Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 20581 

§ 488.13 Loss of accreditation. 

If an accrediting organization notifies 

CMS that it is terminating a provider or 

supplier due to non-compliance with its 

CMS-approved accreditation 

requirements, the state survey agency 

will conduct a full review in a timely 

manner. 

■ 17. Section 488.28 is amended by 

revising paragraph (a) to read as follows: 

§ 488.28 Providers or suppliers, other than 

SNFs and NFs, with deficiencies. 

(a) If a provider or supplier is found 

to be deficient in one or more of the 

standards in the conditions of 

participation, conditions for coverage, 

or conditions for certification or 

requirements, it may participate in, or 

be covered under, the Medicare program 

only if the provider or supplier has 

submitted an acceptable plan of 

correction for achieving compliance 

within a reasonable period of time 

acceptable to the Secretary. In the case 

of an immediate jeopardy situation, the 

Secretary may require a shorter time 

period for achieving compliance. 

* * * * * 

PART 489—PROVIDER AGREEMENTS 

AND SUPPLIER APPROVAL 

■ 18. The authority citation for part 489 

is revised to read as follows: 

Authority: Secs. 1102 and 1871 of the 

Social Security Act (42 U.S.C. 1302 and 

1395(hh). 

■ 19. Section 489.1 is amended by 

revising paragraph (b) to read as follows: 

§ 489.1 Statutory basis. 

* * * * * 

(b) Although section 1866 of the Act 

speaks only to providers and provider 

agreements, the following rules in this 

part also apply to the approval of 

supplier entities that, for participation 

in Medicare, are subject to a 

determination by CMS on the basis of a 

survey conducted by the state survey 

agency or CMS surveyors; or, in lieu of 

a state survey agency or CMS-conducted 

survey, accreditation by an accrediting 

organization whose program has CMS 

approval in accordance with § 488.4 at 

the time of the accreditation survey and 

accreditation decision, in accordance 

with the following: 

(1) The effective date rules specified 

in § 489.13. 

(2) The requirements specified in 

§ 489.53(a)(2), (13), and (18), related to 

termination by CMS of participation in 

Medicare. 

* * * * * 

■ 20. Section 489.3 is amended by 

revising the definition of ‘‘Immediate 

jeopardy’’ to read as follows: 

§ 489.3 Definitions. 

* * * * * 

Immediate jeopardy means a situation 

in which the provider’s or supplier’s 

non-compliance with one or more 

requirements, conditions of 

participation, conditions for coverage, 

or certification has caused, or is likely 

to cause, serious injury, harm, 

impairment, or death to a resident or 

patient. 

* * * * * 

■ 21. Section 489.53 is amended by— 

■ A. Revising paragraphs (a) 

introductory text, (a)(2), (a)(13). 

■ B. Adding reserved paragraph (a)(17). 

■ C. Adding paragraph (a)(18). 

■ D. Revising paragraph (d)(2)(i) 

introductory text. 

The additions and revisions read as 

follows: 

§ 489.53 Termination by CMS. 

(a) Basis for termination of agreement. 

CMS may terminate the agreement with 

any provider if CMS finds that any of 

the following failings is attributable to 

that provider, and may, in addition to 

the applicable requirements in this 

chapter governing the termination of 

agreements with suppliers, terminate 

the agreement with any supplier to 

which the failings in paragraphs (a)(2), 

(a)(13), and (a)(18) of this section are 

attributable: 

* * * * * 

(2) The provider or supplier places 

restrictions on the persons it will accept 

for treatment and it fails either to 

exempt Medicare beneficiaries from 

those restrictions or to apply them to 

Medicare beneficiaries the same as to all 

other persons seeking care. 

* * * * * 

(13) The provider or supplier refuses 

to permit photocopying of any records 

or other information by, or on behalf of, 

CMS, as necessary to determine or 

verify compliance with participation 

requirements. 

* * * * * 

(17) [Reserved] 

(18) The provider or supplier fails to 

grant immediate access upon a 

reasonable request to a state survey 

agency or other authorized entity for the 

purpose of determining, in accordance 

with § 488.3, whether the provider or 

supplier meets the applicable 

requirements, conditions of 

participation, conditions for coverage or 

conditions for certification. 

* * * * * 

(d) * * * 

(2) * * * 

(i) Hospitals. If CMS finds that a 

hospital is in violation of § 489.24 (a) 

through (f), and CMS determines that 

the violation poses immediate jeopardy 

to the health or safety of individuals 

who present themselves to the hospital 

for emergency services, CMS— 

* * * * * 

CMS–3255–P 

Authority: (Catalog of Federal Domestic 

Assistance Program No. 93.778, Medical 

Assistance Program) 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: November 15, 2012. 

Marilyn Tavenner, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: March 13, 2013. 

Kathleen Sebelius, 

Secretary. 

[FR Doc. 2013–07950 Filed 4–4–13; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 155 

[CMS–9955–P] 

RIN 0938–AR75 

Patient Protection and Affordable Care 

Act; Exchange Functions: Standards 

for Navigators and Non-Navigator 

Assistance Personnel 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), Department 

of Health and Human Services (HHS). 

ACTION: Proposed rule. 

SUMMARY: The proposed regulations 

would create conflict-of-interest, 

training and certification, and 

meaningful access standards applicable 

to Navigators and non-Navigator 

assistance personnel in Federallyfacilitated Exchanges, including State 

Partnership Exchanges, and to nonNavigator assistance personnel in Statebased Exchanges that are funded 

through federal Exchange Establishment 

grants. These proposed standards would 

help ensure that Navigators and nonNavigator assistance personnel will be 

fair and impartial and will be 

appropriately trained, and that they will 

provide services and information in a 

manner that is accessible. 

The proposed regulations would also 

make two amendments to the existing 

regulation for Navigators that would 

apply to all Navigators in all Affordable 

Insurance Exchanges (Exchanges), 

including State-based Exchanges, 

clarifying that any Navigator licensing, 

certification, or other standards 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
20582 Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 

1See 77 FR 18310, 18325–26 (Mar. 27, 2012); 

General Guidance on Federally-facilitated 

Exchanges (May 16, 2012) at http://cciio.cms.gov/ 

resources/files/ffe-guidance-05–16–2012.pdf; and 

Guidance on the State Partnership Exchange (Jan. 

3, 2013) at http://cciio.cms.gov/resources/files/ 

partnership-guidance-01–03–2013.pdf. 

prescribed by the state or Exchange 

must not prevent the application of the 

provisions of title I of the Affordable 

Care Act; and adding to the list of 

entities ineligible to become Navigators, 

those entities with relationships to 

issuers of stop loss insurance, including 

those who are compensated directly or 

indirectly by issuers of stop loss 

insurance in connection with 

enrollment in Qualified Health Plans or 

non-Qualified Health Plans. The 

proposed regulations would also clarify 

that the same ineligibility criteria that 

apply to Navigators would also apply to 

non-Navigator assistance personnel 

providing services in any Federallyfacilitated Exchanges, including in State 

Consumer Partnership Exchanges, and 

to federally funded non-Navigator 

assistance personnel in State-based 

Exchanges. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on May 6, 2013. 

ADDRESSES: In commenting, please refer 

to file code CMS–9955–P. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to 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–9955–P, P.O. Box 8010, Baltimore, 

MD 21244–1850. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–9955–P, Mail 

Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

4. By hand or courier. Alternatively, 

you may deliver (by hand or courier) 

your written comments ONLY to the 

following addresses prior to the close of 

the comment period: a. For delivery in 

Washington, DC—Centers for Medicare 

& Medicaid Services, Department of 

Health and Human Services, Room 445– 

G, Hubert H. Humphrey Building, 200 

Independence Avenue, SW., 

Washington, DC 20201. 

(Because access to the interior of the 

Hubert H. Humphrey Building is not 

readily available to persons without 

federal government identification, 

commenters are encouraged to leave 

their comments in the CMS drop slots 

located in the main lobby of the 

building. A stamp-in clock is available 

for persons wishing to retain a proof of 

filing by stamping in and retaining an 

extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, call 

telephone number (410) 786–9994 in 

advance to schedule your arrival with 

one of our staff members. 

Comments erroneously mailed to the 

addresses indicated as appropriate for 

hand or courier delivery may be delayed 

and received after the comment period. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: Joan 

Matlack, (888) 393–2789. 

SUPPLEMENTARY INFORMATION: Inspection 

of Public Comments: All comments 

received before the close of the 

comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following Web 

site as soon as possible after they have 

been received: http:// 

www.regulations.gov. Follow the search 

instructions on that Web site to view 

public comments. 

Comments received timely will also 

be available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, 

Baltimore, Maryland, 21244, Monday 

through Friday of each week from 8:30 

a.m. to 4 p.m. To schedule an 

appointment to view public comments, 

phone (800) 743–3951. 

I. Background 

A. Introduction 

The Patient Protection and Affordable 

Care Act (Pub. L. 111–148) was enacted 

on March 23, 2010; the Health Care and 

Education Reconciliation Act (Pub. L. 

111–152) was enacted on March 30, 

2010. These laws are collectively known 

as the Affordable Care Act. 

Beginning on October 1, 2013, 

individuals and small businesses will be 

able to purchase private health 

insurance through state-based 

competitive marketplaces called 

Affordable Insurance Exchanges 

(Exchanges), also known as the Health 

Insurance Marketplaces. 

The Exchanges will provide 

competitive marketplaces where 

individuals and small employers can 

compare available private health 

insurance options on the basis of price, 

quality, and other factors. The 

Exchanges, which will offer coverage 

that is effective beginning on January 1, 

2014, will help enhance competition in 

the health insurance market, improve 

choice of affordable health insurance, 

and give small businesses the same 

purchasing power as large businesses. 

Pursuant to sections 1311(b) and 

1321(b) of the Affordable Care Act, each 

state has the opportunity to establish an 

Exchange that—(1) Facilitates the 

purchase of insurance coverage by 

qualified individuals through Qualified 

Health Plans (QHPs); (2) assists 

qualified employers in the enrollment of 

their employees in QHPs; and (3) meets 

other standards specified in the 

Affordable Care Act. These are referred 

to as State-Based Exchanges. 

Section 1321(c)(1) of the Affordable 

Care Act requires the Secretary of HHS 

(‘‘Secretary’’) to establish and operate 

Exchanges within states that either: (1) 

do not elect to establish an Exchange, or 

(2) as determined by the Secretary on or 

before January 1, 2013, will not have an 

Exchange operational by January 1, 

2014. These HHS-operated Exchanges 

are referred to as Federally-facilitated 

Exchanges. The Secretary has also 

explained through sub-regulatory 

guidance that these Federally-facilitated 

Exchanges may include State 

Partnership Exchanges in which states 

may assume significant responsibility 

for key Exchange functions.1 Generally, 

a State Partnership Exchange will take 

one of two forms: a State Plan 

Management Partnership Exchange, or a 

State Consumer Partnership Exchange 

(Consumer Partnership Exchange). 

Consumers can receive assistance 

from a variety of sources when seeking 

access to health insurance coverage 

through an Exchange. Sections 

1311(d)(4)(K) and 1311(i) of the 

Affordable Care Act, and the regulation 

implementing those provisions, 45 CFR 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 20583 

155.210, direct all Exchanges to award 

grants to Navigators that will provide 

fair and impartial information to 

consumers about health insurance, the 

Exchange, QHPs, and insurance 

affordability programs including 

premium tax credits, Medicaid and the 

Children’s Health Insurance Program 

(CHIP); and that will provide referrals to 

consumer assistance programs (CAP) 

and health insurance ombudsmen for 

enrollees with grievances, complaints, 

or questions about their health plan or 

coverage. Navigators are an important 

resource for all consumers, particularly 

communities that are under-served by 

and under-represented in the current 

health insurance market. Navigators will 

not make eligibility determinations and 

will not select QHPs for consumers or 

enroll applicants into QHPs, but will 

help consumers through the eligibility 

and enrollment process. The Exchange 

regulations, at 45 CFR 155.400(a), state 

that ‘‘[t]he Exchange must accept a QHP 

selection from an applicant * * * and 

must—(1) Notify the issuer of the 

applicant’s selected QHP; and (2) 

Transmit information necessary to 

enable the QHP issuer to enroll the 

applicant’’ (emphasis added). 

Additionally, as articulated in 45 CFR 

§ 155.310(d), the Exchange is 

responsible for making eligibility 

determinations. Taken together, these 

regulations clearly mean that the 

Exchange, not Navigators, must 

determine eligibility and enroll 

applicants into QHPs. Additionally, a 

Navigator cannot make the decision for 

an applicant as to which QHP to select. 

That said, Navigators may play an 

important role in facilitating a 

consumer’s enrollment in a QHP by 

providing fair, impartial, and accurate 

information that assists consumers with 

submitting the eligibility application, 

clarifying the distinctions among QHPs, 

and helping qualified individuals make 

informed decisions during the health 

plan selection process. 

The Exchange regulations also 

authorize Exchanges to perform certain 

consumer service functions in addition 

to the Navigator program. Federal 

regulations at 45 CFR § 155.205(d) and 

(e) provide that each Exchange must 

conduct consumer assistance activities 

as well as outreach and education 

activities to educate consumers about 

the Exchange and insurance 

affordability programs to encourage 

participation. The activities under 

§ 155.205(d) and (e) include, but are not 

limited to, the Navigator grant program. 

Establishing a non-Navigator consumer 

assistance program pursuant to 

§ 155.205(d) and (e) will help ensure 

that the Exchange is providing outreach, 

education, and assistance to as broad a 

range of consumers as possible so that 

all consumers can receive help when 

accessing health insurance coverage 

through an Exchange. 

A program established to fulfill the 

consumer assistance, education, and 

outreach functions under § 155.205(d) 

and (e) through in-person consumer 

support, other than a Navigator 

program, is referred to in the proposed 

regulation and in this preamble as a 

‘‘non-Navigator assistance program 

authorized by § 155.205(d) and (e)’’ or 

more simply as a ‘‘non-Navigator 

assistance program.’’ In addition, we 

refer to persons carrying out these 

consumer assistance, education, and 

outreach functions under § 155.205(d) 

and (e) as ‘‘non-Navigator assistance 

personnel carrying out consumer 

assistance functions under § 155.205 (d) 

and (e)’’ or ‘‘non-Navigator entities or 

individuals authorized to carry out 

consumer assistance functions under 

§ 155.205 (d) and (e)’’ or more simply as 

‘‘non-Navigator assistance personnel.’’ 

Non-Navigator assistance programs 

include what have sometimes been 

referred to as ‘‘in-person assistance 

programs.’’ Similarly, non-Navigator 

assistance personnel include what have 

sometimes been referred to as ‘‘inperson assistance personnel.’’ Therefore, 

when references are made in this 

preamble or in the proposed regulation 

to non-Navigator assistance programs or 

non-Navigator assistance personnel, 

those references also apply to in-person 

assistance programs or in-person 

assistance personnel, respectively. 

State-based Exchanges may, but need 

not, establish non-Navigator assistance 

programs to provide consumer 

assistance, education, and outreach 

under § 155.205(d) and (e). 

Additionally, as a condition of a state’s 

participation in a Consumer Partnership 

Exchange, the state will establish and 

operate a non-Navigator assistance 

program in a way that is consistent with 

the policies and interpretations HHS 

adopts for § 155.205(d) and (e) for the 

Federally-facilitated Exchanges. This 

does not affect the obligation of a 

Consumer Partnership Exchange to 

establish and operate a Navigator 

program, however. HHS will have 

responsibility for the inherently 

governmental function of awarding 

federal Navigator grants for the 

Federally-facilitated Exchanges, 

including State Partnership Exchanges. 

Federally-facilitated Exchanges, other 

than Consumer Partnership Exchanges, 

do not anticipate including a nonNavigator assistance program. 

Section 1311(i)(6) prohibits 

Exchanges from using section 1311(a) 

grant funds to fund Navigator grants. 

However, section 1311(a) grant funds 

may be used to cover the Exchange’s 

cost of administering the Navigator 

program, including, for example, the 

cost of Navigator training, grants 

management, and oversight. 

State-based Exchanges and state 

partners in Consumer Partnership 

Exchanges may use section 1311(a) 

Exchange Establishment grants to fund 

non-Navigator assistance programs 

consistent with the following 

discussion. 

Together, section 1311(a)(4)(B) and 

section 1311(d)(5)(A) provide that, as 

long as grant funds under section 

1311(a) are available to the state, a Statebased Exchange need not be selfsustaining during its initial year of 

operation. Accordingly, as long as 

section 1311(a) grant funds are available 

to the state, a State-based Exchange may 

not have sufficient funds independent 

of section 1311(a) grant funds during its 

initial year of operation to achieve all of 

the goals of the Navigator program. As 

a transitional policy in such 

circumstances, a State-based Exchange 

may use a non-Navigator assistance 

program in its initial year of operation 

to fill in any gaps in its Navigator 

program and otherwise ensure that the 

full range of services that its Navigator 

program will provide in subsequent 

years are provided during its initial year 

of operation. As the State-based 

Exchange becomes self-sustaining, the 

roles of the non-Navigator assistance 

program and the Navigator program may 

change. We note that, after the Statebased Exchange becomes selfsustaining, the State-based Exchange 

can choose to establish or continue a 

non-Navigator assistance program, as a 

supplement to its fully-funded 

Navigator program. Similarly, a Statebased Exchange that is self-sustaining 

from the outset, because section 1311(a) 

grant funds are no longer available to 

the state, can make a similar choice. In 

both such circumstances, the nonNavigator assistance program would 

have to be funded through some source 

other than section 1311(a) grant funds. 

Section 1311(a) grant funds are 

available for non-Navigator assistance 

programs in Consumer Partnership 

Exchanges because the state has elected 

to establish and operate outreach, 

educational, and assistance activities to 

assist in its transition to a State-based 

Exchange, as a condition of its 

participation in the Consumer 

Partnership Exchange. Such activities 

do not purport to, nor do they in fact, 

supplant the obligation of the federal 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
20584 Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 

government to establish a Navigator 

program. When a state partner in a 

Consumer Partnership Exchange 

transitions to a State-Based Exchange, 

the discussion of State-Based Exchanges 

above will apply. 

While section 1311(i)(1) directs that 

the Navigator program be a grant 

program, State-based Exchanges and 

state partners in a Consumer 

Partnership Exchange have the 

flexibility to build a non-Navigator 

assistance program through contracts, 

direct hiring, or grants, subject to state 

law. Utilizing funding mechanisms 

other than grants for non-Navigator 

assistance programs may be particularly 

important to ensure that State-based 

Exchanges have enhanced flexibility to 

utilize non-Navigator assistance 

personnel to fill in any gaps in their 

Navigator programs or to appropriately 

supplement their Navigator program, as 

described above, by, for example, 

serving communities that may not be 

reached by their Navigator program. 

B. Legislative and Regulatory Overview 

Section 1311 of the Affordable Care 

Act generally establishes the creation of 

Exchanges and outlines various 

requirements and standards Exchanges 

must satisfy. Specifically, pursuant to 

sections 1311(b) and 1321(b) of the 

Affordable Care Act, each state has the 

opportunity to establish an Exchange. 

Sections 1311(d)(4)(K) and 1311(i) of 

the Affordable Care Act direct each 

Exchange to establish a program under 

which it awards grants to Navigators 

who will carry out a list of required 

duties. A final rule implementing 

sections 1311(d)(4)(K) and 1311(i) of the 

Affordable Care Act was published on 

March 27, 2012 (77 FR 18310), and is 

codified at 45 CFR § 155.210. 

Section 1311(i)(3) of the Affordable 

Care Act lists the duties Navigators must 

perform. Section 155.210(e) interprets 

these duties to include: maintaining 

expertise in eligibility, enrollment, and 

program specifications; conducting 

public education activities to raise 

awareness about the Exchange; 

providing information and services in a 

fair, accurate, and impartial manner, 

including information that 

acknowledges other health programs 

such as Medicaid and CHIP; facilitating 

selection of a QHP; providing referrals 

for consumers with questions, 

complaints, or grievances to any 

applicable office of health insurance 

consumer assistance or health insurance 

ombudsman established under section 

2793 of the Public Health Service Act 

(PHS Act), or any other appropriate state 

agency or agencies; providing 

information in a culturally and 

linguistically appropriate manner, 

including to persons with limited 

English proficiency; and ensuring 

accessibility and usability of Navigator 

tools and functions for persons with 

disabilities. 

Section 1311(i)(4) directs the 

Secretary to establish standards for 

Navigators, including provisions to 

ensure that any entity selected as a 

Navigator is qualified, and licensed if 

appropriate, to engage in the Navigator 

activities required by the law and to 

avoid conflicts of interest. 45 CFR 

155.210(b)(1), which interprets this 

provision, directs each Exchange to 

‘‘develop and publicly disseminate 

* * * [a] set of standards, to be met by 

all entities and individuals awarded 

Navigator grants, designed to prevent, 

minimize and mitigate any conflicts of 

interest, financial or otherwise, that may 

exist for an entity or individuals to be 

awarded a Navigator grant and to ensure 

that all entities and individuals carrying 

out Navigator functions have 

appropriate integrity.’’ Additionally, 45 

CFR 155.210(c)(1)(iv) provides that a 

Navigator must not have a conflict of 

interest during its term as Navigator. 45 

CFR 155.210(b)(2) directs Exchanges to 

develop and disseminate a set of 

training standards, to be met by all 

entities and individuals carrying out 

Navigator functions, to ensure Navigator 

expertise in the needs of underserved 

and vulnerable populations; eligibility 

and enrollment rules and procedures; 

the range of QHP options and insurance 

affordability programs; and privacy and 

security requirements applicable to 

personally identifiable information. 

This proposal develops and 

disseminates standards under 

§ 155.210(b)(1) and (2) for the Federallyfacilitated Exchanges, including State 

Partnership Exchanges, and for nonNavigator assistance personnel in Statebased Exchanges that are funded 

through federal Exchange Establishment 

grants. These standards could also be 

used by State-based Exchanges at their 

discretion for their Navigator programs 

and for any non-Navigator assistance 

programs not funded with 1311(a) 

Exchange Establishment grants. 

45 CFR 155.210(c)(1)(iii) also 

interprets section 1311(i)(4), and directs 

that entities or individuals must meet 

any licensing, certification, or other 

standards prescribed by the state or 

Exchange, if applicable, in order to 

receive a Navigator grant. 

Section 1311(i)(4) of the Affordable 

Care Act also specifies that under the 

standards established by the Secretary, 

Navigators shall not be health insurance 

issuers or receive any consideration 

directly or indirectly from any health 

insurance issuer in connection with the 

enrollment of any qualified individuals 

or employees of a qualified employer in 

QHPs. 45 CFR § 155.210(d), which 

interprets this provision, prohibits 

Navigators from being health insurance 

issuers. It also provides that Navigators 

should not receive any compensation 

directly or indirectly from health 

insurance issuers in connection with the 

enrollment of qualified individuals or 

employees of a qualified employer, 

whether that enrollment is in QHPs or 

in non-QHPs. Section 155.210(d) further 

clarifies that a Navigator must not be a 

subsidiary of a health insurance issuer 

or be an association that includes 

members of, or lobbies on behalf of, the 

insurance industry. 

Section 1311(i)(5) of the Affordable 

Care Act directs the Secretary to 

develop standards to ensure that 

information made available by 

Navigators is fair, accurate, and 

impartial. 

Provisions of the Exchange 

regulations, at 45 CFR 155.210(c)(2), 

direct the Exchange to select at least two 

different types of entities as Navigators, 

one of which must be a community and 

consumer-focused non-profit group. 

Section 1321(a) of the Affordable Care 

Act provides authority for the Secretary 

to establish standards and regulations to 

implement the statutory standards 

related to Exchanges, QHPs, and other 

components of title I of the Affordable 

Care Act. 

Section 1321(c)(1) of the Affordable 

Care Act requires the Secretary to 

establish and operate Exchanges within 

states that either: (1) do not elect to 

establish an Exchange, or (2) as 

determined by the Secretary on or 

before January 1, 2013, will not have an 

Exchange operational by January 1, 

2014. These HHS-operated Exchanges 

are referred to as Federally-facilitated 

Exchanges, and include State 

Partnership Exchanges. 

Section 1321(d) of the Affordable Care 

Act states that nothing in title I of that 

Act shall be construed to preempt any 

state law that does not prevent the 

application of the provisions of the title. 

Title I of the Affordable Care Act 

includes all provisions related to 

Exchanges, including the Navigator 

provisions. 

Provisions of the Exchange 

regulations, at 45 CFR 155.205(d), direct 

Exchanges to have a consumer 

assistance function that meets the 

accessibility standards set forth in 

§ 155.205(c). This consumer assistance 

function includes the Navigator program 

at section 1311(i) of the Affordable Care 

Act and 45 CFR 155.210, but is not 

limited to the Navigator program. 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 20585 

2See Notice of Proposed Rulemaking on Essential 

Health Benefits in Alternative Benefit Plans, 

Eligibility Notices, Fair Hearing and Appeal 

Processes for Medicaid and Exchange Eligibility 

Appeals and Other Provisions Related to Eligibility 

and Enrollment for Exchanges, Medicaid and CHIP, 

and Medicaid Premiums and Cost Sharing, 78 FR 

4594, 4710 (Jan. 22, 2013). 

45 CFR 155.205(e) directs Exchanges to 

conduct outreach and education 

activities that also meet the accessibility 

standards in § 155.205(c), and to 

educate consumers about the Exchange 

and insurance affordability programs to 

encourage participation. The 

accessibility standards for § 155.205(d) 

and (e), as detailed in § 155.205(c), 

include a requirement that applicants 

and enrollees be provided information 

in plain language and in a manner that 

is accessible and timely for persons with 

disabilities and individuals with limited 

English proficiency. Additionally, a 

notice of proposed rulemaking 

published on January 22, 2013 would 

amend § 155.205(d) 2 to require any 

individual providing consumer 

assistance under § 155.205(d) to be 

trained regarding QHP options, 

insurance affordability programs, 

eligibility, and benefits rules and 

regulations governing all insurance 

affordability programs operated in the 

state, as implemented in the state, prior 

to providing consumer assistance. Once 

finalized, that rule will apply to and 

require such training for non-Navigator 

assistance personnel. 

HHS has also published a proposed a 

rule (78 FR 4594) that would create a 

new section 45 CFR § 155.225, 

proposing to require each Exchange to 

certify staff and volunteers of Exchangedesignated organizations and 

organizations designated by State 

Medicaid and Children’s Health 

Insurance Program agencies to serve as 

certified application counselors in the 

Exchange. 

C. Overview of Proposed Rule 

First, this proposed regulation would 

amend § 155.210(c)(1)(iii) to clarify that 

any Navigator licensing, certification, or 

other standards prescribed by the state 

or Exchange must not prevent the 

application of the provisions of title I of 

the Affordable Care Act. The proposed 

rule would also amend § 155.210(d) to 

clarify that a Navigator cannot be an 

issuer of, or a subsidiary of an issuer of, 

stop loss insurance, and cannot receive 

any consideration, directly or indirectly, 

from an issuer of stop loss insurance in 

connection with the enrollment of any 

individuals or employees in a QHP or a 

non-QHP. These proposed amendments 

to § 155.210 would be applicable to 

Navigators in all Exchanges, including 

Federally-facilitated Exchanges, State 

Partnership Exchanges, and State-based 

Exchanges. 

Second, this proposed rule would add 

a new provision at 45 CFR 155.215 that 

would establish conflict-of-interest, 

training, and accessibility standards 

applicable to Navigators and nonNavigator assistance personnel in 

Federally-facilitated Exchanges, 

including State Partnership Exchanges. 

We also propose that these standards 

would apply to non-Navigator 

assistance programs and personnel in 

State-based Exchanges that are funded 

through federal section 1311(a) 

Exchange Establishment grants. 

Proposed section 155.215(a) provides 

details on the set of conflict-of-interest 

standards applicable to these Navigators 

and non-Navigator personnel. Proposed 

§ 155.215(a)(2)(i) would also establish 

that the non-Navigator assistance 

personnel described above must comply 

with the same set of conflict-of-interest 

prohibitions that apply to Navigators 

under § 155.210(d). Section 155.215(b) 

proposes standards related to training, 

certification, and recertification for 

these Navigators and non-Navigator 

personnel. These standards include 

details about the requirement to be 

certified, to register and receive training, 

the content required for training, and 

the requirement to receive a passing 

score on all HHS-approved certification 

examinations after training. Proposed 

§ 155.215(c) and (d) would establish 

standards for these Navigators and nonNavigator personnel to ensure 

meaningful access to their services by 

individuals with limited English 

proficiency and people with disabilities. 

The standards proposed at 155.215(c) 

and (d) should be read together with all 

other applicable standards issued by the 

Secretary related to ensuring meaningful 

access by individuals with limited 

English proficiency and people with 

disabilities. 

State-based Exchanges would not be 

required to use the standards proposed 

in § 155.215 for their Navigators, or for 

non-Navigator assistance programs not 

funded through section 1311(a) 

Exchange Establishment grants. 

However, we believe that State-based 

Exchanges may find the federal 

standards to be useful models, and 

could draw upon them as they develop 

and disseminate conflict-of-interest and 

training standards for Navigators 

pursuant to § 155.210(b), or when 

establishing standards for any nonNavigator assistance program that is 

established by the State-based Exchange 

that is not funded by federal 1311(a) 

Exchange Establishment grants. 

In addition, while the conflict-ofinterest, training and meaningful access 

standards that are now being proposed 

would apply to the Navigators and nonNavigator assistance personnel 

described above, we have not proposed 

that the standards would also apply to 

certified application counselors. 

Certified application counselors have 

been proposed as an additional source 

of consumer assistance, required in 

every Exchange, in a separate proposed 

rule (78 FR 4594), but that rule has not 

yet been finalized. We are, however, 

requesting public comments regarding 

whether all or some of the standards 

being proposed for Navigators and nonNavigator assistance personnel in this 

proposed regulation should also apply 

to certified application counselors in the 

event that every Exchange is required to 

establish a certified application 

counselor program after publication of a 

final rule. 

II. Provisions of the Proposed Rule 

A. Navigator Program Standards 

(Proposed Amendments to § 155.210) 

The proposed rule contains two 

amendments to specific provisions of 

the existing Navigator regulation, 

§ 155.210. These proposed amendments 

would apply to Navigators in all 

Exchanges, including Federallyfacilitated Exchanges, State Partnership 

Exchanges and State-based Exchanges. 

1. Entities and Individuals Eligible to be 

a Navigator (Proposed Amendment to 

§ 155.210(c)(1)(iii)) 

Section 155.210(c)(1)(iii), 

implementing section 1311(i)(4) of the 

Affordable Care Act, currently directs 

that, to receive a Navigator grant, an 

entity or individual must ‘‘meet any 

licensing, certification or other 

standards prescribed by the state or 

Exchange, if applicable.’’ Section 

1321(d) of the Affordable Care Act 

provides that state laws that do not 

prevent the application of the 

provisions of title I of the Affordable 

Care Act are not preempted. 

The proposed rule would clarify that 

any Navigator licensing, certification, or 

other standards prescribed by the state 

or Exchange should not prevent the 

application of the provisions of title I of 

the Affordable Care Act. Thus, for 

example, as HHS has previously advised 

(see 77 FR 18310 at 18331–32), a 

requirement by a state or an Exchange 

that Navigators be agents and brokers or 

obtain errors and omissions coverage 

would violate the requirement at 

§ 155.210(c)(2) that at least two types of 

entities must serve as Navigators, 

because it would mean that only agents 


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3HHS, jointly with the Departments of Labor and 

the Treasury, issued a Request for Information 

Regarding Stop Loss Insurance on May 1, 2012. See 

77 FR 25788. In that Request for Information, we 

explained that stop loss insurance is designed to 

protect against health insurance claims that are 

catastrophic or unpredictable in nature, and that it 

provides coverage to self-insured group health 

plans once a certain level of risk has been absorbed 

by the plan. 

or brokers could be Navigators. In 

addition, holding an agent or broker 

license is neither necessary, nor by itself 

sufficient, to perform the duties of a 

Navigator, as these licenses generally do 

not address areas in which Navigators 

need expertise, including the public 

coverage options that would be 

available to some consumers. Similarly, 

if a State or Exchange required all 

Navigators to hold a producer license, or 

if a producer license was required to 

carry out any of the required Navigator 

duties, this would also conflict with 

§ 155.210(c)(2), because in that event, all 

Navigators in the Exchange would be 

licensed agents or brokers, as defined in 

§ 155.20. 

Therefore, we propose to amend 

§ 155.210(c)(1)(iii) to clarify, consistent 

with Affordable Care Act section 

1321(d), that to receive a Navigator 

grant, an entity or individual must meet 

any licensing, certification or other 

standard prescribed by the State or 

Exchange, if applicable, as long as such 

standards do not prevent the application 

of the provisions of title I of the 

Affordable Care Act. We solicit public 

public comments on this proposed 

amendment. 

2. Prohibition on Navigator Conduct 

(Proposed Amendment to § 155.210(d)) 

Under § 155.210(d), a Navigator may 

not be a health insurance issuer; be a 

subsidiary of a health insurance issuer; 

be an association that includes members 

of, or lobbies on behalf of, the insurance 

industry; or receive any consideration, 

directly or indirectly, from any health 

insurance issuer in connection with the 

enrollment of any individuals or 

employees in a QHP or non-QHP. We 

propose to amend section 155.210(d) to 

further clarify that a Navigator must also 

not be an issuer of stop loss insurance, 

or a subsidiary of an issuer of stop loss 

insurance, and must not receive any 

consideration, directly or indirectly, 

from any issuer of stop loss insurance in 

connection with the enrollment of 

individuals or employers in a QHP or 

non-QHP.3

Section 1311(i)(3)(B) of the Affordable 

Care Act directs that a Navigator must 

distribute fair and impartial information 

concerning enrollment in QHPs. Section 

1311(i)(5) of the Affordable Care Act 

further directs that the Secretary shall 

establish standards to ensure that 

information made available by 

Navigators is fair, accurate, and 

impartial. In addition, section 1311(i)(4) 

directs the Secretary to establish 

standards to avoid conflicts of interest 

by Navigators. Existing regulations at 45 

CFR 155.210(c)(1)(iv) and (e)(2) also 

direct that Navigators must not have a 

conflict of interest during their term as 

a Navigator, and must provide 

information and services in a fair, 

accurate, and impartial manner. Taken 

together, these requirements indicate 

that a Navigator should not have a 

conflict of interest when presenting 

information or providing the range of 

coverage choices to individuals or small 

employers who receive the Navigator’s 

assistance. Similarly, the Navigator 

must not have a personal interest in the 

coverage choices made by individuals or 

employers who receive the Navigator’s 

assistance. More specifically, with 

respect to the assistance offered by a 

Navigator to a small employer, a 

Navigator should not have a personal 

interest in whether a small employer 

chooses to self-insure its employees, or 

chooses to enroll in fully-insured 

coverage inside or outside the Exchange. 

We believe that an issuer of stop loss 

insurance, a subsidiary of an issuer of 

stop loss insurance, or an individual or 

entity receiving consideration from any 

issuer of stop loss insurance in 

connection with enrollment in a QHP or 

non-QHP, would have conflicts of 

interest prohibited by § 155.210(c)(1)(iv) 

and such conflicts of interest would 

compromise the ability of a Navigator to 

provide information and services in a 

fair, accurate, and impartial manner as 

required by § 155.210(e)(2). 

Navigators with a financial 

relationship with an issuer of stop loss 

insurance raise the same kinds of 

concerns that would be present for a 

Navigator with a relationship with a 

health insurance issuer (or an entity 

receiving consideration from a health 

insurance issuer). Such Navigators 

could have a financial incentive to 

encourage small employers towards selffunding and might not present all 

coverage options, including insured 

options, to small employers in a fair, 

accurate, and impartial manner. In 

addition, such conflicts of interest might 

interfere with a Navigator’s duty to 

‘‘facilitate selection of a QHP,’’ as 

required by § 155.210(e)(3). 

The proposed amendments would 

help ensure that Navigators provide any 

small employers that request help from 

a Navigator with information and 

services in a fair, accurate, and impartial 

manner, and that such information 

facilitate small employers’ selection of 

QHPs in Small Business Health Options 

(SHOP) Exchanges, if they choose to 

enroll in such coverage. We solicit 

public comments on this proposal. 

B. Standards Applicable to Navigators 

and Non-Navigator Assistance 

Personnel Carrying Out Consumer 

Assistance Functions Under 

§§ 155.205(d) and (e) and 155.210 in a 

Federally-Facilitated Exchange and to 

Non-Navigator Assistance Personnel 

Funded Through an Exchange 

Establishment Grant (Proposed 

§ 155.215) 

1. Conflict-of-Interest Standards 

(Proposed § 155.215(a)) 

The proposed regulation proposes 

conflict-of-interest standards that are 

substantially similar for both Navigators 

and non-Navigator assistance personnel. 

These proposed conflict-of-interest 

standards would apply to all Navigators 

and non-Navigator assistance personnel 

in a Federally-facilitated Exchange 

(including a State Partnership 

Exchange), and to federally-funded nonNavigator assistance personnel in a 

State-based Exchange. 

The standards applicable to 

Navigators interpret the requirements at 

section 1311(i)(4) of the Affordable Care 

Act and 45 CFR 155.210(c)(1)(iv) and 

(d). In addition, these standards would 

help ensure that Navigators provide 

information in a fair, accurate, and 

impartial manner, pursuant to 

Affordable Care Act section 1311(i)(5) 

and 45 CFR 155.210(e)(2). These 

standards also follow from 45 CFR 

155.210(b), which specifies that 

Exchanges establish a set of conflict-ofinterest standards applicable to 

Navigators in the Exchange. 

We also believe that non-Navigator 

assistance personnel who carry out 

consumer outreach, assistance, and 

education in Federally-facilitated 

Exchanges, including State Partnership 

Exchanges, and non-Navigator 

assistance personnel in State-based 

Exchanges that are funded through 

Exchange Establishment grants should 

be subject to conflict-of-interest 

standards. To be helpful to the public, 

we believe that services provided under 

§ 155.205(d) and (e) should be carried 

out in a fair, impartial, and unbiased 

manner. Applying conflict-of-interest 

standards to these non-Navigator 

assistance personnel will therefore 

ensure that they provide services 

consistent with this interpretation of 

§ 155.205,and will minimize confusion 

in the marketplace. We solicit public 

comments on applying the same 

conflict-of-interest standards to both 


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Navigators and non-Navigator assistance 

personnel. 

State-based Exchanges would not be 

required to adopt the conflict-of-interest 

standards proposed in § 155.215(a) for 

their Navigators or for their nonNavigator assistance personnel that are 

not funded through 1311(a) Exchange 

Establishment grants. However, Statebased Exchanges may wish to consider 

using the standards proposed in 

§ 155.215 as models when developing 

their own standards. 

a. Conflict-of-Interest Standards for 

Navigators (Proposed § 155.215(a)(1)) 

Section 1311(i)(4) of the Affordable 

Care Act directs the Secretary to 

establish standards for Navigators, 

including provisions to avoid conflicts 

of interest. Section 155.210(b)(1) directs 

all Exchanges to develop and publicly 

disseminate conflict-of-interest 

standards for Navigators. The conflictof-interest standards proposed in 

§ 155.215(a)(1) are intended to apply to 

all Navigators in Federally-facilitated 

Exchanges, including State Partnership 

Exchanges. 

Section 155.210(c)(1)(iv) prohibits 

Navigators from having conflicts of 

interest during their terms as 

Navigators. In this context, we have 

explained that having a conflict of 

interest means having a private or 

personal interest sufficient to influence, 

or appear to influence, the objective 

exercise of a Navigator’s official duties 

(77 FR 18330–18331). In addition, 

§ 155.210(d) directs that a Navigator 

must not have certain relationships with 

insurance issuers or the insurance 

industry. Because any individual or 

entity with the conflicts of interest 

listed at § 155.210(d) would be barred 

from participating as a Navigator, the 

first proposed conflict-of-interest 

standard, as set forth in proposed 

§ 155.215(a)(1)(i), would require that a 

Navigator entity, including a Navigator 

grant applicant, submit to the Exchange 

a written attestation that the Navigator 

and its staff do not have any of these 

prohibited conflicts of interest. This 

disclosure to the Exchange will help to 

ensure that Navigators comply with the 

prohibitions on Navigator conduct set 

forth in § 155.210(d), and that 

individuals and entities who are 

ineligible under § 155.210(d) do not 

apply to the Exchange for grants to serve 

as Navigators. We solicit public 

comments on the proposal to require 

Navigators to submit an attestation 

regarding eligibility. 

Proposed § 155.215(a)(1)(ii) would 

direct that all Navigator entities submit 

to the Exchange a written plan to remain 

free of conflicts of interest during their 

term as a Navigator. This plan should 

ensure that the Navigator grantee, and 

all those individuals who serve as 

Navigators under the direction of the 

Navigator grantee, would fully comply 

with the prohibitions in § 155.210(d), 

and all other conflict-of-interest 

requirements, as described below, 

throughout the term of a Navigator 

grant. This would be particularly 

important for those Navigator entities 

that may have a changing workforce, 

and might thus utilize new or different 

staff or employees during the term of a 

Navigator grant. We solicit public 

comments on the proposed requirement 

to submit a written plan to remain free 

of conflicts of interest, including 

comments on the form of and content 

for the plan. 

Proposed § 155.215(a)(1)(iii) would 

direct that all Navigators, both 

individual Navigators and Navigator 

entities, and their staff, provide 

information to consumers about the full 

range of QHP options and insurance 

affordability programs such as premium 

tax credits and cost sharing reductions 

and Medicaid and CHIP, for which they 

are eligible. This proposed requirement 

would help ensure that consumers 

receive all of the information they need 

to make an informed enrollment 

decision, and that the information they 

receive is fair, as required by 

§ 155.210(e)(2). 

Lastly, the proposed conflict-ofinterest standards for Navigators include 

the requirement at proposed 

§ 155.215(a)(1)(iv) that certain conflicts 

of interest, while not a bar to serving as 

a Navigator, should be disclosed to the 

Exchange and to each consumer 

receiving application assistance (which 

includes pre-enrollment and postenrollment services, but does not 

include outreach and education 

assistance), both by the Navigator 

individual and the entity. In developing 

the conflict-of-interest standards in the 

proposed rule, we have been mindful 

that every Navigator must ‘‘provide 

information and services in a fair, 

accurate and impartial manner’’ under 

§ 155.210(e)(2). We have also been 

mindful that each Exchange must 

develop standards ‘‘designed to prevent, 

minimize and mitigate any conflicts of 

interest, financial or otherwise, that may 

exist for an entity or individuals to be 

awarded a Navigator grant and to ensure 

that all entities and individuals carrying 

out Navigator functions have 

appropriate integrity,’’ § 155.210(b)(1). 

The requirement that an Exchange 

develop standards to minimize and 

mitigate conflicts of interests suggests 

that some conflicts of interest would not 

be absolute bars to service as a 

Navigator, provided that the conflict of 

interest would not ultimately prevent 

the entity or individual from providing 

information and services in a fair, 

accurate, and impartial manner. Striking 

this balance will allow for a robust pool 

of Navigators, without sacrificing the 

need to ensure that all Navigators have 

the integrity, fairness, and impartiality 

to carry out their duties appropriately. 

Under the proposed rule, in order to 

mitigate conflicts of interest, there are 

three types of information that 

Navigators should disclose to the 

Exchange and to their consumers. First, 

Navigator and all Navigator staff 

members would be required to disclose 

to the Exchange and to each consumer 

who receives application assistance 

from the Navigator entity or individual, 

any lines of insurance business, other 

than health insurance or stop loss 

insurance, which the Navigator intends 

to sell while serving as a Navigator. 

Since Navigators must not sell health 

insurance and as we also propose, must 

not sell stop loss insurance, the 

proposed requirement that Navigators 

disclose ‘‘any lines of insurance 

business’’ is not intended to apply to the 

sale of health insurance or stop loss 

insurance, since these are not conflicts 

of interest that could be mitigated 

through disclosure (see § 155.210(d)). 

In addition, the proposed rule would 

require disclosure of two other types of 

indirect financial conflicts of interest. 

Navigators and their staff members 

would be required to disclose to the 

Exchange and each consumer receiving 

application assistance, any existing and 

former employment relationships they 

have had within the last five years with 

any issuer of health insurance or stop 

loss insurance, or subsidiaries of such 

issuers. It is is intended that any 

existing employment relationships 

disclosed would be non-prohibited 

relationships, because receipt of any 

consideration directly or indirectly from 

any health insurance issuer or issuer of 

stop loss insurance in connection with 

the enrollment of any individuals or 

employees in a QHP or a non-QHP 

would already be prohibited by 

§ 155.210(d)(4). They must also disclose 

any existing employment relationships 

between any health insurance issuer or 

stop-loss insurance issuer, or subsidiary 

of such issuers, and the individual’s 

spouse or domestic partner. Navigators 

and their staff members would also be 

required to disclose to the Exchange and 

to each consumer receiving application 

assistance any existing or anticipated 

financial, business, or contractual 

relationships with one or more issuers 

of health insurance or stop loss 

insurance or subsidiaries of such 


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issuers. These types of conflict-ofinterest relationships with issuers of 

health insurance or stop loss insurance 

should be disclosed because these 

relationships may confer benefits or 

indirect financial gain that would 

compromise a Navigator’s objectivity. 

We solicit public comments on the 

proposed requirement to disclose 

certain types of potential financial 

conflicts of interest. 

Under existing regulations, a 

Navigator must not act on behalf of 

health insurance issuers, either as 

agents or under appointment, since this 

would violate the prohibition on 

conflicts of interest in § 155.210(d)(1) 

through (d)(3) and the prohibition at 

§ 155.210(d)(4) on receiving 

compensation from issuers in 

connection with enrollment. However, 

we note that agents and brokers have 

traditionally assisted consumers in 

obtaining health insurance. We 

anticipate that agents and brokers will 

continue to be an important source of 

assistance for many consumers seeking 

access to health insurance coverage 

through an Exchange, including those 

who own and/or are employed by small 

businesses. The proposed conflict-ofinterest standards for Navigators would 

permit agents and brokers to serve as 

Navigators in an Exchange operated by 

HHS, provided that the agent or broker 

can satisfy the standards that will apply 

to all Navigators in the Exchange. For 

example, as stated above, all Navigators, 

including agents and brokers serving as 

Navigators, are prohibited from 

receiving consideration, directly or 

indirectly, from any health insurance 

issuer in connection with the 

enrollment of consumers into QHPs or 

non-QHPs (§ 155.210(d)(4)), and we 

interpret that provision to apply to the 

receipt of trailer commissions. Under 

the proposed amendments to 

§ 155.210(d), the same prohibition 

would apply to agents or brokers 

receiving consideration from stop loss 

insurance issuers. Agents and brokers 

who sell other lines of insurance would 

not be prohibited from receiving 

consideration from the sale of those 

other lines of insurance while serving as 

Navigators, provided they complied 

with the disclosure requirement. 

If an entity or organization is awarded 

a grant to be a Navigator, the entity as 

a whole is considered to be a Navigator. 

Therefore, the prohibition on receipt of 

compensation from certain insurance 

issuers in connection with the 

enrollment of consumers into QHPs or 

non-QHPs, would apply to the entire 

organization and its entire staff. While 

a Navigator could retain staff members 

who serve as agents and brokers, those 

staff members—and the organization 

itself—could not receive compensation 

from health insurance or stop loss 

insurance issuers for enrolling 

individuals or employees in QHPs or 

health insurance plans outside of the 

Exchange. Such staff members, 

however, could continue to be 

compensated for selling other insurance 

products (for example, auto, life, and 

homeowners’ policies). 

We solicit public comments on the 

proposed conflict-of-interest standards 

applicable to Navigators. 

b. Conflict-of-Interest Standards for 

Non-Navigator Assistance Personnel 

Carrying Out Consumer Assistance 

Functions Under § 155.205(d) and (e) 

(Proposed § 155.215(a)(2)) 

Proposed § 155.215(a)(2) would 

establish a set of parallel conflict-ofinterest standards that would apply in 

Federally-facilitated Exchanges 

(including State Partnership Exchanges) 

to non-Navigator assistance personnel 

carrying out consumer assistance 

functions under 155.205(d) and (e), and 

to federally-funded non-Navigator 

assistance personnel in a State-Based 

Exchange. As discussed above, we 

believe the same conflict-of-interest 

considerations that apply to Navigators 

should also apply to these nonNavigator assistance personnel. With 

respect to the requirement to submit a 

mitigation plan under proposed 

§ 155.215(a)(2)(iii), consistent with the 

requirement that only a Navigator entity 

(not individual staff) would be required 

to submit the plan, the mitigation plan 

would only be required on an 

individual basis if the individual is not 

working for an entity serving as nonNavigator assistance personnel. 

In addition, the proposed rule would 

direct that these non-Navigator 

assistance personnel adhere to and 

comply with the same restrictions on 

participation and prohibitions on 

conduct that apply to Navigators under 

§ 155.210(d). Therefore, like Navigators, 

individuals and entities performing 

non-Navigator assistance functions 

under § 155.205(d) and (e) must not 

have any of the disqualifying conflicts 

of interest arising from being an issuer 

of health insurance or stop loss 

insurance, a subsidiary of such an 

issuer, or an association with members 

that are issuers or that lobbies for health 

insurance or stop loss issuers, or from 

receiving compensation from an issuer 

of health insurance or stop loss 

insurance in connection with 

enrollment in QHPs or non-QHPs. We 

solicit public comments on the 

application of these proposed standards 

to non-Navigator assistance personnel. 

2. Training Standards for Navigators and 

Non-Navigator Assistance Personnel 

Carrying Out Consumer Assistance 

Functions Under §§ 155.205(d) and (e) 

and 155.210 (Proposed § 155.215(b)) 

Existing regulations at 45 CFR 

155.210(b)(2) direct Exchanges to 

develop and disseminate a set of 

training standards, to be met by all 

entities and individuals carrying out 

Navigator functions. Under 

§ 155.210(b)(2), the training standards 

developed by the Exchange must ensure 

Navigator expertise in eligibility and 

enrollment rules and procedures, the 

range of QHP options and insurance 

affordability programs, the needs of 

underserved and vulnerable 

populations, and privacy and security 

requirements applicable to personally 

identifiable information. In addition, to 

receive a Navigator grant, 

§ 155.210(c)(1)(iii) directs that an entity 

or individual must meet any licensing, 

certification, or other standards 

prescribed by the state or Exchange, if 

applicable. 

In addition, in the proposed rule 

relating to Essential Health Benefits in 

Alternative Benefit Plans, Eligibility 

Notices, Fair Hearing and Appeal 

Processes for Medicaid and Exchange 

Eligibility Appeals and Other Provisions 

Related to Eligibility and Enrollment for 

Exchanges, Medicaid and CHIP, and 

Medicaid Premiums and Cost Sharing, 

published on January 22, 2013 (78 FR 

4594, 4710), we proposed an 

amendment to § 155.205(d) that would 

require any individual providing 

consumer assistance under that section, 

including Navigators, to ‘‘be trained 

regarding QHP options, insurance 

affordability programs, eligibility, and 

benefits rules and regulations governing 

all insurance affordability programs 

operated in the state, as implemented in 

the state, prior to providing such 

assistance.’’ 

Consistent with the existing 

requirements in § 155.210(b)(2) and 

§ 155.210(c)(1)(iii) and the proposed 

requirements at 78 FR 4710, we now 

propose a specific set of training 

standards that would require up to 30 

hours of training, including standards 

for certification and recertification, for 

all Navigators and non-Navigator 

assistance personnel in Federallyfacilitated Exchanges, including State 

Partnership Exchanges, and all federally 

funded non-Navigator assistance 

personnel in State-based Exchanges, to 

ensure that these entities and 

individuals can satisfy the duties and 

obligations of serving as Navigators or 

non-Navigator assistance personnel. 

These proposed standards would be 


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applicable to all Navigators and nonNavigator assistance personnel in 

Federally-facilitated Exchanges, 

including State Partnership Exchanges, 

and to all federally funded nonNavigator assistance personnel in Statebased Exchanges, and can be used by 

State-based Exchanges at their option 

for their Navigator personnel and nonfederally funded non-Navigator 

assistance personnel. 

a. Certification and Recertification 

Standards (Proposed § 155.215(b)(1)) 

Section 1311(i)(4) of the Affordable 

Care Act directs the Secretary to 

establish standards for Navigators, 

including provisions to ensure that any 

private or public entity that is selected 

as a Navigator is qualified, and licensed 

if appropriate, to engage in Navigator 

activities and to avoid conflicts of 

interest. Under existing regulations at 45 

CFR 155.210(c)(1)(iii), Navigators must 

meet any ‘‘licensing, certification or 

other standards prescribed by the state 

or Exchange, if applicable.’’ In addition, 

we have previously proposed to amend 

§ 155.205(d) to require that any 

individual providing consumer 

assistance under § 155.205(d) must be 

trained regarding QHP options, 

insurance affordability programs, 

eligibility, and benefits rules and 

regulations governing all insurance 

affordability programs operated in the 

state, as implemented in the state, prior 

to providing such assistance (78 FR 

4594). 

We now propose in § 155.215(b)(1) 

that all Navigators and non-Navigator 

assistance personnel in a Federallyfacilitated Exchange or State Partnership 

Exchange, and federally-funded nonNavigator assistance personnel in a 

State-Based Exchange, register with the 

Exchange and be certified by the 

Exchange, and prior to certification, 

complete an HHS-approved training 

before carrying out any consumer 

assistance functions in the Exchange. 

We propose in § 155.215(b)(2) the topics 

about which such Navigators and nonNavigator assistance personnel would 

receive training prior to certification. 

The proposed rule would also direct 

that individuals and staff of Navigator 

entities and non-Navigator assistance 

entities receive a passing score on all 

HHS-approved examinations in order to 

serve as Navigators or non-Navigator 

assistance personnel in a Federallyfacilitated Exchange, a State Partnership 

Exchange, or as federally-funded nonNavigator assistance personnel in a 

State-based Exchange. 

The proposed recertification 

requirement for Navigators and nonNavigator assistance personnel would 

ensure that they remain appropriately 

trained to adequately serve consumers. 

The rule also proposes that Navigators 

and non-Navigator assistance personnel 

should obtain continuing education and 

be certified and/or recertified on at least 

an annual basis. 

We also propose that these 

certification requirements would 

specifically direct that all Navigators 

and non-Navigator assistance personnel 

be prepared to serve both the individual 

Exchange and SHOP in a Federallyfacilitated Exchange. Section 

1311(i)(2)(A) of the Affordable Care Act 

directs that, to be eligible to receive a 

Navigator grant, an entity must 

demonstrate that it has existing 

relationships, or could readily establish 

relationships, with employers and 

employees. In addition, section 

1311(i)(2)(B) directs that the types of 

entities that may be eligible for a 

Navigator grant include resource 

partners of the Small Business 

Administration. We infer from these 

standards that Navigators must be 

prepared to serve the needs of small 

businesses, and therefore will need to be 

prepared to serve the needs of both the 

individual Exchange and SHOP. We 

also believe that non-Navigator 

assistance personnel who carry out 

consumer outreach, assistance, and 

education in the Exchange and are paid 

for by Federal funding should be 

prepared to serve the needs of both the 

individual Exchange and SHOP. In 

order to be truly helpful and useful to 

the public, we believe that services 

provided under § 155.205(d) and (e) 

should be available to all consumers, 

including small businesses. Directing 

non-Navigator assistance personnel in 

Federally-facilitated Exchanges, 

including State Partnership Exchanges, 

and federally funded non-Navigator 

assistance personnel in State-based 

Exchanges to provide assistance to all 

consumers will ensure that they provide 

services consistent with this 

interpretation of § 155.205. 

Each Navigator and non-Navigator 

assistance personnel should have the 

ability to help any individual who 

presents him or herself for assistance. 

However, there may be some instances 

where a Navigator, or non-Navigator 

assistance personnel, does not have the 

immediate capacity to help an 

individual. In such cases, the Navigator 

or non-Navigator assistance personnel 

should be capable of providing 

assistance in a timely manner but 

should also refer consumers seeking 

assistance to other Exchange resources, 

such as the toll-free Exchange Call 

Center, or to another Navigator or nonNavigator assistance personnel in the 

same Exchange who might have better 

capacity to serve that individual more 

effectively. 

We solicit public comments on these 

proposed training and certification 

standards, including the proposed 

recertification standards. 

b. Training Module Content Standards 

(Proposed § 155.215(b)(2)) 

Each entity that serves as a Navigator, 

and each individual that will carry out 

Navigator functions under the terms of 

a Navigator grant in a Federallyfacilitated Exchange or State Partnership 

Exchange, must receive training to 

perform all of the duties of a Navigator. 

Although different Navigators may 

perform these duties at different levels 

of effort or focus, every Navigator must 

be trained to perform all of the listed 

duties in section 1311(i)(3) of the 

Affordable Care Act and in § 155.210(e). 

Therefore, in order to carry out a 

Navigator’s duties to maintain expertise 

in eligibility and facilitate selection of 

QHPs, all Navigators will receive 

training so that they are equipped with 

the necessary information to help 

consumers apply for coverage through 

the Exchange, which will ultimately 

result in an eligibility determination for 

enrollment in a QHP and/or an 

insurance affordability program. NonNavigator assistance personnel must 

receive comparable training with 

respect to their specific responsibilities. 

In addition, Navigators and nonNavigator assistance personnel must 

receive training on the privacy and 

security requirements for the protection 

of personally identifiable information, 

including relevant state laws. 

In addition to training designed to 

help Navigators and non-Navigator 

assistance personnel build expertise in 

eligibility and facilitating selection of 

QHPs, training for Navigators and nonNavigator assistance personnel should 

prepare them to educate consumers 

about the advanced payments of the 

premium tax credit and cost-sharing 

reductions and help them submit the 

appropriate information to receive an 

eligibility determination for insurance 

affordability programs, including 

advanced payments of the premium tax 

credits and cost-sharing reductions. In 

addition, Navigators should be trained 

so that they will be prepared to fulfill 

the duty at § 155.210(e)(2) to ‘‘provide 

information and services in a fair, 

accurate and impartial manner,’’ 

including the requirement that ‘‘such 

information acknowledge other health 

programs,’’ including Medicaid and 

CHIP. Therefore, § 155.215(b)(2) 

proposes a set of standards for the 

content of the training module for 


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20590 Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 

Navigators and non-Navigator assistance 

personnel in a Federally-facilitated 

Exchange or State Partnership 

Exchange, and for federally funded nonNavigator assistance personnel in a 

State-based Exchange, to ensure that 

they would be knowledgeable in these 

areas, and fully prepared to assist 

consumers. 

The Exchange regulations, at 45 CFR 

155.260(a), establish privacy and 

security standards for Exchanges, and 

§ 155.260(b) provides that Exchanges 

must require Navigators and other nonExchange entities to abide by the same 

or more stringent privacy and security 

standards as a condition of contract or 

agreement with such entities. Consistent 

with these requirements, we propose 

that the training for Navigators and nonNavigator assistance personnel must 

include training designed to ensure that 

they safeguard consumers’ sensitive 

personal information including but not 

limited to health information, income 

and tax information, and Social Security 

number. 

Subsections 155.205(d) and (e) direct 

Exchanges to conduct consumer 

assistance, outreach, and education 

activities, including Navigator 

programs, in a way that meets the 

standards set forth at § 155.205(c). 

Section 155.205(c), in turn, directs 

Exchanges to provide information to 

applicants and enrollees in plain 

language and in a manner that is 

accessible and timely to individuals 

living with disabilities and individuals 

who are limited English proficient 

(LEP). Additionally, § 155.210(e)(5) 

directs Navigators to provide 

information in a manner that is 

culturally and linguistically appropriate 

to the needs of the population served by 

the Exchange, including individuals 

with limited English proficiency, and to 

ensure accessibility and usability of 

Navigator tools and functions for 

individuals with disabilities. We 

interpret the foregoing provisions to 

require all entities and individuals 

carrying out activities authorized by §§ 

155.205(d) and (e) and155.210, 

including Navigators and non-Navigator 

assistance personnel, to be 

knowledgeable about the special needs 

of populations with limited English 

proficiency and people with a full range 

of disabilities, and how best to 

communicate with and assist these 

consumers. The rule therefore proposes 

that the training for Navigators and nonNavigator assistance personnel would 

include training designed to ensure that 

they will be equipped to provide 

culturally and linguistically appropriate 

services and ensure physical and other 

accessibility for people with disabilities. 

We solicit public comments on the 

proposed requirement to receive 

training regarding culturally and 

linguistically appropriate services as 

well as accessibility for people with 

disabilities. 

3. Providing Culturally and 

Linguistically Appropriate Services 

(CLAS Standards) (Proposed 

§ 155.215(c)) 

Proposed § 155.215(c) and (d) detail 

standards for the use and provision of 

culturally and linguistically appropriate 

tools and services as well as 

requirements to ensure access by 

individuals with disabilities who seek 

assistance from Navigators and nonNavigator assistance personnel in 

Federally-facilitated Exchanges, 

including State Partnership Exchanges, 

and from federally-funded nonNavigator assistance personnel in a 

State-based Exchange. 

Section 1311(i)(3)(E) of the Affordable 

Care Act directs that Navigator entities 

have a duty to provide information in a 

manner that is culturally and 

linguistically appropriate to the needs of 

the population being served by the 

Exchange or Exchanges. According to 

the regulation implementing this 

provision, Navigators must ‘‘provide 

information in a manner that is 

culturally and linguistically appropriate 

to the needs of the population being 

served by the Exchange, including 

individuals with limited English 

proficiency’’ (§ 155.210(e)(5)). 

Additionally, all non-Navigator 

assistance personnel must meet the 

accessibility standards set forth at 

§ 155.205(c). 

Independent of these obligations, 

certain Federal civil rights laws, such as 

Title VI of the Civil Rights Act of 1964 

and Section 504 of the Rehabilitation 

Act of 1973, also apply to Navigators in 

Federally-facilitated and State 

Partnership Exchanges. These laws 

would also apply to non-Navigator 

assistance programs in State-based and 

State Partnership Exchanges to the 

extent such programs receive federal 

financial assistance. These federal civil 

rights laws impose nondiscrimination 

obligations with respect to persons with 

disabilities and that address the 

communications needs of persons who 

have limited English proficiency (LEP). 

While the proposed training module 

content standards discussed earlier in 

this preamble include a requirement 

that training include providing 

culturally and linguistically appropriate 

services, this proposed rule also 

provides more specific standards for 

ensuring meaningful access. These 

proposed standards should be read 

together with all other applicable 

standards issued by the Secretary 

related to ensuring meaningful access by 

individuals with limited English 

proficiency. 

The specific standards proposed in 

§ 155.215(c) include that Navigators and 

non-Navigator assistance personnel 

develop, maintain, and regularly update 

general knowledge about the racial, 

ethnic, and cultural groups in their 

service area, including the primary 

languages spoken, and continue to use 

this information. The proposed 

requirements would also include that 

such entities and individuals provide 

consumers with information and 

assistance in the consumer’s preferred 

language, at no cost to the consumer, 

which would include oral interpretation 

of non-English languages and the 

translation of written documents in nonEnglish languages when necessary to 

ensure meaningful access. We also 

propose that use of a consumer’s family 

or friends as interpreters can satisfy the 

requirement to provide linguistically 

appropriate services only when 

requested by the consumer as the 

preferred alternative to an offer of other 

interpretive services. We anticipate that 

most Navigators and non-Navigator 

assistance personnel would use readily 

available telephonic interpretation 

services and other effective low-cost 

services in order to meet the 

requirement to provide language access 

to the consumers they serve, so that it 

will not be costly or onerous. 

In addition, § 155.215(c)(4) of the 

proposed rule would require that nonNavigator assistance personnel provide 

limited-English-proficiency consumers 

with oral and written notices informing 

them of their right to receive language 

assistance services and how to obtain 

such services. This requirement could 

be satisfied using methods outlined in 

existing § 155.205(c)(2), which allows 

for the use of taglines in non-English 

languages placed on documents or Web 

sites to indicate the availability of 

language services. 

Section 155.215(c)(6) of the proposed 

rule would also direct Navigator and 

non-Navigator assistance personnel 

entities to implement strategies to 

recruit and promote a staff that is 

representative of the demographic 

characteristics, including primary 

languages spoken, of the communities 

in their service area. 

4. Standards Ensuring Access by 

Persons With Disabilities (Proposed 

§ 155.215(d)) 

Section 155.210(e)(5) directs that an 

entity serving as a Navigator has a duty 

to ‘‘ensure accessibility and usability of 


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Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 20591 

4These positions are estimated to be equivalent 

to a GS–9 position with the Federal government. 

See http://www.opm.gov/policy-data-oversight/payleave/salaries-wages/2012/general-schedule/ 

gs_h.pdf. 

5These positions are estimated to be equivalent 

to a GS–12 position with the Federal government. 

See http://www.opm.gov/policy-data-oversight/payleave/salaries-wages/2012/general-schedule/ 

gs_h.pdf. 

6These positions are estimated to be equivalent 

to a GS–15 position with the Federal government. 

See http://www.opm.gov/policy-data-oversight/payleave/salaries-wages/2012/general-schedule/ 

gs_h.pdf. 

Navigator tools and functions for 

individuals with disabilities in 

accordance with the Americans with 

Disabilities Act and Section 504 of the 

Rehabilitation Act.’’ Similarly, 

§ 155.205(c) requires that persons 

providing consumer assistance pursuant 

to § 155.205(d) and (e) provide 

individuals living with disabilities with 

information that is accessible at no cost 

to the individual, in accordance with 

the Americans with Disabilities Act and 

section 504 of the Rehabilitation Act. 

Additionally, independent of these 

obligations, certain Federal civil rights 

laws, such as Title VI of the Civil Rights 

Act of 1964 and Section 504 of the 

Rehabilitation Act of 1973, also apply to 

Navigators in Federally-facilitated and 

State Partnership Exchanges. These laws 

would also apply to non-Navigator 

assistance programs in State-based and 

State Partnership Exchanges to the 

extent such programs receive federal 

financial assistance. These federal civil 

rights laws impose nondiscrimination 

obligations with respect to persons with 

disabilities and that address the 

communications needs of persons who 

have limited English proficiency (LEP). 

In accordance with these 

requirements, § 155.215(d)(2) of the 

proposed rule would direct that 

auxiliary aids and services for 

individuals with disabilities be 

provided at no cost where necessary for 

effective communication. The proposal 

specifies that the use of a consumer’s 

family or friends as interpreters can 

satisfy the requirement to provide 

auxiliary aids and services only when 

requested by the consumer as the 

preferred alternative to an offer of other 

auxiliary aids and services. In addition, 

proposed section 155.215(d)(3) would 

require Navigators and non-Navigator 

assistance personnel in a Federallyfacilitated Exchange or State Partnership 

Exchange, and federally-funded nonNavigator assistance personnel in a 

State-based Exchange to provide 

assistance to consumers in a location 

and in a manner that is physically and 

otherwise accessible to individuals with 

disabilities. Proposed section 

155.215(d)(1) would direct Navigators 

and non-Navigator assistance personnel 

to ensure that any consumer education 

materials, Web sites, or other tools 

utilized for consumer assistance 

purposes are accessible to people with 

disabilities. 

Section 155.215(d)(4) of the proposed 

rule would also require that legally 

authorized representatives be permitted 

to assist individuals with disabilities to 

make informed decisions. Finally, 

proposed § 155.215(d)(5) would direct 

that individuals carrying out Navigator 

and non-Navigator assistance functions 

have the ability to refer people with 

disabilities to local, state, and federal 

long-term services and supports 

programs when appropriate. We seek 

comment on this requirement. 

These proposed standards should be 

read together with all other applicable 

standards issued by the Secretary 

related to ensuring meaningful access by 

people with disabilities. 

5. Monitoring (Proposed § 155.215(e)) 

The proposed rule indicates that 

Federally-facilitated Exchanges 

(including State Partnership Exchanges) 

will monitor compliance with the 

standards described in § 155.215 and 

with the requirements described in 

§ 155.205(d) and (e) and 155.210. To the 

extent possible, these Exchanges will 

engage in monitoring whether 

Navigators and non-Navigator assistance 

personnel comply with those standards, 

including, for example, reviewing 

reports filed by Navigators and 

reviewing the attestations and conflictof-interest plans required to be 

submitted to the Exchange as proposed 

in § 155.215(a)(1)(i) through (ii) and 

(a)(2)(ii) through (iii) of the proposed 

regulation; conducting discussions with 

states in which Navigator grantees and 

non-Navigator assistance personnel 

exercise their functions; and reviewing 

casework and complaints filed with the 

Exchange or a relevant state. We solicit 

comments on how monitoring for 

federally-funded non-Navigator 

assistance personnel in State-based 

Exchanges should be conducted. 

III. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995, we are required to provide 60- 

day notice in the Federal Register and 

solicit public comment before a 

collection of information requirement is 

submitted to the Office of Management 

and Budget (OMB) for review and 

approval. In order to fairly evaluate 

whether an information collection 

should be approved by OMB, section 

3506(c)(2)(A) of the Paperwork 

Reduction Act of 1995 (PRA) requires 

that we solicit comment on the 

following issues: 

• The need for the information 

collection and its usefulness in carrying 

out the proper functions of our agency. 

• The accuracy of our estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• Recommendations to minimize the 

information collection burden on the 

affected public, including automated 

collection techniques. 

This proposed rule would establish 

conflict-of-interest and training 

standards, including standards for 

certification and recertification, for 

Navigators and non-Navigator assistance 

personnel in an Exchange being 

operated by HHS as a Federallyfacilitated Exchange or as a State 

Partnership Exchange pursuant to HHS 

authority under section 1321(c)(1) of the 

Affordable Care Act and for nonNavigator assistance personnel in Statebased Exchanges that are funded 

through federal Exchange Establishment 

grants. The proposal requires that these 

Navigators and non-Navigator assistance 

personnel provide an attestation that 

they are not ineligible individuals or 

entities and submit a plan for mitigating 

conflicts of interest, register with the 

Exchange, receive training, be initially 

certified, and receive subsequent 

recertification with the Exchange. 

Section III.A outlines information 

collection requirements associated with 

disclosure of conflicts of interest. These 

disclosures include an attestation 

regarding eligibility to be a Navigator or 

non-Navigator assistance personnel; a 

plan for mitigating conflicts of interest; 

a requirement to provide information to 

consumers about their coverage options; 

and a requirement to disclose other 

potential, non-prohibited, conflicts of 

interest. Section III.B outlines 

information collection requirements 

associated with registration, 

certification, and recertification 

requirements. We are soliciting public 

comments on each of these issues for 

the following sections of the proposed 

rule that contain information collection 

requirements (ICRs). 

For purposes of the information 

collection requirements, Navigator 

personnel and non-Navigator assistance 

personnel are estimated to have a 

professional wage of $20 per hour.4

Navigator and non-Navigator assistance 

project leads are estimated to have a 

professional wage of $29 per hour.5

Navigator senior executives are 

estimated to have a professional wage of 

$48 per hour.6 The average professional 

wage for Navigator personnel, projects 


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20592 Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 

7The mitigation plan is only required on an 

individual basis if the individual is not working for 

an entity serving as non-Navigator assistance 

personnel. 8An individual could be serving as an entity. 

leads, senior executives, and nonNavigator assistance personnel and 

project leads is estimated to be $29.20 

per hour. 

At this time we are unable to estimate 

the number of Navigator grantees and 

applicants or the number of nonNavigator assistance personnel and 

project leads; therefore the estimates 

discussed below are on a per individual 

basis. Additionally, we are unable to 

estimate the number of consumers 

expected to receive assistance from 

Navigator grantees or non-Navigator 

assistance personnel; therefore estimates 

for disclosures to consumers discussed 

below are on a per consumer basis. We 

invite public comments on the number 

of Navigator grantees or the number of 

non-Navigator assistance personnel and 

project leads expected, as well as the 

number of consumers expected to 

receive assistance. 

A. ICRs Regarding Disclosure of 

Conflicts of Interest (Proposed 

§ 155.215(a)) 

Pursuant to proposed 

§ 155.215(a)(1)(i) & (iv) and (a)(2)(ii) & 

(v), Navigator program grantees and 

other entities and individuals providing 

assistance under §§ 155.205(d) and (e) 

would be required to disclose conflicts 

of interest. This disclosure would 

include an attestation that an individual 

or entity is not an ineligible entity. 

Additionally, pursuant to proposed 

§ 155.215(a)(1)(ii) and (a)(2)(iii), a plan 

for mitigating any conflicts of interest 

would also be submitted. The cost 

burden associated with the attestation 

would apply to each Navigator entity 

and applicant, and to each individual or 

entity serving as non-Navigator 

assistance personnel. The cost burden 

associated with the plan for mitigating 

any conflicts of interest will apply to 

each Navigator program grantee and to 

each individual or entity serving as nonNavigator assistance personnel.7 The 

attestation and mitigation plan are onetime requirements. 

We estimate it will take Navigator 

personnel, project leads, senior 

executives, non-Navigator assistance 

personnel, and non-Navigator assistance 

project leads 0.25 hours (15 minutes) 

each to prepare and provide the 

attestation that they are an eligible 

entity. With a wage of $20 per hour for 

Navigator and non-Navigator personnel, 

$29 per hour for Navigator and nonNavigator project leads, and $48 per 

hour for senior executives, we estimate 

the cost burden per Navigator personnel 

would be $5, per Navigator project lead 

would be $7.25, per Navigator senior 

executives would be $12, per nonNavigator assistance personnel would 

be $5, and per non-Navigator assistance 

personnel would be $7.25. The total 

burden per person would be 0.25 hours 

and $7.30 on average. 

The plan for mitigating conflicts of 

interest would be required on a per 

entity basis; 8 therefore we assume for 

Navigator program grantees, the senior 

executive would be responsible for 

developing and providing the plan for 

mitigating conflicts of interest because 

only one plan is required per grantee. 

For purposes of the ICR we are 

assuming burden and cost estimates 

based on a non-Navigator assistance 

project lead wage of $29 per hour. 

We estimate that for a Navigator 

program grantee it will take a senior 

executive up to 5 hours to prepare and 

provide a plan for mitigating conflicts of 

interest and a non-Navigator assistance 

project lead would also require up to 5 

hours to prepare and provide a plan for 

mitigating conflicts of interest. With a 

wage of $48 per hour for senior 

executives and $29 per hour for nonNavigator assistance project leads, we 

estimate the total one-time annual cost 

burden for a Navigator program grantee 

would be $240, and for non-Navigator 

assistance project leads would be $145. 

Pursuant to proposed 

§ 155.215(a)(1)(iii) and (a)(2)(iv), 

Navigator program grantees and nonNavigator assistance personnel would 

be required to provide information to 

consumers about the full range of QHP 

options and insurance affordability 

programs for which they are eligible. We 

assume that the total time to provide 

this disclosure would be one hour per 

disclosure. We assume for the Navigator 

program grantee that the Navigator 

personnel would prepare the disclosure 

and the total burden estimated per 

disclosure would be 1 hour at a cost of 

$20. For non-Navigator assistance 

personnel we estimate the total burden 

per disclosure would be 1 hour for 

preparing the disclosure at a cost of $20. 

The total burden per disclosure would 

be 1 hour and $20 on average. 

Pursuant to proposed 

§ 155.215(a)(1)(iv) and (a)(2)(v), 

Navigator personnel, projects leads, 

senior executives, non-Navigator 

assistance personnel, and non-Navigator 

assistance project leads would be 

required to disclose the Exchange and to 

consumers: any lines of insurance 

business, not covered by the restrictions 

on participation and prohibitions on 

conduct in § 155.210(d), which they 

intend to sell while carrying out the 

consumer assistance functions; any 

existing and former employment 

relationships within the last five years 

with any health insurance issuers or 

issuers of stop loss insurance or 

subsidiaries of health insurance issuers 

or issuers of stop loss insurance; any 

existing employment relationships 

between a spouse or domestic partner 

and any health insurance issuers or 

issuers of stop loss insurance or 

subsidiaries of health insurance issuers 

or issuers of stop loss insurance; and 

any existing or anticipated financial, 

business, or contractual relationships 

with one or more health insurance 

issuers or issuers of stop loss insurance, 

or subsidiaries of health insurance 

issuers or issuers of stop loss insurance. 

We estimate the total time to prepare 

this disclosure would be 0.16 hours (10 

minutes). The total cost estimated for 

preparing this disclosure per Navigator 

personnel would be $3.20, per Navigator 

project lead would be $4.64, per 

Navigator senior executive would be 

$7.68, per non-Navigator assistance 

personnel would be $3.20, and per nonNavigator assistance project lead would 

be $4.64. The total burden per person 

would be 0.16 hours and $4.67 on 

average. 

B. ICRs Regarding Training and 

Certification Standards (Proposed 

§ 155.215(b)) 

1. Registration Prior to Training 

Pursuant to proposed 

§ 155.215(b)(1)(ii), Navigator personnel, 

project leads, senior executives, nonNavigator assistance personnel, and 

non-Navigator assistance project leads 

would be required to register prior to 

training. We assume that it will take 

Navigator personnel, project leads, 

senior executives, non-Navigator 

assistance personnel, and non-Navigator 

assistance project leads each 0.25 hours 

(15 minutes) to register. With a wage of 

$20 per hour for Navigator and nonNavigator assistance personnel, $29 for 

Navigator and non-Navigator assistance 

project leads, and $48 for senior 

executives, we estimate the total cost 

burden for Navigator personnel would 

be $5, for Navigator project leads would 

be $7.25, for Navigator senior executives 

would be $12, for non-Navigator 

assistance personnel would be $5, and 

for non-Navigator assistance project 

leads would be $7.25. The total burden 

per person would be 0.25 hours and 

$7.30 on average. 


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2. Certification and Recertification 

Pursuant to § 155.215(b)(1), Navigator 

personnel, project leads, senior 

executives, non-Navigator assistance 

personnel, and non-Navigator assistance 

project leads would be required to 

complete a training program to obtain 

certification consisting of up to 30 hours 

of training including any approved 

certification exams. There are 

recordkeeping requirements associated 

with the certification and recertification 

provisions. Each person who receives 

training would be expected to obtain 

and maintain a record of certification. 

Pursuant to § 155.215(b)(1)(iv), 

Navigator personnel, project leads, 

senior executives, non-Navigator 

assistance personnel, and non-Navigator 

assistance project leads who intend to 

continue beyond their initial period of 

performance would be required to be 

recertified on an annual basis. Each 

person who receives recertification 

would be expected to obtain proof of 

recertification and keep it on file. It is 

estimated that the time burden 

associated with maintaining proof of 

certification or recertification would be 

0.016 hours (1 minute); we assume 

proof will be maintained through 

electronic copies with minimal cost. 

The total cost estimated for 

maintaining proof of certification or 

recertification per Navigator would be 

$0.32; per Navigator project lead would 

be $0.48; per Navigator senior executive 

would be $0.75; per non-Navigator 

assistance personnel would be $0.32, 

and per non-Navigator assistance project 

lead would be $0.48. In the initial year 

the requirement will be to maintain 

proof of initial certification; in 

subsequent years the requirement will 

be to maintain proof of recertification. 

Because these requirements would be 

the same time and cost burden we are 

categorizing them as one annual burden. 

The total annual burden estimated for 

maintaining proof of certification or 

recertification would be 0.016 hours and 

$0.47 on average. 

TABLE 1—ANNUAL RECORDKEEPING AND REPORTING REQUIREMENTS, BY RESPONDENT

Proposed regulation section(s) OMB control No. 

Burden per 

response 

(hours) 

Hourly labor 

cost of 

reporting 

($) ** 

Total labor 

cost of 

reporting 

($) 

Total capital/ 

maintenance 

costs ($) 

Conflict of Interest Attestation § 155.215(a)(1)(i) 

& (a)(2)(ii).

0938–New .................... 0.25 29.20 7.30 0 

Conflict of Interest Mitigation 

Plan§ 155.215(a)(1)(ii) & (a)(2)(iii) Navigator 

Senior Executive.

0938–New .................... 5 48 240 0 

Non-Navigator Assistance Project Lead ............... 5 .................................... 29 145 0 

Conflict of Interest Disclosure of Coverage Options § 155.215(a)(1)(iii) & (a)(2)(iv).0938–New .................... 1 20 20 0 

Conflict of Interest Disclosure to Exchange and 

Consumers § 155.215(a)(1)(iv) & (a)(2)(v).

0938–New .................... .16 29.20 4.67 0 

Training Registration § 155.215(b)(1)(ii) ............... 0938–New .................... 0.25 29.20 7.30 0 

Certification and Recertification § 155.215(b)(1) .. 0938–New .................... 0.016 29.20 0.47 0 

Total ............................................................... ....................................... ........................ ........................ 424.27 0 

** The hourly cost of $29.20 in certain rows is an average of the professional wages estimated for Navigator personnel, project leads, senior 

executives, non-Navigator assistance personnel, and non-Navigator assistance project leads. 

IV. Regulatory Impact Statement 

A. Summary 

HHS is publishing this proposed rule 

to implement the protections intended 

by Congress in the most economically 

efficient manner possible. HHS has 

examined the effects of this rule as 

required by Executive Order 13563 (76 

FR 3821, January 21, 2011), Executive 

Order 12866 (58 FR 51735, September 

1993, Regulatory Planning and Review), 

the Regulatory Flexibility Act (RFA) 

(September 19, 1980, Pub. L. 96–354), 

the Unfunded Mandates Reform Act of 

1995 (Pub. L. 104–4), Executive Order 

13132 on Federalism, and the 

Congressional Review Act (5 U.S.C. 

804(2)). 

B. Executive Orders 12866 and 13563 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects; distributive impacts; 

and equity). Executive Order 13563 is 

supplemental to and reaffirms the 

principles, structures, and definitions 

governing regulatory review as 

established in Executive Order 12866. 

OMB has determined that this proposed 

rule is a ‘‘significant regulatory action’’ 

under Executive Order 12866. 

Accordingly, OMB reviewed this 

proposed rule. 

1. Need for Regulatory Action 

This proposed regulation would 

establish conflict of interest, training 

and certification, and meaningful access 

standards applicable to Navigator 

programs in Federally-facilitated 

Exchanges, including State Partnership 

Exchanges, non-Navigator assistance 

programs in State Partnership 

Exchanges, and non-Navigator 

assistance programs in State-Based 

Exchanges that are funded through 

federal 1311(a) Exchange Establishment 

grants. The proposed rule would require 

that these Navigators and non-Navigator 

assistance personnel register with and 

be certified by the Exchange. In 

addition, the proposed rule would 

establish standards for Navigators and 

non-Navigator assistance personnel to 

ensure meaningful access to their 

services by individuals with limited 

English proficiency and individuals 

with disabilities. 

The proposed rule also would amend 

existing regulations to clarify that 

Navigators must meet any licensing, 

certification or other standards 

prescribed by the State or Exchange, if 

applicable, so long as such standards do 

not prevent the application of the 

provisions of title I of the Affordable 

Care Act; add entities with relationships 

with issuers of stop loss insurance, 

including those who are compensated 

directly or indirectly by issuers of stop 

loss insurance in connection with 

enrollment in QHPs or non-QHPs, to the 

list of entities ineligible to become 

Navigators; and clarify that the same 

ineligibility criteria that apply to 


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20594 Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 

9 ‘‘Table of Size Standards Matched To North 

American Industry Classification System Codes,’’ 

effective January 7, 2013, U.S. Small Business 

Administration, available at http://www.sba.gov. 

Navigators providing services in any 

Federally-facilitated Exchange, 

including State Partnership Exchanges, 

would also apply to non-Navigator 

assistance personnel providing 

assistance in State Partnership 

Exchanges and federally-funded nonNavigator assistance personnel in Statebased Exchanges. 

2. Summary of Impacts 

The proposed regulations would help 

ensure that Navigators in Federallyfacilitated Exchanges, non-Navigator 

assistance personnel in State 

Partnership Exchanges, and federallyfunded non-Navigator assistance 

personnel in State-based Exchanges will 

be fair and impartial, will be 

appropriately trained, and will provide 

services and information in a manner 

that is accessible to persons with 

limited English proficiency and persons 

with disabilities. The proposed rule 

would also ensure that Navigators meet 

any licensing, certification or other 

standards prescribed by the State or 

Exchange, if applicable, so long as such 

standards do not prevent the application 

of the provisions of title I of the 

Affordable Care Act. 

Navigators and non-Navigator 

assistance personnel would incur costs 

in order to comply with the provisions 

of this proposed rule, which would be 

covered by the Navigator grants and 

other compensation provided by the 

Exchange to non-Navigator assistance 

personnel. HHS anticipates that the 

impacts of the proposed rule would not 

be economically significant. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

requires agencies that issue a regulation 

to analyze options for regulatory relief 

of small businesses if a rule has a 

significant impact on a substantial 

number of small entities. The RFA 

generally defines a ‘‘small entity’’ as: (1) 

A proprietary firm meeting the size 

standards of the Small Business 

Administration (SBA); (2) a nonprofit 

organization that is not dominant in its 

field; or (3) a small government 

jurisdiction with a population of less 

than 50,000 (states and individuals are 

not included in the definition of ‘‘small 

entity’’). HHS uses as its measure of 

significant economic impact on a 

substantial number of small entities a 

change in revenues of more than 3 to 5 

percent. 

HHS anticipates that the proposed 

rule would not have a significant 

economic impact on a substantial 

number of small entities. Some of the 

entities that act as Navigators and nonNavigator assistance personnel may be 

small entities and would incur costs to 

comply with the provisions of this rule. 

It should be noted that serving as a 

Navigator or non-Navigator assistance 

personnel is voluntary, and the cost 

burden related to registering for 

accounts, verification of registration, 

initial online training and certification, 

continuing education and 

recertification, conflict of interest 

notification, and providing assistance to 

consumers would be covered by the 

Navigator grants and other 

compensation provided by the Exchange 

to non-Navigator assistance personnel. 

Due to lack of data, HHS is unable to 

estimate how many small entities would 

elect to serve as Navigators and nonNavigator assistance personnel. We 

invite public comments on this issue. 

The size threshold for ‘‘small’’ 

business established by the SBA is 

currently $7 million in annual receipts 

for insurance agencies and brokerages.9

As discussed earlier, we anticipate that 

agents and brokers will continue to be 

an important source of assistance for 

many consumers seeking access to 

health insurance coverage through an 

Exchange, including those who own 

and/or are employed by small 

businesses. The proposed conflict of 

interest standards for Navigators would 

permit agents and brokers to serve as 

Navigators in an Exchange operated by 

HHS, provided that the agent or broker 

can satisfy the standards that would 

apply to all Navigators in the Exchange. 

Additionally, we anticipate that agents 

and brokers will also play a role in 

educating consumers about Exchanges 

and insurance affordability programs, 

and in helping consumers receive 

eligibility determinations, compare 

plans, and enroll in coverage to the 

extent permitted by a given state. 

In addition, section 1102(b) of the 

Social Security Act requires us to 

prepare a regulatory impact analysis if 

a rule may have a significant economic 

impact on the operations of a substantial 

number of small rural hospitals. This 

analysis must conform to the provisions 

of section 604 of the RFA. This 

proposed rule would not affect small 

rural hospitals. Therefore, the Secretary 

has determined that this proposed rule 

would not have a significant impact on 

the operations of a substantial number 

of small rural hospitals. 

D. Unfunded Mandates Reform Act 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

requires that agencies assess anticipated 

costs and benefits before issuing any 

rule that includes a federal mandate that 

could result in expenditure in any one 

year by state, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million in 1995 

dollars, updated annually for inflation. 

In 2013, that threshold level is 

approximately $141 million. 

UMRA does not address the total cost 

of a final rule. Rather, it focuses on 

certain categories of cost, mainly those 

‘‘Federal mandate’’ costs resulting 

from—(1) imposing enforceable duties 

on state, local, or tribal governments, or 

on the private sector; or (2) increasing 

the stringency of conditions in, or 

decreasing the funding of, state, local, or 

tribal governments under entitlement 

programs. 

This proposed rule does not mandate 

expenditures by state governments, 

local governments, tribal governments, 

or the private sector, of $141 million. 

The cost burden for Navigators and nonNavigator assistance personnel related 

to registering for accounts, verification 

of registration, initial online training 

and certification, continuing education 

and recertification and conflict of 

interest notification would be covered 

by the Navigator grants and other 

compensation provided by the Exchange 

to non-Navigator assistance personnel 

and would not exceed the UMRA 

threshold. As discussed previously in 

the preamble, state-based Exchanges 

and state partners in State Partnership 

Exchanges may use section 1311(a) 

Exchange Establishment grants to fund 

non-Navigator assistance programs. 

Section 1311(i)(6) prohibits Exchanges 

from using section 1311(a) grant funds 

to fund Navigator grants. Section 

1311(a) grant funds, however, may be 

used to cover the Exchange’s cost of 

administering the Navigator program, 

including, for example, the cost of 

Navigator training, grants management, 

and oversight. 

E. Federalism 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a rule 

that imposes substantial direct 

requirement costs on state and local 

governments or has federalism 

implications. 

The proposed rule would clarify that 

any Navigator licensing, certification, or 

other standards prescribed by the state 

or Exchange should not prevent the 

application of the provisions of title I of 

the Affordable Care Act. An entity or 

individual would be required to meet 

any licensing, certification, or other 

standards prescribed by the State or 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 20595 

Exchange, if applicable, so long as such 

standards do not prevent the application 

of the provisions of title I of the 

Affordable Care Act. 

Throughout the process of developing 

this proposed regulation, HHS has 

attempted to balance the states’ interests 

and Congress’ intent to provide uniform 

minimum protections to consumers in 

every state. By doing so, it is HHS’s 

view that we have complied with the 

requirements of Executive Order 13132. 

Pursuant to the requirements set forth in 

section 8(a) of Executive Order 13132, 

and by the signatures affixed to this 

regulation, the Department certifies that 

the Centers for Medicare & Medicaid 

Services has complied with the 

requirements of Executive Order 13132 

for the proposed regulation in a 

meaningful and timely manner. 

F. Congressional Review Act 

This proposed rule is subject to the 

Congressional Review Act provisions of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 

U.S.C. § 801, et seq.), which specifies 

that before a rule can take effect, the 

federal agency promulgating the rule 

shall submit to each House of the 

Congress and to the Comptroller General 

a report containing a copy of the rule 

along with other specified information. 

List of Subjects in 45 CFR Part 155 

Administrative practice and 

procedure, Advertising, Brokers, 

Conflict of interest, Consumer 

protection, Grant programs-health, 

Grants administration, Health care, 

Health insurance, Health maintenance 

organization (HMO), Health records, 

Hospitals, Indians, Individuals with 

disabilities, Loan programs-health, 

Organization and functions 

(Government agencies), Medicaid, 

Public assistance programs, Reporting 

and recordkeeping requirements, Safety, 

State and local governments, Technical 

assistance, Women, and Youth. 

For the reasons stated in the 

preamble, the Department of Health and 

Human Services proposes to amend 45 

CFR part 155 as set forth below: 

PART 155—EXCHANGE 

ESTABLISHMENT STANDARDS AND 

OTHER RELATED STANDARDS 

UNDER THE AFFORDABLE CARE ACT 

■ 1. The authority citation for part 155 

continues to read as follows: 

Authority: Title I of the Affordable Care 

Act, sections 1301, 1302, 1303, 1304, 1311, 

1312, 1313, 1321, 1322, 1331, 1334, 1402, 

1411, 1412, 1413. 

■ 2. Section 155.210 is amended by 

revising paragraphs (c)(1)(iii), (d)(1), 

(d)(2), and (d)(4) to read as follows: 

§ 155.210 Navigator program standards. 

* * * * * 

(c) * * * 

(1) * * * 

(iii) Meet any licensing, certification 

or other standards prescribed by the 

State or Exchange, if applicable, so long 

as such standards do not prevent the 

application of the provisions of title I of 

the Affordable Care Act; 

* * * * * 

(d) * * * 

(1) Be a health insurance issuer or 

issuer of stop loss insurance; 

(2) Be a subsidiary of a health 

insurance issuer or issuer of stop loss 

insurance; 

* * * * * 

(4) Receive any consideration directly 

or indirectly from any health insurance 

issuer or issuer of stop loss insurance in 

connection with the enrollment of any 

individuals or employees in a QHP or a 

non-QHP. 

* * * * * 

■ 3. Section 155.215 is added to read as 

follows: 

§ 155.215 Standards applicable to 

Navigators and non-Navigator Assistance 

Personnel carrying out consumer 

assistance functions under §§ 155.205(d) 

and (e) and 155.210 in a Federally-facilitated 

Exchange and to non-Navigator Assistance 

Personnel Funded Through an Exchange 

Establishment Grant. 

(a) Conflict-of-Interest Standards. The 

following conflict-of-interest standards 

apply in an Exchange operated by HHS 

during the exercise of its authority 

under 45 CFR 155.105(f) and to nonNavigator assistance personnel funded 

through an Exchange Establishment 

Grant under section 1311(a) of the 

Affordable Care Act: 

(1) Conflict-of-Interest Standards for 

Navigators. 

(i) All Navigator entities, including 

Navigator grant applicants, must submit 

to the Exchange a written attestation 

that the Navigator, including the 

Navigator’s staff: 

(A) Is not a health insurance issuer or 

issuer of stop loss insurance; 

(B) Is not a subsidiary of a health 

insurance issuer or issuer of stop loss 

insurance; 

(C) Is not an association that includes 

members of, or lobbies on behalf of, the 

insurance industry; and 

(D) Will not receive any consideration 

directly or indirectly from any health 

insurance issuer or issuer of stop loss 

insurance in connection with the 

enrollment of any individuals or 

employees in a QHP or non-QHP. 

(ii) All Navigator entities must submit 

to the Exchange a written plan to remain 

free of conflicts of interest during the 

term as a Navigator. 

(iii) All Navigator entities, including 

the Navigator’s staff, must provide 

information to consumers about the full 

range of QHP options and insurance 

affordability programs for which they 

are eligible. 

(iv) All Navigator entities, including 

the Navigator’s staff, must disclose to 

the Exchange and to each consumer 

who receives application assistance 

from the Navigator: 

(A) Any lines of insurance business, 

not covered by the restrictions on 

participation and prohibitions on 

conduct in § 155.210(d), which the 

Navigator intends to sell while carrying 

out the consumer assistance functions; 

(B) Any existing employment 

relationships, or any former 

employment relationships within the 

last 5 years, with any health insurance 

issuers or issuers of stop loss insurance 

or subsidiaries of health insurance 

issuers or issuers of stop loss insurance, 

including any existing employment 

relationships between a spouse or 

domestic partner and any health 

insurance issuers or issuers of stop loss 

insurance, or subsidiaries of health 

insurance issuers or issuers of stop loss 

insurance; and 

(C) Any existing or anticipated 

financial, business, or contractual 

relationships with one or more health 

insurance issuers or issuers of stop loss 

insurance, or subsidiaries of health 

insurance issuers or issuers of stop loss 

insurance. 

(2) Conflict-of-Interest Standards for 

Non-Navigator Assistance Personnel 

Carrying Out Consumer Assistance 

Functions Under § 155.205(d) and (e). 

All Non-Navigator entities or 

individuals authorized to carry out 

consumer assistance functions under 

§ 155.205(d) and (e) must— 

(i) Comply with the prohibitions on 

Navigator conduct set forth at 

§ 155.210(d). 

(ii) Submit to the Exchange a written 

attestation that the entity or individual: 

(A) Is not a health insurance issuer or 

issuer of stop loss insurance; 

(B) Is not a subsidiary of a health 

insurance issuer or issuer of stop loss 

insurance; 

(C) Is not an association that includes 

members of, or lobbies on behalf of, the 

insurance industry; and 

(D) Will not receive any consideration 

directly or indirectly from any health 

insurance issuer or issuer of stop loss 

insurance in connection with the 

enrollment of any individuals or 

employees in a QHP or non-QHP. 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
20596 Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 

(iii) Submit to the Exchange a written 

plan to remain free of conflicts of 

interest while carrying out consumer 

assistance functions under § 155.205(d) 

and (e). 

(iv) Provide information to consumers 

about the full range of QHP options and 

insurance affordability programs for 

which they are eligible. 

(v) Disclose to the Exchange and to 

each consumer who receives application 

assistance from the entity or individual: 

(A) Any lines of insurance business, 

not covered by the restrictions on 

participation and prohibitions on 

conduct in § 155.210(d), which the 

entity or individual intends to sell while 

carrying out the consumer assistance 

functions; 

(B) Any existing employment 

relationships, or any former 

employment relationships within the 

last five years, with any health 

insurance issuers or issuers of stop loss 

insurance, or subsidiaries of health 

insurance issuers or issuers of stop loss 

insurance, including any existing 

employment relationships between a 

spouse or domestic partner and any 

health insurance issuers or issuers of 

stop loss insurance, or subsidiaries of 

health insurance issuers or issuers of 

stop loss insurance; and 

(C) Any existing or anticipated 

financial, business, or contractual 

relationships with one or more health 

insurance issuers or issuers of stop loss 

insurance, or subsidiaries of health 

insurance issuers or issuers of stop loss 

insurance. 

(b) Training standards for Navigators 

and Non-Navigator Assistance 

Personnel carrying out consumer 

assistance functions under 

§§ 155.205(d) and (e) and 155.210. The 

following training standards apply in an 

Exchange operated by HHS during the 

exercise of its authority under 

§ 155.105(f), and to non-Navigator 

assistance personnel funded through an 

Exchange Establishment Grant under 

section 1311(a) of the Affordable Care 

Act. 

(1) Certification and recertification 

standards. All individuals or entities 

who carry out consumer assistance 

functions under §§ 155.205(d) and (e) 

and 155.210, including Navigators, must 

meet the following certification and 

recertification requirements. 

(i) Obtain certification by the 

Exchange prior to carrying out any 

consumer assistance functions under 

§§ 155.205(d) and (e) or 155.210; 

(ii) Register for and complete a HHSapproved training; 

(iii) Following completion of the 

HHS-approved training described in 

paragraph (b)(1)(ii) of this section, 

complete and achieve a passing score on 

all approved certification examinations 

prior to carrying out any consumer 

assistance functions under §§ 155.205(d) 

and (e) or 155.210; 

(iv) Obtain continuing education and 

be certified and/or recertified on at least 

an annual basis; and 

(v) Be prepared to serve both the 

individual Exchange and SHOP. 

(2) Training module content 

standards. All individuals who carry 

out the consumer assistance functions 

under §§ 155.205(d) and (e) and 155.210 

must receive training in the following 

subjects: 

(i) QHPs (including the metal levels 

described at § 156.140(b)), and how they 

operate, including benefits covered, 

payment processes, rights and processes 

for appeals and grievances, and 

contacting individual plans; 

(ii) The range of insurance 

affordability programs, including 

Medicaid, the Children’s Health 

Insurance Program (CHIP), and other 

public programs; 

(iii) The tax implications of 

enrollment decisions; 

(iv) Eligibility requirements for 

premium tax credits and cost-sharing 

reductions, and the impacts of premium 

tax credits on the cost of premiums; 

(v) Contact information for 

appropriate federal, state, and local 

agencies for consumers seeking 

additional information about specific 

coverage options not offered through the 

Exchange; 

(vi) Basic concepts about health 

insurance and the Exchange; the 

benefits of having health insurance and 

enrolling through an Exchange; and the 

individual responsibility to have health 

insurance; 

(vii) Eligibility and enrollment rules 

and procedures, including how to 

appeal an eligibility determination; 

(viii) Providing culturally and 

linguistically appropriate services; 

(ix) Ensuring physical and other 

accessibility for people with a full range 

of disabilities; 

(x) Understanding differences among 

health plans; 

(xi) Privacy and security standards 

applicable under § 155.260 for handling 

and safeguarding consumers’ personally 

identifiable information; 

(xii) Working effectively with 

individuals with limited English 

proficiency, people with a full range of 

disabilities, and vulnerable, rural, and 

underserved populations; 

(xiii) Customer service standards; 

(xiv) Outreach and education methods 

and strategies; and 

(xv) Applicable administrative rules, 

processes and systems related to 

Exchanges and QHPs. 

(c) Providing Culturally and 

Linguistically Appropriate Services 

(CLAS Standards). The following 

standards will apply in an Exchange 

operated by HHS during the exercise of 

its authority under § 155.105(f) and to 

non-Navigator assistance personnel 

funded through an Exchange 

Establishment Grant under section 

1311(a) of the Affordable Care Act. To 

ensure that information provided as part 

of any consumer assistance functions 

under §§ 155.205(d) and (e) or 155.210 

is culturally and linguistically 

appropriate to the needs of the 

population being served, including 

individuals with limited English 

proficiency as required by 

§§ 155.205(c)(2) and 155.210(e)(5), any 

entity or individual carrying out these 

functions must: 

(1) Develop and maintain general 

knowledge about the racial, ethnic, and 

cultural groups in their service area, 

including each group’s diverse cultural 

health beliefs and practices, preferred 

languages, health literacy, and other 

needs; 

(2) Collect and maintain updated 

information to help understand the 

composition of the communities in the 

service area, including the primary 

languages spoken; 

(3) Provide consumers with 

information and assistance in the 

consumer’s preferred language, at no 

cost to the consumer, including the 

provision of oral interpretation of nonEnglish languages and the translation of 

written documents in non-English 

languages when necessary to ensure 

meaningful access. Use of a consumer’s 

family or friends as oral interpreters can 

satisfy the requirement to provide 

linguistically appropriate services only 

when requested by the consumer as the 

preferred alternative to an offer of other 

interpretive services; 

(4) Provide oral and written notice to 

consumers with limited English 

proficiency informing them of their 

right to receive language assistance 

services and how to obtain them; 

(5) Receive ongoing education and 

training in culturally and linguistically 

appropriate service delivery; and 

(6) Implement strategies to recruit, 

support, and promote a staff that is 

representative of the demographic 

characteristics, including primary 

languages spoken, of the communities 

in their service area. 

(d) Standards ensuring access by 

persons with disabilities. The following 

standards related to ensuring access by 

people with disabilities will apply in an 

Exchange operated by HHS during the 

exercise of its authority under 

§ 155.105(f), and to non-Navigator 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 66 / Friday, April 5, 2013 / Proposed Rules 20597 

assistance personnel funded through an 

Exchange Establishment Grant under 

section 1311(a) of the Affordable Care 

Act. Any entity or individual carrying 

out any consumer assistance functions 

under §§ 155.205(d) and (e) or 155.210, 

and in accordance with § 155.205(c), 

must: 

(1) Ensure that any consumer 

education materials, Web sites, or other 

tools utilized for consumer assistance 

purposes, are accessible to people with 

disabilities, including those with 

sensory impairments, such as visual or 

hearing impairments, and those with 

mental illness, addiction, and physical, 

intellectual, and developmental 

disabilities; 

(2) Provide auxiliary aids and services 

for individuals with disabilities, at no 

cost, where necessary for effective 

communication. Use of a consumer’s 

family or friends as interpreters can 

satisfy the requirement to provide 

auxiliary aids and services only when 

requested by the consumer as the 

preferred alternative to an offer of other 

auxiliary aids and services; 

(3) Provide assistance to consumers in 

a location and in a manner that is 

physically and otherwise accessible to 

individuals with disabilities; 

(4) Ensure that legally authorized 

representatives are permitted to assist 

an individual with a disability to make 

informed decisions; 

(5) Acquire sufficient knowledge to 

refer people with disabilities to local, 

state, and federal long-term services and 

supports programs when appropriate; 

and 

(6) Be able to work with all 

individuals regardless of age, disability, 

or culture, and seek advice or experts 

when needed. 

(e) Monitoring. Any Exchange 

operated by HHS during the exercise of 

its authority under § 155.105(f) will 

monitor compliance with the standards 

in this section and the requirements of 

§§ 155.205(d) and (e) and 155.210. 

Dated: March 13, 2013. 

Marilyn Tavenner, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: March 25, 2013. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2013–07951 Filed 4–3–13; 11:15 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 575 

[Docket No. NHTSA–2012–0180] 

New Car Assessment Program (NCAP) 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Request for comments. 

SUMMARY: The U.S. New Car Assessment 

Program (NCAP) provides comparative 

information on the safety of new 

vehicles to assist consumers with 

vehicle purchasing decisions and 

encourage motor vehicle manufacturers 

to make safety improvements. To 

maintain the relevance and effectiveness 

of NCAP, NHTSA has periodically 

updated the program, most recently in 

model year 2011. 

In response to the rapid development 

of vehicle safety technologies, especially 

in the area of crash avoidance, the 

agency is once again requesting public 

comments in order to help identify the 

potential areas for improvement to the 

program that have the greatest potential 

for producing safety benefits. This 

notice lists and describes potential areas 

of study for improving NCAP. The 

agency will use the comments it 

receives to aid it in developing a notice 

proposing near term upgrades to NCAP. 

The agency will also use the comments 

received in response to this notice to 

help it in developing a draft 5-year plan 

for the NCAP program outlining 

research that the agency plans to 

conduct as well as longer term upgrades 

it intends to pursue making to NCAP. 

DATES: You should submit your 

comments early enough to ensure that 

Docket Management receives them no 

later than July 5, 2013. 

ADDRESSES: Comments should refer to 

the docket number above and be 

submitted by one of the following 

methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery: 1200 New Jersey 

Avenue SE., West Building Ground 

Floor, Room W12–140, Washington, DC, 

between 9 a.m. and 5 p.m. ET, Monday 

through Friday, except Federal 

Holidays. 

• Instructions: For detailed 

instructions on submitting comments 

and additional information on the 

rulemaking process, see the Public 

Participation heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. Note that all comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. 

• Privacy Act: Anyone is able to 

search the electronic form of all 

comments received into any of our 

dockets by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(65 FR 19477–78). For access to the 

docket to read background documents 

or comments received, go to http:// 

www.regulations.gov or the street 

address listed above. Follow the online 

instructions for accessing the dockets. 

FOR FURTHER INFORMATION CONTACT: For 

crashworthiness issues, you may contact 

Ms. Jennifer N. Dang, Division Chief, 

New Car Assessment Program, Office of 

Crashworthiness Standards (Telephone: 

202–493–0598). For crash avoidance 

and advanced technology issues, you 

may contact, Mr. Clarke Harper, Crash 

Avoidance NCAP Coordinator 

(Telephone: 202–366–1810). For legal 

issues, you may contact Mr. Steve 

Wood, Office of Chief Counsel 

(Telephone: 202–366–2992). You may 

send mail to any of these officials at the 

National Highway Traffic Safety 

Administration, 1200 New Jersey 

Avenue SE., NVS–100, West Building, 

Washington, DC 20590–0001. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Background 

III. Comments Requested 

IV. Subject Areas Under Consideration for 

Possible Inclusion or Refinement 

a. Crash Avoidance and Post-Crash 

Technology Areas Under Consideration 

i. Warning Technologies 

1. Blind Spot Detection 

2. Advanced Lighting 

ii. Intervention Technologies 

1. Lane Departure Prevention 

2. Crash Imminent Braking (CIB) and 

Dynamic Brake Support (DBS) 

3. Automatic Pedestrian Detection and 

Braking (Frontal and Rearward) 

iii. Crash Notification Technologies 

b. Crashworthiness Areas Under 

Consideration 

i. Rear Seat Occupants 

ii. Silver Car Rating System for Older 

Occupants 

iii. Pedestrian Protection 


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