VCI Hub service with the actual utilization. In the alternative, HHS 
would invoice States on a monthly basis for their actual utilization of 
CSI data provided by the VCI Hub service after that utilization occurs. 
Because we are still exploring how HHS will invoice States and State 
Medicaid agencies for their respective utilization of the VCI Hub 
Service depending on which invoicing methodology HHS ultimately 
finalizes, we believe that there may be some increased costs to the 
Federal Government, including contractor resources and administrative 
costs associated with collecting these funds from States. We estimate 
the ongoing administrative annual costs beginning in 2024 to be 
approximately $1 million and cover operational expenses for maintaining 
systems and collections. We estimate an additional $2.3 million as a 
one-time cost in 2024 to build the invoicing process/structure and 
setup operations. We note, however, that these estimates may be higher 
or lower, as they are dependent on whether HHS finalizes advanced 
billing as proposed or an alternative invoicing structure, such as 
monthly billing.
    We seek comment on these estimates.
19. Eligibility Redetermination During a Benefit Year (45 CFR 
155.330(d))
    We propose to revise Sec.  155.330(d) to require Exchanges to 
conduct periodic checks for deceased enrollees twice yearly and 
subsequently end deceased enrollees' QHP coverage beginning with the 
2025 calendar year. Additionally, we propose to amend Sec.  
155.330(d)(3) to grant the Secretary the authority to temporarily 
suspend the PDM requirement during certain situations or circumstances 
that lead to the unavailability of data needed to conduct PDM.
    Currently, Sec.  155.330(d)(3) defines ``periodically'' only for 
PDM activities that identify enrollment in Medicare, Medicaid, CHIP, 
and BHP, meaning that Exchanges must conduct Medicare PDM, Medicaid or 
CHIP PDM, and BHP PDM twice a year. The current regulation does not 
specify the frequency by which PDM activities to identify deceased 
enrollees must occur. The 2019 Program Integrity Rule did not require 
Exchanges to perform PDM for death at least twice in a calendar year so 
that Exchanges could prioritize the implementation of the new 
requirement to conduct PDM for Medicare, Medicaid, CHIP and, if 
applicable, BHP eligibility or enrollment at least twice yearly. 
Periodic checks for deceased enrollees are a critical aspect to 
ensuring Exchange program integrity.
    We propose to revise Sec.  155.330(d) to require Exchanges to 
conduct periodic checks for deceased enrollees twice yearly and 
subsequently end deceased enrollees' QHP coverage beginning with the 
2025 calendar year. This proposal would not only align with current 
policy and operations on the Exchanges on the Federal platform but 
would also prevent overpayment of QHP premiums

[[Page 82636]]

and accurately capture household QHP eligibility based on household 
size.
    Based on internal data, we anticipate that it will cost the Federal 
Government approximately $58,923 to conduct an additional check for 
deceased enrollees per year. In 2023, we conducted two rounds of Death 
PDM where the average number of expired households was 7,151; the 
average APTC amount per household was $549 per month; and, at the time 
of the expiration activities, there was an average of 6.5 months left 
in the plan year. We calculate the APTC savings to be approximately $25 
million. Prior to implementing Death PDM in 2019, we looked at the 
number of consumers that were removed from coverage by the surviving 
family without the aid of Death PDM and close to 50 percent of the 
deceased consumers were removed from coverage. Thus, we estimate the 
net amount of APTC saved is estimated would be approximately $12.5 
million per year beginning in 2025.
    State Exchanges that are not already conducting Death PDM with the 
proposed required frequency, or deemed in compliance with PDM 
requirements, would be required to engage in IT system development 
activity to communicate with these programs and act on enrollment data 
either in a new way, or in the same way more frequently if this 
proposal is finalized. Thus, there may be additional associated 
administrative cost for these State Exchanges to implement the proposed 
PDM requirement, if finalized. As discussed in the information 
collection requirements section of this proposed rule, for a State 
Exchange not already conducting death PDM at least twice a year, we 
estimate that it would cost approximately $3,932 per State Exchange (a 
total of $43,252 for all 11 State Exchanges currently not meeting the 
proposed requirement) to implement this proposed provision through 
their system. We assume that this cost would be incurred primarily in 
2025 by State Exchanges. These costs would be incurred by the State 
Exchanges as they are required to be financially self-sustaining and do 
not receive Federal funding for their establishment or operations.
    We seek comments in response to the burden estimates for this 
policy.
20. Incorporation of Catastrophic Coverage Into the Auto Re-Enrollment 
Hierarchy (45 CFR 155.335(j))
    We propose to amend the regulations at Sec.  155.335(j)(1) and (2) 
to require Exchanges to re-enroll enrollees in catastrophic coverage as 
defined in section 1302(e) of the ACA into QHP coverage for the coming 
plan year. We believe that some Exchanges already re-enroll these 
enrollees, and we generally do so in Exchanges on the Federal platform 
when issuers include a plan crosswalk information for catastrophic 
plans when they submit the information part of the annual QHP 
Certification process. However, explicitly incorporating catastrophic 
plan enrollees into the rules at Sec.  155.335(j) would help ensure 
continuity of coverage in cases where the issuer does not offer the 
catastrophic plan for the subsequent plan year and these enrollees do 
not actively select a different QHP. We also propose to add new Sec.  
155.335(j)(5) to establish that an Exchange may not newly auto re-
enroll an enrollee into catastrophic coverage who is currently enrolled 
in coverage of a metal level as defined in section 1302(d) of the ACA. 
We believe that Exchanges likely also adhere to this practice, but that 
all interested parties would benefit from clear regulation on this 
aspect of the re-enrollment process.
    If this proposal is finalized, we would also update the FFE 
Enrollment Manual to incorporate catastrophic coverage into the re-
enrollment hierarchy for alternate enrollments, which we use to 
implement the regulation to crosswalk enrollees whose current issuer 
will no longer offer plans available to them through the Exchange under 
Sec.  155.335(j)(3).
    The inclusion of additional criteria in the auto re-enrollment 
process may result in a small increase in costs and burden for issuers 
and Exchanges. However, burden in Exchanges on the Federal platform 
would be mitigated because we already encourage issuers to submit 
crosswalk options for catastrophic enrollees, including those who will 
lose eligibility for catastrophic coverage. We solicit comment on 
whether these proposals reflect current practices of State Exchanges 
that are not on the Federal platform. Finally, we believe this change 
would make it more likely that catastrophic coverage enrollees will be 
auto re-enrolled. This support may disproportionately benefit enrollees 
who are less likely to have the time or background knowledge to compare 
their coverage options for the coming plan year, such as those with 
limited health insurance literacy.
    We seek comment on these impacts and assumptions.
21. Premium Payment Deadline Extensions (45 CFR 155.400(e)(2))
    We anticipate that the proposal to amend Sec.  155.400(e)(2) to 
codify that flexibility for issuers experiencing billing or enrollment 
problems due to high volume or technical errors is not limited to 
extensions of the binder payment will benefit issuers. Because HHS has 
already provided enforcement discretion in the past to account for such 
situations, we do not anticipate that there would be any additional 
costs for HHS associated with this proposal, nor do we anticipate any 
costs to interested parties.
    We seek comment on these impacts and assumptions.
22. Initial and Annual Open Enrollment Periods (45 CFR 155.410)
    We propose amending Sec.  155.410(e)(4)(ii) to revise parameters 
around the adoption of an alternative open enrollment period by a State 
Exchange not utilizing the Federal platform. We propose that for 
benefit years beginning on or after January 1, 2025, State Exchanges 
may extend the open enrollment period so that the open enrollment 
period begins on November 1 of the calendar year preceding the benefit 
year and ends no earlier than January 15 of the applicable benefit 
year.
    We have previously observed that when open enrollment ends in 
December, certain consumers may be subjected to unexpected plan cost 
increases that they may not be notified about until January. This 
proposal would benefit consumers by reducing the number of consumers 
who may be subjected to such unexpected plan cost increases. This 
proposal would also ensure ample time for Navigators, certified 
application counselors, agents, and brokers to fully assist all 
interested consumers during open enrollment while also improving access 
to health coverage by giving consumers ample time to react to updated 
plan cost information and seek enrollment assistance, including 
consumers in underserved communities who face additional barriers to 
accessing health coverage. Finally, by reducing consumer confusion, 
increasing consumer access to assisters, and giving consumers more time 
to consider up-to-date plan cost information, this proposal could 
increase QHP enrollment, benefiting all interested parties, including 
consumers, Exchanges, issuers, and assisters.
    All 18 State Exchanges except one already meet these proposed 
parameters, beginning their annual open enrollment periods on November 
1 and concluding on or after January 15 of the benefit year, pursuant 
to current Sec.  155.410(e)(4)(ii). Moreover, many continue open 
enrollment beyond January 15 of the benefit year. Since most State 
Exchanges already are aligned with the parameters described

[[Page 82637]]

in the new proposal, we anticipate that this proposal would have a de 
minimis impact and not impose significant additional burden overall.
    We seek comment on this burden estimate and assumptions. We are 
particularly interested in comments regarding whether this proposal 
would impose a significant burden on outlying State Exchanges and 
interested parties (for instance, Navigators, assisters, issuers).
23. Special Enrollment Periods--Effective Dates of Coverage (45 CFR 
155.420(b))
    We propose amending Sec.  155.420(b)(1) and (b)(3)(i) to align the 
effective dates of coverage after selecting a plan during certain 
special enrollment periods across all Exchanges, including State 
Exchanges, so that during a special enrollment period that follows the 
regular effective dates of coverage listed at Sec.  155.420(b)(1), 
qualifying individuals or enrollees who select and enroll in a QHP 
receive coverage beginning the first day of the month after the 
consumer selects a QHP.
    In the 2021 Payment Notice final rule (85 FR 29251) where this 
policy was finalized for Exchanges on the Federal platform, we noted 
that ensuring that consumers who select a plan during a special 
enrollment period provided using the regular effective dates at Sec.  
155.420(b)(1) receive coverage on the first day of the following month, 
rather than on the first day of the second month following plan 
selection, would result in several benefits, such as reducing consumer 
confusion and minimizing coverage gaps while also enhancing operational 
efficiency. In addition, we noted that the standardization of effective 
coverage dates for special enrollment periods provided using the 
regular effective dates at Sec.  155.420(b)(1) would result in 
standardization for issuers due to more plans beginning in the same 
month, Exchanges, and consumers; the reduction of system errors and 
related casework, including reduced confusion among relevant consumer 
support staff; and simplified Exchange billing practices due to the 
expedited effective dates. We believe that State Exchanges, and the 
issuers and consumers in those States will also experience these 
benefits under the proposal to align the effective coverage dates 
across all Exchanges for special enrollment periods that use the 
regular effective dates of coverage at Sec.  155.420(b)(1) (unless an 
earlier coverage effective date were selected pursuant to Sec.  
155.420(b)(3), which would reduce potential burdens associated with 
this proposal.
    Additionally, we maintain our expectation that issuers will not 
incur substantial new costs as a result of applying this policy across 
Exchanges since they routinely effectuate coverage on the first of the 
month following plan selection or earlier when permitted or required 
under applicable regulation. We expect that consumers in States which 
do not currently apply this policy will also benefit from a faster 
effectuation of coverage, as this will result in fewer coverage gaps 
for consumers transitioning between or newly enrolling in a health 
insurance plan.
    We seek comment on these assumptions.
24. Special Enrollment Periods--Monthly Special Enrollment Period for 
APTC-Eligible Qualified Individuals With a Household Income At or Below 
150 Percent of the Federal Poverty Level (45 CFR 155.420(d)(16))
    We are proposing to amend Sec.  155.420(d)(16) to revise the 
parameters around the availability of a special enrollment period (SEP) 
for APTC-eligible qualified individuals with a projected household 
income at or below 150 percent of the Federal Poverty Level (FPL), 
hereinafter referred to as the ``150 percent FPL SEP.'' Specifically, 
we are proposing to remove the limitation that this SEP be available 
only when the applicable taxpayer's applicable tax percentage is set to 
zero, a circumstance provided for under section 9661 of the American 
Rescue Plan (ARP) and later under the Inflation Reduction Act (IRA).
    The impact of this policy would be zero if enhanced subsidies under 
the IRA were continued beyond 2025. It is difficult to estimate, with 
confidence, the impacts of this policy on premiums, PTC payments, and 
enrollment if the enhanced subsidies are not continued, and we note 
that those impacts are likely to be quite different by State. However, 
under various scenarios, we estimate that if this proposed policy were 
to be finalized, national premiums in the individual market could 
increase by an average of 3 to 4 percent for plan year 2026 when the 
enhanced PTC provisions of the IRA are due to expire. We would expect 
that any average national impact would have a high variance between 
States that have expanded Medicaid coverage compared to States that 
have not, because States that have not expanded Medicaid coverage are 
likely to have more consumers with projected annual household income 
below 150 percent FPL applying for coverage through the Exchange. 
Unknown factors making these parameters difficult to estimate include 
the utilization of this SEP by healthy and unhealthy enrollees, the 
impact to the average duration of coverage for enrollees, and 
additional policy changes between now and 2025. At an aggregate level, 
PTC outlays could increase nationally up to $2 billion to $3 billion 
beginning in 2026. The direction and magnitude of enrollment changes in 
the individual market is also highly uncertain.
    We seek comment on these estimates, including on the premium 
impacts at the State level.
25. Termination of Exchange Enrollment or Coverage (45 CFR 155.430)
    We anticipate that the proposal to permit enrollees in Exchanges on 
the Federal platform to retroactively terminate coverage back to the 
date in which they retroactively enroll in Medicare Part A or B would 
benefit enrollees by allowing them to avoid an overlap in coverage and 
paying premiums for coverage they do not need. We anticipate that there 
would be some minor costs for HHS associated with processing the 
additional requests for retroactive terminations of coverage allowed by 
this proposal. However, we do not have adequate data to estimate the 
number of requests for retroactive termination HHS is likely to 
receive, and so we cannot provide an estimate for these costs, nor for 
the amount of APTC that is likely to be returned to the government as a 
result of this proposal. In addition, we anticipate that there would be 
a minor financial impact to issuers associated with processing the 
additional retroactive termination requests allowed by this proposal, 
including reversing claims and refunding premium paid by the enrollee, 
but we likewise do not have adequate data to estimate these costs.
    Finally, we also anticipate that there may be a financial impact to 
State Exchanges associated with implementing this proposal if the rule 
is finalized such that implementation is optional for State Exchanges 
or required for all Exchanges. However, we do not have access to the 
data necessary to estimate the costs to State Exchanges associated with 
implementing this proposal, nor do we have access to the data necessary 
to determine how long it would take State Exchanges to implement it.
    We seek comment on these impacts and assumptions, as well as any 
additional data sources we could use to estimate the costs associated 
with this proposal.

[[Page 82638]]

26. Establishment of Exchange Network Adequacy Standards (45 CFR 
155.1050)
    Effective for plan years beginning on or after January 1, 2025, we 
propose to require that State Exchanges and SBE-FPs establish and 
impose quantitative time and distance QHP network adequacy standards 
that are at least as stringent as the FFEs' time and distance standards 
established for QHPs under Sec.  156.230. We also propose that State 
Exchanges and SBE-FPs be required to conduct quantitative network 
adequacy reviews prior to certifying any plan as a QHP, consistent with 
the reviews conducted by the FFEs under Sec.  156.230. We further 
propose to require State Exchanges and SBE-FPs to permit issuers that 
are unable to meet the specified network adequacy standards to 
participate in a justification process after submitting their initial 
network adequacy data to account for variances and potentially earn QHP 
certification. Finally, we propose to mandate that State Exchanges and 
SBE-FPs require all issuers seeking QHP certification to submit 
information to the State Exchange or SBE-FP about whether network 
providers offer telehealth services.
    For purposes of the proposal to require State Exchanges and SBE-FPs 
to establish and impose quantitative time and distance network adequacy 
standards for QHPs that are at least as stringent as standards for QHPs 
participating on the FFEs under Sec.  156.230, ``as stringent as'' 
means time and distance standards that use a specialty list that 
includes at least the same specialties as our provider specialty lists 
and time and distance parameters that are at least as short as our 
parameters. States would be permitted to implement network adequacy 
standards that are more stringent than those performed by the FFEs 
under Sec.  156.230. In other words, States could use a specialty list 
that is broader than our specialty lists, but it must include all the 
provider specialties included in our lists. Similarly, the time and 
distance parameters could also be narrower than our parameters, meaning 
they could require shorter time and/or distances, but they cannot be 
less demanding than our time and distance parameters. Consistent with 
the standards for the FFEs, the State Exchanges and SBE-FPs' time and 
distance standards would be calculated at the county level and vary by 
county designation. State Exchanges and SBE-FPs would be required to 
use a county type designation method that is based upon the population 
size and density parameters of individual counties. Under this 
proposal, the time and distance standards State Exchanges and SBE-FPs 
would establish and impose would apply to our provider specialty lists. 
To count towards meeting the time and distance standards, individual 
and facility providers in these lists would have to be appropriately 
licensed, accredited, or certified to provide services in their State, 
as applicable, and would need to have in-person services available.
    We propose that State Exchanges and SBE-FPs be required to conduct 
quantitative network adequacy reviews prior to QHP certification, and 
that they conduct them consistent with network adequacy reviews 
conducted by the FFEs under Sec.  156.230. When we refer to the review 
being consistent with the network adequacy reviews conducted by the 
FFEs under Sec.  156.230, we propose that State Exchanges and SBE-FPs 
would be required to conduct, prior to QHP certification, quantitative 
network adequacy reviews to evaluate compliance with requirements under 
Sec.  156.230(a)(1)(ii) and (iii), and (a)(2)(i)(A), while providing 
QHP certification applicants the flexibilities described under Sec.  
156.230(a)(2)(ii) and (a)(3) and (4). Under this proposal, State 
Exchanges and SBE-FPs would be prohibited from accepting an issuer's 
attestation as the only means for plan compliance with network adequacy 
standards. We further propose that State Exchanges and SBE-FPs would 
make available to SADP applicants the limited exception available to 
SADPs under Sec.  156.230(a)(4), pursuant to which SADPs may not be 
required to meet FFE network adequacy standards under Sec.  
156.230(a)(4). This exception is not available to medical QHP issuers.
    We acknowledge that State-specific challenges may necessitate 
exceptions, and so we propose to require State Exchanges and SBE-FPs to 
permit issuers that are unable to meet the specified standards to 
participate in a justification process after submitting their initial 
data to account for variances, consistent with the processes specified 
under Sec.  156.230(a)(2)(ii) and (a)(3) and (4). The issuer would 
include this justification as part of its QHP application and describe 
how the plan's provider network provides an adequate level of service 
for enrollees and how the plan's provider network will be strengthened 
and brought closer to compliance with the network adequacy standards 
prior to the start of the plan year. The issuer would be required to 
provide information as requested by the State Exchange or SBE-FP to 
support this justification. State Exchanges and SBE-FPs would be 
required to review the issuer's justification to determine whether 
making such health plan available through the Exchange is in the 
interests of qualified individuals in the State or States in which such 
Exchange operates as specified under Sec.  156.230(a)(3). In making 
this determination, the factors State Exchanges and SBE-FPs could 
consider include whether the exception is reasonable based on 
circumstances such as the local availability of providers and variables 
reflected in local patterns of care. If the State Exchange or SBE-FP 
determines that making such health plan available through its Exchange 
is in the interests of qualified individuals in the State or States in 
which such Exchange operates, it could then certify the plan as a QHP.
    We are aware that some States Exchanges employ robust, quantitative 
network adequacy standards that differ from those used by the FFEs, but 
still ensure that QHPs provide consumers with reasonable, timely access 
to practitioners and facilities to manage their health care needs, 
consistent with the ultimate aim of these proposals. In light of this, 
we propose a framework for granting exceptions to the requirements that 
State Exchanges and SBE-FPs are required to establish and impose 
network adequacy time and distance standards for QHPs that are at least 
as stringent as the standards applicable to QHPs in FFEs and conduct 
quantitative network adequacy reviews that are consistent with those 
carried out by the FFEs under Sec.  156.230. HHS could grant State 
Exchanges and SBE-FPs an exception if it determines that the Exchange 
applies and enforces quantitative network adequacy standards that are 
different from the FFEs' but ensure reasonable access as defined under 
Sec.  156.230. The exception would be available only to State Exchanges 
and SBE-FPs that conduct quantitative reviews of network adequacy prior 
to certifying plans as QHPs. Exchanges seeking to employ alternative 
quantitative network adequacy standards would be required to submit an 
exception request, in a form and manner specified by HHS, and to 
support their exception request with evidence-based data demonstrating 
that such standards ensure reasonable access as defined under Sec.  
156.230.
    We further propose to require State Exchanges and SBE-FPs to 
require that all issuers seeking certification of plans to be offered 
as QHPs submit information to the respective State Exchanges or SBE-FPs 
about whether network providers offer telehealth services. This data 
would be for informational purposes; it would be

[[Page 82639]]

intended to help inform the future development of telehealth standards 
and would not be displayed to consumers. We note that this proposal is 
not intended to suggest that telehealth services would be counted in 
place of in-person service access for the purpose of meeting network 
adequacy standards for PY 2025. While we acknowledge the growing 
importance of telehealth, we want to ensure that telehealth services do 
not reduce the availability of in-person care. For this purpose, 
telehealth encompasses professional consultations, office visits, and 
office psychiatry services delivered through technology-based methods, 
including virtual check-ins, remote evaluation of pre-recorded patient 
data, and inter-professional internet consultations. Currently, for 
issuers in FFEs to comply with telehealth reporting standards, issuers 
must indicate whether each provider offers telehealth with the options 
`Yes,' `No,' or `Requested information from the provider, awaiting 
their response.' We are proposing that State Exchanges and SBE-FPs also 
impose this same standard.
    As discussed in the information collection requirements section of 
this proposed rule, we estimate that the total annual burden associated 
with State Exchanges and SBE-FPs establishing and imposing the proposed 
network adequacy standards, conducting the network adequacy reviews as 
proposed, collecting telehealth information from issuers seeking QHP 
certification, and submitting any exception to be up to 19,800 hours 
and to have a total cost of $1,365,012 per year. This estimate includes 
State Exchanges and SBE-FPs developing the proposed standards, 
reviewing any issuer justification, and submitting any exception 
requests to HHS. We further estimate that the total annual burden 
associated with both medical QHP and SADP issuers in State Exchanges 
and SBE-FPs gathering and submitting the time and distance and 
telehealth data, including any justification, to the respective State 
Exchanges or SBE-FPs beginning in 2025 would be approximately $114,992.
    As discussed in the information collection requirements section of 
this proposed rule, the proposed requirement that State Exchanges and 
SBE-FPs collect telehealth data may increase related administrative 
costs for State Exchange and SBE-FP issuers that do not already possess 
these data, though many issuers already collect and submit this 
information for network adequacy submissions in other markets. While we 
anticipate that increased burden related to telehealth data collection 
would be minimal for many State Exchange and SBE-FP issuers, the 
increased burden could ultimately lead to an increase in premiums for 
consumers. As noted previously, we believe that obtaining telehealth 
information and using it to inform future network adequacy standards is 
in the best interests of both QHP enrollees and QHP issuers. As such, 
we anticipate that the additional burden would be outweighed by the 
expected benefits.
    We seek comment on the potential costs and benefits associated with 
this proposal.
27. FFE and SBE-FP User Fee Rates for the 2025 Benefit Year (45 CFR 
156.50)
    We propose an FFE user fee rate of 2.2 percent of monthly premiums 
for the 2025 benefit year, which is the same FFE user fee rate 
finalized in the 2024 Payment Notice (88 FR 25845 through 25847). We 
also propose an SBE-FP user fee rate of 1.8 percent for the 2025 
benefit year, which is the same SBE-FP user fee rate finalized in the 
2024 Payment Notice. Therefore, because this proposal would impose the 
same user fee rates as the 2024 Payment Notice, we do not anticipate 
that these proposed user fee rates would have any impact on premiums 
compared to the 2024 benefit year. We believe that maintaining the same 
user fee rates as in the 2024 Payment Notice (that is, the previous 
benefit year) will provide stability and certainty to issuers and 
enrollees.
    We seek comment on these impact estimates and assumptions.
28. State Selection of EHB-Benchmark Plans for Plan Years Beginning on 
or After January 1, 2027 (45 CFR 156.111)
    For plan years beginning on or after January 1, 2027, we propose to 
revise the standards for State selection of EHB-benchmark plans at 
Sec.  156.111 to consolidate the options for States to change EHB-
benchmark plans at Sec.  156.111(a); revise the regulatory standard for 
States to comply with scope of benefit requirements at Sec.  
156.111(b)(2); and revise Sec.  156.111(e)(3) to require States to 
submit a formulary drug list as part of their application to change 
EHB-benchmark plans only if the State is seeking to change their 
prescription drug EHB.
    We understand that certain aspects of the current process to change 
EHB-benchmark plans under Sec.  156.111 may impose unanticipated 
difficulty for and burden on States, and we have received feedback that 
this difficulty can have a chilling effect on States' ability to make 
more frequent or more substantial changes to their EHB-benchmark plans. 
We believe that, to the extent States take advantage of the proposed 
changes to the EHB-benchmark plan standards, if finalized, States would 
experience an overall decrease in burden to develop new EHB-benchmark 
plans compared to if they were to do so under the existing requirements 
at Sec.  156.111. We anticipate that these proposals would reduce the 
burden on States to perform additional actuarial analyses to comply 
with the typicality and generosity standards at Sec.  156.111(b)(2)(i) 
and (ii), respectively. Instead of performing an indeterminate number 
of actuarial analyses to find a typical employer plan with an actuarial 
equivalent scope of benefits, a State may only need to perform two such 
actuarial analyses to identify the State's least generous typical 
employer plan and the State's most generous typical employer plan. 
Further, States would no longer need to perform an actuarial analysis 
to demonstrate compliance with the generosity standard at Sec.  
156.111, which we are proposing to remove as a requirement in this 
proposed rule. As a result, we estimate an overall decrease in burden 
to States utilizing this proposed provision to change their EHB-
benchmark plan.
    We also estimate a potential increase in burden to States and 
issuers to develop new policies and implement new plan designs, to the 
extent these proposed changes would result in more frequent or more 
substantial changes to EHB-benchmark plans by States. It is our aim 
that these proposals would allow States and issuers to offer more 
comprehensive and innovative benefit structures that benefit the 
consumer, including by addressing health equity concerns. However, we 
realize that this proposed policy would have varied impact on consumers 
depending on how a State chooses to implement these proposals. To the 
extent these proposed changes result in more frequent or more 
substantial changes to EHB-benchmark plans by States, consumers 
enrolled in individual and small group market plans would be impacted 
by changes to EHB in that their benefits may change, and in some cases, 
premiums could increase or decrease depending upon State implementation 
of the proposed policies. Additionally, a new EHB-benchmark plan 
selection may impact the amount of PTC and CSRs for enrollees in a 
State. For these consumers, subsidies would increase or decrease when 
compared to their State's current EHB-benchmark plan. PTC is available 
only for that portion of a plan's premium attributed to EHB, so to the 
extent that a State's EHB-benchmark plan leads to lower premiums for 
the second lowest cost silver plan, PTC

[[Page 82640]]

would be reduced, but not the percent of income a consumer with PTC is 
expected to contribute to their premium. This effect would represent a 
transfer from consumers who receive PTC to the Federal government. 
Individual and small group market enrollees who do not receive PTC 
would experience lower premiums for less comprehensive coverage that 
could result in more affordable coverage options but possibly higher 
out-of-pocket costs for the consumer. To the extent that a State's EHB-
benchmark plan leads to higher premiums for the second lowest cost 
silver plan, we expect the opposite outcome to occur.
    Consumers who have specific health needs may also be impacted by 
the proposed changes. In the individual and small group markets, 
depending on the selection made by the State in which the consumer 
lives, consumers with more comprehensive plans may gain coverage for 
certain services. In other States, again depending on State choices, 
consumers may no longer have coverage for some services, though we note 
that no State has sought to remove benefits from their EHB-benchmark 
plan to date under Sec.  156.111.
    Although we are uncertain as to how States might take advantage of 
these proposals, if finalized, and as States are not required to make 
any changes under this policy, we also believe the reduced burden might 
produce premium savings in the long-term, as States would have greater 
incentive to update their EHB-benchmark plans more frequently and more 
substantively. We believe that States with more regular and more 
substantive EHB-benchmark plan changes would better respond to public 
health priorities and would contribute to greater overall population 
health, which would improve the health of the State's risk pool over 
time and reduce plan premiums, increasing affordability of health 
insurance for consumers in the individual and small group markets in 
the State.
    We stress that States would not be required to make any changes 
under this proposal; as already implemented at Sec.  156.115(d)(1), if 
a State does not make an EHB-benchmark plan selection by the first 
Wednesday in May of the year that is 2 years before the effective date 
of the new EHB-benchmark plan, or its benchmark plan selection does not 
meet the requirements of this section and section 1302 of the ACA, the 
State's EHB-benchmark plan for the applicable plan year will be that 
State's EHB-benchmark plan applicable for the prior year.
    As discussed in the ICR for this policy, we anticipate a total 
annual cost estimate associated with this policy of approximately 
$18,036.
    We solicit comments on the impact of these proposals on the EHB-
benchmark plan selection process and whether other impacts should be 
considered.
29. Provision of EHB (45 CFR 156.115)
    We propose to remove the regulatory prohibition at Sec.  156.115(d) 
on issuers from including routine non-pediatric dental services as an 
EHB.
    Removing the prohibition on issuers from including routine non-
pediatric dental services as an EHB would remove regulatory and 
coverage barriers to expanding access to adult dental benefits. This 
would allow States greater flexibility to add benefits to improve adult 
oral health and overall health outcomes, which are disproportionately 
low among marginalized communities such as people of color and people 
with low incomes. Therefore, this policy would promote health equity by 
addressing adult oral health disparities and improving the health 
outcomes of vulnerable populations.
    Pursuant to section 2707(b) of the ACA, a group health plan must 
ensure that any annual cost sharing imposed under the plan does not 
exceed the limitations provided for under section 1302(c)(1) of the 
ACA. To the extent that a group health plan selects an EHB-benchmark 
plan that includes non-routine pediatric dental coverage as an EHB, 
such plan would need to ensure that any cost sharing for those services 
is limited in accordance with section 1302(c)(1) of the ACA.
    We do not anticipate any immediate costs to the Federal government, 
States, issuers, or enrollees because of this proposed policy. This 
proposal would simply remove the prohibition on issuers from including 
routine non-pediatric dental services as an EHB; it would not 
automatically make any routine non-pediatric dental services an EHB. 
This policy would only have a premium impact to the extent that States 
choose to include routine non-pediatric dental services in their EHB-
benchmark plans. It may also increase costs for issuers to expand their 
networks to cover these new required services, although issuers could 
contract with a dental vendor to administer the routine non-pediatric 
dental EHB if such a benefit is adopted by a State as an EHB. It should 
also be noted that the size of adult dental networks varies by State. 
Therefore, some States would be affected by the need to build a new 
network of dental providers (or contract with dental vendors) more than 
others. It is up to each State to consider the potential costs and 
network burden and determine whether to add routine non-pediatric 
dental services as an EHB.
    We solicit comment on the impact of this proposal to remove the 
regulatory prohibition on issuers from including routine non-pediatric 
dental services as an EHB and whether other impacts should be 
considered.
30. Prescription Drug Benefits (45 CFR 156.122)
    At Sec.  156.122(a)(3)(i), we propose to update P&T membership 
standards by adding a new proposed Sec.  156.122(a)(3)(i)(E), which 
would require the P&T committee to include a consumer representative as 
part of its membership for plan years beginning on or after January 1, 
2025. While there is no Federal requirement to provide compensation to 
P&T committee members, those plans or issuers that choose to compensate 
their P&T committee members for their service to the committee may 
incur a nominal fee when adding an additional member to the committee. 
Further, we estimate a potential increase in burden to States and 
issuers to develop criteria used to select a consumer representative 
for the P&T committee, to create or revise standard operating 
procedures for the committee, as well as for any additional training 
that may be required of the selectee because of the new membership 
standard. We believe that the impact of this burden would be most 
notable during the initial plan year that this policy, if finalized, 
goes into effect and should be minimal in future years. We solicit 
comments on the impact of this proposal to the P&T committee membership 
standards and whether other impacts should be considered.
    We also propose to amend Sec.  156.122 to codify the requirement 
for coverage of prescription drug benefits. Specifically, we propose to 
amend Sec.  155.122 by adding a new Sec.  156.122(f) to further clarify 
that, to the extent that a health plan covers drugs in excess of the 
benchmark, these drugs would be considered an EHB and are subject to 
requirements, including that cost sharing incurred for drugs must count 
towards the annual limitation on cost sharing and the restriction on 
annual and lifetime dollar limits, consistent with Sec.  156.130. This 
policy would apply unless the coverage of the drug is mandated by State 
action and is in addition to EHB pursuant to Sec.  155.170, in which 
case the drug would not be considered EHB. Given that this revision 
merely codifies our existing policy regarding the coverage of 
prescription drugs as EHB, we do not anticipate any additional burden 
on States or issuers.

[[Page 82641]]

    We seek comment on these impact estimates and assumptions.
31. Standardized Plan Options (45 CFR 156.201)
    We propose to update the standardized plan options for PY 2025 with 
minor changes to ensure these plans continue to have AVs within the 
permissible de minimis range for each metal level. We believe that 
maintaining a high degree of continuity in the approach to standardized 
plan options year over year minimizes the risk of disruption for 
interested parties, including issuers, agents, brokers, States, and 
enrollees. We believe that making major departures from the approach to 
standardized plan options set forth in the 2023 and 2024 Payment 
Notices could result in changes that may cause undue burden for 
interested parties. For example, if the standardized plan options we 
create vary significantly from year to year, those enrolled in these 
plans could experience unexpected financial harm if the cost sharing 
for services they rely upon differs substantially from the previous 
year. Ultimately, we believe consistency in standardized plan options 
is important to allow both issuers and enrollees to become accustomed 
to these plan designs.
    Thus, like the approach taken in the 2023 and 2024 Payment Notices, 
we propose standardized plan options that would continue to resemble 
the most popular QHP offerings that millions of consumers are already 
enrolled in. As such, these proposed standardized plan options are 
based on updated PY 2023 cost sharing and enrollment data to ensure 
that these plans continue to reflect the most popular offerings in the 
Exchanges.
    By proposing to maintain an approach to standardized plan options 
like that taken in the 2023 and 2024 Payment Notices, issuers would 
continue to be able to utilize many existing benefit packages, 
networks, and formularies, including those paired with standardized 
plan options for PY 2024. Also, issuers would continue to not be 
required to extend plan offerings beyond their existing service areas.
    Furthermore, as discussed earlier in the preamble, we would 
continue to differentially display standardized plan options on 
HealthCare.gov per Sec.  155.205(b)(1). Since we would continue to 
assume responsibility for differentially displaying standardized plan 
options on HealthCare.gov, FFE and SBE-FP issuers would continue to not 
be subject to this burden.
    In addition, as noted in the preamble, we would continue 
enforcement of the standardized plan option display requirements for 
approved web-brokers and QHP issuers using a direct enrollment pathway 
to facilitate enrollment through an FFE or SBE-FP--the Classic DE and 
EDE Pathways--at Sec. Sec.  155.220(c)(3)(i)(H) and 156.265(b)(3)(iv), 
respectively. We believe that continuing the enforcement of these 
differential display requirements would not impose a significant burden 
on these entities or require major modification of their non-Exchange 
websites, especially since the bulk of this burden was previously 
imposed in the 2018 Payment Notice,\282\ which finalized the 
standardized plan option differential display requirements, or during 
the PY 2023 open enrollment period, when enforcement of these 
requirements resumed.
---------------------------------------------------------------------------

    \282\ These differential display requirements were first 
effective and enforced beginning with PY 2018. See 81 FR 94117 
through 94118, 94148.
---------------------------------------------------------------------------

    Finally, since we would continue to allow approved web-brokers and 
QHP issuers to submit requests to deviate from the manner in which 
standardized plan options are differentially displayed on 
HealthCare.gov, the burden on these entities would continue to be 
minimal. We intend to continue providing access to information on 
standardized plan options to web-brokers through the Health Insurance 
Marketplace Public Use Files (PUFs) and QHP Landscape file to further 
minimize burden by ensuring that affected entities have timely access 
to accurate and helpful information on standardized plan option 
requirements, including those related to the differential display of 
these plans.
    We seek comment on these impact estimates and assumptions.
32. Non-Standardized Plan Option Limits (45 CFR 156.202)
    In this proposed rule, we propose an exceptions process at Sec.  
156.202 that would allow issuers to offer additional non-standardized 
plan options more than the limit of two per product network type, metal 
level, inclusion of dental and/or vision benefit coverage, and service 
area if particular requirements are met. We previously finalized this 
limit in the 2024 Payment Notice (88 FR 25855 through 25865).
    Specifically, issuers would be permitted to offer more than two 
non-standardized plan options if these additional plans' cost sharing 
for benefits pertaining to the treatment of chronic and high-cost 
conditions (including benefits in the form of prescription drugs, if 
pertaining to the treatment of the condition(s)) is at least 25 percent 
lower, as applied without restriction in scope throughout the plan 
year, than the cost sharing for the same corresponding benefits in an 
issuer's other non-standardized plan option offerings in the same 
product network type, metal level, and service area. The reduction 
could not be limited to a part of the year, or an otherwise limited 
scope of benefits. Instead, issuers would be required to apply the 
reduced cost sharing for these benefits any time the covered item or 
service is furnished. For example, an issuer could not reduce cost 
sharing for the first three office visits or drug fills and then 
increase it for remaining visits or drug fills. Furthermore, issuers 
would be prohibited from conditioning reduced cost sharing for these 
benefits on a particular diagnosis. That is, although the benefit 
design would have reduced cost sharing to address one or more 
articulated conditions, the reduced cost sharing must be available to 
all enrolled in the plan who receive the service(s) covered by the 
benefit.
    Under this proposal, no other plan design features (such as the 
inclusion of additional benefit coverage, different provider networks, 
different formularies, or reduced cost sharing for benefits provided 
through the telehealth modality) would be evaluated under this 
exceptions process, meaning no other differences in plan design 
features would allow issuers to be excepted from the limit to the 
number of non-standardized plan options offered per product network 
type, metal level, inclusion of dental and/or vision benefit coverage, 
and service area.
    We do not anticipate that the exceptions process proposed in this 
rule would substantially impact the average weighted number of non-
standardized plan options available to each consumer, the average 
weighted number of standardized plan options available to each 
consumer, the average weighted number of total plan options available 
to each consumer, the number of plan-county discontinuations, or the 
number of affected enrollees since we do not anticipate a substantial 
number of issuers would utilize this exceptions process to offer the 
aforementioned additional non-standardized plan options that would 
substantially benefit consumers with chronic and high-cost conditions. 
This is because we expect that most issuers would believe that the 
burden of creating and certifying additional plans intended to benefit 
a comparatively small population of consumers would outweigh the 
benefit of doing so. We also previously solicited comment on innovative 
plan designs, such as in the 2024 Payment Notice

[[Page 82642]]

proposed rule, but received only two examples of such plan designs.
    Although we do not anticipate that a substantial number of issuers 
would utilize this exceptions process, we acknowledge that issuers that 
choose to do so would be impacted. Specifically, if issuers choose to 
utilize this exceptions process, they would be required to design 
additional non-standardized plan options and proceed through QHP 
certification for these plans, which would necessarily entail 
additional burden.
    Furthermore, issuers would be required to submit a written 
justification in a form and manner and at a time prescribed by HHS that 
would: (1) identify the specific condition(s) for which cost sharing is 
reduced, (2) explain which benefits would have reduced annual enrollee 
cost sharing (as opposed to reduced cost sharing for a limited number 
of visits) for the treatment of the specified condition(s) by 25 
percent or more relative to the cost sharing for the same corresponding 
benefits in an issuer's other non-standardized plan offerings in the 
same product network type, metal level, and service area, and (3) 
explain how the reduced cost sharing for these services pertain to 
clinically indicated guidelines for treatment of the specified chronic 
and high-cost condition(s). We estimate the burden of this would be 
approximately $95,182 for an estimated 50 issuers annually, and we 
discuss this burden in further detail in the ICRs Regarding Non-
Standardized Plan Option Limits (Sec.  156.202) section of the 
Collection of Information Requirements section of this proposed rule.
    We also acknowledge that this exceptions process could impact 
consumers in a range of ways. Specifically, if we were to finalize this 
proposed exceptions process, and if issuers choose to utilize this 
exceptions process to offer additional non-standardized plan options, 
consumers with qualifying chronic and high-cost conditions would 
benefit from reduced cost sharing for benefits that pertain to the 
treatment of these conditions. We reiterate that, for purposes of this 
standard, chronic conditions are those that have an average duration of 
one year or more and require ongoing medical attention or limit 
activities of daily living, or both. We also reiterate that, for 
purposes of this standard, high-cost conditions are those that account 
for a disproportionately high portion of total Federal health 
expenditures. Reduced cost sharing for these benefits would reduce 
barriers to access to benefits important to consumers with these 
chronic and high-cost conditions, which could play an important role in 
combatting health disparities and advancing health equity since 
disadvantaged populations \283\ are disproportionately affected by many 
of these conditions.\284\ In addition to enhancing health outcomes, 
this exceptions process could also reduce the risk of financial harm to 
individuals with chronic and high-cost conditions by reducing their 
cost sharing obligations for treatment for those conditions.
---------------------------------------------------------------------------

    \283\ Disadvantaged populations are groups of persons that 
experience a higher risk of poverty, social exclusion, 
discrimination, and violence than the general population, including, 
but not limited to, ethnic minorities, migrants, people with 
disabilities, isolated elderly people, and children.
    \284\ Waters, H, & Graf, M. (2018). The Cost of Chronic Disease 
in the U.S. Milken Institute. https://milkeninstitute.org/sites/default/files/reports-pdf/ChronicDiseases-HighRes-FINAL_2.pdf.
---------------------------------------------------------------------------

    We do not have sufficient data to further estimate the costs 
associated with these proposed changes. As such, we seek comment from 
interested parties regarding cost estimates associated with this 
proposal and data sources that may be used to determine those 
estimates.
33. CO-OP Loan Terms (45 CFR 156.520)
    In this rule, we propose to revise Sec.  156.520(f) to provide a 
clear mechanism by which an existing CO-OP may request termination of 
its loan agreement with CMS to enable it to pursue new, innovative 
business plans that are otherwise not compatible with CO-OP 
requirements, but which CMS believes would be in the best interest of 
affected consumers. Of the 23 CO-OP loan agreements CMS successfully 
executed with qualified borrowers in 2012, only 3 remain in operation 
as active insurance companies offering QHPs. The others have been 
placed in receivership by State regulators, or otherwise gone out of 
business due to the borrower's inability to establish a viable CO-OP 
that is financially stable and on course to ultimately repay the loans. 
As discussed in section III.E.8 of this preamble, CO-OPs operate under 
governance and product limitations that can present significant 
obstacles to new business opportunities. To provide a means to overcome 
these limitations, under the proposed revisions to Sec.  156.520(f), we 
would be able to consider proposals initiated by a CO-OP to terminate 
its loan agreement with us if we believe the proposal would benefit 
consumers by enhancing consumer access to quality, affordable, member-
focused, non-profit health care options in affected markets. Examples 
of such proposals that may be deemed innovative and in the interests of 
consumers would be plans that appear well-calculated to lead directly 
to marketing non-profit, member-focused health plans in new regions of 
a State, to offer health plans on a Statewide basis for the first time, 
to expand operations into new States, or enhance consumer access to new 
non-profit products that are not qualified health plans, in particular 
when such plans are likely to favorably impact traditionally 
underserved communities. These examples are illustrative, however, not 
exclusive.
    This regulatory proposal also contemplates plans that involve non-
profit enterprises, and that reflect a strong consumer focus. A strong 
consumer focus would generally consist of an enterprise that focuses 
informational or financial resources, or plans to focus informational 
or financial resources, on member-oriented programs such as health 
education, consumer education, or forms of direct or indirect health-
related financial assistance. We recognize that significant 
coordination with State regulators would be essential to implementing 
any plans to act on the proposed regulatory changes, if finalized.
    Given that only three CO-OPs remain in business operating with 
small portfolios across five States, we do not believe there would be a 
significant economic impact because of this proposal for at least 
several years, if ever. We seek comment on these impact estimates and 
assumptions.
34. Conforming Amendment to Netting Regulation To Include Federal IDR 
Administrative Fees (45 CFR 156.1215)
    We propose to amend Sec.  156.1215(b) and (c) to align with the 
policies and regulations proposed in the Federal Independent Dispute 
Resolution Operations proposed rule (88 FR 75744). If finalized, these 
amendments would provide that administrative fees for utilizing the No 
Surprises Act Federal IDR process for health insurance issuers that 
participate in financial programs under the ACA would be subject to 
netting as part of HHS' integrated monthly payment and collections 
cycle.
    To implement this policy, we propose to amend Sec.  156.1215(b) to 
allow HHS to net payments owed to issuers and their affiliates 
operating under the same TIN against amounts due to the Federal 
government from the issuers and their affiliates operating under the 
same TIN for APTC, advance payments of and reconciliation of CSRs, 
payment of FFE user fees, payment of SBE-FP user fees, HHS risk 
adjustment, reinsurance, and risk corridors payments and charges,

[[Page 82643]]

and administrative fees from these issuers and their affiliates for 
utilizing the Federal IDR process in accordance with Sec.  
149.510(d)(2). We also propose to amend Sec.  156.1215(c) to provide 
that any amount owed to the Federal government by an issuer and its 
affiliates for unpaid administrative fees due to the Federal government 
from these issuers and their affiliates for utilizing the Federal IDR 
process after netting under proposed Sec.  156.1215(b) would be the 
basis for calculating a debt owed to the Federal government.
    We do not believe that the proposed amendments would impose 
substantial additional costs to HHS beyond the costs previously 
estimated in the Federal Independent Dispute Resolution Process 
proposed rule.\285\ Furthermore, this proposal would only apply to 
those issuers and their affiliates operating under the same TIN that 
participate in the financial programs under the ACA. Since the 
provisions of the Federal IDR process apply more broadly to include 
issuers and their affiliates that do not participate in the financial 
programs under the ACA currently specified in the list of programs for 
which netting is permitted,\286\ we believe that only a small 
proportion of issuers that utilize the Federal IDR process would be 
subject to netting under this proposal.
---------------------------------------------------------------------------

    \285\ 88 FR 75814 through 75815.
    \286\ See 86 FR at 55982 (explaining that the No Surprises Act 
applies to group health plans and health insurance issuers offering 
group or individual health insurance coverage in the Code, ERISA, 
and the PHS Act).
---------------------------------------------------------------------------

    Therefore, we anticipate that this proposal would streamline our 
payments and collections processes and limit the administrative burden 
for operating our programs.
    We seek comment on these impact estimates and assumptions.
35. Regulatory Review Cost Estimation
    If regulations impose administrative costs on private entities, 
such as the time needed to read and interpret this proposed rule, we 
should estimate the cost associated with regulatory review. Due to the 
uncertainty involved with accurately quantifying the number of entities 
that will review the rule, we assume that the total number of unique 
commenters on last year's proposed rule (286) will be the number of 
reviewers of this proposed rule. We acknowledge that this assumption 
may understate or overstate the costs of reviewing this rule. It is 
possible that not all commenters reviewed last year's rule in detail, 
and it is also possible that some reviewers chose not to comment on the 
proposed rule. For these reasons, we believe that the number of past 
commenters would be a fair estimate of the number of reviewers of this 
rule. We welcome any comments on the approach in estimating the number 
of entities which will review this proposed rule.
    We also recognize that different types of entities are in many 
cases affected by mutually exclusive sections of this proposed rule, 
and therefore, for the purposes of our estimate we assume that each 
reviewer reads approximately 50 percent of the rule. We seek comments 
on this assumption.
    Using the wage information from the BLS for medical and health 
service managers (Code 11-9111), we estimate that the cost of reviewing 
this rule is $100.80 per hour, including overhead and fringe 
benefits.\287\ Assuming an average reading speed of 250 words per 
minute, we estimate that it would take approximately 4.75 hours for the 
staff to review half of this proposed rule. For each entity that 
reviews the rule, the estimated cost is $478.80 (4.75 hours x $100.80 
per hour). Therefore, we estimate that the total cost of reviewing this 
regulation is approximately $136,937 ($478.80 per reviewer x 286 
reviewers).
---------------------------------------------------------------------------

    \287\ https://www.bls.gov/oes/current/oes_nat.htm.
---------------------------------------------------------------------------

D. Regulatory Alternatives Considered

    For the HHS-operated risk adjustment program (Sec.  153.320), we 
propose to recalibrate the CSR adjustment factors for AI/AN zero cost 
sharing and limited cost sharing CSR plan variant enrollees for the 
2025 benefit year, and we propose to retain the proposed AI/AN CSR 
adjustment factors for future benefit years unless changed through 
notice-and-comment rulemaking. We also propose to maintain the current 
CSR adjustment factors for silver plan variant enrollees (70 percent, 
73 percent, 87 percent, and 94 percent AV plan variants) \288\ for the 
2025 benefit year and beyond, unless changed through notice-and-comment 
rulemaking. As an alternative, we considered not proposing any changes 
to the CSR adjustment factors used in the State payment transfer 
formula. However, after continuing to conduct analyses on more recently 
available enrollee-level EDGE data, we found the underprediction of 
plan liability in the State payment transfer formula for AI/AN zero 
cost sharing and limited cost sharing CSR plan variant enrollees 
continued. We also considered recalibrating all the silver CSR 
adjustment factors. However, we are not proposing any changes to those 
factors at this time, because we continue to find that the current 
silver CSR adjustment factors (70 percent, 73 percent, 87 percent, and 
94 percent plan variants) are reasonably accurately predicted given the 
offsets, described above, that continue to occur for these enrollees.
---------------------------------------------------------------------------

    \288\ See 83 FR 16930 at 16953; 84 FR 17478 through 17479; 85 FR 
29190; 86 FR 24181; 87 FR 27235 through 27236; and 88 FR 25772 
through 25774.
---------------------------------------------------------------------------

    As an alternative to our proposed amendments to Sec.  155.315(e), 
we considered using an electronic data source other than PUPS to verify 
applicant incarceration status. However, we estimate that sourcing an 
alternative national incarceration verification data source would be a 
significant expense to HHS, costing the agency approximately $35 
million annually. Additionally, these other data sources are currently 
not sufficiently comprehensive to meet the needs of the Exchanges using 
the Federal eligibility and enrollment platform and therefore may not 
provide Exchanges with accurate results on a consistent basis. Thus, 
the alternative data source must be current, accurate, and minimize 
burden and costs to administration.
    About the proposed changes to Sec.  155.320(c), we considered 
taking no action to add new language in paragraph (c)(1)(iii) that 
State Exchanges and State Medicaid agencies must pay in advance for 
their use of the VCI Hub service to verify income. However, we 
determined that this proposed reinterpretation and proposed policy 
change is appropriate given our better understanding of how the VCI Hub 
service is used by State Exchanges and State Medicaid agencies to 
verify eligibility for QHP coverage or other insurance affordability 
programs. We also considered requiring State Medicaid agencies and 
State Exchanges to obtain their own contracts to administer their CSI 
data usage; however, we had concerns that these services cannot be 
procured reasonably and expeditiously, which would undermine the system 
we have implemented under section 1413 of the ACA. We also believe that 
there may be benefits to the State Medicaid agencies and State 
Exchanges that prefer to use the CSI data accessible through the VCI 
Hub service in their States. Therefore, we propose to retain optional 
access to the VCI Hub service on behalf of State Medicaid agencies and 
State Exchanges that prefer to continue to use this service and are 
willing to pay for their CSI data usage in advance. Under this 
proposal, State Medicaid agencies and State Exchanges can choose to 
discontinue their use of the CSI data accessible through the VCI Hub 
service. As described in the preamble of this rulemaking, we are also 
seeking comment on an alternative approach

[[Page 82644]]

that we could finalize that would have HHS invoice States on a monthly 
basis for their actual utilization of CSI data provided by the VCI Hub 
service after that utilization occurs.
    About amending 155.330(d)(2), we have considered maintaining the 
status quo for continuing the PDM requirements under Sec.  
155.330(d)(1)(i) and (d)(ii) but note that it may be difficult or 
infeasible to operationalize existing processes and operations during 
certain emergency situations. Allowing consumers to go uninsured during 
a national emergency, such as a public health emergency like the COVID-
19 public health emergency, will not improve the national health and 
well-being of all consumers. We found it to be least burdensome for 
Exchanges to implement as a successful pause of PDM operations occurred 
during the 2020 pandemic.
    We considered only updating sub-regulatory guidance to incorporate 
catastrophic coverage into the auto re-enrollment hierarchy, for 
example, through the annual draft and final Letters to Issuers. 
However, we believe that instead incorporating catastrophic coverage 
into the auto re-enrollment hierarchy in regulation at Sec.  155.335(j) 
creates stronger authority for Exchanges to auto re-enroll catastrophic 
enrollees and provides better transparency for our auto re-enrollment 
operations in the Exchanges on the Federal platform.
    We considered taking no action regarding the proposal to amend 
Sec.  155.400(e)(2) to codify that the flexibility for issuers 
experiencing billing or enrollment problems due to high volume or 
technical errors is not limited to extensions of the binder payment. 
However, we believe it is important to clarify for interested parties 
that HHS may provide enforcement discretion for other premium payment 
requirements.
    We considered taking no action related to amending Sec.  
155.420(d)(16), to revise the parameters around the availability of a 
SEP that grants APTC-eligible qualified individuals with a projected 
household income at or below 150 percent of the FPL. However, HHS 
believes that many consumers will benefit from having additional 
opportunities to enroll in low-cost Exchange coverage, and that those 
who will be eligible for this special enrollment period and who do not 
enroll during the annual open enrollment period are likely to have been 
unaware of their option to enroll in a plan with no monthly premium 
through the Exchange, after application of APTC.
    We considered taking no action regarding our proposal to modify 
Sec.  155.430(b)(1)(iv) to permit enrollees in Exchanges on the Federal 
Platform to retroactively terminate coverage back to the date in which 
they retroactively enroll in Medicare Part A. However, we believe it is 
important to allow enrollees to retroactively terminate coverage when 
they were unable to do so prospectively due to retroactive enrollment 
in Medicare coverage. We considered whether to also permit Exchange 
enrollees to retroactively terminate coverage back to the date in which 
they enrolled in Medicaid, CHIP, or BHP coverage retroactively, but we 
determined that this would not be appropriate due to the increased risk 
that claims reversed by QHP issuers would not be covered by providers 
under these programs.
    For standardized plan options (Sec.  156.201), we considered a 
range of proposals, such as modifying the methodology used to create 
the standardized plan options for PY 2025. Specifically, we considered 
lowering the deductibles in these plan designs and offsetting this 
increase in plan generosity by increasing cost sharing amounts for 
several benefit categories. We also considered simultaneously 
maintaining the current cost-sharing structures and decreasing the 
deductibles for these plan designs, which would increase the AVs of 
these plans to the ceiling of each AV de minimis range. Ultimately, we 
decided to propose to maintain the AVs of these plans near the floor of 
each de minimis range by largely maintaining the cost sharing 
structures and deductible values from the standardized plan options 
from PY 2024, as well as by increasing the MOOP values and, to a lesser 
degree, the deductible values for these plan designs. We believe this 
proposed approach strikes the greatest balance in providing enhanced 
pre-deductible coverage while ensuring competitive premiums for these 
standardized plan options.
    For non-standardized plan option limits (Sec.  156.202), we 
considered a range of proposals. Specifically, for PY 2025 and 
subsequent years, we considered maintaining the PY 2024 limit of four 
non-standardized plan options per product network type, metal level, 
inclusion of dental and/or vision benefit coverage, and service area. 
We also considered not proposing an exceptions process that would allow 
issuers to offer non-standardized plan options more than the limit of 
two that we previously finalized for PY 2025 and subsequent years. We 
also considered basing this exceptions process on a range of other 
factors, including the degree of plan proliferation in a given service 
area (as determined by the number of plan offerings per consumer or 
issuer), whether a plan has a sufficiently differentiated network, and 
whether a plan has a sufficiently differentiated formulary. We also 
considered permitting issuers to request to offer only one additional 
non-standardized plan option per product network type, metal level, and 
service area, as opposed to an indefinite number (as in the current 
proposal). We also considered permitting exceptions only for an 
exclusive list of chronic and high-cost conditions, as opposed to any 
condition that is chronic and high-cost in nature (as described in the 
current proposal).
    However, we ultimately decided to propose an exceptions process 
that would allow issuers to offer more than two non-standardized plan 
options if these additional plans' cost sharing for benefits pertaining 
to the treatment of chronic and high-cost conditions (including 
benefits in the form of prescription drugs, if pertaining to the 
treatment of the condition(s)) is at least 25 percent lower, as applied 
without restriction in scope throughout the plan year, than the cost 
sharing for the same corresponding benefits in an issuer's other non-
standardized plan option offerings in the same product network type, 
metal level, and service area, which is discussed in greater detail in 
section III.E.7 of the preamble to this rule.
    We proposed this approach primarily because we believe that 
allowing exceptions to the non-standardized plan option limit of two 
could play an important role in enhancing the quality of life for those 
affected by these conditions, combatting health disparities, advancing 
health equity, and reducing health care expenditures. We further 
believe that introducing this exceptions process would balance the dual 
aims of reducing the risk of plan choice overload while simultaneously 
ensuring that issuers can continue to offer truly innovative plan 
designs that may benefit consumers with chronic and high-cost 
conditions.

E. Regulatory Flexibility Act (RFA)

    The RFA requires agencies to analyze options for regulatory relief 
of small entities, if a rule has a significant impact on a substantial 
number of small entities. For purposes of the RFA, we estimate that 
small businesses, nonprofit organizations, and small governmental 
jurisdictions are small entities as that term is used in the RFA. The 
great majority of hospitals and most

[[Page 82645]]

other healthcare providers and suppliers are small entities, either by 
being nonprofit organizations or by meeting the SBA definition of a 
small business (having revenues of less than $8.0 million to $41.5 
million in any 1 year). We do not anticipate that providers would be 
directly impacted by the provisions in this proposed rule. Individuals 
and States are not included in the definition of a small entity. The 
provisions in this proposed rule would affect issuers, agents, brokers, 
web-brokers, and DE entities.
    For purposes of the RFA, we believe that health insurance issuers 
and DE entities \289\ will be classified under the North American 
Industry Classification System (NAICS) code 524114 (Direct Health and 
Medical Insurance Carriers). According to SBA size standards, entities 
with average annual receipts of $47 million or less will be considered 
small entities for these NAICS codes. Issuers could possibly be 
classified in 621491 (HMO Medical Centers) and, if this is the case, 
the SBA size standard will be $44.5 million or less.\290\ We believe 
that few, if any, insurance companies underwriting comprehensive health 
insurance policies (in contrast, for example, to travel insurance 
policies or dental discount policies) fall below these size thresholds. 
Based on data from MLR annual report submissions for the 2021 MLR 
reporting year, approximately 87 out of 483 issuers of health insurance 
coverage nationwide had total premium revenue of $47 million or 
less.\291\ This estimate may overstate the actual number of small 
health insurance issuers that may be affected, since over 77 percent of 
these small issuers belong to larger holding groups, and many, if not 
all, of these small companies are likely to have non-health lines of 
business that will result in their revenues exceeding $47 million. 
Therefore, although it is likely that fewer than 87 issuers are 
considered small entities, for the purposes of this analysis, we assume 
87 small issuers/DE entities would be impacted by this proposed rule.
---------------------------------------------------------------------------

    \289\ DE entities are QHP issuers approved by CMS to enroll 
consumers in Exchange coverage directly from their websites.
    \290\ https://www.sba.gov/document/support--table-size-standards.
    \291\ https://www.cms.gov/CCIIO/Resources/Data-Resources/mlr.html.
---------------------------------------------------------------------------

    We further believe that agents, brokers, and web-brokers will be 
classified under NAICS code 524210 (Insurance Agencies and Brokerages). 
According to SBA size standards, entities with average annual receipts 
of $15 million or less will be considered small entities for these 
NAICS codes. Therefore, based on SBA data and for purposes of this 
analysis, we assume 122,547 agents, brokers, and web-brokers are small 
entities. However, the policies impacting agents, brokers, and web-
brokers proposed in this rule would only impact such entities in States 
with State Exchanges that host web-broker programs. Currently, no 
States with State Exchanges host web-broker programs, but we estimate 5 
States could opt to host a web-broker program for their State Exchange 
in the future. We further estimate that 20 web-brokers could operate in 
those States in the future and seek comment on this estimate.
    The proposed policies that would result in an increased burden to 
small entities are described below.
    We propose to require issuers of risk adjustment covered plans to 
complete, implement, and provide to HHS written documentation of any 
corrective action plans when required by HHS if a high-cost risk pool 
audit results in the inclusion of a finding or certain observations in 
the final audit report. The annual burden per issuer associated with 
this proposal is $627. For more details, please refer to the Regulatory 
Impact Analysis section associated with this policy in this proposed 
rule.
    We propose to apply to agents, brokers, and web-brokers operating 
in State Exchanges that operate their own eligibility and enrollment 
platform, and consequently in State Exchanges, for both the State 
Exchange's Individual Exchange and SHOP, certain existing Federal 
standards regarding web-brokers assisting consumers with enrolling in 
QHPs and applying for APTC/CSRs. The one-time burden per agent, broker, 
or web-broker associated with this proposal is $48,587. For more 
details, please refer to the information collection requirements 
section associated with this policy in this proposed rule.
    We propose to require that display changes adopted by 
HealthCare.gov be reflected on DE entity websites within a time period 
specified by HHS, unless HHS approves a deviation. The annual burden 
associated with this proposal is $2,608 ($2,401 to comply with the 
requirements and $207 to make a request to deviate from the 
requirements). For more details, please refer to the information 
collection requirements section associated with this policy in this 
proposed rule.
    We propose to apply to DE entities operating in State Exchanges 
that operate their own eligibility and enrollment platform, and 
consequently State Exchanges that utilize DE entities, certain existing 
Federal standards regarding DE entities assisting consumers with 
enrolling in QHPs and applying for APTC/CSRs, both for the State 
Exchanges Individual Exchange and SHOP program. The one-time burden per 
DE entity associated with this proposal is $138,447. For more details, 
please refer to the information collection requirements section 
associated with this policy in this proposed rule.
    We also propose to require State Exchange and SBE-FP issuers to 
gather and submit network adequacy data, including time and distance 
data and telehealth data. The annual burden per issuer associated with 
this proposal is $689. For more details, please refer to the 
information collection requirements section associated with this policy 
in this proposed rule.
    Finally, we propose to permit issuers to offer non-standardized 
plan options in excess of the limit of two per product network type, 
metal level, inclusion of dental and/or vision benefit coverage, and 
service area for PY 2025 and subsequent years, if issuers demonstrate 
that these additional non-standardized plans beyond the limit at Sec.  
156.202(b) have specific design features that would substantially 
benefit consumers with chronic and high-cost conditions. The annual 
burden per issuer associated with this proposal is $1,904. For more 
details, please refer to the information collection requirements 
section associated with this policy in this proposed rule.
    Thus, the per-entity estimated annual cost for small issuers and DE 
entities is $5,828, and the total estimated annual cost for small 
issuers and DE entities is $507,036. The per-entity estimated one-time 
cost for small issuers and DE entities is $138,447, and the total 
estimated one-time cost for small issuers and DE entities is 
$12,044,889. The per-entity estimated one-time cost for small agents, 
brokers, and web-brokers is $48,587, and the total estimated one-time 
cost for small agents, brokers, and web-brokers is $971,740. There is 
no estimated annual cost for small agents, brokers, and web-brokers. 
See Tables 19, 20, 21, and 22.

[[Page 82646]]

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    The annual cost per small issuer/DE entity of $5,828 is 
approximately 0.32 percent of the average annual receipts per small 
issuer. We anticipate that small issuers could pass on these increased 
costs to consumers in the form of higher premiums, resulting in an 
increase in receipts commensurate with the increase in costs. However, 
because the proportion of cost to receipts is so small, we anticipate 
this would have a de minimis impact on premiums, if any impact at all. 
We seek comment on this assumption.
    We seek comment on this analysis and seek information on the number 
of small issuers/DE entities, agents, brokers, or web-brokers that may 
be affected by the provisions in these proposed rules.
    As its measure of significant economic impact on a substantial 
number of small entities, HHS uses a change in revenue of more than 3 
to 5 percent. We do not believe that this threshold will be reached by 
the requirements in this proposed rule, given that the annual per-
entity cost of $5,828 per small issuer represents approximately 0.32 
percent of the average annual receipts for a small issuer,\292\ and 
there is no annual per-entity cost per small agent, broker, or web-
broker. Therefore, the Secretary has certified that this proposed rule 
will not have a significant economic impact on a substantial number of 
small entities.
---------------------------------------------------------------------------

    \292\ United States Census Bureau (March 2020). 2017 SUSB Annual 
Data Tables by Establishment Industry, Data by Enterprise Receipt 
Size. https://www.census.gov/data/tables/2020/econ/susb/2020-susb-annual.html.
---------------------------------------------------------------------------

    In addition, section 1102(b) of the Act requires us to prepare a 
regulatory impact analysis if a rule may have a significant impact on 
the operations of a substantial number of small rural hospitals. This 
analysis must conform to the provisions of section 603 of the RFA. For 
the purposes of section 1102(b) of the Act, we define a small rural 
hospital as a hospital that is located outside of a metropolitan 
statistical area and has fewer than 100 beds. While this rule is not 
subject to section 1102 of the Act, we have determined that this rule 
will not affect small rural hospitals. Therefore, the Secretary has 
certified that this proposed rule will not have a significant impact on 
the operations of a substantial number of small rural hospitals.

F. Unfunded Mandates Reform Act (UMRA)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any 1 year of $100 
million in 1995 dollars, updated annually for inflation. In 2023, that 
threshold is approximately $177 million. Although we have not been able 
to quantify all costs, we expect that the combined impact on State, 
local, or Tribal governments and the private

[[Page 82647]]

sector does not meet the UMRA definition of unfunded mandate.

G. Federalism

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it issues a proposed rule (and subsequent final 
rule) that imposes substantial direct requirement costs on State and 
local governments, preempts State law, or otherwise has Federalism 
implications.
    In compliance with the requirement of E.O. 13132 that agencies 
examine closely any policies that may have Federalism implications or 
limit the policy making discretion of the States, we have engaged in 
efforts to consult with and work cooperatively with affected States, 
including participating in conference calls with and attending 
conferences of the NAIC, and consulting with State insurance officials 
on an individual basis.
    While developing this rule, we attempted to balance the States' 
interests in regulating health insurance issuers with the need to 
ensure market stability. By doing so, we complied with the requirements 
of E.O. 13132.
    Because States have flexibility in designing their Exchange and 
Exchange-related programs, State decisions will ultimately influence 
both administrative expenses and overall premiums. States are not 
required to establish an Exchange or risk adjustment program. For 
States that elected previously to operate an Exchange, those States had 
the opportunity to use funds under Exchange Planning and Establishment 
Grants to fund the development of data. Accordingly, some of the 
initial cost of creating programs was funded by Exchange Planning and 
Establishment Grants. After establishment, Exchanges must be 
financially self-sustaining, with revenue sources at the discretion of 
the State. Current State Exchanges charge user fees to issuers.
    In our view, while this proposed rule will not impose substantial 
direct requirement costs on State and local governments, this 
regulation has Federalism implications due to potential direct effects 
on the distribution of power and responsibilities among the State and 
Federal Governments relating to determining standards relating to 
health insurance that is offered in the individual and small group 
markets. For example, we propose to add requirements by which a State 
seeking to transition to a State Exchange provide the public with a 
notice and copy of its State Exchange Blueprint application. We further 
propose to require that a State, within 3 months of submitting its 
State Exchange Blueprint to HHS for approval, conduct at least one 
public hearing whereby interested parties can learn about the State's 
intent to transition, as well as a State's progress toward 
transitioning, and conduct regular hearings every 3 months until the 
transition is complete. However, we believe the Federalism implications 
of this proposal are mitigated because States have the option to 
establish their own Exchange, and we do not anticipate any additional 
burden on States because of this proposal.
    We believe that the proposal to revise Sec.  155.220(h) does not 
have Federalism implications as the CMS Administrator review of agent, 
broker, and web-broker requests for reconsideration of decisions to 
terminate their Exchange agreement(s) is not based on State law, nor 
does it prevent a State from taking other legal actions under State law 
against an entity whose Exchange agreement(s) are terminated for cause 
by HHS.
    We believe that the proposals to revise Sec. Sec.  155.220 and 
155.221 to apply certain web-broker and DE entity standards to State 
Exchanges that operate their own eligibility and enrollment platform 
may have Federalism implications, but they are substantially mitigated 
by allowing State Exchanges to leverage the oversight framework 
established by HHS for Exchanges that utilize the Federal Platform to 
evaluate web-broker and DE entity operational readiness to participate 
in an Exchange. We expect State Exchanges would be able to leverage 
audits conducted for the FFEs and SBE-FPs, as well as disclaimer 
language developed by HHS, while State operational costs would include 
any State-specific requirements or language to be added at the States' 
discretion. We believe that providing State Exchanges the opportunity 
to leverage the FFEs' oversight framework would likely reduce costs to 
State Exchanges as compared to the costs associated with State 
Exchanges establishing an independent framework for oversight and web-
broker or DE entity approval independent of the FFEs.
    We believe that the proposal to revise Sec.  155.315(e) has 
Federalism implications due to our proposal to use existing 
requirements and flexibilities under Sec.  155.315(e) permitting all 
Exchanges to accept consumer attestation of incarceration status 
without further electronic verification. However, Exchanges that wish 
to continue electronically verifying an individual's incarceration 
status would be permitted do so, if HHS determines their data source is 
current, accurate, and minimizes administrative costs and burdens.
    In addition, we believe this proposed rule does have Federalism 
implications due to the proposed revisions pertaining to State 
selection of EHB-benchmark plans. The existing requirements pertaining 
to State selection of EHB-benchmark plans at Sec.  156.111 already 
imposed Federalism implications on States that choose to change or 
revise their EHB-benchmark plans. As discussed elsewhere in this 
proposed rule, we understand that certain aspects of the current 
process to change or revise EHB-benchmark plans may impose 
unanticipated difficulty on and create confusion for States. 
Accordingly, the proposals to revise Sec.  156.111 are intended to 
reduce State burden and confusion to change or revise EHB-benchmark 
plans. As a result, we believe the proposals to revise Sec.  156.111 
would reduce the existing Federalism implications.
    We believe that our proposal to amend Sec.  155.320 by adding new 
paragraph (c)(1)(iii) does have Federalism implications for States 
given that State Exchanges and State Medicaid agencies use the VCI Hub 
service. However, we believe that the Federalism implications are 
mitigated as State Exchanges and State Medicaid agencies continue to 
have flexibility as the use of the VCI Hub service is optional and that 
States continue to have flexibility under Sec.  155.315(h) and Sec.  
155.320(c)(3)(iv) to use other data sources, like State wage data, when 
income is not verified using IRS tax data or SSA Title II data.
    We believe that our proposal to amend Sec.  155.420(d)(16) has 
Federalism implications; however, we believe that by maintaining the 
150 percent FPL SEP to be available at the option of the Exchange, 
these implications are mitigated because we allow State Exchanges to 
decide whether to implement it based on their specific market dynamics, 
needs, and priorities.
    Chiquita Brooks-LaSure, Administrator of the Centers for Medicare & 
Medicaid Services, approved this document on XX XX, 2023.

List of Subjects

31 CFR Part 33

    Health care, Health insurance, and Reporting and recordkeeping 
requirements.

42 CFR Part 435

    Eligibility in the States, District of Columbia, the Northern 
Mariana Islands, and American Samoa.

[[Page 82648]]

42 CFR Part 600

    Administrative practice and procedure, Health care, health 
insurance, Intergovernmental relations, Penalties, Reporting and 
recordkeeping requirements.

45 CFR Part 153

    Administrative practice and procedure, Health care, Health 
insurance, Health records, Intergovernmental relations, Organization 
and functions (Government agencies), Reporting and recordkeeping 
requirements.

45 CFR Part 155

    Administrative practice and procedure, Advertising, Brokers, 
Conflict of interests, Consumer protection, Grants administration, 
Grant programs-health, Health care, Health insurance, Health 
maintenance organizations (HMO), Health records, Hospitals, Indians, 
Individuals with disabilities, Intergovernmental relations, Loan 
programs-health, Medicaid, Organization and functions (Government 
agencies), Public assistance programs, Reporting and recordkeeping 
requirements, Technical assistance, Women and youth.

45 CFR Part 156

    Administrative practice and procedure, Advertising, Advisory 
committees, Brokers, Conflict of interests, 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, Medicaid, 
Organization and functions (Government agencies), Public assistance 
programs, Reporting and recordkeeping requirements, State and local 
governments, Sunshine Act, Technical assistance, Women, and Youth.

Department Of The Treasury

    For the reasons set forth in the preamble, the Department of the 
Treasury proposes to amend 31 CFR subtitle A, part 33 as set forth 
below:

PART 33--WAIVERS FOR STATE INNOVATION

0
1. The authority citation for part 33 continues to read as follows:

    Authority:  Sec. 1332, Pub. L. 111-148, 124 Stat. 119.

0
2. Section 33.112 is amended by adding paragraph (c)(3) to read as 
follows:


Sec.  33.112  State public notice requirements.

* * * * *
    (c) * * *
    (3) Such public hearings shall be conducted in an in-person, 
virtual (that is, one that uses telephonic, digital, and/or web-based 
platforms), or hybrid (that is, one that provides for both in-person 
and virtual attendance) format.
* * * * *
0
3. Section 33.120 is amended by revising paragraph (c) introductory 
text to read as follows:


Sec.  33.120   Monitoring and compliance.

* * * * *
    (c) Post award. Within at least 6 months after the implementation 
date of a section 1332 waiver and annually thereafter, a State must 
hold a public forum to solicit comments on the progress of a section 
1332 waiver. The State must hold the public forum at which members of 
the public have an opportunity to provide comments and must provide a 
summary of the forum to the Secretary as part of the quarterly report 
specified in Sec.  33.124(a) that is associated with the quarter in 
which the forum was held, as well as in the annual report specified in 
Sec.  33.124(b) that is associated with the year in which the forum was 
held. The public forum shall be conducted in an in-person, virtual 
(that is, one that uses telephonic, digital, and/or web-based 
platforms), or hybrid (that is, one that provides for both in-person 
and virtual attendance) format.
* * * * *

Department Of Health And Human Services

    For the reasons set forth in the preamble, under the authority at 5 
U.S.C. 301, the Department of Health and Human Services proposes to 
amend 42 CFR chapter IV, subchapters C and I, and 45 CFR subtitle A, 
subchapter B, as set forth below.

Title 42 Public Health

PART 435--ELIGIBILITY IN THE STATES, DISTRICT OF COLUMBIA, THE 
NORTHERN MARIANA ISLANDS, AND AMERICAN SAMOA.

0
1. The authority citation of part 435 continues to read as follows:

    Authority:  42 U.S.C 1302.


Sec.  435.601  [Amended]

0
2. Section 435.601 is amended by removing paragraph (d)(4), 
redesignating paragraph (d)(5) as paragraph (d)(4).

PART 600--ADMINISTRATION, ELIGIBILITY, ESSENTIAL HEALTH BENEFITS, 
PERFORMANCE STANDARDS, SERVICE DELIVERY REQUIREMENTS, PREMIUM AND 
COST SHARING, ALLOTMENTS, AND RECONCILIATION

0
3. The authority citation for part 600 continues to read as follows:

    Authority:  Section 1331 of the Patient Protection and 
Affordable Care Act of 2010 (Pub. L. 111-148, 124 Stat. 119), as 
amended by the Health Care and Education Reconciliation Act of 2010 
(Pub. L. 111-152, 124 Stat. 1029).

0
4. Section 600.320 is amended by revising paragraph (c) to read as 
follows:


Sec.  600.320  Determination of eligibility for and enrollment in a 
standard health plan.

* * * * *
    (c) Effective date of eligibility. The State must establish a 
uniform method of determining the effective date of eligibility for 
enrollment in a standard health plan which -
    (1) Follows the Exchange effective date standards at 45 CFR 
155.420(b)(1);
    (2) Follows the Medicaid effective date standards at 42 CFR 435.915 
exclusive of Sec.  435.915(a); or
    (3) Follows an effective date of eligibility of the first day of 
the month following the month in which BHP eligibility is determined.
* * * * *

Title 45 Public Welfare

PART 153--STANDARDS RELATED TO REINSURANCE, RISK CORRIDORS, AND HHS 
RISK ADJUSTMENT UNDER THE AFFORDABLE CARE ACT

0
5. The heading for Part 153 is revised to read as set forth above:
0
6. The authority citation for part 153 continues to read as follows:

    Authority:  42 U.S.C. 18031, 18041, and 18061 through 18063.

0
7. Section 153.620 is amended by revising the section heading and 
paragraph (c)(4) introductory text to read as follows:


Sec.  153.620  Compliance with HHS risk adjustment standards.

* * * * *
    (c) * * *
    (4) Final audit findings. If an audit results in the inclusion of a 
finding or observation in the final audit report, the issuer must 
comply with the actions set forth in the final audit report in the 
manner and timeframe established by HHS, and the issuer must complete 
all of the following, if required by HHS:
* * * * *

[[Page 82649]]

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

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

    Authority:  42 U.S.C. 18021-18024, 18031-18033, 18041-18042, 
18051, 18054, 18071, and 18081-18083.

0
9. Section 155.105 is amended--
0
a. In paragraph (b)(2) by removing ``and'' after the semicolon;
0
b. In paragraph (b)(3) by removing ``.'' and adding in its place ``; 
and''; and
0
c. Adding paragraph (b)(4).
    The revision reads as follows:


Sec.  155.105  Approval of a State Exchange.

* * * * *
    (b) * * *
    (4) The Exchange first operates successfully a State Exchange on 
the Federal platform under Sec.  155.106(c), meeting all requirements 
established under Sec.  155.200(f), for at least one plan year, 
including its first open enrollment period, as part of the 
establishment of a State Exchange.
* * * * *
0
10. Section 155.106 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  155.106  Election to operate an Exchange after 2014.

    (a) * * *
    (2) Submit an Exchange Blueprint application for HHS approval at 
least 15 months prior to the date on which the Exchange proposes to 
begin open enrollment as a State Exchange. HHS requires that a State 
submitting a Blueprint Application to operate a State Exchange provide, 
upon request, supplemental documentation to HHS detailing the State's 
implementation of its State Exchange functionality.
    (i) Public notice. Upon submission of an Exchange Blueprint 
application to operate a State Exchange, the State shall issue a public 
notice of its Exchange Blueprint application submission through its 
website and include a copy of the Exchange Blueprint application, a 
description of the Plan Year for which the State seeks to transition to 
a State Exchange, language indicating that the State is seeking 
approval from HHS to transition to a State Exchange, and information 
about when and where the State will conduct public engagements 
regarding the State's Exchange Blueprint application, as described in 
paragraph (a)(2)(ii) of this section.
    (ii) Public engagements. After a State issues its public notice as 
described in paragraph (a)(2)(i) of this section and until HHS 
approves, or conditionally approves, the State's Exchange Blueprint 
application, a State must conduct at least one public engagement (such 
as a townhall meeting or public hearing) either in-person or virtually, 
regarding the State's Exchange Blueprint application progress, in a 
timeline and manner considered effective by the State and with HHS' 
concurrence. A State shall provide public notice of the public 
engagement. Such public engagement shall also provide interested 
parties the opportunity to learn about the State's progress in 
transitioning to a State Exchange and offer input on that transition. 
Following the initial public engagement described in this paragraph and 
until HHS approves or conditionally approves the State Exchange 
Blueprint application, a State shall conduct periodic public 
engagements, either in-person or virtually, in a timeframe and manner 
considered effective by the State.
* * * * *
0
11. Section 155.170 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  155.170   Additional required benefits.

    (a) * * *
    (2) A benefit required by State action taking place on or before 
December 31, 2011, a benefit required by State action for purposes of 
compliance with Federal requirements, or a benefit covered in the 
State's EHB-benchmark plan is considered an EHB. A benefit required by 
State action taking place on or after January 1, 2012, other than for 
purposes of compliance with Federal requirements that is not a benefit 
covered in the State's EHB-benchmark plan, is considered in addition to 
the essential health benefits.
* * * * *
0
12. Section 155.205 is amended by revising paragraphs (a) introductory 
text and (b)(4) and (5) to read as follows:


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

    (a) Call center. If the Exchange is not an Exchange described in 
paragraphs (a)(1) or (2) of this section, the Exchange must provide for 
operation of a toll-free call center that addresses the needs of 
consumers requesting assistance and meets the requirements outlined in 
paragraphs (c)(1), (c)(2)(i), and (c)(3) of this section. At a minimum, 
the Exchange call center must provide consumers with access to a live 
call center representative during an Exchange's published hours of 
operation and a live call center representative who must be able to 
assist consumers with their QHP application, including providing 
consumers with information on their eligibility for advance premium tax 
credits and cost-sharing reductions, helping consumers understand their 
QHP options, helping consumers select a QHP, and helping consumers 
submit QHP enrollment applications to the Exchange. If the Exchange is 
an Exchange described in paragraphs (a)(1) or (2) of this section, the 
Exchange must provide at a minimum a toll-free telephone hotline that 
includes the capability to provide information to consumers about 
eligibility and enrollment processes, and to appropriately direct 
consumers to the applicable Exchange website and other applicable 
resources.
* * * * *
    (b) * * *
    (4) Allows for an individual to submit a single streamlined 
eligibility application to the Exchange in accordance with Sec.  
155.405 and for the Exchange to make all determinations of eligibility 
for enrollment in a QHP and insurance affordability programs, in 
accordance with subpart D of this part, through the operation of a 
centralized eligibility and enrollment platform on the Exchange's 
website; or, if the Exchange is a State-based Exchange on the Federal 
platform, through the Federal eligibility and enrollment platform.
    (5) Allows a qualified individual to select a QHP and allows the 
Exchange to maintain records of all QHP enrollments, in accordance with 
subpart E of this part, through the operation of a centralized 
eligibility and enrollment platform on the Exchange's website; or, if 
the Exchange is a State-based Exchange on the Federal platform, through 
the Federal eligibility and enrollment platform.
* * * * *
0
13. Section 155.220 is amended by--
0
a. Adding paragraph (c)(4)(iii);
0
b. Revising paragraphs (h)(2) and (3); and
0
c. Adding paragraph (n).
    The additions and revisions read as follows:


Sec.  155.220  Ability of States to permit agents and brokers and web-
brokers to assist qualified individuals, qualified employers, or 
qualified employees enrolling QHPs.

* * * * *
    (c) * * *
    (4) * * *
    (iii) Web-brokers operating in State Exchanges that do not use the 
Federal platform that permit other agents and brokers, through a 
contract or other arrangement, to use their internet website to help an 
applicant or enrollee complete a QHP selection or complete

[[Page 82650]]

the Exchange eligibility application must comply with the standards in 
paragraphs (c)(4)(i)(A), (B), (D) and (F), except that all references 
to ``Federally-facilitated Exchange'' or ``HHS'' in paragraphs 
(c)(4)(i)(A), (B), (D), and (F) of this section will be understood to 
mean ``the applicable State Exchange.''
* * * * *
    (h) * * *
    (2) Timeframe for request. The agent, broker, or web-broker must 
submit a request for reconsideration to the CMS Administrator within 30 
calendar days of the written notice from HHS.
    (3) Notice of reconsideration decision. The CMS Administrator will 
provide the agent, broker, or web-broker with a written notice of the 
reconsideration decision within 60 calendar days of the date the CMS 
Administrator receives the request for reconsideration. This decision 
will constitute HHS' final determination.
* * * * *
    (n) Application to State Exchanges that do not use the Federal 
platform. A web-broker that assists or enrolls qualified individuals, 
qualified employers or qualified employees in coverage in a manner that 
constitutes enrollment through the State Exchange, or assists 
individual market consumers with submission of applications for advance 
payments of the premium tax credit and cost-sharing reductions through 
the State Exchange, must comply with the Federally-facilitated Exchange 
standards in paragraphs (c)(3)(i)(A), (G), (I), and (j)(2)(i) of this 
section, including any additional State-specific standards under 
paragraph (n)(1) of this section, and the State Exchange's operational 
readiness standards under paragraph (n)(2) of this section. For the 
purposes of paragraph (j)(2)(i) of this section, references to ``HHS'' 
and ``the Federally-facilitated Exchanges'' will be understood to mean 
``the applicable State Exchange, applied for web-brokers'', and the 
reference to ``HealthCare.gov'' will be understood to mean ``the State 
Exchange website, applied for web-brokers.''
    (1) State Exchanges may add State-specific information to the 
standardized disclaimers and information under paragraphs (c)(3)(i)(A), 
(G), and (I) of this section that does not conflict with the HHS-
provided language.
    (2) State Exchanges must establish the form and manner for their 
web-brokers to demonstrate operational readiness and compliance with 
applicable requirements prior to the web-broker's internet website 
being used to complete an Exchange eligibility application or a QHP 
selection, which may include submission or completion of the following 
items to the State Exchange, in the form and manner specified by the 
Exchange:
    (i) Operational data including licensure information, points of 
contact and third-party relationships;
    (ii) Enrollment testing, prior to approval or renewal;
    (iii) website reviews performed by the State Exchange;
    (iv) Security and privacy documentation, including:
    (A) Penetration testing results;
    (B) Security and privacy assessment reports;
    (C) Vulnerability scan results;
    (D) Plans of action and milestones; and
    (E) System security and privacy plans.
    (v) Agreements between the web-broker and the State Exchange.
0
14. Section 155.221 is amended by--
0
a. Revising paragraphs (a) introductory text; and
0
b. Adding paragraphs (a)(1)(i) and (ii), (b)(6), and (j).
    The revisions and addition read as follows:


Sec.  155.221   Standards for direct enrollment entities and for third-
parties to perform audits of direct enrollment entities.

    (a) Direct enrollment entities. All Exchanges may permit the 
following entities to assist consumers with direct enrollment in QHPs 
offered through the Exchange in a manner that is considered to be 
through the Exchange, to the extent permitted by applicable State law:
    (1) * * *
    (i) For purposes of applying the requirements of Sec.  156.1230(b) 
of this subchapter to State Exchanges, all references to ``Federally-
facilitated Exchange'' and ``HHS'', and ``HealthCare.gov'' will be 
understood to mean ``the applicable State Exchange'', ``the applicable 
State Exchange'', and ``the applicable State Exchange website'', 
respectively.
    (ii) [Reserved]
* * * * *
    (b) * * *
    (6) Implement and prominently display website changes in a manner 
consistent with display changes made to the Federally-facilitated 
Exchange website by meeting standards communicated and defined by HHS 
within a time period set by HHS, unless HHS approves a deviation from 
those standards. Direct enrollment entities may request a deviation by 
submitting a proposed alternative display and accompanying rationale to 
HHS for review.
* * * * *
    (j) Application to State Exchanges that do not use the Federal 
platform. A direct enrollment entity that enrolls qualified 
individuals, qualified employers, or qualified employees in coverage in 
a manner that constitutes enrollment through the State Exchange, or 
assists consumers with submission of applications for advance payments 
of the premium tax credit and cost-sharing reductions through the State 
Exchange, must comply with the Federally-facilitated Exchange standards 
in paragraphs (b)(1), (2), (3), and (d) of this section, including the 
exceptions in paragraph (c) of this section, where applicable; any 
additional State-specific standards under paragraph (j)(1) of this 
section; the State Exchange's operational readiness standards under 
paragraph (j)(2) of this section; and the State Exchange's website 
display change standards under paragraph (j)(3) of this section. 
Paragraph (d) references Sec.  155.415(b), and Sec.  155.415(b)(1) will 
be understood to also apply to State Exchanges.
    (1) State Exchanges may add State-specific information to the 
standardized disclaimer under paragraph (b)(2) of this section that 
does not conflict with the HHS-provided language.
    (2) State Exchanges must establish the form and manner for their 
direct enrollment entities to demonstrate operational readiness and 
compliance with applicable requirements prior to the direct enrollment 
entity's internet website being used to complete an Exchange 
eligibility application or a QHP selection, which may include 
submission or completion of the following documentation to the State 
Exchange, in the form and manner specified by the Exchange:
    (i) Business audit documentation including:
    (A) Notices of intent to participate including auditor information;
    (B) Documentation packages including privacy questionnaires, 
privacy policy statements, and terms of service; and
    (C) Business audit reports including testing results.
    (ii) Security and privacy audit documentation including:
    (A) Interconnection security agreements;
    (B) Security and privacy controls assessment test plans;
    (C) Security and privacy assessment reports;
    (D) Plans of action and milestones;
    (E) Privacy impact assessments;
    (F) System security and privacy plans;
    (G) Incident response plans; and
    (H) Vulnerability scan results.
    (3) State Exchanges must require their direct enrollment entities 
to implement

[[Page 82651]]

and prominently display changes adopted for display on the State 
Exchanges' websites, consistent with the process of defining and 
communicating standards and setting advance notice periods in paragraph 
(b)(6) of this section, except that all references to ``Federally-
facilitated Exchange website'' would be understood to mean ``State 
Exchange website'' and references to ``HHS'' would be understood to 
mean ``State Exchange'' in paragraph (b)(6) of this section.
0
15. Section 155.302 is amended by revising paragraph (a)(1) to read as 
follows:


Sec.  155.302  Options for conducting eligibility determinations.

    (a) * * *
    (1) Directly, through contracting arrangements in accordance with 
Sec.  155.110(a) under which the Exchange carries out all eligibility 
determinations for QHP coverage and related insurance affordability 
programs; or, as a State-based Exchange on the Federal platform, 
through a Federal platform agreement under which HHS carries out 
eligibility determinations and other requirements contained within this 
subpart; or
* * * * *
0
16. Section 155.305 is amended by adding paragraphs (f)(4)(i) and (ii) 
to read as follows:


Sec.  155.305   Eligibility standards.

* * * * *
    (f) * * *
    (4) * * *
    (i) If HHS notifies the Exchange as part of the process described 
in Sec.  155.320(c)(3) that APTC payments were made on behalf of either 
the tax filer or spouse, if the tax filer is a married couple, for 1 
year for which tax data would be utilized for verification of household 
income and family size in accordance with Sec.  155.320(c)(1)(i), and 
the tax filer or the tax filer's spouse did not comply with the 
requirement to file an income tax return for that year as required by 
26 U.S.C. 6011, 6012, and their implementing regulations and reconcile 
APTC for that period, the Exchange must send a notification, consistent 
with the standards applicable to the protection of Federal Tax 
Information to the tax filer, that informs the tax filer that the 
Exchange has determined that the tax filer or the tax filer's spouse, 
if the tax filer is part of a married couple, has failed to file and 
reconcile, and educate the tax filer that they need to file and 
reconcile or risk being determined ineligible for APTC if they fail to 
file and reconcile for a second consecutive tax year. Only the FTR Open 
Enrollment notices sent directly to the tax filer may directly state 
that the IRS data indicates the tax filer failed to file and reconcile.
    (ii) [Reserved]
* * * * *
0
17. Section 155.315 is amended by revising paragraph (e) to read as 
follows:


Sec.  155.315  Verification process related to eligibility for 
enrollment in a QHP through the Exchange.

* * * * *
    (e) Verification of incarceration status. The Exchange must verify 
an applicant's attestation that the applicant meets the requirements of 
Sec.  155.305(a)(2) by--
    (1) Accepting an applicant's attestation that they are not 
currently incarcerated; or
    (2) Verifying an applicant's attestation of incarceration status 
using any electronic data source that is available to the Exchange and 
which has been approved by HHS for this purpose. HHS will approve an 
electronic data source for incarceration verification if it provides 
data that are current and accurate, and if its use minimizes 
administrative costs and burdens.
    (3) If an Exchange verifies an applicant's attestation of 
incarceration status using an approved data source under paragraph 
(e)(2) of this section, to the extent that an applicant's attestation 
is not reasonably compatible with information from the approved data 
source or other information provided by the applicant or in the records 
of the Exchange, the Exchange must follow the procedures specified in 
Sec.  155.315(f).
* * * * *
0
18. Section 155.320 is amended by adding paragraph (c)(1)(iii) to read 
as follows.


Sec.  155.320  Verification process related to eligibility for 
insurance affordability programs.

* * * * *
    (c) * * *
    (1) * * *
    (iii) Payment to use income data through the Verify Current Income 
Hub service. Beginning July 1, 2024, State Exchanges that elect the 
option to access the Verify Current Income service through the Federal 
Data Services Hub (``the Hub'') to verify an individual's income as 
described in paragraph (c)(3)(vi)(A) of this section, must pay an 
annual advanced payment to HHS, in the timeframe and manner established 
by HHS, for use of the income data provided by the Verify Current 
Income Hub service equal to the product of the anticipated number of 
purchased transactions returned from the Verify Current Income Hub 
service and the price per transaction established under the contract 
maintained by HHS to provide the VCI Hub service. Participating States 
would be required to reconcile with HHS on an annual basis the 
anticipated utilization of CSI data provided by the VCI Hub service 
with the actual utilization.
* * * * *
0
19. Section 155.330 is amended by revising paragraph (d)(3) to read as 
follows:


Sec.  155.330  Eligibility redetermination during a benefit year.

* * * * *
    (d) * * *
    (3) Definition of periodically. (i) Beginning with the 2021 
calendar year, the Exchange must perform the periodic examination of 
data sources described in paragraphs (d)(1)(ii) of this section at 
least twice in a calendar year. State Exchanges that have implemented a 
fully integrated eligibility system with their respective State 
Medicaid programs, that have a single eligibility rules engine that 
uses MAGI to determine eligibility for advance payments of the premium 
tax credit, cost-sharing reductions, Medicaid, CHIP, and the BHP, if a 
BHP is operating in the service area of the Exchange, will be deemed in 
compliance with the Medicaid/CHIP PDM requirements and, if applicable, 
BHP PDM requirements, in paragraphs (d)(1)(ii) and (d)(3) of this 
section.
    (ii) Beginning with the 2025 calendar year, the Exchange must 
perform the periodic examination of data sources described in paragraph 
(d)(1)(i) of this section at least twice in a calendar year.
    (iii) Notwithstanding the requirements of paragraphs (d)(3)(i) and 
(ii) of this section, the Secretary has authority to temporarily 
suspend the requirement that Exchanges conduct the PDM processes 
described at paragraphs (d)(3)(i) or (ii) of this section during 
certain situations or circumstances that lead to the unavailability of 
data needed to conduct PDM.
* * * * *
0
20. Section 155.335 is amended by--
0
a. Revising paragraphs (j)(1)(ii) through (iv);
0
b. Adding paragraph (j)(1)(v);
0
c. Revising paragraphs (j)(2)(i) through (iii); and
0
d. Adding paragraphs (j)(2)(iv) and (j)(5).
    The revisions and additions read as follows:


Sec.  155.335  Annual eligibility redetermination.

* * * * *
    (j) * * *

[[Page 82652]]

    (1) * * *
    (ii) If the enrollee's current QHP is not available through the 
Exchange, the Exchange will re-enroll the enrollee in a QHP within the 
same product at the same coverage level as described in sections 
1302(d) or (e) of the ACA as the enrollee's current QHP that has the 
most similar network compared to the enrollee's current QHP;
    (iii) If the enrollee's current QHP is not available through the 
Exchange and the enrollee's product no longer includes a QHP at the 
same coverage level as described in sections 1302(d) or (e) of the ACA 
as the enrollee's current QHP and--
    (A) The enrollee's current QHP is a silver level plan, the Exchange 
will re-enroll the enrollee in a silver level QHP under a different 
product offered by the same QHP issuer that is most similar to the 
enrollee's current product and that has the most similar network 
compared to the enrollee's current QHP. If no such silver level QHP is 
available for enrollment through the Exchange, the Exchange will re-
enroll the enrollee in a QHP under the same product that is coverage 
level higher or lower than the enrollee's current QHP and that has the 
most similar network compared to the enrollee's current QHP; or
    (B) The enrollee's current QHP is not a silver level plan, the 
Exchange will re-enroll the enrollee in a QHP under the same product 
that is one coverage level higher or lower than the enrollee's current 
QHP and that has the most similar network compared to the enrollee's 
current QHP;
    (iv) If the enrollee's current QHP is not available through the 
Exchange and the enrollee's product no longer includes a QHP that is at 
the same coverage level as described in sections 1302(d) or (e) of the 
ACA as, or one coverage level higher or lower than, the enrollee's 
current QHP, the Exchange will re-enroll the enrollee in any other QHP 
offered under the product in which the enrollee's current QHP is 
offered in which the enrollee is eligible to enroll and that has the 
most similar network compared to the enrollee's current QHP; or
    (v) Notwithstanding the other provisions in paragraph (j)(1) of 
this section, if the enrollee's current QHP is a catastrophic plan as 
described in section 1302(e) of the ACA, and the enrollee will no 
longer meet the criteria for enrollment in a catastrophic plan as 
described in section 1302(e)(2) of the ACA:
    (A) The Exchange will re-enroll the enrollee in a bronze metal 
level QHP within the same product as the enrollee's current QHP that 
has the most similar network compared to the enrollee's current QHP; or
    (B) If no bronze plan is available through this product, the 
Exchange will re-enroll the enrollee in the QHP with the lowest 
coverage level offered under the product in which the enrollee's 
current QHP is offered in which the enrollee is eligible to enroll and 
that has the most similar network compared to the enrollee's current 
QHP.
    (2) * * *
    (i) The Exchange will re-enroll the enrollee in a QHP at the same 
coverage level as the enrollee's current QHP in the product offered by 
the same issuer that is the most similar to the enrollee's current 
product and that has the most similar network compared to the 
enrollee's current QHP;
    (ii) If the issuer does not offer another QHP at the same coverage 
level as the enrollee's current QHP, the Exchange will re-enroll the 
enrollee in a QHP that is one coverage level higher or lower than the 
enrollee's current QHP and that has the most similar network compared 
to the enrollee's current QHP in the product offered by the same issuer 
through the Exchange that is the most similar to the enrollee's current 
product;
    (iii) If the issuer does not offer another QHP through the Exchange 
at the same coverage level as, or one metal level higher or lower than 
the enrollee's current QHP, the Exchange will re-enroll the enrollee in 
any other QHP offered by the same issuer in which the enrollee is 
eligible to enroll and that has the most similar network compared to 
the enrollee's current QHP in the product that is most similar to the 
enrollee's current product; or
    (iv) Notwithstanding the other provisions in paragraph (j)(2) of 
this section, if the enrollee's current QHP is a catastrophic plan as 
described in section 1302(e) of the ACA, and the enrollee will no 
longer meet the criteria for enrollment in a catastrophic plan as 
described in section 1302(e)(2) of the ACA:
    (A) The Exchange will re-enroll the enrollee in a bronze metal 
level QHP offered by the same issuer in which the enrollee is eligible 
to enroll and that has the most similar network compared to the 
enrollee's current QHP in the product that is most similar to the 
enrollee's current product; or
    (B) If no bronze plan is available through this product, the 
Exchange will re-enroll the enrollee in the QHP with the lowest 
coverage level offered under the product in which the enrollee's 
current QHP is offered in which the enrollee is eligible to enroll and 
that has the most similar network compared to the enrollee's current 
QHP.
* * * * *
    (5) For purposes of this section, catastrophic coverage is not a 
coverage level that is considered higher or lower than metal level 
coverage when re-enrolling an enrollee to a plan that is a metal level 
higher or lower than their current plan, and an Exchange may not re-
enroll an enrollee that has coverage under section 1302(d) into 
catastrophic coverage.
* * * * *
0
21. Section 155.400 is amended by revising paragraph (e)(2) to read as 
follows:


Sec.  155.400  Enrollment of qualified individuals into QHPs.

* * * * *
    (e) * * *
    (2) Premium payment deadline extension. Exchanges may, and the 
Federally-facilitated Exchanges and State-based Exchanges on the 
Federal platform will, allow issuers experiencing billing or enrollment 
problems due to high volume or technical errors, or issuers directed to 
do so by applicable State or Federal authorities, to implement a 
reasonable extension of the binder payment and other premium payment 
deadlines.
* * * * *
0
22. Section 155.410 is amended by revising paragraph (e)(4)(ii) to read 
as follows:


Sec.  155.410   Initial and annual open enrollment periods.

* * * * *
    (e) * * *
    (4) * * *
    (ii) For State Exchanges, for the benefit years beginning on or 
after January 1, 2025, a longer annual open enrollment period end date 
may be adopted, such that the open enrollment period begins on November 
1 of the calendar year preceding the benefit year and ends no earlier 
than January 15 of the benefit year.
* * * * *
0
23. Section 155.420 is amended by revising paragraphs (b)(1), (b)(3)(i) 
and (d)(16) to read as follows:


Sec.  155.420  Special enrollment periods.

* * * * *
    (b) * * *
    (1) Regular effective dates. Except as specified in paragraphs 
(b)(2) and (3) of this section, for a QHP selection received by the 
Exchange from a qualified individual, the Exchange must ensure a 
coverage effective date of the first day of the month following the QHP 
selection; except that before

[[Page 82653]]

January 1, 2025, for a QHP selection received by the Exchange from a 
qualified individual between the sixteenth and the last day of any 
month, the Exchange may ensure a coverage effective date of the first 
day of the second month following QHP selection.
* * * * *
    (3) * * *
    (i) For a QHP selection received by the Exchange under a special 
enrollment period for which the effective dates of coverage specified 
in paragraph (b)(1) or (b)(2)(i) of this section would apply, the 
Exchange may provide a coverage effective date that is earlier than 
specified in such paragraph.
* * * * *
    (d) * * *
    (16) At the option of the Exchange, a qualified individual or 
enrollee, or the dependent of a qualified individual or enrollee, who 
is eligible for advance payments of the premium tax credit, and whose 
household income, as defined in 26 CFR 1.36B-1(e), is expected to be at 
or below 150 percent of the Federal poverty level, may enroll in a QHP 
or change from one QHP to another one time per month.
* * * * *
0
24. Section 155.430 is amended by revising paragraph (b)(1)(iv) 
introductory text and adding paragraph (b)(1)(iv)(D) to read as 
follows:


Sec.  155.430   Termination of Exchange enrollment or coverage.

* * * * *
    (b) * * *
    (1) * * *
    (iv) The Exchange must permit an enrollee to retroactively 
terminate or cancel the enrollee's coverage or enrollment in a QHP in 
the following circumstances, and State Exchanges may permit an enrollee 
to retroactively terminate or cancel the enrollee's coverage or 
enrollment in a QHP in accordance with paragraph (D):
* * * * *
    (D) In a Federally-facilitated Exchange or a State-based Exchange 
on the Federal platform, the enrollee demonstrates to the Exchange that 
the enrollee enrolled in Medicare Part A or B coverage with a 
retroactive effective date, and requests retroactive termination within 
60 days of the enrollment. The effective date of the retroactive 
termination must be no sooner than the day before the first day of 
coverage under Medicare Part A or B.
* * * * *
0
25. Section 155.1050 is amended by revising paragraph (a) to read as 
follows:


Sec.  155.1050  Establishment of Exchange network adequacy standards.

    (a) Except with regard to multi-State plans:
    (1) A Federally-facilitated Exchange must ensure that the provider 
network of each QHP meets the standards specified in Sec.  156.230 of 
this subtitle.
    (2) State Exchanges and State-based Exchanges on the Federal 
Platform must ensure that the provider network of each QHP meets 
applicable standards specified in Sec.  156.230(a)(1)(ii), (a)(1)(iii) 
and (a)(4) of this subtitle.
    (i) For plan years beginning on or after January 1, 2025, to comply 
with the requirement under paragraph (a)(2) of this section, State 
Exchanges and State-based Exchanges on the Federal platform must:
    (A) Establish and impose network adequacy time and distance 
standards for QHPs that are at least as stringent as standards for QHPs 
participating on the Federally-facilitated Exchanges under Sec.  
156.230(a)(2)(i)(A) of this subtitle;
    (B) Conduct, prior to QHP certification, quantitative network 
adequacy reviews to evaluate compliance with requirements under Sec.  
156.230(a)(1)(ii), (a)(1)(iii), and (a)(2)(i)(A) of this subtitle, 
while providing QHP certification applicants the flexibilities 
described under Sec.  156.230(a)(2)(ii) and (a)(3) and (4) of this 
subtitle; and
    (C) Require that all issuers seeking certification of a plan as a 
QHP submit information to the Exchange reporting whether or not network 
providers offer telehealth services.
    (ii) HHS may grant an exception to the requirements described under 
paragraph (a)(2)(i) of this section to a State Exchange or State-based 
Exchange on the Federal platform that demonstrates with evidence-based 
data, in a form and manner specified by HHS, that:
    (A) the Exchange applies and enforces alternate quantitative 
network adequacy standards that are reasonably calculated to ensure a 
level of access to providers that is as great as that ensured by the 
Federal network adequacy standards established for QHPs under Sec.  
156.230 of this subtitle; and
    (B) the Exchange evaluates whether plans comply with applicable 
network adequacy standards prior to certifying any plan as a QHP.
* * * * *
0
26. Section 155.1312 is amended by adding paragraph (c)(3) to read as 
follows:


Sec.  155.1312  State public notice requirements.

* * * * *
    (c) * * *
    (3) Such public hearings shall be conducted in an in-person, 
virtual (that is, one that uses telephonic, digital, and/or web-based 
platforms), or hybrid (that is, one that provides for both in-person 
and virtual attendance) format.
* * * * *
0
27. Section 155.1320 is amended by revising paragraph (c) introductory 
text to read as follows:


Sec.  155.1320   Monitoring and compliance.

* * * * *
    (c) Post award. Within at least 6 months after the implementation 
date of a section 1332 waiver and annually thereafter, a State must 
hold a public forum to solicit comments on the progress of a section 
1332 waiver. The State must hold the public forum at which members of 
the public have an opportunity to provide comments and must provide a 
summary of the forum to the Secretary as part of the quarterly report 
specified in Sec.  155.1324(a) that is associated with the quarter in 
which the forum was held, as well as in the annual report specified in 
Sec.  155.1324(b) that is associated with the year in which the forum 
was held. The public forum shall be conducted in an in-person, virtual 
(that is, one that uses telephonic, digital, and/or web-based 
platforms), or hybrid (that is, one that provides for both in-person 
and virtual attendance) format.
* * * * *

PART 156--HEALTH INSURANCE ISSUER STANDARDS UNDER THE AFFORDABLE 
CARE ACT, INCLUDING STANDARDS RELATED TO EXCHANGES

0
28. The authority citation for part 156 continues to read as follows:

    Authority: 42 U.S.C. 18021-18024, 18031-18032, 18041-18042, 
18044, 18054, 18061, 18063, 18071, 18082, and 26 U.S.C. 36B.

0
29. Section 156.111 is amended by revising paragraphs (a), (b)(2), and 
(e)(2) and (3) to read as follows:


Sec.  156.111  State selection of EHB-benchmark plans for plan years 
beginning on or after January 1, 2020.

    (a)(1) Subject to paragraphs (b) through (e) of this section, for 
plan years beginning on or after January 1, 2020 through December 31, 
2026, a State may change its EHB-benchmark plan by:
    (i) Selecting the EHB-benchmark plan that another State used for 
the 2017 plan year under Sec. Sec.  156.100 and 156.110;
    (ii) Replacing one or more categories of EHBs established at Sec.  
156.110(a) in the State's EHB-benchmark plan used for the 2017 plan 
year with the same category or categories of EHB from the EHB-benchmark 
plan that another State

[[Page 82654]]

used for the 2017 plan year under Sec. Sec.  156.100 and 156.110; or
    (iii) Otherwise selecting a set of benefits that would become the 
State's EHB-benchmark plan.
    (2) Subject to paragraphs (b), (c), (d), and (e) of this section, 
for plan years beginning on or after January 1, 2027, a State may 
change its EHB-benchmark plan by selecting a set of benefits that would 
become the State's EHB-benchmark plan.
    (b) * * *
    (2) Scope of benefits. (i) For plan years beginning on or after 
January 1, 2020 through December 31, 2026:
    (A) Provide a scope of benefits equal to the scope of benefits 
provided under a typical employer plan (supplemented by the State as 
necessary to provide coverage within each EHB category at Sec.  
156.110(a)), defined as either:
    (1) One of the selecting State's 10 base-benchmark plan options 
established at Sec.  156.100, and available for the selecting State's 
selection for the 2017 plan year; or
    (2) The largest health insurance plan by enrollment within one of 
the five largest large group health insurance products by enrollment in 
the State, as product and plan are defined at Sec.  144.103 of this 
subchapter, provided that:
    (i) The product has at least 10 percent of the total enrollment of 
the five largest large group health insurance products in the State;
    (ii) The plan provides minimum value, as defined under Sec.  
156.145;
    (iii) The benefits are not excepted benefits, as established under 
Sec.  146.145(b), and Sec.  148.220 of this subchapter; and
    (iv) The benefits in the plan are from a plan year beginning after 
December 31, 2013.
    (B) Not exceed the generosity of the most generous among a set of 
comparison plans, including:
    (1) The State's EHB-benchmark plan used for the 2017 plan year, and
    (2) Any of the State's base-benchmark plan options for the 2017 
plan year described in Sec.  156.100(a)(1), supplemented as necessary 
under Sec.  156.110.
    (ii) For plan years beginning on or after January 1, 2027, provide 
a scope of benefits that is equal to the scope benefits of a typical 
employer plan in the State. The scope of benefits in a typical employer 
plan in a State is any scope of benefits that is as or more generous 
than the scope of benefits in the least generous plan (supplemented by 
the State as necessary to provide coverage within each EHB category at 
Sec.  156.110(a)), and as or less generous than the scope of benefits 
in the most generous plan in the State (supplemented by the State as 
necessary to provide coverage within each EHB category at Sec.  
156.110(a)), among the following:
    (A) One of the selecting State's 10 base-benchmark plan options 
established at Sec.  156.100, and available for the selecting State's 
selection for the 2017 plan year; or
    (B) The largest health insurance plan by enrollment within one of 
the five largest large group health insurance products by enrollment in 
the State, as product and plan are defined at Sec.  144.103 of this 
subchapter, provided that:
    (1) The product has at least 10 percent of the total enrollment of 
the five largest large group health insurance products in the State;
    (2) The plan provides minimum value, as defined under Sec.  
156.145;
    (3) The benefits are not excepted benefits, as established under 
Sec.  146.145(b), and Sec.  148.220 of this subtitle; and
    (4) The benefits in the plan are from a plan year beginning after 
December 31, 2013.
* * * * *
    (e) * * *
    (2) An actuarial certification and an associated actuarial report 
from an actuary, who is a member of the American Academy of Actuaries, 
in accordance with generally accepted actuarial principles and 
methodologies, that affirms that the State's EHB-benchmark plan 
complies with the applicable scope of benefits requirements at 
paragraph (b)(2) of this section.
    (3) The State's EHB-benchmark plan document that reflects the 
benefits and limitations, including medical management requirements, a 
schedule of benefits and, if the State is changing the number of 
prescription drugs pursuant to Sec.  156.122(a)(1)(ii), a formulary 
drug list in a format and manner specified by HHS; and
* * * * *
0
30. Section 156.115 is amended by revising paragraph (d) to read as 
follows:


Sec.  156.115  Provision of EHB.

* * * * *
    (d) An issuer of a plan offering EHB may not include routine non-
pediatric eye exam services, long-term/custodial nursing home care 
benefits, or non-medically necessary orthodontia as EHB.
0
31. Section 156.122 is amended by adding paragraphs (a)(3)(i)(E) and 
(f) to read as follows:


Sec.  156.122   Prescription drug benefits.

    (a) * * *
    (3) * * *
    (i) * * *
    (E) For plan years beginning on or after January 1, 2026, include a 
consumer representative who must:
    (1) Represent the consumer perspective as a member of the P&T 
committee.
    (2) Have an affiliation with and/or demonstrate active 
participation in consumer or community-based organizations.
    (3) Have experience in the analysis and interpretation of complex 
data and be able to understand its public health significance.
    (4) Have no fiduciary obligation to a health facility or other 
health agency and have no material financial interest in the rendering 
of health services.
* * * * *
    (f) If a health plan covers prescription drugs in excess of the 
prescription drugs required to be covered under paragraph (a)(1) of 
this section, the additional prescription drugs are considered an 
essential health benefit and subject to the cost-sharing requirements 
at Sec.  156.130, unless coverage of the drug is mandated by State 
action and is in addition to an essential health benefit pursuant to 
Sec.  155.170, in which case the drug would not be considered an 
essential health benefit.
0
32. Section 156.202 is amended by adding paragraphs (d) and (e) to read 
as follows:


Sec.  156.202  Non-standardized plan option limits.

* * * * *
    (d) For plan year 2025 and subsequent years, an issuer may offer 
additional non-standardized plan options per product network type, 
metal level, inclusion of dental and/or vision benefit coverage, and 
service area if it demonstrates that these additional plans' cost 
sharing for benefits pertaining to the treatment of chronic and high-
cost conditions (including benefits in the form of prescription drugs, 
if pertaining to the treatment of the condition(s)) is at least 25 
percent lower, as applied without restriction in scope throughout the 
plan year, than the cost sharing for the same corresponding benefits in 
an issuer's other non-standardized plan option offerings in the same 
product network type, metal level, and service area. The reduction must 
not be limited to a part of the year, or an otherwise limited scope of 
benefits, and the reduced cost sharing for these benefits cannot be 
conditioned on a consumer having a particular diagnosis. Chronic and 
high-cost

[[Page 82655]]

conditions that may qualify an issuer for this exception will be 
determined by HHS.
    (e) An issuer that seeks to utilize this exceptions process is 
required to submit a written justification in a form and manner and at 
a time prescribed by HHS that:
    (1) Identifies the specific condition(s) for which cost sharing is 
reduced;
    (2) Explains which benefit(s) would have reduced annual enrollee 
cost sharing (as opposed to reduced cost sharing for a limited number 
of visits) for the treatment of the specified condition(s) relative to 
the same corresponding benefits in an issuer's other non-standardized 
plan offerings in the same product network type, metal level, and 
service area; and
    (3) Explains how the reduced cost sharing for these benefits 
pertain to clinically indicated guidelines for treatment of the 
specified chronic and high-cost condition(s).
0
33. Section 156.520 is amended by revising paragraph (f) to read 
follows:


Sec.  156.520   Loan terms.

* * * * *
    (f) Conversions and voluntary terminations. (1) The loan recipient 
shall not convert or sell to a for-profit or non-consumer operated 
entity at any time after receiving a loan under this subpart. The loan 
recipient shall not undertake any transaction that would result in the 
CO-OP implementing a governance structure that does not meet the 
standards in this subpart.
    (2) CMS may, in its sole discretion, approve a request by a loan 
recipient to voluntarily terminate its loan agreement with CMS, and 
cease to constitute a QNHII, for the purpose of permitting a loan 
recipient to pursue innovative business plans that are not otherwise 
consistent with the requirements of this subpart, provided that all 
outstanding CO-OP loans issued to the loan recipient are repaid in full 
prior to termination of the loan agreement, and CMS believes granting 
the request would meaningfully enhance consumer access to quality, 
affordable, member-focused, non-profit health care options in affected 
markets.
0
34. Section 156.1215 is amended by revising paragraphs (b) and (c) to 
read as follows:


Sec.  156.1215   Payment and collections processes.

* * * * *
    (b) Netting of payments and charges for later years. As part of its 
payment and collections process, HHS may net payments owed to issuers 
and their affiliates operating under the same tax identification number 
against amounts due to the Federal government from the issuers and 
their affiliates under the same taxpayer identification number for 
advance payments of the premium tax credit, advance payments of and 
reconciliation of cost-sharing reductions, payment of Federally-
facilitated Exchange user fees, payment of State Exchanges utilizing 
the Federal platform user fees, HHS risk adjustment, reinsurance, and 
risk corridors payments and charges, and administrative fees for 
utilizing the Federal Independent Dispute Resolution process in 
accordance with Sec.  149.510(d)(2).
    (c) Determination of debt. Any amount owed to the Federal 
government by an issuer and its affiliates for advance payments of the 
premium tax credit, advance payments of and reconciliation of cost-
sharing reductions, Federally-facilitated Exchange user fees, including 
any fees for State-based Exchanges utilizing the Federal platform, HHS 
risk adjustment, reinsurance, risk corridors, and unpaid administrative 
fees for utilizing the Federal Independent Dispute Resolution process 
in accordance with Sec.  149.510(d)(2), after HHS nets amounts owed by 
the Federal government under these programs, is a determination of a 
debt.

Xavier Becerra,
Secretary, Department of Health and Human Services.
Lily L. Batchelder,
Assistant Secretary of the Treasury (Tax Policy), Department of the 
Treasury.
[FR Doc. 2023-25576 Filed 11-16-23; 4:15 pm]
BILLING CODE 4120-01-P