Vol. 78 Wednesday, 

No. 137 July 17, 2013 

Part II 

Department of Health and Human Services 

45 CFR Part 155 

Patient Protection and Affordable Care Act; Exchange Functions: Standards 

for Navigators and Non-Navigator Assistance Personnel; Consumer 

Assistance Tools and Programs of an Exchange and Certified Application 

Counselors; Final Rule 


ehiers on DSK2VPTVN1PROD with RULES_2
42824 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

1Medicaid, Children’s Health Insurance 

Programs, and Exchanges: Essential Health Benefits 

in Alternative Benefit Plans, Eligibility Notices, Fair 

Hearing and Appeal Processes for Medicaid and 

Exchange Eligibility Appeals and Other Provisions 

Related to Eligibility and Enrollment for Exchanges, 

Medicaid and CHIP, and Medicaid Premiums and 

Cost Sharing, 78 FR 4594 (proposed Jan. 22, 2013). 

2Patient Protection and Affordable Care Act; 

Exchange Functions: Standards for Navigators and 

Non-Navigator Assistance Personnel, 78 FR 20581 

(proposed April 5, 2013). 

3See 77 FR 18310, 18325–26 (Mar. 27, 2012); 

General Guidance on Federally-facilitated 

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

CCIIO/Resources/Fact-Sheets-and-FAQs/ 

Downloads/ffe-guidance-05-16-2012.pdf; and 

Guidance on the State Partnership Exchange (Jan. 

3, 2013) at http://www.cms.gov/CCIIO/Resources/ 

Fact-Sheets-and-FAQs/Downloads/partnershipguidance-01-03-2013.pdf. 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 155 

[CMS–9955–F; CMS–2334–F2] 

RIN 0938–AR75; 0938–AR04 

Patient Protection and Affordable Care 

Act; Exchange Functions: Standards 

for Navigators and Non-Navigator 

Assistance Personnel; Consumer 

Assistance Tools and Programs of an 

Exchange and Certified Application 

Counselors 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), Department 

of Health and Human Services (HHS). 

ACTION: Final rule. 

SUMMARY: This final rule addresses 

various requirements applicable to 

Navigators and non-Navigator assistance 

personnel in Federally-facilitated 

Exchanges, including State Partnership 

Exchanges, and to non-Navigator 

assistance personnel in State Exchanges 

that are funded through federal 

Exchange Establishment grants. It 

finalizes the requirement that Exchanges 

must have a certified application 

counselor program. It creates conflict-ofinterest, training and certification, and 

meaningful access standards; clarifies 

that any licensing, certification, or other 

standards prescribed by a state or 

Exchange must not prevent application 

of the provisions of title I of the 

Affordable Care Act; adds entities with 

relationships to issuers of stop loss 

insurance to the list of entities that are 

ineligible to become Navigators; and 

clarifies that the same ineligibility 

criteria that apply to Navigators apply to 

certain non-Navigator assistance 

personnel. 

The final rule also directs that each 

Exchange designate organizations which 

will then certify their staff members and 

volunteers to be application counselors 

that assist consumers and facilitate 

enrollment in qualified health plans and 

insurance affordability programs, and 

provides standards for that designation. 

DATES: Effective Date: These regulations 

are effective on August 12, 2013. 

FOR FURTHER INFORMATION CONTACT: Joan 

Matlack, (888) 393–2789. 

SUPPLEMENTARY INFORMATION:

I. Background 

On January 22, 2013, CMS issued a 

proposed rule which, among other 

things, proposed standards to ensure the 

availability of certified application 

counselors in the Exchange and 

proposed to clarify the training 

requirements under § 155.205(d) and (e), 

which govern the consumer assistance 

functions of the Exchange.1 Certified 

application counselors were proposed 

as a type of assistance personnel to help 

individuals in each Exchange apply for 

enrollment in a qualified health plan 

(QHP) and in insurance affordability 

programs, which include Medicaid, 

Children’s Health Insurance Program 

(CHIP), and advance payments of the 

premium tax credit and cost-sharing 

reductions in connection with QHPs 

offered through the Exchange. 

Subsequently, on April 5, 2013, CMS 

issued a proposed rule to create conflictof-interest, training and certification, 

and meaningful access standards 

applicable to Navigators and nonNavigator assistance personnel in 

Federally-facilitated Exchanges, 

including State Partnership Exchanges, 

and to non-Navigator assistance 

personnel in State Exchanges that are 

funded through federal Exchange 

Establishment grants.2 We are finalizing 

both proposals in this document to 

make it easier to understand these three 

types of assistance programs, the role 

each program plays, and the standards 

that are applicable to each program. 

A. Introduction 

The Patient Protection and Affordable 

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

on March 23, 2010; the Health Care and 

Education Reconciliation Act (Pub. L. 

111–152) was enacted on March 30, 

2010. These laws are collectively known 

as the Affordable Care Act. 

Beginning on October 1, 2013, 

individuals, families, and small 

businesses will be able to purchase 

private health insurance through 

competitive marketplaces called 

Affordable Insurance Exchanges 

(Exchanges), also known as Health 

Insurance Marketplaces. 

The Exchanges will provide 

competitive marketplaces where 

individuals and small employers can 

compare available private health 

insurance options on the basis of price, 

quality, and other factors. The 

Exchanges, which will offer coverage 

that is effective beginning as early as 

January 1, 2014, will help enhance 

competition in the health insurance 

market, improve choice of affordable 

health insurance, and give small 

businesses the same purchasing power 

as large businesses. 

Pursuant to sections 1311(b) and 

1321(b) of the Affordable Care Act, each 

state has the opportunity to establish an 

Exchange that (1) facilitates the 

purchase of insurance coverage by 

qualified individuals through Qualified 

Health Plans (QHPs); (2) assists 

qualified employers in the enrollment of 

their employees in QHPs; and (3) meets 

other standards specified in the 

Affordable Care Act. These are referred 

to as State Exchanges. 

Section 1321(c)(1) of the Affordable 

Care Act requires the Secretary of HHS 

(‘‘Secretary’’) to establish and operate 

Exchanges within states that either: (1) 

Do not elect to establish an Exchange; or 

(2) as determined by the Secretary on or 

before January 1, 2013, will not have 

any required Exchange operational by 

January 1, 2014. These HHS-operated 

Exchanges are referred to as Federallyfacilitated Exchanges. The Secretary has 

also explained through guidance that 

these Federally-facilitated Exchanges 

may include State Partnership 

Exchanges in which states may assume 

significant responsibility for key 

Exchange functions.3 Generally, a State 

Partnership Exchange will take one of 

two forms: a State Plan Management 

Partnership Exchange or a State 

Consumer Partnership Exchange 

(Consumer Partnership Exchange). 

States may also assume both of these 

types of responsibilities. 

Consumers can receive assistance 

from a variety of sources when seeking 

access to health insurance coverage 

through an Exchange. Sections 

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

Affordable Care Act, and the regulation 

implementing those provisions, 45 CFR 

155.210, direct all Exchanges to award 

grants to Navigators to conduct public 

education activities to raise awareness 

about the Exchange; provide fair, 

accurate, and impartial information to 

consumers about health insurance, the 

Exchange, QHPs, and insurance 

affordability programs, including 

premium tax credits, Medicaid, and the 

Children’s Health Insurance Program 

(CHIP); facilitate enrollment in QHPs; to 

provide referrals to consumer assistance 

programs (CAPs) and health insurance 

ombudsmen for enrollees with 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42825 

grievances, complaints, or questions 

about their health plan or coverage; and 

provide information in a manner that is 

culturally and linguistically 

appropriate. Navigators can play an 

important role in facilitating a 

consumer’s enrollment in a QHP by 

providing fair, impartial, and accurate 

information that assists consumers with 

submitting the eligibility application, 

clarifying the distinctions among QHPs, 

and helping qualified individuals make 

informed decisions during the health 

plan selection process. 

The Exchange regulations also 

authorize Exchanges to perform certain 

consumer service functions in addition 

to the Navigator program. 45 CFR 

155.205(d) provides that each Exchange 

must conduct consumer assistance 

activities, and § 155.205(e) provides that 

each Exchange must conduct outreach 

and education activities to inform 

consumers about the Exchange and 

insurance affordability programs to 

encourage participation. The consumer 

assistance function authorized by 

§ 155.205(d) includes the Navigator 

grant program established under section 

1311(i) of the Affordable Care Act and 

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

also allow for the establishment of a 

non-Navigator consumer assistance 

program. The non-Navigator assistance 

program authorized by § 155.205(d) and 

(e) will help ensure that the Exchange 

is providing outreach, education, and 

assistance to as broad a range of 

consumers as possible so that all 

consumers can receive help when 

accessing health insurance coverage 

through an Exchange. Non-Navigator 

assistance programs include what have 

sometimes been referred to as ‘‘inperson assistance programs.’’ State 

Exchanges may, but need not, establish 

non-Navigator assistance programs. 

However, a state that voluntarily 

participates in a State Partnership 

Exchange focusing on consumer 

assistance functions (also known as a 

Consumer Partnership Exchange) will 

be expected to establish and operate a 

non-Navigator assistance program as a 

condition of participation in the State 

Partnership Exchange, and will be 

expected to do so in a way that is 

consistent with the policies and 

interpretations HHS adopts for 

§ 155.205(d) and (e) for the Federallyfacilitated Exchanges. 

Section 1311(i)(6) prohibits 

Exchanges from using section 1311(a) 

grant funds to fund Navigator programs. 

However, State Exchanges and state 

partners in Consumer Partnership 

Exchanges may use section 1311(a) 

Exchange Establishment grants to fund 

non-Navigator assistance programs 

consistent with the discussion of this 

policy that can be found at 78 FR 20583 

through 20584 (April 5, 2013). 

Section 1413 of the Affordable Care 

Act directs the Secretary to establish, 

subject to minimum requirements, a 

streamlined enrollment system for QHPs 

and all insurance affordability 

programs, which include the Medicaid 

and CHIP programs. The January 22, 

2013 proposed rule noted that State 

Medicaid and CHIP agencies have a long 

history of offering application assistance 

programs through which application 

counselors have had a key role in 

promoting enrollment for low-income 

individuals seeking coverage, and we 

believe that making such assistance 

available for the Exchange will be 

critical to achieving a high rate of 

enrollment. The January 22, 2013 

proposed rule also stated that section 

1321(a) of the Affordable Care Act 

provides broad authority for the 

Secretary to establish standards and 

regulations to implement the statutory 

standards related to Exchanges, QHPs, 

and other standards of title I of the 

Affordable Care Act. Accordingly, the 

proposed rule proposed the 

establishment of the certified 

application counselor program for the 

Exchanges. The certified application 

counselor program makes available 

through the Exchange another type of 

assistance personnel to provide 

information to consumers and facilitate 

their enrollment in QHPs and insurance 

affordability programs. This will help 

streamline the enrollment system for 

QHPs and all insurance affordability 

programs. 

As we proposed in the January 22, 

2013 proposed rule, certified 

application counselors will provide 

information to individuals and 

employees about insurance affordability 

programs and coverage options; assist 

individuals and employees in applying 

for coverage in a QHP through the 

Exchange and in insurance affordability 

programs; and help facilitate enrollment 

in QHPs and insurance affordability 

programs. Unlike Navigators and nonNavigator assistance personnel to which 

§ 155.215 applies—who have a duty to 

provide referrals to offices of health 

insurance consumer assistance or health 

insurance ombudsman established 

under section 2793 of the Public Health 

Service (PHS) Act, or any other 

appropriate State agency or agencies, 

and to assist an enrollee with a 

grievance, complaint, or question 

regarding their health plan, coverage, or 

a determination under such plan or 

coverage—certified application 

counselors are not expected to have the 

knowledge to make these types of 

referrals since their role is limited to 

providing enrollment assistance to 

consumers. 

Certified application counselors can 

provide skilled application assistance in 

entities such as community health 

centers, health care providers, social 

service organizations, and local 

governmental entities that do not 

otherwise serve as Navigators. An 

organization that applies for and has 

been designated by the Exchange for 

this work must ensure that those staff 

members and volunteers it certifies as 

application counselors meet and comply 

with the application counselor 

certification and other requirements. 

We do not expect Exchanges to fund 

certified application counselors or 

certified application counselor 

organizations. State Exchanges may use 

their section 1311(a) Establishment 

grants on costs incurred by the 

Exchange in establishing a training 

program for certified application 

counselors. State Exchanges may not, 

however, use section 1311(a) 

Establishment grant funds to pay 

certified application counselors or 

certified application counselor 

organizations. No section 1311(a) 

funding is available for certified 

application counselor training program 

costs in Federally-facilitated or State 

Partnership Exchanges, because the 

federal government is responsible for 

and states will not be involved in 

implementing the certified application 

counselor training program in those 

Exchanges. Nothing in the final rule 

prohibits certified application 

counselors from being funded through 

other sources, including applicable 

private, state, or federal programs. 

The January 22, 2013 proposed rule 

proposed standards for certification of 

individuals as certified application 

counselors, including training 

requirements; disclosure to the 

Exchange and applicants of any 

financial or other relationships, either of 

the individual application counselor or 

of the sponsoring organization; and 

compliance with confidentiality 

requirements. We also proposed 

requiring certified application 

counselors to provide information with 

reasonable accommodations for people 

with disabilities when providing inperson assistance. The proposed 

certified application counselor 

standards were less extensive than the 

standards for Navigators and nonNavigator assistance programs proposed 

for certain Exchanges in the April 5, 

2013 proposed rule, because certified 

application counselors will have a more 

limited role. 


ehiers on DSK2VPTVN1PROD with RULES_2
42826 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

4Patient Protection and Affordable Care Act; 

Establishment of Exchanges and Qualified Health 

Plans; Exchange Standards for Employers, 77 FR 

18310 (Mar. 27, 2012). 

The April 5, 2013 proposed rule 

sought comments on whether the 

broader standards for Navigators and 

non-Navigator assistance programs to 

which § 155.215 applies should apply to 

certified application counselors. We 

have not applied all these standards to 

certified application counselors, but 

have applied to certified application 

counselors certain elements from 

§§ 155.210 and 155.215 that we believe 

are consistent with the goals of the 

certified application counselor program. 

For example, in § 155.225(c)(1), we have 

added the requirement that all certified 

application counselors must provide 

information to consumers about the full 

range of QHP options and insurance 

affordability programs for which they 

are eligible, as certain Navigators and 

non-Navigator assistance personnel are 

required to do under 

§§ 155.215(a)(1)(iii) and 

155.215(a)(2)(iv). We have also added a 

training examination requirement to 

§ 155.225(d)(1) that is similar to the one 

in § 155.215(b)(1)(iii). 

1. Overview of Program Differences 

Navigators, non-Navigator assistance 

personnel, and certified application 

counselors all will provide consumerfocused assistance with applications for 

and enrollment in QHPs and insurance 

affordability programs. Navigators and 

certified application counselors will 

perform these functions in all 

Exchanges. 

The primary differences between the 

standards for Navigator and nonNavigator assistance programs and the 

standards for certified application 

counselors that we finalize in this rule 

relate to conflict of interest standards, 

eligibility requirements and 

prerequisites, and culturally and 

linguistically appropriate services 

(CLAS) and disability access standards. 

For example, this rule, at 45 CFR 

155.225(d)(4) requires certified 

application counselors ‘‘to act in the 

best interest of the applicants and 

enrollees assisted.’’ In contrast, 45 CFR 

155.210(e)(2), which applies to 

Navigators in all Exchanges, requires 

them to ‘‘[p]rovide information and 

services in a fair, accurate and impartial 

manner.’’ This rule extends the same 

requirement to non-Navigator assistance 

programs in State Partnership 

Exchanges, and to non-Navigator 

assistance programs in State Exchanges 

funded by federal Exchange 

Establishment grant funds. Navigators 

and non-Navigator assistance programs 

must provide culturally and 

linguistically appropriate services, but 

we are not requiring certified 

application counselors to comply with 

CLAS standards beyond any existing 

obligations they may have. We do, 

however, encourage certified 

application counselors to utilize the 

CLAS standards as a resource. 45 CFR 

155.210(e)(5) and 155.205(d) and (e) 

require Navigators and non-Navigator 

assistance programs to provide 

meaningful access to people with 

disabilities, and we proposed a similar 

requirement for certified application 

counselors. We are modifying that 

provision to allow certified application 

counselors to provide information with 

reasonable accommodations for those 

with disabilities through referrals to 

Navigators, non-Navigator assistance 

personnel, and/or the Exchange call 

center. 

Additionally, Navigators and nonNavigator assisters are both required to 

conduct consumer education and 

outreach activities under § 155.205(e) 

and § 155.210(e)(1). Certified 

application counselors will provide 

information about QHPs and insurance 

affordability programs as well as 

application and enrollment assistance 

but are not required to conduct outreach 

activities. 

A broad range of entities are eligible 

to become Navigators, including 

community and consumer-focused 

nonprofits, tribes and tribal 

organizations, local human service 

agencies, and agents and brokers. A 

similar range of groups is likely to 

become non-Navigator assistance 

personnel, although that determination 

will be up to each Exchange. In all 

Exchange models, entities ineligible to 

become Navigators include health 

insurance issuers and their subsidiaries, 

issuers of stop loss insurance and their 

subsidiaries, associations that include 

members of or that lobby on behalf of 

the insurance industry, and entities that 

receive any consideration directly or 

indirectly from any health insurance 

issuer or issuer of stop loss insurance in 

connection with the enrollment of any 

individuals or employees in a QHP or 

non-QHP insurance product. This same 

ineligibility provision applies to nonNavigator assistance personnel in the 

Federally-facilitated Exchange, 

including State Partnership Exchanges, 

as well as non-Navigator assistance 

personnel in State Exchanges if funded 

by section 1311(a) Exchange 

Establishment grant funds. Certified 

application counselors are not barred 

from becoming a certified application 

counselor because of potential conflicts 

of interest, but must disclose potential 

conflicts of interest to applicants they 

seek to assist. 

In this final rule, we amend what we 

proposed in the proposed rule, and 

provide that Exchanges may designate 

organizations to certify their staff 

members and volunteers who meet all of 

the requirements to be certified 

application counselors, rather than the 

Exchanges directly certifying individual 

application counselors. However, 

Exchanges may certify individual 

application counselors directly if they 

choose. 

B. Legislative and Regulatory Overview 

1. Consumer Assistance Tools and 

Programs of an Exchange (§ 155.205) 

Section 1321(a)(1) of the Affordable 

Care Act directs the Secretary to issue 

regulations that set standards for 

meeting the requirements of title I of the 

Affordable Care Act, with respect to, 

among other things, the establishment 

and operation of Exchanges. Pursuant to 

this authority, the Secretary issued 

§ 155.205(d) and (e) which establishes 

the consumer assistance function of the 

Exchange.4 This section directs that the 

Exchange conduct outreach and 

education activities to educate 

consumers about the Exchange and 

encourage participation and that the 

Exchange have a consumer assistance 

function, including but not limited to a 

Navigator program as described in 

§ 155.210. 

2. Navigators and Non-Navigator 

Assistance Personnel (§§ 155.210 & 

155.215) 

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

the Affordable Care Act directs each 

Exchange to establish a program under 

which it awards grants to Navigators 

who will carry out the listed, required 

duties. A final rule implementing 

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

Affordable Care Act was published on 

March 27, 2012 (77 FR 18310) and is 

codified at 45 CFR 155.210. 

Section 1311(i)(3) of the Affordable 

Care Act lists the duties Navigators must 

perform. Section 155.210(e), which 

implements this provision, provides 

that these duties include the following: 

Maintaining expertise in eligibility, 

enrollment, and program specifications; 

conducting public education activities 

to raise awareness about the Exchange; 

providing information and services in a 

fair, accurate, and impartial manner, 

including information that 

acknowledges other health programs 

such as Medicaid and CHIP; facilitating 

selection of a QHP; providing referrals 

for consumers with questions, 

complaints, or grievances to any 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42827 

5See the proposed rule on Essential Health 

Benefits in Alternative Benefit Plans, Eligibility 

Notices, Fair Hearing and Appeal Processes for 

Medicaid and Exchange Eligibility Appeals and 

Other Provisions Related to Eligibility and 

Enrollment for Exchanges, Medicaid and CHIP, and 

Medicaid Premiums and Cost Sharing, 78 FR 4594, 

4710 (Jan. 22, 2013). 

applicable office of health insurance 

consumer assistance or health insurance 

ombudsman established under section 

2793 of the Public Health Service Act 

(PHS Act), or any other appropriate state 

agency or agencies; providing 

information in a culturally and 

linguistically appropriate manner, 

including to persons with limited 

English proficiency; and, ensuring 

accessibility and usability of Navigator 

tools and functions for persons with 

disabilities. 

Section 1311(i)(4) directs the 

Secretary to establish standards for 

Navigators, including provisions to 

ensure that any entity selected as a 

Navigator is qualified, and licensed if 

appropriate, to engage in the Navigator 

activities required by the law and to 

avoid conflicts of interest. 45 CFR 

155.210(b)(1), which implements this 

provision, directs each Exchange to 

‘‘develop and publicly disseminate . . . 

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

entities and individuals awarded 

Navigator grants, designed to prevent, 

minimize and mitigate any conflicts of 

interest, financial or otherwise, that may 

exist for an entity or individuals to be 

awarded a Navigator grant and to ensure 

that all entities and individuals carrying 

out Navigator functions have 

appropriate integrity.’’ Additionally, 45 

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

Navigator must not have a conflict of 

interest during its term as Navigator. 45 

CFR 155.210(b)(2) directs Exchanges to 

develop and publicly disseminate a set 

of training standards, to be met by all 

entities and individuals carrying out 

Navigator functions, to ensure Navigator 

expertise in the needs of underserved 

and vulnerable populations, eligibility 

and enrollment rules and procedures, 

the range of QHP options and insurance 

affordability programs, and privacy and 

security requirements applicable to 

personally identifiable information. 

This regulation develops and 

disseminates standards under 

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

Partnership Exchanges, and for nonNavigator assistance personnel in State 

Exchanges that are funded through 

federal Exchange Establishment grants. 

These standards could also be used by 

State Exchanges at their discretion for 

their Navigator programs and for any 

non-Navigator assistance programs not 

funded with 1311(a) Exchange 

Establishment grants. 

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

implements section 1311(i)(4) of the 

Affordable Care Act, and directs that, in 

order to receive a Navigator grant, 

entities or individuals must meet any 

licensing, certification, or other 

standards prescribed by the state or 

Exchange. We amend this provision in 

this final rule to provide that it applies 

so long as such standards do not prevent 

the application of the provisions of title 

I of the Affordable Care Act. 

Section 1311(i)(4) of the Affordable 

Care Act also specifies that under the 

standards established by the Secretary, 

Navigators shall not be health insurance 

issuers or receive any consideration 

directly or indirectly from any health 

insurance issuer in connection with the 

enrollment of any qualified individuals 

or employees of a qualified employer in 

QHPs. 45 CFR 155.210(d), which 

implements this provision, prohibits 

Navigators from being health insurance 

issuers. It also provides that Navigators 

must not receive any compensation 

directly or indirectly from health 

insurance issuers in connection with the 

enrollment of individuals or employees, 

whether that enrollment is in QHPs or 

in non-QHPs. Section 155.210(d) further 

clarifies that a Navigator must not be a 

subsidiary of a health insurance issuer, 

or be an association that includes 

members of or lobbies on behalf of the 

insurance industry. In this final rule we 

amend Section 155.210(d) to include a 

prohibition on most of these same 

relationships with stop loss insurance 

issuers. 

Section 1311(i)(5) of the Affordable 

Care Act directs the Secretary to 

develop standards to ensure that 

information made available by 

Navigators is fair, accurate, and 

impartial. 

45 CFR 155.210(c)(2) directs the 

Exchange to select at least two different 

types of entities as Navigators, one of 

which must be a community and 

consumer-focused non-profit group. 

45 CFR 155.205(d) directs Exchanges 

to have a consumer assistance function 

that meets the accessibility standards set 

forth in § 155.205(c). This consumer 

assistance function includes the 

Navigator program provided for by 

section 1311(i) of the Affordable Care 

Act and 45 CFR 155.210, but is not 

limited to the Navigator program. 45 

CFR 155.205(e) directs Exchanges to 

conduct outreach and education 

activities that also meet the accessibility 

standards in § 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. We are finalizing 

here portions of the January 22, 2013 

proposed rule regarding training 

requirements under § 155.205(d),5 and 

amend § 155.205(d) to require both 

Navigators and non-Navigator assistance 

personnel to be trained regarding QHP 

options, insurance affordability 

programs, eligibility, and benefits rules 

and regulations governing all insurance 

affordability programs operated in the 

state as implemented in the state, prior 

to providing consumer assistance. 

3. Certified Application Counselors 

Section 1321(a)(1) of the Affordable 

Care Act directs and authorizes the 

Secretary to issue regulations setting 

standards for meeting the requirements 

under title I of the Affordable Care Act, 

with respect to, among other things, the 

establishment and operation of 

Exchanges. Pursuant to this authority, 

the Secretary is issuing § 155.225, which 

establishes the certified application 

counselor program as a consumer 

assistance function of the Exchange 

separate from and in addition to the 

functions described in §§ 155.205(d) 

and (e), 155.210, and 155.215. Section 

155.225 specifies that certified 

application counselors will provide 

information to consumers about health 

coverage options and assist them with 

applying for and enrolling in QHPs and 

insurance affordability programs. 

C. Overview of Final Rule 

1. Consumer Assistance Tools and 

Programs of an Exchange (§ 155.205) 

This final regulation amends 

§ 155.205(d) by separating it into 

subparagraphs (d)(1) and (d)(2), and 

clarifying in new subparagraph (d)(1) 

that, prior to providing the consumer 

assistance specified in paragraph (d), an 

individual must be trained regarding 

QHP options, insurance affordability 

programs, eligibility, and benefits rules 

and regulations governing all insurance 

affordability programs operated in the 

state, as implemented in the state. New 

subparagraph (d)(2) specifies that the 

Exchange must provide referrals to any 

applicable office of health insurance 

consumer assistance or health insurance 

ombudsman established under section 

2793 of the PHS Act, or any other 

appropriate State agency or agencies, for 

any enrollee with a grievance, 

complaint, or question regarding their 

health plan, coverage, or a 


ehiers on DSK2VPTVN1PROD with RULES_2
42828 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

determination under such plan or 

coverage. 

2. Navigators and Non-Navigator 

Assistance Personnel (§§ 155.210 & 

155.215) 

This final regulation amends 

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

Navigator licensing, certification, or 

other standards prescribed by the state 

or Exchange must not prevent the 

application of the provisions of title I of 

the Affordable Care Act. In addition, the 

final rule amends § 155.210(d), which 

provides, among other things, that a 

Navigator cannot be an issuer nor 

receive compensation from an issuer 

related to enrollment in a QHP or nonQHP, to provide that a Navigator cannot 

be an issuer of or a subsidiary of an 

issuer of stop loss insurance and cannot 

receive any consideration, directly or 

indirectly, from an issuer of stop loss 

insurance in connection with the 

enrollment of any individuals or 

employees in a QHP or a non-QHP. 

These amendments to § 155.210 are 

applicable to Navigators in all 

Exchanges, including Federallyfacilitated Exchanges, State Partnership 

Exchanges, and State Exchanges. 

This final rule also adds a new 

provision at 45 CFR 155.215 that 

establishes conflict of interest, training, 

and accessibility standards applicable to 

Navigators and non-Navigator assistance 

personnel in Federally-facilitated 

Exchanges, including State Partnership 

Exchanges. These standards also apply 

to non-Navigator assistance personnel in 

State Exchanges that are funded through 

federal section 1311(a) Exchange 

Establishment grants. For the remainder 

of this preamble, we will refer to these 

types of entities collectively as 

‘‘Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies.’’ 

Section 155.215(a) provides details on 

the conflict of interest standards 

applicable to the Navigators and nonNavigator assistance personnel to which 

§ 155.215 applies. Section 

155.215(a)(2)(i) establishes that the nonNavigator assistance personnel to which 

§ 155.215 applies must comply with the 

same set of conflict of interest 

prohibitions that apply to all Navigators 

under § 155.210(d), as well as the same 

fair and impartial standard that applies 

to all Navigators under § 155.210(e)(2). 

Section 155.215(b) sets forth standards 

related to training, certification, and 

recertification for the Navigators and 

non-Navigator assistance personnel to 

which § 155.215 applies. These 

standards include details about the 

requirement to be certified, to register 

and receive HHS-approved training, the 

content required for training, and the 

requirement to receive a passing score 

on all approved certification 

examinations after training. For nonNavigator assistance programs in State 

Exchanges to which § 155.215 applies, 

the State Exchange may use the 

Federally-facilitated Exchange training 

or may use training developed by the 

State Exchange and approved by HHS. 

Section 155.215(c) and (d) establishes 

standards for the Navigators and nonNavigator assistance personnel to which 

§ 155.215 applies, to ensure meaningful 

access to their services by individuals 

with limited English proficiency and 

people with disabilities. The standards 

we are finalizing at 155.215(c) and (d) 

should be read together with other 

applicable standards issued by the 

Secretary related to ensuring meaningful 

access by individuals with limited 

English proficiency and people with 

disabilities. 

State Exchanges will not be required 

to use the standards being finalized in 

§ 155.215 for their Navigators, or for 

non-Navigator assistance programs not 

funded through section 1311(a) 

Exchange Establishment grants. 

However, we believe that State 

Exchanges may find the federal 

standards to be useful models, and we 

encourage them to draw upon these 

standards as they develop and 

disseminate conflict of interest and 

training standards for Navigators 

pursuant to § 155.210(b), or when 

establishing standards for any nonNavigator assistance program that is 

established by the State Exchange and is 

not funded by federal 1311(a) Exchange 

Establishment grants. This final rule 

establishes different conflict of interest 

and HHS-approved training standards 

for certified application counselors. As 

discussed elsewhere in this final rule, 

unlike Navigators, which will receive 

Exchange grants as set forth in section 

1311(i) of the Affordable Care Act, and 

non-Navigator assistance personnel, 

which we expect will be funded by all 

Consumer Partnership Exchanges and 

some State Exchanges, we do not expect 

Exchanges to pay designated 

organizations to certify application 

counselors or to pay individual certified 

application counselors for the 

enrollment assistance they will provide 

to consumers. 

3. Certified Application Counselors 

(§ 155.225) 

In finalizing § 155.225, we establish 

certified application counselors as 

another type of assistance personnel 

available to provide information to 

consumers and facilitate their 

enrollment in QHPs and insurance 

affordability programs, such as premium 

tax credits and cost sharing reductions, 

Medicaid, and CHIP, for which they are 

eligible. Every Exchange will have a 

certified application counselor program, 

as provided in § 155.225(a). An 

Exchange may designate organizations, 

including organizations designated by a 

state Medicaid or CHIP agency, that 

meet the requirements and standards in 

§ 155.225 to certify the organization’s 

staff members and volunteers to serve as 

certified application counselors. As 

proposed in the proposed rule, an 

Exchange may opt to certify these 

organizations’ staff members and 

volunteers directly if those staff 

members and volunteers meet the 

certification standards, rather than 

designating organizations that may 

certify their staff members and 

volunteers. An Exchange may also opt 

both to designate organizations and to 

certify directly an organization’s 

individual certified application 

counselors. We intend that the 

Federally-facilitated Exchanges 

including State Partnership Exchanges 

will choose to designate organizations to 

certify the organization’s staff members 

and volunteers as application 

counselors. We expect to publish 

guidance to establish a process for 

designating organizations in Federallyfacilitated Exchanges, including State 

Partnership Exchanges, to certify their 

staff members and volunteers as 

application counselors. 

Section 155.225(c) describes the 

duties of certified application 

counselors. These duties include 

providing information about the 

coverage options available to consumers 

through the Exchange, and assisting 

consumers with selecting and applying 

for coverage from QHPs and enrollment 

in insurance affordability programs. 

Section 155.225(d) outlines the 

standards that must be met by any 

individual seeking to be certified as an 

application counselor. These standards 

include: Completing Exchange approved 

training and examinations; disclosing 

potential conflicts of interest; complying 

with applicable privacy and security 

standards; agreeing to act in the best 

interest of applicants and enrollees 

assisted; providing information in a 

manner that is accessible to persons 

with disabilities; and entering into an 

application counselor agreement with 

their designated organization. In 

§ 155.225(d)(5), the final rule clarifies 

that certified application counselors 

may satisfy the requirement that they 

provide information in a manner that is 

accessible to individuals with 

disabilities either directly or through 

referral to Navigators, non-Navigator 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42829 

assistance personnel, and/or the 

Exchange call center. 

Section 155.225(e) directs the 

Exchange to establish procedures to 

withdraw its designation from 

noncompliant designated organizations, 

or, if an Exchange directly certifies 

individual application counselors, from 

noncompliant application counselors. It 

also directs designated organizations to 

establish procedures to withdraw 

certification from their noncompliant 

certified application counselors. 

Section 155.225(f) directs designated 

organizations to establish procedures to 

ensure that applicants are informed of 

the functions of certified application 

counselors, as well as procedures to 

ensure that applicants provide 

authorization for the disclosure of 

applicant information to the application 

counselor. Such authorizations may be 

revoked by the applicant at any time. 

Finally, § 155.225(g) prohibits 

certified designated organizations and 

their certified application counselors 

from imposing any charge on applicants 

or for the certified application 

counseling services they provide. 

II. Provisions of the Proposed Rule and 

Analysis and Responses to Public 

Comments 

A. General Comments 

In response to both the January 22, 

2013 and the April 5, 2013 proposed 

rules, we received the following 

comments that have general 

applicability to our rulemaking process. 

Comment: Several commenters asked 

us to release the final certified 

application counselor rule as soon as 

possible. One commenter suggested that 

we consolidate pending rules about 

consumer assistance programs and 

standards into one set of rules to 

provide greater clarity about which 

entities can perform which functions, 

and which standards apply to each type 

of assister. 

Response: We agree that addressing 

the standards governing Navigators, 

non-Navigator assistance personnel, and 

certified application counselors in the 

same final rule provides greater clarity, 

and we have adopted this 

recommendation. We are therefore 

finalizing the amendments to 

§§ 155.205(d) and 155.210, and newly 

proposed §§ 155.215 and 155.225, 

together in this final rule. 

B. Consumer Assistance Tools and 

Programs of an Exchange (§ 155.205) 

Proposed amendments to § 155.205(d) 

were published as part of the January 

22, 2013 proposed rule (78 FR 4594). 

1. General Comments 

We received the following general 

comments on Navigator, non-Navigator 

assistance, and certified application 

counselor programs under this 

provision: 

Comment: A few commenters 

requested clarification regarding the 

distinctions among Navigators, nonNavigator assistance personnel (which 

includes what have sometimes been 

referred to as ‘‘in-person assistance 

personnel’’), and certified application 

counselors with regard to topics such as 

funding, training requirements, and 

scope of responsibilities. 

Response: Navigators, non-Navigator 

assistance personnel, and certified 

application counselors all will provide 

consumer-focused assistance with 

applications for and enrollment in QHPs 

and insurance affordability programs. In 

addition, certified application 

counselors cannot charge consumers for 

their services, as provided in this final 

rule. Similarly, HHS does not believe 

that it would be consistent with the 

purpose of the Navigator program or the 

consumer assistance, education, and 

outreach functions under § 155.205(d) 

and (e) for Navigators or non-Navigator 

assistance personnel to charge 

consumers for their services. 

The primary differences between the 

existing and proposed standards for 

Navigators and non-Navigator assistance 

programs, and the proposed standards 

for certifying certified application 

counselors in all Exchanges, which we 

finalize in this rulemaking, relate to the 

requirement that Navigators and nonNavigator assistance personnel perform 

public outreach and comply with 

detailed conflict of interest standards, 

eligibility requirements and 

prerequisites, as well as CLAS and 

disability access standards. 

Comment: A number of commenters 

requested that HHS clarify in the 

regulations that the nondiscrimination 

provisions applicable to the Exchanges 

apply to all consumer assistance 

programs, including Navigators, nonNavigator assistance personnel, and 

certified application counselors. 

Response: Exchanges are expected to 

comply with the nondiscrimination 

provisions in § 155.120(c) when 

carrying out the requirements of 45 CFR 

part 155. We note that HHS recently 

proposed to correct the inadvertent 

omission of the nondiscrimination 

requirements of § 155.120(c) from 

§ 155.105(f), which lists the regulatory 

provisions that apply in a Federallyfacilitated Exchange (see 78 FR 37032 

(June 19, 2013)). Each of the assistance 

programs addressed in this rulemaking, 

including Navigators, the consumer 

assistance functions authorized under 

§ 155.205(d) and (e), and the certified 

application counselor program, are 

required functions of the Exchange 

under 45 CFR part 155. Therefore, in 

order for an Exchange to comply with 

these nondiscrimination provisions, it 

must ensure that its Navigators, any 

activities authorized under 155.205(d) 

and (e), including the operations of nonNavigator assistance personnel, 

organizations designated to certify staff 

or volunteers, and certified application 

counselors comply with § 155.120(c). 

Additionally, the preamble to the final 

rule publishing § 155.120(c) clarified 

that the nondiscrimination provisions 

apply not only to the Exchange itself but 

also to Exchange contractors and all 

Exchange activities, including but not 

limited to marketing, outreach, and 

enrollment. (See 77 FR at 18319–18320.) 

The preamble to final § 155.210 also 

clarified that Navigators, as third parties 

under agreement with the Exchange, are 

subject to the Exchange’s 

nondiscrimination requirements under 

§ 155.120(c). (See 77 FR at 18332.) 

Navigators, non-Navigator assistance 

personnel authorized under § 155.205(d) 

and (e), organizations designated to 

certify their staff members and 

volunteers as application counselors, 

and certified application counselors 

certified directly by the Exchange 

perform functions of the Exchange and 

will be under agreement with the 

Exchange, and would therefore be 

subject to § 155.120(c) in all Exchanges 

if the amendments to § 155.105(f) are 

finalized as proposed. 

Comment: One commenter explained 

that it is critical that no barriers are 

imposed that would disrupt the 

enrollment assistance relationships that 

Indian health providers have with 

consumers, and urged us not to create 

standards so onerous that they cannot 

be met by volunteers. 

Response: Nothing in this final 

rulemaking requires Indian health 

providers to change their current 

relationships with the consumers they 

serve. This regulation does not require 

them to be trained or registered as nonNavigator assistance personnel, 

Navigators, or certified application 

counselors in order to continue their 

existing work. 

Comment: Some commenters 

observed that general rules regarding 

non-discrimination are often translated 

into a requirement to serve anyone who 

seeks the service. These commenters 

expressed the opinion that, because the 

Indian Health Service, tribes and tribal 

organizations, and urban Indian 

organizations (I/T/U) often serve only 


ehiers on DSK2VPTVN1PROD with RULES_2
42830 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

American Indians and Alaska Natives 

(AI/AN), they cannot agree to such a 

requirement. The commenters suggested 

that the rules should clearly address this 

issue so that it does not become a barrier 

to participation by employees and 

volunteers of I/T/U. 

Response: Indian health programs and 

benefits are generally not available to 

the public because they were 

established to serve AI/AN. However, 

Exchange Navigator, non-Navigator 

assistance, and certified application 

counselor services are not Indian health 

programs or benefits authorized by the 

Indian Health Care Improvement Act, so 

the same limitation does not apply to 

them. Accordingly, if I/T/U health care 

programs wish to become Navigators, 

non-Navigator assistance personnel, or 

certified application counselors, they 

must provide those services consistent 

with the requirements we have 

established for those programs, 

including nondiscrimination 

requirements. Additionally, to the 

extent that an I/T/U receives any federal 

funds to support provision of Navigator, 

non-Navigator assistance, or certified 

application counselor services, it is 

subject to certain federal 

nondiscrimination statutes, including 

but not limited to Title VI of the Civil 

Rights Act of 1964. 

As we stated in the preamble to the 

proposed rule, while Navigators and 

non-Navigator assistance personnel 

should have the ability to help any 

individual who presents him or herself 

for assistance, there may be some 

instances where a Navigator or nonNavigator assistance personnel lacks the 

immediate capacity to help an 

individual. In such cases, the Navigator 

or non-Navigator assistance personnel 

should be capable of providing 

assistance in a timely manner but must 

also refer consumers seeking assistance 

to other Exchange resources, such as the 

toll-free Exchange call center, or to 

another Navigator or non-Navigator 

assistance personnel in the same 

Exchange who might have better 

capacity to serve that individual more 

effectively. The same principle would 

apply to certified application counselor 

services. Indian health providers also 

have specific independent authority 

under section 404 of the Indian Health 

Care Improvement Act to assist AI/ANs 

in enrolling in health benefits coverage, 

and may provide outreach and 

education in the provision of such 

assistance. 

Comment: A number of commenters 

requested that all individuals providing 

consumer assistance be required to 

provide equal access to individuals with 

limited English proficiency and 

individuals with disabilities. 

Response: Sections 155.205(c) and 

155.210(e)(5) require Navigators and 

non-Navigator assistance personnel to 

provide applicants and enrollees with 

information that is accessible to 

individuals with disabilities and 

individuals with limited English 

proficiency. Section 155.215(c) and (d) 

provides standards for providing equal 

access to individuals with limited 

English proficiency and individuals 

with disabilities. These standards will 

apply to Navigators and non-Navigator 

assistance personnel in all Federallyfacilitated Exchanges, including State 

Partnership Exchanges, and to nonNavigator assistance personnel in State 

Exchanges that are funded with 1311(a) 

Exchange Establishment grants. 

Certified application counselors perform 

a separate Exchange function, 

authorized by § 155.225, and are 

required to provide information in a 

manner that is accessible to individuals 

with disabilities, either directly or 

through appropriate referral to a 

Navigator, non-Navigator assistance 

personnel authorized under § 155.205(d) 

and (e), and/or the Exchange’s call 

center. 

Comment: One commenter asked that 

consumer assistance be available to 

those who wish to apply via paper 

application rather than electronically. 

Response: While we strongly 

encourage all types of assistance 

personnel to help consumers apply for 

and enroll in coverage electronically, we 

also expect all types of assistance 

personnel to help consumers who wish 

to apply on paper. 

Comment: Several commenters asked 

HHS to encourage states to have a single 

training program for all Exchange 

consumer assistance programs, with one 

commenter recommending that HHS 

clarify that states may develop a single 

set of training materials for Navigators, 

non-Navigator assistance personnel, and 

certified application counselors, as 

stated in the preamble to the proposed 

certified application counselor rule. 

Response: Section 155.215(b)(2) 

includes training standards that apply to 

Navigators and non-Navigator assistance 

personnel in Federally Facilitated 

Exchanges, including State Partnership 

Exchanges, and to non-Navigator 

assistance programs and personnel in 

State Exchanges that are funded through 

federal section 1311(a) Exchange 

Establishment grants. These standards 

do not apply to certified application 

counselors. State Exchanges may, at 

their option, base their own training 

programs for Navigators, for other kinds 

of non-Navigator assistance personnel 

and for certified application counselors 

on these standards, or they may adopt 

the Federal standards and training 

materials. State Exchanges may use their 

Navigator training for non-Navigator 

personnel funded through 1311(a) 

grants if the training meets the 

standards in the final rule. State 

Exchanges are encouraged to have the 

same training across all of their 

programs. 

2. Comments Related to the 

Amendments to § 155.205(d) 

Comment: Several commenters 

expressed general support for our 

proposed amendments to § 155.205(d), 

including support for our recognition 

that consumer assistance functions must 

meet certain standards. One commenter 

asked that HHS issue regulations 

specifying the standards and duties of 

individuals carrying out the functions 

described at § 155.205(d). 

Response: In § 155.215, we establish 

standards and duties for certain 

Navigators and non-Navigator assistance 

personnel. 

Comment: Many commenters asked 

that the training requirements under 

§ 155.205(d) be strengthened and that 

specific topics be required, including 

advance payments of premium tax 

credits (APTCs), cost-sharing subsidies 

(CSRs), comparing qualified health plan 

and pediatric dental benefits and costs, 

how to provide accessible services to 

individuals with disabilities and 

culturally and linguistically appropriate 

services, documentation requirements 

for immigrants, reporting changes in 

consumer or enrollee circumstances, 

qualifying for a special enrollment 

period, complaint and referral 

processes, the tax reconciliation 

process, how to refer individuals to 

services and programs not offered 

through the Exchange that help 

consumers afford the cost of their 

medical expenses, and information 

about programs authorized under the 

Ryan White Comprehensive AIDS 

Resources Emergency (CARE) Act and 

subsequent reauthorizations of that Act 

(Ryan White programs). A few 

commenters suggested that nonNavigator assistance personnel be 

trained on how to address the concerns 

of mixed-status immigrant families to 

encourage enrollment by eligible 

members of those families. One 

commenter suggested that we require 

preference to be given to any individual 

who is culturally and linguistically 

competent, including individuals with 

bilingual language skills and/or 

bicultural background or experience. 

One recommended that assistance 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42831 

personnel under § 155.205(d) receive 

both initial and ongoing training. 

Response: Section 155.215 establishes 

training standards for Navigators and 

non-Navigator assistance personnel in 

certain Exchanges. The training module 

content requirements established in 

§ 155.215(b) cover a broad range of 

subjects, and we expect that training 

developed consistent with those 

requirements will encompass many of 

the specific training content suggestions 

made by commenters, including 

eligibility and referral services. We 

clarify here that by ‘‘insurance 

affordability programs,’’ we refer to the 

definition of ‘‘insurance affordability 

programs’’ at 42 CFR 435.4 (as amended 

at 77 FR 17203 (Mar. 23, 2012)), which 

includes Medicaid, CHIP, and QHPs 

offered through the Exchange together 

with advance payments of the premium 

tax credit and/or cost-sharing 

reductions. However, we encourage 

knowledgeable assistance personnel to 

help consumers access other programs, 

such as drug assistance programs and 

Ryan White programs. 

Comment: Most commenters who 

addressed § 155.205(d)(2), which 

requires referrals to consumer assistance 

programs when available and 

appropriate, expressed support for the 

proposed provision. Some additionally 

noted that the Exchange must not 

consider organizations to be ‘‘available 

and appropriate’’ unless the 

organization has indicated willingness 

and capacity to provide such assistance 

to consumers. 

Response: To clarify the kinds of 

available and appropriate entities to 

which we expect Navigators and nonNavigator assistance personnel to refer 

consumers, we amend the final 

§ 155.205(d)(2) to reflect the similar 

referral language in the Navigator final 

rule at § 155.210(e)(4). This amendment 

clarifies that Consumer Assistance 

Programs established under section 

2793 of the Public Health Service Act 

are an available and appropriate 

resource in many states to which 

Navigators, non-Navigator assistance 

programs, and certified application 

counselors can refer consumers for 

additional assistance. Because Navigator 

programs are one example of a program 

authorized under § 155.205(d), we also 

believe this change will help streamline 

the requirements. Moreover, we expect 

that the entities specified in this 

provision are able and willing to 

provide assistance and accept referrals. 

3. Summary of Changes 

We are finalizing the proposed 

amendments to § 155.205 of the 

proposed rule, with one modification. 

We replaced the referral language in 

paragraph (d)(2) with similar language 

from § 155.210(e)(4). 

C. Navigators and Non-Navigator 

Assistance Personnel (§§ 155.210 & 

155.215) 

The provisions and amendments 

discussed in this section were proposed 

in the April 5, 2013 proposed rule (78 

FR 20581). 

1. Navigator Program Standards 

(§ 155.210) 

a. Entities and Individuals Eligible To 

Be a Navigator (§ 155.210(c)(1)(iii)) 

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

implementing section 1311(i)(4) of the 

Affordable Care Act, directs that, in 

order to receive a Navigator grant, an 

entity or individual must ‘‘meet any 

licensing, certification or other 

standards prescribed by the state or 

Exchange, if applicable.’’ Section 

1321(d) of the Affordable Care Act 

provides that nothing in title I of the 

Affordable Care Act shall be construed 

to preempt any state laws that do not 

prevent the application of the 

provisions of title I of the Affordable 

Care Act. 

We proposed to amend 

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

consistent with Affordable Care Act 

section 1321(d), any Navigator 

licensing, certification, or other 

standards prescribed by the state or 

Exchange should not prevent the 

application of the provisions of title I of 

the Affordable Care Act. For example, as 

HHS has previously advised (see 77 FR 

18310, 18331 through 18332), a 

requirement by a state or an Exchange 

that Navigators be agents and brokers or 

obtain errors and omissions coverage 

would prevent the application of the 

requirement at § 155.210(c)(2) that at 

least two types of entities must serve as 

Navigators, because it would mean that 

only agents or brokers could be 

Navigators. In addition, holding an 

agent or broker license is neither 

necessary, nor by itself sufficient, to 

perform the duties of a Navigator, as 

these licenses generally do not address 

areas in which Navigators need 

expertise, including the public coverage 

options that will be available to some 

consumers. 

Comment: Generally, commenters 

supported the proposed amendment to 

45 CFR 155.210(c)(1)(iii). Some 

commenters requested additional 

guidance on what types of state 

requirements would and would not be 

preempted under this provision; for 

example, whether a state requirement 

that Navigators obtain a surety bond 

would be preempted by this provision. 

Other commenters requested we extend 

this provision to apply to non-Navigator 

assistance personnel as well. 

Response: Determining under 

§ 155.210(c)(1)(iii) whether a particular 

state requirement would prevent the 

application of the provisions of title I of 

the Affordable Care Act would require 

an analysis of the specific facts and 

circumstances. We are monitoring 

relevant state legislation and will work 

with states to help ensure that state 

legislation does not prevent the 

application of a provision of title I of the 

Affordable Care Act and the federal 

regulations implementing it. We are 

adopting the proposed amendment 

without modification. While we are not 

including parallel provisions applicable 

to non-Navigator assistance personnel 

and certified application counselors in 

this final rule, we note that Affordable 

Care Act section 1321(d) also applies to 

those programs. 

Comment: Some commenters raised 

concerns about the impact of Navigator 

and non-Navigator assistance programs 

on the business of licensed agents and 

brokers. Some commenters believed the 

requirements for these programs would 

prevent agents and brokers from 

participating. 

Response: Licensed agents or brokers 

are eligible to serve as Navigators or 

non-Navigator assistance personnel as 

long as they meet the applicable 

requirements; however, during their 

term as Navigators or non-Navigator 

assistance personnel, they would not be 

permitted to receive any direct or 

indirect consideration from a health 

insurance or stop loss insurance issuer 

in connection with the enrollment of 

any individuals or employees in QHPs 

or non-QHPs. In addition, subject to 

applicable state law, agents and brokers 

are not otherwise prohibited from 

assisting consumers with enrollment 

both inside and outside of the 

Exchanges. We expect that agents and 

brokers will continue to play an 

important role in educating consumers 

about their health coverage options and, 

unlike Navigators and non-Navigator 

assistance personnel, will also be able to 

sell consumers health insurance 

coverage. In addition, many states are 

expecting that small businesses seeking 

enrollment assistance in the Small 

Business Health Options (SHOP) 

Exchange will continue to use agents 

and brokers as their primary resource, 

subject to applicable state law. 

b. Prohibition on Navigator Conduct 

(§ 155.210(d)) 

Section 155.210(d) states that a 

Navigator may not be a health insurance 


ehiers on DSK2VPTVN1PROD with RULES_2
42832 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

6See 26 CFR 54.9801–2, 29 CFR 2590.701–2, and 

45 CFR 144.103, which states that the term ‘‘health 

insurance issuer’’ or ‘‘issuer’’ means ‘‘an insurance 

company, insurance service, or insurance 

organization (including an HMO) that is required to 

be licensed to engage in the business of insurance 

in a State and that is subject to State law that 

regulates insurance (within the meaning of section 

514(b)(2) of ERISA). The term does not include a 

group health plan.’’ 

issuer, a subsidiary of a health 

insurance issuer, an association that 

includes members of or lobbies on 

behalf of the insurance industry, or 

receive any consideration, directly or 

indirectly, from any health insurance 

issuer in connection with the 

enrollment of any individuals or 

employees in a QHP or non-QHP. We 

proposed to amend section 155.210(d) 

to provide that a Navigator must also 

not be an issuer of stop loss insurance, 

or a subsidiary of an issuer of stop loss 

insurance, and must not receive any 

consideration, directly or indirectly, 

from any issuer of stop loss insurance in 

connection with the enrollment of 

individuals or employees in a QHP or 

non-QHP. 

Section 1311(i) of the Affordable Care 

Act requires a Navigator to distribute 

fair and impartial information 

concerning enrollment in QHPs, to be 

free from conflicts of interest, and 

directs that standards be established to 

ensure that those requirements are met. 

Existing regulations at 45 CFR 

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

implement those requirements. Taken 

together, these provisions indicate that, 

with respect to the assistance offered by 

a Navigator to a small employer, a 

Navigator should not have a personal 

interest in whether a small employer 

chooses to self-insure its employee 

health plan, or chooses to enroll in 

fully-insured coverage inside or outside 

the Exchange. 

In the proposed rule, we explained 

that these amendments would help 

ensure that Navigators provide any 

small employer that requests help from 

a Navigator with information and 

services in a fair, accurate, and impartial 

manner, as such information would 

facilitate small employers’ selection of 

QHPs in Small Business Health Options 

(SHOP) Exchanges, if they choose to 

enroll in such coverage. We solicited 

public comments on this proposal. 

Comment: CMS received comments 

supporting the addition of stop loss 

insurance issuers and their subsidiaries 

to the provisions at 45 CFR 

155.210(d)(1), (2), and (4). One 

commenter requested clarification 

regarding the definition of stop loss 

insurance. 

Response: The proposed rule did not 

define stop loss insurance or stop loss 

insurance issuer and we are not adding 

a definition of stop loss insurance or 

stop loss insurance issuer to the final 

rule. The proposed rule cross-references 

the description of stop loss insurance in 

a Request for Information (RFI) 

published by the Departments of HHS, 

Labor, and the Treasury on May 1, 2012. 

See 77 FR 25788. That RFI describes 

stop loss insurance as designed to 

protect against health insurance claims 

that are catastrophic or unpredictable in 

nature, and as providing coverage to 

self-insured group health plans once a 

certain level of risk has been absorbed 

by the plan. For purposes of this final 

rule, we continue to interpret the terms 

stop loss insurance and stop loss 

insurance issuer as having meanings 

consistent with the discussion in the 

RFI. 

Comment: A few commenters 

requested guidance on whether selling 

other insurance products, such as 

Medicare health plans, accident plans, 

cancer-only or other dread disease 

plans, hospital expense, or critical 

illness plans, would be a prohibited 

conflict of interest making someone 

ineligible to be a Navigator or nonNavigator assistance personnel. 

Response: We are adopting the 

proposed § 155.215(a)(2)(i), which 

extends to certain non-Navigator 

assistance personnel the provisions of 

45 CFR 155.210(d). As a result, nonNavigator assistance personnel subject 

to § 155.215, like Navigators, are 

prohibited from having the relationships 

with health insurance issuers or stop 

loss issuers described at § 155.210(d). 

45 CFR 155.20 and 144.103, 

implementing section 2791(b)(2) of the 

Public Health Service Act (PHS Act), 

defines a health insurance issuer as 

‘‘. . . an insurance company, insurance 

service, or insurance organization 

(including an HMO) that is required to 

be licensed to engage in the business of 

insurance in a State and that is subject 

to State law that regulates insurance 

(within the meaning of section 514(b)(2) 

of ERISA). Such term does not include 

a group health plan.’’ 6 Consistent with 

this definition, in this context, whether 

an entity is a health insurance issuer is 

generally determined according to state 

law. 

If an entity or one of its corporate 

affiliates is required to be licensed to 

engage in the business of insurance in 

a state and is subject to state law that 

regulates insurance, it might be a health 

insurance issuer or stop loss issuer or 

have a relationship with a health 

insurance issuer or stop loss issuer that 

would prohibit it from becoming nonNavigator assistance personnel. Within 

the Federally-facilitated Exchanges, 

CMS will evaluate specific corporate 

structures on a case by case basis. 

Comment: Commenters requested 

clarification that a health care provider’s 

contract with a health plan (including a 

QHP) to provide health services as part 

of the plan network would not preclude 

the provider from being eligible to be a 

Navigator or non-Navigator assistance 

personnel. Some commenters noted that 

this relationship should still be 

disclosed as a non-prohibited conflict of 

interest. Commenters also requested 

clarification that a grant offered by a 

plan for a restricted purpose, such as in 

support of providing services to the 

uninsured or to help finance a program 

or capital project, does not constitute 

consideration directly or indirectly for 

enrollment of individuals into a QHP or 

non-QHP. Commenters also noted that 

some health centers may receive federal 

grants under section 330 of the Public 

Health Service Act that can be used to 

plan and develop a managed care 

network plan. 

Response: We are finalizing without 

change the proposed amendment to 45 

CFR 155.210(d)(4) and the proposed 

provision at § 155.215(a)(2)(i). We 

interpret the prohibition on receiving 

direct or indirect consideration from a 

health insurance or stop loss insurance 

issuer to apply to consideration received 

for enrolling individuals or employees 

in health insurance plans or stop loss 

insurance inside or outside the 

Exchanges; it does not apply to 

consideration received by a provider to 

support specific activities, such as the 

provision of medical services, that are 

not connected to the enrollment of 

individuals or employees in QHPs. The 

preamble to the Exchange Final Rule 

explains that we interpret 

‘‘consideration’’ to include financial 

compensation, including monetary or 

in-kind compensation of any type, 

including grants, as well as any other 

types of influence a health insurance or 

stop loss insurance issuer could use, 

including but not limited to things such 

as gifts and free travel, which may result 

in steering individuals to particular 

QHPs offered in the Exchange or plans 

outside of the Exchange (77 FR 18333). 

It is possible that a provider would be 

required to disclose to the Exchange and 

consumers receiving application 

assistance from staff serving as 

Navigators or non-Navigator assistance 

personnel, the fact that it receives issuer 

funds that are unrelated to the 

enrollment of individuals or employees 

into health insurance plans, but this 

would not be a bar to serving as a 

Navigator or non-Navigator assistance 

personnel. Such disclosure would not 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42833 

include proprietary information about 

reimbursements received from issuers. 

Similarly, an entity that receives a 

grant or other funding from a health 

insurance or stop loss insurance issuer 

would not be prohibited from serving as 

a Navigator or non-Navigator assistance 

personnel unless such grant or funding 

is related to the enrollment of 

individuals or employees in a QHP or 

non-QHP. However, the entity would 

need to disclose the receipt of the grant 

or funding from the issuer to the 

Exchange and consumers receiving 

application assistance. 

With respect to health centers that 

may receive federal grants under section 

330 of the Public Health Service Act 

that can be used to plan and develop a 

managed care network plan, as stated 

earlier, whether or not an entity is or is 

not a health insurance issuer is 

determined by state law. If these health 

centers would not be required to be 

licensed to engage in the business of 

insurance in a state or subject to state 

law that regulates insurance, then the 

health center would not be ineligible to 

serve as a Navigator or non-Navigator 

assistance personnel, assuming all other 

eligibility criteria are also satisfied. 

Comment: Some commenters 

requested guidance regarding the 

situation where a large organization, 

such as a hospital, has some but not all 

employees serving as Navigators or nonNavigator assistance personnel. In this 

situation, commenters requested 

clarification about whether all 

employees of the organization need to 

be free of prohibited conflicts of 

interest, or whether only the employees 

providing Navigator or non-Navigator 

assistance personnel services need to be 

free of prohibited conflicts of interest. 

Response: Only the Navigator grantee 

and the staff members and volunteers 

who work on the Navigator program or 

perform Navigator services under the 

grant are required to be free of 

prohibited conflicts of interest. 

Therefore, staff or employees of a 

Navigator grantee who are in no way 

involved in the Navigator program are 

not required to comply with the conflict 

of interest standards that are applicable 

to the Navigator program staff. 

2. Summary of Changes 

The amendments to § 155.210(d) are 

being finalized as proposed, with no 

changes. 2. Standards applicable to 

Navigators and non-Navigator 

Assistance Personnel carrying out 

consumer assistance functions under 

§ 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 (§ 155.215). 

a. Conflict-of-Interest Standards for 

Navigators (§ 155.215(a)(1)) and for NonNavigator Assistance Personnel Carrying 

Out Consumer Assistance Functions 

Under § 155.205(d) and (e) 

(§ 155.215(a)(2)) 

Section 1311(i)(4) of the Affordable 

Care Act directs the Secretary to 

establish standards for Navigators, 

including provisions to avoid conflicts 

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

all Exchanges to develop and publicly 

disseminate conflict-of-interest 

standards for Navigators. The conflictof-interest standards proposed in 

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

to all Navigators in Federally-facilitated 

Exchanges, including State Partnership 

Exchanges. 

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

Navigators from having conflicts of 

interest during their terms as 

Navigators. We have explained that 

having a conflict of interest means 

having a private or personal interest 

sufficient to influence, or appear to 

influence, the objective exercise of a 

Navigator’s official duties (77 FR 18330 

through 18331). In addition, 

§ 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, we 

first proposed in § 155.215(a)(1)(i) that a 

Navigator entity, including a Navigator 

grant applicant, must submit to the 

Exchange a written attestation that the 

Navigator entity and its staff do not have 

any of these prohibited conflicts of 

interest. This disclosure to the Exchange 

will help ensure that Navigators comply 

with the prohibitions on Navigator 

conduct set forth in § 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 solicited public 

comments on the proposal to require 

Navigators to submit an attestation 

regarding eligibility. 

At § 155.215(a)(1)(ii), we proposed to 

direct that all Navigator grantees submit 

to the Exchange a written plan to remain 

free of conflicts of interest during their 

term as a Navigator. This plan should 

ensure that the Navigator grantee, and 

all those individuals who serve as 

Navigators under the direction of the 

Navigator grantee, would fully comply 

with the prohibitions in § 155.210(d), 

and all other conflict-of-interest 

requirements, as described below, 

throughout the term of a Navigator 

grant. We stated that this would be 

particularly important for those 

Navigator grantees that may have a 

changing workforce, and might thus 

utilize new or different staff or 

employees during the term of a 

Navigator grant. We solicited public 

comments on the proposed requirement 

to submit a written plan to remain free 

of conflicts of interest, including 

comments on the form of and content 

for the plan. 

At § 155.215(a)(1)(iii), we proposed to 

direct that all Navigators, including the 

Navigator’s staff, provide information to 

consumers about the full range of QHP 

options and insurance affordability 

programs, such as premium tax credits 

and cost sharing reductions and 

Medicaid and CHIP, for which they are 

eligible. We stated that this proposed 

requirement would help ensure that 

consumers receive all of the information 

they need to make an informed 

enrollment decision, and that the 

information they receive is fair and 

impartial, as required by § 155.210(e)(2). 

Lastly, under the proposed conflict-ofinterest standards for Navigators, we 

proposed a requirement at 

§ 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 were mindful that 

every Navigator must ‘‘[p]rovide 

information and services in a fair, 

accurate and impartial manner’’ under 

§ 155.210(e)(2). We were also mindful 

that each Exchange must develop 

standards ‘‘designed to prevent, 

minimize and mitigate any conflicts of 

interest, financial or otherwise, that may 

exist for an entity or individuals to be 

awarded a Navigator grant and to ensure 

that all entities and individuals carrying 

out Navigator functions have 

appropriate integrity,’’ as we provided 

in § 155.210(b)(1). The requirement that 

an Exchange develop standards to 

minimize and mitigate conflicts of 

interests suggests that some conflicts of 

interest would not be absolute bars to 

service as a Navigator, provided that the 

conflict of interest would not ultimately 

prevent the entity or individual from 

providing information and services in a 

fair, accurate, and impartial manner. 

Striking this balance will allow for a 

robust pool of Navigators while 

ensuring all Navigators have the 


ehiers on DSK2VPTVN1PROD with RULES_2
42834 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

integrity, fairness, and impartiality to 

carry out their duties appropriately. 

In order to mitigate conflicts of 

interest, we proposed three types of 

information that Navigators, including 

Navigator staff, must disclose to the 

Exchange and to their consumers. First, 

Navigators would be required to 

disclose to the Exchange and to each 

consumer who receives application 

assistance from the Navigator entity or 

individual, any lines of insurance 

business, other than health insurance or 

stop loss insurance, which the Navigator 

intends to sell while serving as a 

Navigator. Since Navigators must not 

sell health insurance or, as we also 

proposed, stop loss insurance, the 

proposed requirement that Navigators 

disclose ‘‘any lines of insurance 

business’’ is not intended to apply to the 

sale of health insurance or stop loss 

insurance, since these are not conflicts 

of interest that could be mitigated 

through disclosure (see § 155.210(d)). 

In addition, we proposed to require 

disclosure of two other types of indirect 

financial conflicts of interest. We stated 

that Navigators and their staff members 

would be required to disclose to the 

Exchange and each consumer receiving 

application assistance, any existing and 

former employment relationships they 

have had within the last five years with 

any issuer of health insurance or stop 

loss insurance, or subsidiaries of such 

issuers. It is intended that any existing 

employment relationships disclosed 

would be non-prohibited relationships, 

because receipt of any consideration 

directly or indirectly from any health 

insurance issuer or issuer of stop loss 

insurance in connection with the 

enrollment of any individuals or 

employees in a QHP or a non-QHP 

would already be prohibited by 

§ 155.210(d)(4). We specified that 

Navigators and their staff must also 

disclose any existing employment 

relationships between any health 

insurance issuer or stop-loss insurance 

issuer, or subsidiary of such issuers, and 

the Navigator or staff member’s spouse 

or domestic partner. Navigators and 

their staff members would also be 

required to disclose to the Exchange, 

and to each consumer receiving 

application assistance, any existing or 

anticipated financial, business, or 

contractual relationships with one or 

more issuers of health insurance or stop 

loss insurance or subsidiaries of such 

issuers. These types of conflict-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 solicited public comments on the 

proposed requirement to disclose 

certain types of potential financial 

conflicts of interest. 

At § 155.215(a)(2), we proposed to 

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 non-Navigator assistance personnel in 

a State Exchange funded through federal 

Exchange Establishment grants. We 

explained that we believe the same 

conflict-of-interest considerations that 

apply to Navigators should also apply to 

these non-Navigator assistance 

personnel. We solicited public 

comments on the application of these 

proposed standards to non-Navigator 

assistance personnel. The comments 

received did not distinguish between 

the application of these standards to 

Navigators or non-Navigator assistance 

personnel, and therefore we address 

comments for § 155.215(a)(2) and the 

comments for § 155.215(a)(1) together. 

Comment: Commenters generally 

supported the conflict of interest 

standards. Most said that the standards 

appropriately balance protection for 

consumers with burdens on potential 

Navigators and non-Navigator assistance 

personnel. Some commenters requested 

that CMS provide a model form for the 

attestation and the mitigation plan 

requirements. One commenter 

recommended that CMS develop a 

script for making disclosures of nonprohibited conflicts to consumers and 

that these disclosures be made orally to 

ensure they are not just written and 

posted without being discussed. 

Another commenter requested that CMS 

require the disclosures about conflicts to 

consumers be in plain language so that 

consumers will fully understand them. 

A few commenters questioned the 

usefulness of disclosing non-prohibited 

conflicts of interest to consumers, 

however these commenters noted that 

the disclosure to the Exchange is 

necessary. 

Response: We appreciate the 

comments supporting the conflict of 

interest standards in the proposed rule. 

At this time we do not anticipate 

developing a model form for the 

attestation and mitigation plan or a 

script for making disclosures of nonprohibited conflicts to consumers. The 

disclosure would likely vary depending 

on the circumstances of the Navigator or 

non-Navigator assistance personnel 

providing it, and therefore a uniform 

script would be difficult to develop. 

Additionally, the final rule does not 

specify whether this disclosure to 

consumers should be written or oral. 

Navigators and non-Navigators should 

use their discretion to determine which 

form of disclosure is most appropriate 

for a particular consumer receiving 

application assistance. For example, if a 

Navigator or non-Navigator is serving a 

community known to have low rates of 

literacy, an oral disclosure would likely 

be more appropriate than a written 

disclosure. We agree with the comment 

recommending the disclosure to 

consumers be made in plain language, 

which is consistent with the 

requirements under § 155.205(c), and 

have modified the language of 

§ 155.215(a)(1)(iv) and (a)(2)(v) 

accordingly. 

Comment: Commenters generally 

supported what they referred to as 

‘‘strong conflict of interest standards.’’ 

Many commenters stated appreciation 

for applying the same standards to both 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies. 

However one commenter requested that 

we ensure that non-Navigator assistance 

personnel (as well as certified 

application counselors and Navigators), 

be prohibited from limiting the 

information they give to consumers 

based on that individual assister’s 

personal beliefs or an institutional 

assister’s beliefs. Another commenter 

requested that the provisions governing 

non-Navigator assistance personnel 

should mirror the Navigator 

requirements that Navigators not have a 

conflict of interest and that they provide 

information and services in a fair, 

accurate, and impartial manner. 

Response: We agree that the conflict 

of interest standards for non-Navigators 

should mirror the conflict of interest 

standards for Navigators, which are a 

type of consumer assistance personnel. 

We therefore proposed, and now 

finalize in § 155.215(a)(2)(i), that the 

same prohibitions on Navigator conduct 

set forth at § 155.210(d) also apply to 

non-Navigators in the Exchanges and 

circumstances to which 155.215 applies. 

We also proposed, and now finalize in 

§§ 155.215(a)(1)(iii) and 

155.215(a)(2)(iv), the requirement that 

the Navigators and non-navigator 

Navigator assistance personnel to which 

155.215 applies provide information to 

consumers about the full range of QHP 

options and insurance affordability 

programs for which they are eligible. We 

note that one commenter correctly 

observed that the requirement to 

provide information in a fair, accurate, 

and impartial manner, a requirement for 

Navigators under section 1311(i)(5) of 

the Affordable Care Act and 45 CFR 

155.210(e)(2), was not specifically 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42835 

extended to the non-Navigator 

assistance personnel to whom 155.215 

applies in our proposed rule. We did 

explain in the preamble to the proposed 

rule (at 78 FR 20586), however, that 

non-Navigator assistance personnel who 

carry out consumer assistance and 

outreach and education authorized 

under § 155.205(d) and (e) in Federallyfacilitated Exchanges, including State 

Partnership Exchanges, and nonNavigator assistance personnel in State 

Exchanges that are funded through 

Exchange Establishment grants, should 

be subject to conflict of interest 

standards; and that we believe that in 

order to be helpful to the public, the 

services provided under § 155.205(d) 

and (e) should be carried out in a fair, 

accurate, and impartial manner. It was 

therefore our intent that this duty apply 

to both Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies. We are therefore amending 

§ 155.215(a)(2)(i) to add the requirement 

that non-Navigator assistance personnel 

in the Exchanges and circumstances to 

which 155.215 applies, like all 

Navigators, have a duty to provide 

information in a fair, accurate, and 

impartial manner. This amendment 

ensures that there will be parallel 

conflict of interest standards between 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies. 

With respect to certified application 

counselors, § 155.225(d)(4) imposes a 

standard different from the ‘‘fair and 

impartial’’ standard discussed above. 

Instead, certified application counselors 

must act in the best interest of the 

applicants they assist. Section 

155.225(c)(1) does specify that all 

certified application counselors must 

provide information to consumers about 

the full range of QHP options and 

insurance affordability programs for 

which they are eligible. However, as 

discussed elsewhere in this preamble, 

we are not extending any prohibition on 

being a certified application counselor 

based on conflicts of interest that apply 

to Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies, although we are requiring 

certified application counselors to 

disclose conflicts of interest to 

consumers. 

Comment: A number of commenters 

thought health insurance issuers, plans, 

and their agents should be barred 

explicitly from serving as non-Navigator 

assistance personnel. 

Response: We are finalizing 

§ 155.215(a)(2)(i), with the amendment 

mentioned above, which prohibits 

certain persons and entities from being 

non-Navigator assistance personnel in 

the contexts and Exchanges to which 

§ 155.215 applies, including a health 

insurance issuer or its subsidiary; an 

issuer of stop-loss insurance or its 

subsidiary; an association that includes 

members of or lobbies on behalf of the 

insurance industry; or a recipient of any 

direct or indirect consideration from 

any health insurance issuer or issuer of 

stop-loss insurance in connection with 

the enrollment of any individuals or 

employees in a QHP or non-QHP. The 

inclusion of an association that includes 

members of or lobbies on behalf of the 

insurance industry as a prohibited nonNavigator assistance program is not 

meant to prohibit associations, such as 

a bona fide Chamber of Commerce, 

which a wide variety of businesses join 

in connection with civic and 

community matters unrelated to the 

nature of their business, from having a 

non-Navigator assistance program. 

b. Training Standards for Navigators and 

Non-Navigator Assistance Personnel 

Carrying Out Consumer Assistance 

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

and 155.210 (§ 155.215(b)) 

i. Certification and Recertification 

Standards (§ 155.215(b)(1)) 

Section 1311(i)(4) of the Affordable 

Care Act directs the Secretary to 

establish standards for Navigators, 

including provisions to ensure that any 

private or public entity that is selected 

as a Navigator is qualified, and licensed 

if appropriate, to engage in Navigator 

activities and to avoid conflicts of 

interest. Additionally, 45 CFR 

155.210(b)(2) directs the Exchange to 

develop and publicly disseminate a set 

of training standards, to be met by all 

entities and individuals carrying out 

Navigator functions, to ensure Navigator 

expertise in the needs of underserved 

and vulnerable populations, eligibility 

and enrollment rules and procedures, 

the range of QHP options and insurance 

affordability programs, and privacy and 

security requirements applicable to 

personally identifiable information. 

Under existing regulations at 45 CFR 

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

any ‘‘licensing, certification or other 

standards prescribed by the state or 

Exchange, if applicable’’; this final rule 

amends these regulations to add, ‘‘so 

long as such standards do not prevent 

the application of the provisions of title 

I of the Affordable Care Act.’’ In 

addition, we finalize in this rulemaking 

the proposed amendment to 

§ 155.205(d) that would require any 

individual providing consumer 

assistance under that section, including 

Navigators, to ‘‘be trained regarding 

QHP options, insurance affordability 

programs, eligibility, and benefits rules 

and regulations governing all insurance 

affordability programs operated in the 

state, as implemented in the state, prior 

to providing such assistance.’’ 

At § 155.215(b)(1), we proposed that 

all Navigators and non-Navigator 

assistance personnel in a Federallyfacilitated Exchange or State Partnership 

Exchange, and all non-Navigator 

assistance personnel in a State Exchange 

that are funded through a grant under 

section 1311(a) of the Affordable Care 

Act, must register with the Exchange 

and be certified by the Exchange, and 

prior to certification, complete an HHSapproved training before carrying out 

any consumer assistance functions in 

the Exchange. We proposed in 

§ 155.215(b)(2) the broad topic areas 

about which Navigators and nonNavigator assistance personnel to which 

§ 155.215 applies would receive training 

prior to certification. The proposed rule 

would also require that individuals and 

staff of Navigator entities and nonNavigator assistance entities receive a 

passing score on all HHS-approved 

examinations in order to serve as 

Navigators or non-Navigator assistance 

personnel in a Federally-facilitated 

Exchange, a State Partnership Exchange, 

or as non-Navigator assistance 

personnel in a State Exchange funded 

through federal Exchange Establishment 

grants. 

The rule also proposed that 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies 

should obtain continuing education and 

be certified and/or recertified on at least 

an annual basis. The proposed 

recertification requirement for 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies 

would ensure that they remain 

appropriately trained to adequately 

serve consumers. 

We also proposed at 45 CFR 

155.215(b)(1)(v) that these certification 

requirements would specifically direct 

that all Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies be prepared to serve both the 

individual Exchange and SHOP. Section 

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

directs that, to be eligible to receive a 

Navigator grant, an entity must 

demonstrate that it has existing 

relationships, or could readily establish 

relationships, with employers and 

employees (among other groups). In 

addition, section 1311(i)(2)(B) of the 

Affordable Care Act directs that the 

types of entities that may be eligible for 

a Navigator grant include resource 

partners of the Small Business 

Administration. We infer from these 

standards that Navigators must be 

prepared to serve the needs of small 


ehiers on DSK2VPTVN1PROD with RULES_2
42836 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

7Patient Protection and Affordable Care Act; 

Program Integrity: Exchange, SHOP, Premium 

Stabilization Programs, and Market Standards, 78 

FR 37032, 37052 and 37082 (June 19, 2013). 

businesses, and therefore will need to be 

prepared to serve the needs of both the 

individual Exchange and SHOP. We 

also believe that non-Navigator 

assistance personnel to which § 155.215 

applies should be prepared to serve the 

needs of both the individual Exchange 

and SHOP. We solicited public 

comments on these proposed training 

and certification standards, including 

the proposed recertification standards. 

Comment: CMS received numerous 

comments from a broad range of 

commenters regarding the requirement 

that all Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies be prepared to serve both the 

individual market and SHOP 

Exchanges. These commenters generally 

recommended that Navigators and nonNavigator assistance personnel to which 

§ 155.215 applies should not be required 

to serve the SHOP Exchange. Some 

commenters suggested that some 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies 

could specifically serve the individual 

Exchange while others could 

specifically serve the SHOP. Other 

commenters suggested that Navigators 

and non-Navigator assistance personnel 

to which § 155.215 applies should be 

trained to have general knowledge of the 

SHOP to be able to provide appropriate 

assistance to individuals seeking 

coverage, particularly where SHOP 

eligibility may vary among family 

members. Commenters pointed to states 

that intend to establish and operate only 

a State SHOP Exchange, while the 

federal government operates the 

individual market Exchange for that 

state, and that intend to use certified 

agents, or brokers, or producers to assist 

small businesses with enrolling in 

coverage through the State SHOP. 

Others indicated that some community 

based organizations serving underserved 

populations may be dissuaded from 

applying to be Navigator entities 

because they have no or limited 

connections with small businesses. 

Response: We are finalizing proposed 

§ 155.215(b)(1)(v) without change. 

However, we do not interpret the 

provision as meaning that the 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies 

must actively seek out small businesses 

and employers to assist, unless that is 

the community the Navigator or nonNavigator assistance personnel is 

intending to target in its service 

delivery. 

Training regarding the SHOP will be 

required to ensure that persons seeking 

assistance with SHOP coverage from a 

Navigator or non-Navigator assistance 

personnel can receive assistance. In 

some circumstances, the assistance may 

be provided through referral to other 

Exchange resources, such as the toll-free 

Exchange call center, or to another 

Navigator or non-Navigator assistance 

personnel in the same Exchange who, 

through reasonable efforts by the 

Navigator or non-Navigator, has been 

identified as having the capacity to 

serve that individual or employer more 

effectively. 

Additionally, we have proposed 

amendments to the existing Exchange 

regulations that would permit states to 

establish and operate only a State SHOP 

Exchange, while the federal government 

operates an individual market Exchange 

for that state. One of those proposed 

amendments is a provision that would 

permit SHOPs in states that opt to 

establish and operate a SHOP 

independently of a Federally-facilitated 

individual market Exchange to focus the 

SHOP Navigator program on outreach 

and education to small employers.7 If 

this proposal is finalized, in states that 

take this option, SHOP Navigators 

would be able to fulfill their statutory 

and regulatory obligations under section 

1311(i) of the Affordable Care Act and 

45 CFR 155.210 to facilitate enrollment 

in QHPs, and to refer consumers with 

complaints, questions, and grievances to 

applicable offices of health insurance 

consumer assistance or ombudsmen, by 

referring small businesses to agents and 

brokers for these types of assistance, so 

long as State law permits agents and 

brokers to carry out these functions. 

Comment: Some commenters raised 

concerns regarding the security of 

consumer’s personally identifiable 

information and requested that CMS 

specify how this information will be 

protected. In addition a few commenters 

asked questions regarding minimum 

eligibility criteria and background 

checks for Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies. 

Response: We are committed to 

ensuring consumer privacy. Navigators 

and non-Navigator assistance personnel 

to which § 155.215 applies, as part of 

their certification requirements, receive 

training on the privacy and security 

standards applicable under 45 CFR 

155.260, which requires compliance 

with those standards. In addition, we do 

not expect that Navigators and nonNavigator assistance personnel will 

retain any personally identifiable 

information (PII). They will assist 

consumers in completing the enrollment 

application, which requires entry of 

some PII into either a computer-based or 

paper application; however, once the 

application is completed, Navigator or 

non-Navigator assistance personnel 

should not retain any of the information 

entered onto the application. With 

respect to electronic applications, the 

consumer will be logged on to a 

personal account, to which the 

Navigator or non-Navigator assistance 

personnel generally will not have access 

without the consumer present. Federal 

Navigator grantees will have been 

screened by a thorough grant 

application process prior to being 

determined eligible for an award, and 

will be subject to a rigorous oversight 

process. States may choose to require 

minimum eligibility criteria and 

background checks for Navigators and 

non-Navigator assistance personnel, so 

long as such requirements do not 

prevent the application of title I of the 

Affordable Care Act. CMS, as the 

operator of the Federally-facilitated 

Exchange, will be monitoring Navigators 

and non-Navigator assistance personnel 

to which § 155.215 applies under 

§ 155.215(e) and will take appropriate 

action if complaints of fraud and abuse 

arise. In addition, § 155.260 provides for 

civil monetary penalties for violations of 

legal requirements to protect the privacy 

and security of personally identifiable 

information. Other federal laws 

regarding privacy and security may be 

applicable as well and provide 

sanctions for violations. 

Finally, as a measure to ensure that 

Navigators are able to carry out 

consumer assistance functions in 

Federally-facilitated Exchanges, the 

final rule establishes training and 

certification standards which include 

the requirement that Navigators and 

non-Navigator assistance personnel to 

which § 155.215 applies 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. 

Comment: CMS received several 

comments requesting the creation of a 

dedicated portal for Navigators and nonNavigator assistance personnel within 

the online enrollment portal for 

submission of applications on behalf of 

consumers, with the consumer’s 

permission. In addition to the portal, 

commenters also requested the 

establishment of a dedicated technical 

assistance unit and helpline in the 

Federally-facilitated Exchange to 

support Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies. 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42837 

Response: At this time, we do not 

anticipate that a dedicated portal will be 

available for the use of Navigators and 

non-Navigator assistance personnel (or 

for certified application counselors) in 

the Federally-facilitated Exchanges. 

However, we will continue to consider 

and explore this option for future years. 

Navigators and non-Navigator assistance 

programs in the Federally-facilitated 

Exchanges will receive technical 

assistance from various sources, 

including CCIIO project officers for 

Navigator grantees, state resources for 

non-Navigator assistance programs, and 

the toll-free Federally-facilitated 

Exchange Call Center. 

Comment: Commenters urged HHS to 

adequately fund and support consumer 

assistance functions of an Exchange. 

Several requested clarification from 

CMS about whether private support can 

be used to leverage federal Medicaid 

matching funds to provide enrollment 

assistance. Commenters also requested 

CMS to allow section 1311(a) Exchange 

Establishment grant funds to be used to 

provide consumer assistance in full 

Federally-facilitated Exchange states 

that are not a State Partnership 

Exchange. 

Response: A discussion of the 

appropriate sources of the non-federal 

share of Medicaid expenditures is 

outside the scope of this rulemaking. 

With regard to the use of section 1311(a) 

Exchange Establishment funding for 

consumer assistance and outreach, we 

direct commenters to the FAQ issued on 

April 23, 2013, http://www.cms.gov/ 

CCIIO/Resources/Fact-Sheets-andFAQs/marketplace-funding-marketingfaq.html, and to the FAQs issued on 

May 13, 2013, http://www.cms.gov/ 

CCIIO/Resources/Fact-Sheets-andFAQs/ca-spm-funding.html, and http:// 

www.cms.gov/CCIIO/Resources/FactSheets-and-FAQs/spm-ffmfunding.html. Finally, with regard to the 

comment about adequate assistance for 

Exchange consumer assistance 

functions, we note that HHS has issued 

a funding opportunity announcement 

for the Navigator program in the 

Federally-facilitated Exchanges and 

State Partnership Exchanges, and is 

providing section 1311(a) Exchange 

Establishment Grants to states that may 

be used to fund non-Navigator 

assistance programs to carry out 

functions authorized by § 155.205(d) 

and (e) consistent with the discussion in 

the preamble to the April 5, 2013 

proposed rule (78 FR at 20583 through 

20584). 

ii. Training Module Content Standards 

(§ 155.215(b)(2)) 

In § 155.215(b)(2), we proposed a set 

of standards for the content of the 

training modules for Navigators and 

non-Navigator assistance personnel in a 

Federally-facilitated Exchange or State 

Partnership Exchange, and for federally 

funded non-Navigator assistance 

personnel in a State Exchange, to ensure 

that they would be knowledgeable in 

the areas described in the statute and 

existing regulations and that they would 

be fully prepared to assist consumers. 

Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies will receive training in many 

areas including QHPs, the range of 

insurance affordability programs, 

eligibility requirements for premium tax 

credits and cost-sharing reductions, 

eligibility and enrollment rules and 

procedures, providing culturally and 

linguistically appropriate services, 

ensuring physical and other 

accessibility for individuals with 

disabilities, and privacy and security 

standards for handling and safeguarding 

consumers’ personally identifiable 

information. It is expected that this 

assistance would accommodate the full 

range of disabilities. The complete list 

of required training module content 

standards is set forth in § 155.215(b)(2). 

Comment: CMS received numerous 

comments recommending that specific 

topics be included in the training for 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies. 

Recommended topics include pediatric 

dental benefits; privacy standards for 

mixed immigration status households; 

the appropriate handling and 

safeguarding of consumer information; 

working with specific populations, 

including transgender individuals, the 

LGBT community, people of color, 

households that are experiencing mental 

illness, people with substance use 

disorders, people experiencing 

homelessness, and people with low 

health literacy; insurance affordability 

programs, particularly in states that 

have chosen not to expand their 

Medicaid program; and the individual 

responsibility requirement and other tax 

consequences. 

Response: We are finalizing the 

language of the training module content 

standards in § 155.215(b)(2) without 

modification. The language of this 

provision is broadly written so that it 

can include many discrete topics, 

including many of those recommended 

by commenters. We specifically note 

that the proposed rule already includes 

training on privacy and security, on 

linguistic and cultural competence, and 

on ensuring access for people with 

disabilities. By defining the training 

modules broadly, we will be able to 

modify the specific training content 

each year so that it is tailored to the 

specific circumstances of the federal 

Exchanges and provides effective 

assistance to consumers. 

Comment: Multiple comments were 

received regarding the number of hours 

of training for Navigators and nonNavigator assistance personnel to which 

§ 155.215 applies. Some commenters 

suggested expanding the number of 

hours. Several commenters asked for 

clarification of the circumstances under 

which a state may require additional 

training beyond the number of hours 

discussed in the preamble to the 

proposed regulation. Some commenters 

stated that non-Navigator assistance 

personnel should not be required to take 

all 30 hours of Navigator training. Other 

commenters expressed concern that 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies 

will not receive enough training to be 

able to adequately assist consumers. 

Response: Under the final rule, 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies 

will receive extensive training covering 

many broad content categories to 

prepare them to assist consumers 

competently. This training is designed 

to ensure that Navigators and nonNavigator assistance personnel to which 

§ 155.215 applies are knowledgeable 

about QHPs, insurance affordability 

programs, tax implications of 

enrollment decisions, eligibility for 

premium tax credits and cost-sharing 

reductions, and other topics. In 

addition, prior to being certified, 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies 

will be required to take and pass a test 

ensuring their competence in each of 

the training content categories. We 

believe that up to 30 hours of training, 

as stated in the proposed rule, is 

sufficient for Navigators and nonNavigator assistance personnel in 

Federally-facilitated Exchanges and 

State Partnership Exchanges to perform 

their duties and is in keeping with the 

number of hours of training many states 

require for individuals seeking licensure 

as an agent or broker. We also note that 

State Exchanges using 1311(a) 

Establishment funds for their nonNavigator assistance programs, such as 

in-person assistance programs, may 

choose to require additional hours of 

training. 

In addition, with regard to state law 

training requirements, 45 CFR 

155.210(c)(1)(iii) requires Navigators to 

meet state licensing, certification and 


ehiers on DSK2VPTVN1PROD with RULES_2
42838 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

other requirements, if applicable. We 

are amending that provision in this rule 

to require that those standards must be 

met so long as they do not prevent the 

application of the provisions of title I of 

the Affordable Care Act. 

Comment: One commenter sought 

confirmation that the HHS approved 

training does not apply to State 

Exchanges. 

Response: State Exchanges must 

develop their own training and 

certification programs for Navigators 

and non-Navigator assistance personnel, 

and, as explained earlier in this rule, 

may use section 1311(a) Exchange 

Establishment grant funds to cover the 

administrative costs associated with this 

requirement. If a State Exchange uses 

section 1311(a) Exchange Establishment 

grant funds for this purpose, it must 

comply with the training standards set 

forth in this rule. 

Comment: Several comments 

suggested that training content should 

be made available to all who are 

interested, including individuals who 

are not seeking to be certified 

application counselors or to serve as 

Navigators or non-Navigator assistance 

personnel, but who will work with 

consumers by providing education or 

problem-solving, such as people who 

work for legal-services organizations. 

Response: We understand there may 

be individuals who are not Navigators, 

non-Navigator assistance personnel or 

certified application counselors, but 

who are interested in assisting 

consumers with applying for and 

enrolling in QHPs and insurance 

affordability programs. While we intend 

to make the training available online 

only those individuals who are certified 

can act as certified application 

counselors, Navigators, or nonNavigator assistance personnel by 

Federally-facilitated Exchanges. 

c. Providing Culturally and 

Linguistically Appropriate Services 

(CLAS Standards) (§ 155.215(c)) 

At § 155.215(c), we proposed 

standards for the use and provision of 

culturally and linguistically appropriate 

tools and services for those who seek 

assistance from Navigators and nonNavigator assistance personnel in a 

Federally-facilitated Exchange or State 

Partnership Exchange, and for nonNavigator assistance personnel in a 

State Exchange that are funded with 

section 1311(a) Exchange Establishment 

grants. 

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

Care Act directs that Navigator entities 

have a duty to provide information in a 

manner that is culturally and 

linguistically appropriate to the needs of 

the population being served by the 

Exchange or Exchanges. Section 

155.210(e)(5) requires Navigators to 

‘‘provide information in a manner that 

is culturally and linguistically 

appropriate to the needs of the 

population being served by the 

Exchange, including individuals with 

limited English proficiency’’ 

(§ 155.210(e)(5)). Additionally, all nonNavigator 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 also 

apply to non-Navigator assistance 

programs in State Exchanges and State 

Partnership Exchanges to the extent 

such programs receive federal financial 

assistance. These federal civil rights 

laws impose nondiscrimination 

obligations with respect to persons with 

disabilities and that address the 

communications needs of persons who 

have limited English proficiency (LEP). 

While the proposed training module 

content standards discussed earlier in 

this preamble included a requirement 

that training include providing 

culturally and linguistically appropriate 

services, the proposed rule also 

provided more specific standards for 

ensuring meaningful access. These 

proposed standards should be read 

together with all other applicable 

standards issued by the Secretary 

related to ensuring meaningful access to 

information by individuals with limited 

English proficiency, as required under 

§§ 155.210(e)(5) and 155.205(c) (as 

applied to Navigators and nonNavigators by § 155.205(d) and (e)). 

At § 155.215(c), we proposed that 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies 

should develop, maintain, and regularly 

update their general knowledge about 

the racial, ethnic, and cultural groups in 

their service area, including the primary 

languages spoken, and continue to use 

this information. We specified that the 

proposed requirements would also 

include that such entities and 

individuals provide consumers with 

information and assistance in the 

consumer’s preferred language, which 

would include oral interpretation of 

non-English languages and the 

translation of written documents in nonEnglish languages when necessary to 

ensure meaningful access. We also 

proposed that use of a consumer’s 

family or friends as interpreters can 

satisfy the requirement to provide 

linguistically appropriate services only 

when requested by the consumer as the 

preferred alternative to an offer of other 

interpretive services by the Navigator or 

non-Navigator assistance personnel to 

which § 155.215 applies. 

At § 155.215(c)(4), we proposed to 

require that the Navigators and nonNavigator assistance personnel to which 

§ 155.215 applies provide limitedEnglish-proficient consumers with oral 

and written notices informing them of 

their right to receive language assistance 

services and how to obtain such 

services. We explained in the preamble 

to the proposed rule that this 

requirement could be satisfied using 

methods outlined in existing 

§ 155.205(c)(2), which allows for the use 

of taglines in non-English languages 

placed on documents or Web sites to 

indicate the availability of language 

assistance services. 

At 155.215(c)(6), we proposed to 

direct the Navigator and non-Navigator 

assistance programs to which § 155.215 

applies to implement strategies to 

recruit and promote a staff that is 

representative of the demographic 

characteristics, including primary 

languages spoken, of the communities 

in their service area. 

Comment: Many commenters 

recommended that CMS interpret the 

requirements of the proposed rule 

consistently with the Enhanced 

National Standards for Culturally and 

Linguistically Appropriate Services 

(CLAS) in Health and Health Care 

(National CLAS Standards) published 

by the HHS Office of Minority Health 

(‘‘OMH’’) on April 23, 2013, 

available at https:// 

www.thinkculturalhealth.hhs.gov/ 

Content/clas.asp. Some comments 

suggested that § 155.215(c) should be 

split into two parts, one focused on 

culture and one on language access. A 

few other commenters encouraged CMS 

to define what is included in providing 

culturally and linguistically appropriate 

services. 

Response: We agree that the National 

CLAS Standards provide guidance for 

best practices in providing culturally 

and linguistically appropriate services 

and encourage all entities providing 

outreach and enrollment assistance to 

refer to that document as a resource, as 

well as the accompanying Blueprint for 

Advancing and Sustaining CLAS Policy 

and Practice, a new guidance document 

for the National CLAS Standards that 

discusses implementation strategies for 

each standard, in addition to 

§§ 155.205(c), (d), (e), 155.210(e)(5), and 

155.215(c). We do not believe, however, 

that it is necessary to divide § 155.215(c) 

into subsections, as cultural competency 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42839 

and language access are intertwined in 

the context of a consumer’s experience. 

Comment: Many commenters 

recommended adding more specificity 

to the requirement for cultural 

competency, suggesting that various 

communities be identified in the 

regulation, including communities 

based on immigration status, disability, 

gender identity, and sexual orientation. 

They also recommended that CMS 

require the collection of specific 

demographic data to ensure various 

communities are served. 

Response: Although we are modifying 

other aspects of paragraph (c)(3), we are 

not modifying it to add specificity to the 

requirement of cultural competency. 

Navigators and non-Navigator assistance 

programs to which § 155.215 applies 

must provide services that are 

appropriate to all of the cultures of the 

communities they serve. We want to 

ensure we do not limit the requirement 

by including a detailed list of 

communities, and so are not amending 

the proposal to include such a 

requirement. We also want to ensure 

that Navigators and non-Navigator 

assistance programs to which § 155.215 

applies have the flexibility to determine 

what information is most relevant to the 

communities they serve. 

Comment: We received numerous 

comments concerning the provision of 

translation services, including when it 

is appropriate to rely on a consumer’s 

family or friends to provide oral 

interpretations. In particular, some 

commenters encouraged CMS to amend 

§ 155.215(c)(3) to require translated 

services ‘‘when requested by the 

consumer to ensure effective 

communication,’’ rather than ‘‘where 

necessary for meaningful access.’’ Some 

commenters also wanted clarification on 

the relationship between the duty to 

provide culturally and linguistically 

appropriate services and the duty to 

make appropriate referrals. 

Response: In response to commenters’ 

concerns, we have amended 

§ 155.215(c)(3) to read ‘‘when necessary 

or when requested by the consumer to 

ensure effective communication,’’ rather 

than ‘‘where necessary for meaningful 

access.’’ While Navigators and nonNavigator assistance personnel are 

required to provide information in a 

manner that is culturally and 

linguistically appropriate to the needs of 

the population being served, a referral 

may be the most appropriate method for 

complying with that requirement in 

some circumstances. For example, a 

Navigator or non-Navigator assistance 

personnel to which may not have the 

resources to serve directly someone who 

speaks a language spoken by a specific 

individual within their service area and 

may need to refer the individual to 

another program. In such circumstances, 

the Navigator or non-Navigator 

assistance personnel should make 

reasonable efforts to make an 

appropriate referral for the consumer, 

with the goal of helping them find 

assistance with a minimum of effort and 

disruption. We remind Navigators and 

non-Navigator assistance programs 

receiving federal financial assistance of 

their independent obligations to comply 

with Title VI of the Civil Rights Act of 

1964. Title VI prohibits discrimination 

on the basis of national origin, among 

other bases, and may require the 

provision of language assistance 

services. 

Comment: Some commenters 

recommended that the notice provided 

to consumers informing them of their 

right to language access services should 

be required to be provided in the 

consumer’s preferred language. 

Response: We agree that it makes the 

most sense to require the notice of 

language access services be provided in 

a consumer’s preferred language. 

Therefore we are amending 

§ 155.215(c)(4) to require, ‘‘notice to 

consumers with limited English 

proficiency, in their preferred language, 

informing them of their right to receive 

language assistance services and how to 

obtain them.’’ 

d. Standards Ensuring Access by 

Persons With Disabilities (§ 155.215(d)) 

Existing regulation § 155.210(e)(5) 

directs that an entity serving as a 

Navigator has a duty to ‘‘ensure 

accessibility and usability of Navigator 

tools and functions for individuals with 

disabilities in accordance with the 

Americans with Disabilities Act and 

Section 504 of the Rehabilitation Act.’’ 

Similarly, § 155.205(c), which applies to 

persons providing consumer assistance 

pursuant to § 155.205(d) and (e), 

requires that persons carrying out those 

assistance functions provide individuals 

living with disabilities with information 

that is accessible, at no cost to the 

individual, in accordance with the 

Americans with Disabilities Act and 

section 504 of the Rehabilitation Act. 

Additionally, independent of these 

obligations, certain Federal civil rights 

laws, such as Title VI of the Civil Rights 

Act of 1964 and Section 504 of the 

Rehabilitation Act of 1973, also apply to 

Navigators in Federally-facilitated and 

State Partnership Exchanges and to nonNavigator assistance programs in State 

Exchanges and State Partnership 

Exchanges to the extent such programs 

receive federal financial assistance. 

These federal civil rights laws impose 

nondiscrimination obligations with 

respect to persons with disabilities and 

that address the communications needs 

of persons who have limited English 

proficiency (LEP). 

In accordance with these 

requirements, with respect to Navigators 

and non-Navigator assistance personnel 

in a Federally-facilitated Exchange or 

State Partnership Exchange, and for 

non-Navigator assistance personnel in a 

State Exchange that are funded with 

section 1311(a) Exchange Establishment 

grants, we proposed in § 155.215(d)(2) 

that auxiliary aids and services for 

individuals with disabilities be 

provided where necessary for effective 

communication and discussed when a 

consumer’s family or friends can 

provide interpretation services. In 

addition, we proposed at § 155.215(d)(3) 

to require Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies to provide assistance to 

consumers in a location and in a 

manner that is physically and otherwise 

accessible to individuals with 

disabilities. We proposed at 

§ 155.215(d)(1) that Navigators and nonNavigator assistance personnel to which 

§ 155.215 applies should ensure that 

any consumer education materials, Web 

sites, or other tools utilized for 

consumer assistance purposes are 

accessible to people with disabilities. 

We proposed at § 155.215(d)(4) that 

legally authorized representatives be 

permitted to assist individuals with 

disabilities to make informed decisions. 

We proposed in § 155.215(d)(5) that 

individuals carrying out Navigator and 

non-Navigator assistance functions to 

which § 155.215 applies should have 

the ability to refer people with 

disabilities to local, state, and federal 

long-term services and supports 

programs when appropriate. Finally, we 

proposed at § 155.215(d)(6) that 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies be 

able to work with all individuals 

regardless of age, disability, or culture, 

and seek advice or experts when 

needed. 

Comment: A few commenters 

suggested that CMS should include 

more specific references to the 

Americans with Disabilities Act (ADA) 

and the Department of Justice’s updated 

standards, section 508 of the 

Rehabilitation Act, and to the 

Navigators’ other obligations under 

federal law to provide reasonable 

accommodations, as well as policy 

modifications when needed to ensure 

equally effective access to the Navigator 

program. Some commenters suggested 

that we clarify what is meant by 

‘‘meaningful access.’’ 


ehiers on DSK2VPTVN1PROD with RULES_2
42840 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

8Examples include: National Standards for 

Culturally and Linguistically Appropriate Services 

in Health and Health Care: A Blueprint for 

Advancing and Sustaining CLAS Policy and 

Practice, Office of Minority Health, U.S. Department 

of Health and Human Services, April 2013, 

https://www.thinkculturalhealth.hhs.gov/GUIs/ 

GUI_TCHRegister.asp?mode=new&clas=yes; 

Language Access Plan, U.S. Department of Health 

and Human Services, 2013, http://www.hhs.gov/ 

open/execorders/2013-hhs-language-accessplan.pdf. 

Response: We are adopting the 

proposed regulation without including 

more specific references to the ADA or 

the Rehabilitation Act. Section 

155.210(e)(5) and § 155.205(c), (d) and 

(e) require Navigators and nonNavigator assistance personnel to ensure 

that persons with disabilities can access 

and use Navigator and non-Navigator 

assistance services in accordance with 

the ADA and section 504 of the 

Rehabilitation Act. We also believe that 

the proposed rule and other applicable 

standards issued by the Secretary 8

adequately describe meaningful access. 

Comment: Many commenters 

recommended that the requirement to 

provide auxiliary aids and services 

‘‘when necessary’’ should be changed to 

‘‘when requested.’’ They stated that 

Navigators or non-Navigator assistance 

personnel should not have discretion to 

determine if the services are 

‘‘necessary.’’ A few commenters 

recommended that CMS require the use 

of an interpreter for persons with 

disabilities, even in instances where a 

family member is used, to ensure 

comprehensive, objective information is 

provided to the consumer. Some 

commenters believed that family 

members and friends are not qualified to 

interpret information of this nature. 

Response: We agree that the term 

‘‘when necessary’’ may not be sufficient 

to ensure that persons with disabilities 

receive the assistance they require. We 

also believe that the term ‘‘when 

requested,’’ on its own, may be 

insufficient to ensure the appropriate 

assistance. Some persons with 

disabilities may not have the capacity to 

effectively communicate a request for an 

auxiliary aid or service, such as a person 

who is deaf or hard of hearing, and 

some persons with disabilities may not 

know that they may have a right to an 

auxiliary aid or service. Additionally, 

the term ‘‘when necessary’’ allows the 

Navigators and non-Navigator assistance 

personnel to which § 155.215 applies to 

provide auxiliary aids and services 

when these may be obviously needed 

but when the person with a disability is 

not able to effectively communicate a 

request for an auxiliary aid or service. 

We have therefore modified 

§ 155.215(d)(2) to state ‘‘when necessary 

or when requested by the consumer to 

ensure effective communication’’ We 

disagree, however, that use of an 

interpreter should be required. Giving 

an individual the opportunity to request 

that a friend or family member serve as 

an interpreter, as an alternative to an 

auxiliary aid, allows the individual to 

choose to receive assistance in a manner 

that is most comfortable to that 

individual. 

Comment: Several commenters 

recommended that CMS provide 

information about commonly needed 

auxiliary aids and services and about 

accessibility features of different 

qualified health plans, including 

information about plan and provider 

accessibility, depending on the needs of 

the person with a disability. 

Response: HHS training modules for 

the Navigators and non-Navigator 

assistance personnel to which § 155.215 

applies will include content on 

accessibility needs and how to provide 

for them. Providing information about 

specific auxiliary aids and services and 

about plan and provider accessibility is 

beyond the scope of the duties of the 

Navigator and non-Navigator assistance 

programs. 

Comment: Many commenters 

recommended that the word ‘‘legally’’ 

should be deleted from the authorized 

representative provision because the 

streamlined application allows 

designation of a representative without 

a legal determination and many persons 

with disabilities have an authorized 

representative that has not been legally 

determined. 

Response: We agree with the 

comments and have modified 

§ 155.215(d)(4) accordingly. 

Comment: Several commenters 

generally requested that CMS provide 

more specific protocols regarding 

referrals. A few commenters 

recommended that CMS clarify the 

requirement in paragraph (d)(5) to 

‘‘acquire sufficient knowledge to refer 

people with disabilities to local, state, 

and federal long-term services and 

support programs,’’ to clearly state that 

these referrals would be made to 

facilitate consumer access to additional 

services, not for assistance with 

enrollment in coverage. 

Response: We agree that Navigators 

and non-Navigator assistance personnel 

to which § 155.215 applies should have 

sufficient knowledge to be able to refer 

individuals with disabilities to 

additional assistance personnel to 

facilitate consumer access to additional 

services. As stated in paragraph (d)(5), 

these referrals should be made to local, 

state, and federal long-term services and 

supports programs when appropriate. 

The final rule will not be modified to 

specify the entities to which referrals 

must be made as such referrals will vary 

based on the needs of the individual 

and the available resources in each 

community. 

e. Monitoring (§ 155.215(e)) 

We proposed in § 155.215(e) 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 the 

Navigators and non-Navigator assistance 

personnel serving their consumers 

comply with the applicable standards, 

including, for example: Reviewing 

reports filed by Navigators and 

reviewing the attestations and conflictof-interest plans that are required to be 

submitted to the Exchange, under 

§ 155.215(a)(1)(i) through (ii) and 

(a)(2)(ii) through (iii) of this regulation; 

conducting discussions with states in 

which Navigator grantees and nonNavigator assistance personnel exercise 

their functions; and reviewing casework 

and complaints filed with the Exchange 

or a relevant state. We solicited 

comments on how monitoring for nonNavigator assistance personnel in State 

Exchanges funded through federal 

Exchange Establishment grants should 

be conducted. 

Comment: The majority of comments 

received on the monitoring provisions 

requested that CMS provide more 

guidance about how monitoring will be 

conducted. Some commenters provided 

suggestions about how to conduct 

monitoring. Recommendations include 

establishing a Navigator portal, 

conducting consumer experience 

surveys, secret shoppers, data collection 

activities, coordination with issuers, 

and reviewing consumer complaints. 

Response: We will monitor Navigators 

in the Federally-facilitated Exchanges 

and State Partnership Exchanges in a 

manner consistent with the HHS 

regulations at 45 CFR parts 74 and 92 

that apply to grants and cooperative 

agreements. Under this authority, we 

will monitor Navigator grantees for 

compliance with the terms of the 

program, including review of 

documents created and retained by the 

grantees, such as financial reports and 

performance reports. As appropriate, we 

may also conduct site visits or audits of 

Navigator programs. In addition to 

monitoring grantees under these 

provisions, we plan to work closely 

with states, consumer groups and 

issuers as part of our monitoring 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42841 

activities to help ensure compliance 

with the standards applicable to 

Navigators and non-Navigator assistance 

programs to which § 155.215 applies. 

We will also review consumer 

complaints received by HHS and the 

Exchange that relate to Navigators and 

non-Navigators to help identify possible 

compliance issues. 

If a Navigator or non-Navigator is 

suspected of fraud or violations of other 

applicable federal laws, we will work 

closely with the appropriate federal 

agencies to ensure that the matter is 

fully investigated and addressed in a 

manner consistent with federal law. 

Comment: Several commenters had 

specific recommendations about data 

collection for oversight purposes, 

including specific data points that 

should be collected as part of 

monitoring activities. 

Response: Navigator grantees have 

data collection requirements specific to 

their grants. Similarly, non-Navigator 

assistance programs may have data 

collection requirements set by the states 

in which they are operating. In addition, 

if states use federal grant funds to 

establish and run non-Navigator 

assistance programs, HHS will monitor 

the use of those federal grant funds in 

a manner consistent with the HHS 

regulations at 45 CFR part 92 that apply 

to grants to states. We are currently 

reviewing data collection by Exchanges 

and will take the comments under 

consideration. 

f. Summary of Changes 

We are finalizing new § 155.215 with 

minor changes. First, § 155.215(a)(1)(iv) 

and (a)(2)(v) are being revised to include 

a requirement that disclosures to 

consumers of non-prohibited conflicts 

of interest must be in plain language. 

Second, § 155.215(a)(2)(i) is being 

amended to require the non-Navigator 

assistance personnel to whom the rule 

applies to comply with § 155.210(e)(2), 

which requires providing information to 

consumers in a fair, accurate, and 

impartial manner. Third, § 155.215(c)(3) 

is being amended to require Navigators 

and non-Navigator assistance personnel 

to which § 155.215 applies to provide 

language access services to consumers 

when requested or necessary to ensure 

effective communication. A similar 

revision is also made with respect to the 

availability of auxiliary aids and 

services for individuals with disabilities 

in § 155.215(d)(2). Section 155.215(c)(4) 

is being amended to require the notice 

to LEP consumers regarding the 

availability of language access services, 

must be in the consumer’s preferred 

language. Lastly, § 155.215(d)(4) is being 

revised to remove the term ‘‘legally’’ 

from the phrase ‘‘legally authorized 

representative.’’ 

C. Certified Application Counselors 

(§ 155.225) 

The provisions of this section were 

proposed as part of the January 22, 2013 

proposed rule (78 FR 4594). 

1. General Rule and Standards of 

Certification (Proposed § 155.225(a) and 

(b)—Renumbered as § 155.225(a), (b), 

(c), & (d)). 

In paragraph (a), we proposed that 

each Exchange must certify staff and 

volunteers of both Exchange-designated 

organizations and organizations 

designated by state Medicaid and CHIP 

agencies to act as certified application 

counselors. We also proposed the 

minimum duties of certified application 

counselors, including providing 

consumers with information about 

insurance affordability programs and 

coverage options, assisting them with 

applications, and facilitating their 

enrollment in QHPs and insurance 

affordability programs. 

In paragraph (b), we proposed 

certification standards for certified 

application counselors, including 

registering with the Exchange, 

completing required training, disclosing 

conflicts of interest, complying with the 

privacy and security standards of the 

Exchange, acting in the best interest of 

the applicants assisted, complying with 

applicable state law, providing 

reasonable accommodations for people 

with disabilities, and entering into an 

agreement with the Exchange to comply 

with the standards in this paragraph. In 

the preamble to the proposed rule, we 

noted that an Exchange could develop a 

single set of core training materials that 

can be used by Navigators, agents and 

brokers, and certified application 

counselors, and that federal training and 

support materials would be made 

available for use by State Exchanges. We 

sought comment on whether State 

Exchanges should have the authority to 

create additional standards for 

certification or otherwise limit 

eligibility of certified application 

counselors beyond what we proposed. 

Comment: We received many 

comments from a wide variety of 

entities, including state agencies, 

medical and health care trade 

associations, health insurers and 

insurance trade associations, and 

consumer advocacy organizations, 

supporting the need for certified 

application counselors. Other 

commenters objected to the program or 

asked that it be optional. Reasons 

commenters offered for objecting to the 

program or asking that it be optional 

included their belief that other entities 

will already provide the assistance that 

certified application counselors are 

designed to provide, wanting increased 

flexibility for State Exchanges, and the 

challenges of implementing a new 

application assistance program so close 

to its required implementation. 

Response: Exchanges are required by 

§ 155.205(d) and (e) to provide 

consumer assistance, outreach, and 

education, and we believe a variety of 

assistance options can most efficiently 

connect consumers with affordable and 

appropriate health insurance coverage 

through the Exchanges. We note that, 

since each Exchange is responsible for 

establishing its own certified 

application counselor program, the 

program’s scope can vary based on each 

Exchange’s needs and market features. 

States operating a State Exchange will 

have the flexibility to determine the size 

and scope of their certified application 

counselor program in order to meet the 

needs of consumers in the state. 

We also understand commenters’ 

concerns about the challenges faced by 

Exchanges when directly overseeing 

each individual certified application 

counselor. To help address these 

concerns, we are amending the 

proposed § 155.225(a) and (b). Instead of 

the Exchange certifying each individual 

application counselor, and in order to 

allow Exchanges flexibility, the final 

rule provides that each Exchange may 

either designate organizations to certify 

their staff members and volunteers as 

application counselors, certify 

individual application counselors 

directly, as provided in the proposed 

rule, or do both. We intend that 

Federally-facilitated Exchanges will 

designate organizations to certify 

application counselors. We are allowing 

State Exchanges to choose among these 

options. Designated organizations will 

be required to enter into an agreement 

with the Exchange and must enter into 

an agreement with each of their certified 

application counselors regarding 

compliance with the requirements of 

§ 155.225. Certified application 

counselors must enter into an agreement 

with the applicable certifying entity and 

comply with all of the standards set 

forth in paragraphs (d), (f), and (g) 

(renumbered from paragraphs (b), (d), 

and (e) in the proposed rule). We 

believe that offering this modified 

structure will help simplify the 

implementation of a certified 

application counselor program. We also 

believe that, by retaining the option of 

using a direct certification model as 

proposed in the proposed rule and 

finalized as an option under 

§ 155.225(b)(2), the final regulation will 


ehiers on DSK2VPTVN1PROD with RULES_2
42842 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

not disrupt any State Exchange efforts 

already underway to implement the 

certified application counselor program. 

In addition to creating efficiencies 

and flexibility for Exchanges, we think 

that designating organizations to certify 

their staff members and volunteers as 

application counselors will result in 

closer supervision and monitoring of the 

certified application counselors. 

Designated organizations already 

oversee their employees and volunteers 

and will be organizations that have 

processes in place to ensure compliance 

with security and privacy concerns, and 

are in a better position to ensure that 

their staff and volunteers comply with 

the certified application counselor 

standards set forth in this rule. Each 

organization designated by an Exchange 

to certify application counselors must 

maintain a registration process and 

method to track the performance of 

certified application counselors. 

HHS will address in guidance the 

process that the Federally-facilitated 

Exchanges will follow when designating 

organizations to certify staff and 

volunteers as application counselors. As 

specified in paragraph (b)(1), this 

process will include an agreement 

between the designated organization 

and the Exchange which will direct the 

designated organization to certify only 

staff and volunteers who comply with 

the requirements of § 155.225. 

Comment: Some commenters 

requested clarification regarding the 

types of organizations that, under the 

proposed rule, could be designated to 

have their staff and volunteers serve as 

certified application counselors, and 

several appreciated HHS’s recognition 

that health care providers, communitybased organizations, and community 

health centers play an important role in 

providing application assistance. 

Various commenters proposed that staff 

and volunteers of many types of 

organizations should be allowed to be 

certified application counselors, 

including hospitals, vendors who assist 

providers with eligibility and 

enrollment, non-profit patient advocacy 

organizations, community based 

organizations, integrated delivery 

systems, health insurance issuers, and 

multi-employer associations. 

Response: We believe that it is 

important to engage organizations that 

have long played a vital role in 

facilitating enrollment for individuals 

seeking coverage, already have 

processes in place to ensure that their 

staff and volunteers have been screened, 

and already have systems in place for 

protecting personally identifiable 

information. In order to ensure that 

organizations designated to certify their 

staff members and volunteers as 

application counselors have these types 

of safeguards in place, we expect the 

types of organizations the Federallyfacilitated Exchanges will designate will 

be limited to community health centers 

such as Federally Qualified Health 

Centers (FQHCs); hospitals; health care 

providers (including Indian Health 

Services, Indian tribes and Urban Indian 

organizations that provide health care); 

behavioral health or mental health 

providers; Ryan White HIV/AIDS 

providers; agencies which have 

experience providing social services to 

the community, such as Supplemental 

Nutrition Assistance Program (SNAP) 

outreach, energy assistance, or tax 

assistance, that are either non-Federal 

governmental entities or organized 

under section 501(c) of the Internal 

Revenue Code; or other local 

governmental agencies that have similar 

processes and protections in place, 

which may include organizations such 

as other health care providers, health 

departments, and local libraries. Since 

these types of organizations already 

have many of the processes in place that 

are necessary to meet the standards in 

§ 155.225(b)(1) and to ensure that their 

staff and volunteers meet the standards 

of certification in § 155.225(d) 

(renumbered from subparagraph (b) in 

the proposed rule), we anticipate that 

the burden on these organizations to 

certify their staff members and 

volunteers as certified application 

counselors will be minimal. 

Furthermore, no organization is 

required to certify its staff members and 

volunteers as application counselors; 

the program is completely voluntary. 

The Federally-facilitated Exchange will 

list on its Web site the organizations 

that apply and it designates to provide 

certified application counselors as a 

resource for consumers. 

Comment: Several commenters 

expressed support for the proposed 

requirement that certified application 

counselors disclose potential conflicts 

of interest. Many commenters suggested 

that health insurance issuers, their 

subsidiaries, and agents and brokers 

should not be allowed to serve as 

certified application counselors due to 

conflicts of interest. Several commenters 

asked us to clarify the legal and liability 

rules for staff of health insurance issuers 

acting as certified application 

counselors when the entity offers 

insurance coverage. 

Response: We are finalizing the 

proposal that certified application 

counselors must disclose conflicts of 

interest. To accommodate the Exchanges 

designating organizations to certify 

individual application counselors and 

the State Exchanges, if they choose, to 

certify individual application 

counselors directly, the final rule 

provides that this disclosure should be 

to the Exchange-designated organization 

and to potential applicants, or if an 

Exchange directly certifies individual 

application counselors, to the Exchange 

and to potential applicants. As 

proposed, we do not think that any 

conflict of interest should prohibit 

certified application counselors from 

helping consumers apply for and enroll 

in coverage. In § 155.225(d)(2) 

(renumbered from paragraph (b)(3) in 

the proposed rule), we finalize the 

proposal that the potential conflicts of 

interest that certified application 

counselors must disclose include, but 

are not limited to, any relationships 

with QHPs or insurance affordability 

programs, such as Medicaid plans and 

Medicaid managed care organizations. 

We believe this approach balances the 

goal of allowing a wide range of 

certified application counselors to assist 

consumers while providing them the 

information that will help them 

understand whether the certified 

application counselor has any conflicts 

or potential conflicts of interest that 

may color the information being 

provided. 

Comment: A commenter proposed 

that anyone seeking to serve as a 

certified application counselor should 

have Medicaid/CHIP experience or 

experience with underserved 

communities. 

Response: To encourage participation 

from organizations, we have not 

amended the final rule to require this 

experience. Section 155.225(d) requires 

certified application counselors to be 

trained on the benefits, rules, and 

regulations governing all insurance 

affordability programs operated in the 

state, prior to functioning as a certified 

application counselor. Therefore, all 

certified application counselors will 

have the knowledge and skills necessary 

to assist consumers with Medicaid and 

CHIP. 

Comment: A large number of 

commenters expressed concerns about 

the fact that certified application 

counselors would not be funded 

through the Exchange. Several 

commenters feared that taking on an 

unfunded assistance role would stretch 

the already slim resources of 

community-based organizations. 

Commenters offered a variety of 

solutions, including allowing 

Exchanges, states, or Medicaid programs 

to fund certified application counselors; 

HHS providing information about 

possible funding streams; making funds 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42843 

available for safety-net providers; and 

funding through Exchange user fees. 

Response: Although we do not expect 

or require that certified application 

counselors be funded by Exchanges, 

nothing in the proposed or final rule 

prohibits organizations with certified 

application counselor programs from 

obtaining funding from other sources, 

including applicable private, state and 

federal programs. Section 1311(a) 

Establishment grant funds are available 

for the costs incurred by the State 

Exchange for establishing the certified 

application counselor training program 

and to cover administrative costs 

associated with the certified application 

counselor program. However, we expect 

that such costs, beyond training, will be 

minimal. 

Nothing in § 155.225 prevents or 

interferes with a State Exchange 

operating other Exchange-funded 

application assistance programs, 

including a Navigator program under 45 

CFR 155.210 or a non-Navigator 

assistance program carrying out 

activities under § 155.205(d) and (e). No 

organization is required to apply to 

become or to become a designated 

organization; the program is completely 

voluntary for organizations. Finally, the 

rule does not prevent certified 

application counselors from being paid 

by their employer for their labor, for 

example, as a hospital employee, as long 

as any financial relationship that creates 

a potential conflict of interest under 

§ 155.225(d)(2) is disclosed to potential 

applicants. As previously discussed, 

conflicts will not disqualify an 

individual from serving as a certified 

application counselor but must be 

disclosed. 

We are also finalizing § 155.225(g) 

(renumbered from paragraph (e) in the 

proposed rule), which prohibits 

certified application counselors from 

imposing any charge on the applicants 

they assist. 

Comment: Several commenters 

supported our proposed language in 

§ 155.225(a) requiring the Exchange to 

certify staff and volunteers of both 

Exchange-designated organizations and 

organizations designated by state 

Medicaid and CHIP agencies to act as 

certified application counselors. 

However, a number of commenters were 

concerned about the inconsistencies 

between the Medicaid certified 

application counselor provision 

proposed at 42 CFR 435.908(c) and the 

Exchange certified application 

counselor provision proposed at 

§ 155.225. Some commenters were 

confused about whether certification by 

one program might permit or require 

certification by the other. Some 

supported complete reciprocity, but 

because the Medicaid proposed rule at 

42 CFR 435.908(c) allows the state to 

authorize certified application 

counselors to do one, some, or all of the 

assistance activities, several 

commenters recommended that the 

Exchange only certify Medicaid certified 

application counselors authorized to 

provide the full scope of activities or 

require them to receive additional 

training. Some commenters asked us to 

streamline the two rules. 

Response: In finalizing the provision 

that designated organizations will 

include organizations designated by 

state Medicaid and CHIP agencies, we 

have deleted the reference to 42 CFR 

435.908 (the Medicaid certified 

application counselor program). We 

recognize that staff and volunteers of a 

wide range of organizations provide 

Medicaid and CHIP application 

assistance in many states through a 

variety of formal and informal 

processes, including but not limited to 

those under 42 CFR 435.908. By 

removing the reference to 42 CFR 

435.908, we allow organizations 

designated by state Medicaid and CHIP 

agencies under their processes to certify 

their staff members and volunteers to 

serve as certified application 

counselors. However, such 

organizations must enter into an 

agreement with the Exchange and their 

application counselors must enter into 

an agreement with the organization and 

comply with the requirements of 

§ 155.225. 

We note that, as in the Medicaid 

certified application counselor program, 

Exchange certified application 

counselors may, but are not required to, 

assist consumers with gathering 

required documentation, interacting 

with the Medicaid or CHIP agency or 

the Exchange on the status of such 

applications and renewals, responding 

to any requests from the Medicaid or 

CHIP agency or the Exchange, and 

following or managing their status 

between the eligibility determination 

and regularly scheduled renewals. 

Comment: A number of commenters 

requested clarification regarding what 

triggers the need for certification of 

application counselors and expressed 

concern that the certification 

requirement would preclude noncertified individuals, such as health 

insurance issuers and Medicaid 

application counselors, and 

organizations from providing assistance. 

Some commenters proposed that tribal 

application counselors serving 

American Indians and Alaska Natives be 

exempt from certification requirements. 

Response: Individuals and entities 

providing application and enrollment 

assistance related to health insurance or 

insurance affordability programs are not 

required to be certified application 

counselors, whether by the Exchange, 

state Medicaid or CHIP agencies, or to 

be organizations designated by the 

Exchange in order to continue providing 

those services or communicating with 

consumers. The certified application 

counselor program is not designed to 

limit existing or potential application 

assistance programs. Rather, the 

certification of an individual as a 

certified application counselor provides 

an assurance to consumers that they are 

receiving assistance from persons 

trained by the Exchange and overseen 

by organizations that protect personally 

identifiable information. Individuals 

who are not certified application 

counselors may take the certified 

application training, which we intend to 

make available to the general public and 

which we expect would help many 

types of organizations and assistance 

personnel provide Exchange-related 

education and application and 

enrollment assistance; however, they 

may not present themselves to the 

general public as certified application 

counselors. 

Comment: Several commenters 

requested that the Indian Health 

Service, tribes and tribal organizations, 

and urban Indian organizations (I/T/Us) 

be given the option to develop a 

certification program under which the 

I/T/Us can certify that the individuals 

they sponsor meet all the relevant 

criteria, and that such certification be 

required to be accepted by state 

Medicaid/CHIP programs and all 

Exchanges. 

Response: Exchanges that include one 

or more federally recognized tribes 

within their geographic area must 

engage in regular and meaningful 

consultation and collaboration with the 

tribes in accordance with § 155.130(f). 

Development of the certified application 

counselor program should be an 

element of Exchanges’ consultation with 

tribal governments. We anticipate that 

the certified application counselor 

program will help ensure that American 

Indians and Alaska Natives are able to 

access and enroll in QHPs and 

insurance affordability programs offered 

through the Exchanges. We recognize 

that the American Indian and Alaska 

Native population can receive or 

continue to receive services from the 

Indian Health Service, tribal 

organizations, or urban organizations. In 

addition, we recognize that the Indian 

health system will continue to be a 

resource for educating and providing 


ehiers on DSK2VPTVN1PROD with RULES_2
42844 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

information to the tribal community. As 

discussed above, the types of 

organizations that the Federallyfacilitated Exchange will be likely to 

designate to certify their staff members 

and volunteers as application 

counselors include Indian Health 

Services, Indian tribes and Urban Indian 

organizations that provide health care, 

and behavioral health or mental health 

services. The Indian Health Service 

facilities and staff will have a critical 

role in educating American Indians and 

Alaska Natives about the special 

protection afforded to this population 

under the Affordable Care Act and 

facilitating the enrollment of the tribal 

community in Medicaid, CHIP, and 

QHPs available through the Exchanges. 

We therefore expect that Exchanges and 

States will maximize the opportunity for 

I/T/Us to participate in certification 

application counselor programs. 

Comment: Many commenters 

recommended that all of the standards 

in § 155.215 applicable to Navigators 

and certain non-Navigator assistance 

personnel carrying out consumer 

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

specified Exchanges should also apply 

to certified application counselors to 

ensure consistent information and 

consumer protection across all 

assistance personnel types. Other 

commenters did not want HHS to apply 

these standards to certified application 

counselors. 

Response: We agree that it is not 

appropriate to apply the standards in 

§ 155.215 to certified application 

counselors without modification due to 

basic program differences between 

Navigator programs, non-Navigator 

assistance programs, and certification 

application counselor programs. In 

particular, we do not believe it is 

appropriate to apply all of the standards 

in § 155.215 to certified application 

counselors or to organizations 

designated to certify application 

counselors, since these individuals and 

entities will be expected to provide a 

more limited range of services. 

Throughout this preamble we discuss 

commenters’ specific suggestions 

regarding the incorporation of Navigator 

and non-Navigator assistance personnel 

standards into the certified application 

counselor program. 

Comment: Several commenters asked 

us to specify whether and how 

Exchanges are required to inform 

consumers of available assistance 

resources. Numerous commenters 

thought certified application counselors 

should have access to population-level 

data to help determine the needs of the 

population to be served, and several 

commenters suggested that certified 

application counselors conduct needs 

assessments. 

Response: We encourage but do not 

require certified application counselors 

to conduct community outreach 

activities. While HHS does not intend to 

distribute population-level data to 

certified application counselors, HHS 

has made U.S. Census data about the 

demographics of uninsured populations 

available online at: http:// 

marketplace.cms.gov/exploreresearch/ 

census-data.html. 

Comment: A number of organizations 

asked HHS to incorporate the 

nondiscrimination requirements of 

§ 155.120 into the standards applicable 

to certified application counselors, 

while other commenters requested that 

HHS clarify that this requirement does 

not apply to tribal entities. 

Response: HHS recently proposed to 

correct the inadvertent omission of the 

nondiscrimination requirements of 

§ 155.120(c) from § 155.105(f), which 

lists the regulatory provisions that apply 

in a Federally-facilitated Exchange. (See 

78 FR 37032.) Navigators, the assistance 

functions authorized under § 155.205(d) 

and (e), and the certified application 

counselor program are required 

functions of the Exchange under 45 CFR 

part 155. In order for any Exchange to 

comply with these nondiscrimination 

provisions, the Exchange must ensure 

that its Navigators, any activities 

authorized under § 155.205(d) and (e), 

including non-Navigator assistance 

personnel, organizations it designates to 

certify application counselors and 

certified application counselors, comply 

with § 155.120(c). Therefore, Navigators, 

non-Navigator assistance personnel 

authorized under § 155.205(d) and (e), 

organizations designated to certify staff 

or volunteers, and certified application 

counselors, as functions of the 

Exchange, must comply with the 

provisions of § 155.120(c) in any 

Exchange subject to that provision. 

Additionally, the preamble to final 

§ 155.120(c) clarified that the 

nondiscrimination provisions apply not 

only to the Exchange itself but also to 

contractors with the Exchange and all 

Exchange activities, including but not 

limited to marketing, outreach, and 

enrollment. (See 77 FR at 18319 through 

18320.) The preamble to final § 155.210 

also clarified that Navigators, as third 

parties under agreement with the 

Exchange, are subject to the Exchange’s 

nondiscrimination requirements under 

§ 155.120(c). (See 77 FR 18332.) 

Comment: A number of commenters 

proposed that certified application 

counselors provide applicants with 

information on all the QHPs, and not 

just some subset, available to them, such 

as those QHPs with whom the certified 

application counselor has a financial 

relationship, or those QHPs that may be 

consistent with the personal or religious 

beliefs of the certified application 

counselor or the designated organization 

with which he or she is affiliated. One 

commenter also expressed concern that 

certified application counselors might 

steer consumers to specific plans based 

on the consumer’s stated health care 

and treatment needs, which could result 

in certain QHPs attracting a 

disproportionate number of very high 

risk individuals that might not be fully 

offset by the risk mitigation programs in 

the Affordable Care Act. 

Response: We agree that it is in 

consumers’ best interest to be informed 

about all QHPs and insurance 

affordability programs for which they 

are eligible. Therefore, we have 

amended § 155.225(c)(1) (renumbered 

from paragraph (a)(1) in the proposed 

rule) to clarify that certified application 

counselors are certified to provide 

information to individuals and 

employees about the full range of QHP 

options and insurance affordability 

programs for which they are eligible. In 

addition, § 155.225(d)(4) (renumbered 

from paragraph (b)(5) in the proposed 

rule) requires certified application 

counselors to act in the best interest of 

the applicants assisted and we have 

modified § 155.225(d)(2) (renumbered 

from paragraph (b)(3) in the proposed 

rule) to require disclosure to the 

designated organization, not the 

Exchange, when the organization is the 

certifying entity, or to the State 

Exchange if they are directly certified by 

the Exchange, and to potential 

applicants. We believe that these 

provisions protect against certified 

application counselors steering 

individuals to particular issuers, plans, 

or policies based on any self-interest or 

bias. We note that helping an individual 

make an informed decision based on 

their health care needs and the available 

coverage options is within the scope of 

certified application counselors’ 

responsibilities and does not constitute 

steering. We believe certified 

application counselors will be able to 

provide information about the full range 

of QHP options and insurance 

affordability programs for which 

applicants are eligible since the 

Exchange plan comparison Web site is 

already required to display all QHPs for 

which the consumer is eligible. 

Comment: We received a number of 

comments seeking clarification 

regarding what it means to ‘‘facilitate 

enrollment’’ under proposed 

§ 155.225(a)(3) (renumbered as 

paragraph (c)(3) in this final rule). 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42845 

Commenters requested that we add 

‘‘including assistance with advance 

payments of the premium tax credit, 

cost-sharing reductions, and tax 

reconciliation,’’ and that we make 

explicit that ‘‘facilitate enrollment’’ 

includes providing assistance with plan 

comparison and selection. 

Response: Helping to facilitate 

enrollment involves assisting the 

consumer with submitting the eligibility 

application, helping clarify distinctions 

among QHPs, and helping a qualified 

individual make an informed decision 

during the plan selection process. 

Making eligibility determinations and 

enrolling applicants into QHPs are 

Exchange functions, pursuant to 

§ 155.400(a) and § 155.310(d). 

Accordingly, certified application 

counselors will not be making eligibility 

determinations, and will not be 

enrolling applicants into QHPs. They 

will also not be selecting QHPs for 

applicants. By ‘‘help to facilitate 

enrollment . . . in QHPs and insurance 

affordability programs,’’ we refer to the 

definition of ‘‘insurance affordability 

programs’’ at 42 CFR 435.4 (as amended 

at 77 FR 17203 (Mar. 23, 2012)) and 

mean that certified application 

counselors must at a minimum help 

consumers through the process of 

applying for and enrolling in QHPs 

through the Exchange, Medicaid, CHIP, 

and advance payments of the premium 

tax credit and cost-sharing reductions. 

However, nothing in this rule would 

prevent a certified application counselor 

from helping consumers access other 

health coverage programs, such as drug 

assistance programs and programs 

funded under the Ryan White program. 

Comment: One commenter requested 

that HHS identify resources, such as 

Navigators or certified application 

counselors, which can provide 

consumers assistance with obtaining 

exemptions. 

Response: While certified application 

counselors may provide assistance with 

exemptions, it is not required. 

Comment: Many commenters 

responding to whether an Exchange 

should be able to create additional 

standards, or limit eligibility of certified 

application counselors beyond what 

HHS establishes, supported giving states 

the flexibility to add standards, such as 

licensure requirements and stronger 

consumer protection standards. Other 

commenters, however, opposed 

permitting states to impose additional 

certification standards, expressing 

concerns that additional requirements 

might be burdensome and could limit 

the number of certified application 

counselors or favor some health 

insurance issuers over others. Several 

commenters thought the provision in 

proposed § 155.225(b)(6) requiring 

certified application counselors to 

comply with state law applicable to 

application counselors was too vague. 

Some noted that any additional 

standards should be consistent with 

those for other types of assistance (for 

example, Navigators). 

Response: We understand that some 

states have their own standards for areas 

such as privacy and security of 

consumers’ personally identifiable 

information (PII) and conflicts of 

interest. However, we have not finalized 

the proposed requirement that certified 

application counselors must comply 

with applicable state law related to 

certified application counselors as a 

condition of certification, because some 

state laws may limit the organizations 

and individuals that are eligible to be 

designated organizations and certified 

application counselors. We note that 

Section 1321(d) of the Affordable Care 

Act provides that state laws that do not 

prevent the application of the 

provisions of title I of the Affordable 

Care Act are not preempted. 

Comment: Several commenters 

requested clarification regarding how 

this rule interacts with state insurance 

and other regulation. 

Response: Section 1321(d) of the 

Affordable Care Act specifies that state 

law that does not prevent the 

application of the provisions of title I of 

the Affordable Care Act will not be 

preempted. 

Comment: A commenter asked about 

the role of the Exchange in training and 

oversight of certified application 

counselors and about indemnification of 

certified application counselors. 

Response: This final rule, in 

§ 155.225(e) (renumbered from 

paragraph (c) of the proposed rule) 

requires the Exchange to perform certain 

oversight duties, such as withdrawing 

certification from noncompliant 

designated organizations. Each 

Exchange will have flexibility in how it 

performs their oversight duties. It also 

requires designated organizations to 

agree that their staff members and 

volunteers who are application 

counselors will meet all of the 

requirements of § 155.225, and that the 

designated organizations will withdraw 

certification from noncompliant 

certified application counselors. We 

believe that the approach taken in the 

final rule will create stronger oversight 

of individual certified application 

counselors, as the organizations that 

oversee them are in a better position to 

monitor their actions. Additionally, as 

described elsewhere in this preamble, 

we anticipate that the organizations 

designated by Exchanges will be 

organizations that already have 

processes in place to protect sensitive 

and personally identifiable information. 

State Exchanges that take the option of 

certifying individual certified 

application counselors must withdraw 

certification from noncompliant 

application counselors pursuant to 

§ 155.225(e)(2). Further, certified 

application counselors will enter into 

agreements with the certifying entity, 

whether they are certified directly by a 

State Exchange or certified by an 

organization designated by the 

Exchange, agreeing to comply with the 

standards and requirements for certified 

application counselors. 

The final rule, like the proposed rule, 

does not require the Exchange to 

indemnify certified application 

counselors or their organizations. 

Comment: A commenter asked that 

certification and compliance agreements 

for certified application counselors be at 

the federal rather than state level for 

multi-employer plans because such 

plans are subject to federal regulation 

under ERISA, the Internal Revenue 

Code, and the Taft-Hartley Act and are 

not subject to state insurance regulation. 

Response: Each Exchange is 

responsible for directly certifying or 

designating the organization certifying 

individual application counselors. 

Therefore, the Exchange must 

administer the designation and 

certification, as applicable, and any 

accompanying agreement. Organizations 

certifying their staff members and 

volunteers as certified application 

counselors will administer the 

certification process and the agreement. 

Comment: Many commenters 

addressed the proposed training 

standards in § 155.225(b)(2) 

(renumbered paragraph (d)(1) in the 

final rule). A large number 

recommended that training include 

specific components on a variety of 

topics, including how to provide 

accessible services to individuals with 

disabilities; applicable civil rights laws; 

advance payments of the premium tax 

credit and cost-sharing reductions; 

providing referrals to other assistance 

programs; how to assist other 

underserved communities such as LGBT 

people, low-income people, and people 

of color; conflicts of interest; transacting 

insurance; and preventing and detecting 

fraud. 

Response: Section 155.225(d)(1) in the 

final rule requires training that covers 

several of these topics, and we expect 

that Exchanges will train certified 

application counselors on the various 

applicable regulatory standards. 

Because these standards are more 


ehiers on DSK2VPTVN1PROD with RULES_2
42846 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

limited than those of Navigators and 

non-Navigator assistance personnel, we 

expect that the training course for 

certified application counselors will be 

more limited. 

Comment: Some commenters 

proposed the idea of periodic 

recertification or review of certification 

to ensure continued qualification, and a 

couple of commenters asked about 

refresher trainings or continuing 

education requirements. A number of 

commenters suggested that certified 

application counselors take the same 

certification examination that is 

required of certain Navigators and nonNavigator assistance personnel in 

§ 155.215(b)(1). 

Response: We agree that certified 

application counselors, like Navigators, 

should complete and achieve a passing 

score on a certification examination. We 

have amended § 155.225(d)(1) 

(renumbered from paragraph (b)(2) in 

the proposed rule) to reflect this 

requirement. We expect to issue 

guidance on recommended 

recertification and continuing education 

for certified application counselors in 

Federally-facilitated Exchanges. 

Comment: A few commenters 

recommended that certified application 

counselors should not be required to 

duplicate training they already have, 

such as HIPAA confidentiality rules or 

Medicaid/CHIP. 

Response: The Federally-facilitated 

Exchanges, at the request of State 

Medicaid and CHIP agencies, will deem 

staff members and volunteers of 

organizations designated by state 

Medicaid or CHIP agencies to have 

completed the Exchange’s training 

modules on Medicaid and CHIP. State 

Exchanges may also deem such staff 

members and volunteers to have 

completed the Exchange’s training 

modules on Medicaid and CHIP. Other 

certified application counselors must 

fulfill all training requirements in order 

to be certified. 

Comment: A number of commenters 

recommended that certified application 

counselors go through the same or 

similar training and certification as 

Navigators and non-Navigator assistance 

personnel. Other commenters suggested 

that certified application counselors 

could have an abbreviated training 

program because many certified 

application counselors will be 

volunteers. 

Response: We do not require certified 

application counselors to learn all of the 

training content required by Navigators 

and non-Navigator assistance personnel, 

as some of that content is not applicable 

to certified application counselors. For 

example, certified application 

counselors will not receive training on 

the appropriate use of federal funds 

since certified application counselors 

would not necessarily receive such 

funding. We believe that the topics 

required by the final rule for certified 

application counselor training balance 

the need for informed, trained certified 

application counselors with the scope of 

their duties. 

Comment: In the preamble to the 

proposed rule, we indicated that a state 

can develop a single set of core training 

materials that can be utilized by 

Navigators, agents and brokers, and 

certified application counselors. Several 

commenters asked that we encourage 

this or include it in the final rule. 

Response: We do not require, but 

encourage states running State 

Exchanges to develop a single set of core 

training materials, which it can tailor for 

each of its consumer assistance 

programs. This strategy will create 

efficiencies and ensure that all 

assistance personnel in a state receive 

consistent, comprehensive training. 

Additionally, HHS will share its 

training modules with states, which can 

be modified or used in full or in part by 

interested states. 

Comment: Numerous commenters 

recommended that federal training and 

support materials be made available to 

a variety of audiences, including states, 

Indian health providers and tribal 

application counselors, as well as the 

public. 

Response: We agree that making 

federal certified application counselor 

training materials publicly available 

will be beneficial to a variety of 

individuals and groups, including 

people who wish to assist family 

members, friends, or other community 

members with finding affordable health 

coverage. Therefore, HHS intends to 

make a version of its training program 

for Navigators, non-Navigator assistance 

personnel, and certified application 

counselors available to the general 

public. Anyone would be able to take 

this training. However, unless a person 

is certified as an application counselor 

by a designated organization or a State 

Exchange that opts to certify individual 

certified application counselors directly, 

that person may not present himself or 

herself to the public as a certified 

application counselor. We encourage 

State Exchanges to make their training 

available to the general public as well, 

and we note that HHS’s training will be 

available online to individuals in all 

states, including states with State 

Exchanges. 

Comment: A number of commenters 

requested that the certified application 

counselor training be conducted online 

and several asked that training and 

certification be provided at no cost. 

Response: To encourage participation 

by community-based organizations, 

community health centers and others, 

we believe it is important that 

Exchanges make certified application 

counselor training available online and 

at no cost to persons taking the training. 

HHS intends to conduct its training 

program for certified application 

counselors in Federally-facilitated 

Exchanges on-line and at no cost either 

to the person taking the training, or to 

their organization. 

Comment: A few commenters 

recommended that states with 

Federally-facilitated Exchanges or State 

Partnership Exchanges be able to 

establish training programs in addition 

to those established by a Federallyfacilitated Exchange. 

Response: A state with a Federallyfacilitated Exchange or State Partnership 

Exchange is welcome to make statespecific training materials available to 

interested certified application 

counselors and their organizations. As 

discussed above, the Federallyfacilitated Exchange or State Partnership 

Exchange may designate organizations, 

and the organizations may certify 

individual certified application 

counselors that meet the requirements 

in § 155.225. States, if they wish, may 

have additional training requirements 

that do not prevent the application of 

the requirements of § 155.225. 

Comment: One commenter asked that 

we make training available well before 

open enrollment. 

Response: HHS is in the process of 

finalizing the training program for 

certified application counselors in 

Federally-facilitated Exchanges, 

including State Partnership Exchanges, 

and we intend to make it available with 

sufficient time for certified application 

counselors to be trained before open 

enrollment. 

Comment: One commenter suggested 

that certified application counselors 

should participate in the routine 

information-sharing sessions that the 

commenter recommended for 

Navigators and non-Navigator assistance 

personnel. 

Response: HHS is continuing to 

develop the kinds of technical 

assistance it will provide to Exchange 

consumer assistance personnel in 

Federally-facilitated Exchanges. HHS 

intends to issue future guidance on 

opportunities for these assistance 

personnel and organizations to share 

experiences and best practices. We 

encourage State Exchanges to make 

similar opportunities available for 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42847 

assistance personnel serving their 

consumers. 

Comment: Several commenters noted 

that the requirements at 

§ 155.215(a)(1)(iv)(B) and 

§ 155.215(a)(2)(v)(B) for disclosure of 

existing or former employment 

relationships, including those of a 

spouse of domestic partner, with health 

insurance or stop loss issuers or their 

subsidiaries could be burdensome for 

large organizations like large health 

systems if these standards were also 

applied to certified application 

counselors. 

Response: It is important to note that 

under § 155.225(d)(2) (renumbered from 

paragraph (b)(3) in the proposed rule), 

the disclosure burden is on the 

individual certified application 

counselor, not the designated 

organization. We agree that it would be 

impractical to require designated 

organizations to disclose the existing or 

former employment relationships of all 

their employees and volunteers. 

Certified application counselors will be 

responsible for disclosing only their 

own potential conflicts of interest, 

including any relationships with QHPs 

or insurance affordability programs. 

Comment: We received support for 

proposed § 155.225(b)(4) (renumbered 

as § 155.225(d)(3)) that certified 

application counselors comply with the 

privacy and security standards 

established for the Exchange under 

§ 155.260. We also received a suggestion 

that certified application counselors 

certified by the Exchange should 

comply with Medicaid confidentiality 

standards. 

Response: We are finalizing the 

proposed provision requiring 

compliance with the Exchange’s privacy 

and security standards at § 155.225(d)(3) 

of the final rule (proposed as 

§ 155.225(b)(4)). Certified application 

counselors who are certified by 

Medicaid or CHIP agencies, including 

those certified by both Medicaid and 

CHIP agencies and the Exchange or an 

Exchange-designated organization, will 

be subject to the Medicaid 

confidentiality requirements applicable 

to the Medicaid certified application 

counselor program at 42 CFR 

435.908(c)(iii). However, that provision 

references rules designed to govern the 

actions of state Medicaid agencies and 

is not relevant for enrollment in a QHP 

through the Exchange. Therefore, we 

have not adopted those rules here. 

Comment: In § 155.225(b)(5), we 

proposed that certified application 

counselors must agree to act in the best 

interest of the applicants assisted. The 

majority of commenters who addressed 

this provision asked us to hold certified 

application counselors to the same 

fairness and impartiality standard as 

Navigators. 

Response: The final rule does not 

modify this provision. We have 

renumbered it as § 155.225(d)(4) in the 

final rule; it requires that certified 

application counselors act in the best 

interest of the applicants assisted. We 

believe this standard achieves our 

program goal of providing readily 

available consumer-focused assistance. 

When read in conjunction with the 

training and conflict of interest 

disclosure standards for certified 

application counselors, the best-interest 

provision helps ensure that a certified 

application counselor provides 

information and assistance to a 

consumer that will enable the consumer 

to make the most appropriate choice for 

himself or herself. This means that, 

regardless of any relationships a 

certified application counselor may 

have with QHPs or insurance 

affordability programs, the certified 

application counselor must help 

consumers choose coverage that best 

meets all of the consumer’s needs. 

Comment: We received comments 

both supporting and expressing 

concerns about the language in 

proposed § 155.225(b)(7) (renumbered 

as § 155.225(b)(6) in this final rule) 

which would require certified 

application counselors to provide 

information with reasonable 

accommodations for those with 

disabilities. Many commenters 

suggested that the language should be 

expanded to include providing 

assistance in a culturally and 

linguistically appropriate manner. Some 

commenters requested that certified 

application counselors be allowed to 

meet this requirement by referring 

applicants to local Navigators or nonNavigator assisters. 

Response: We agree that providing 

information in a manner that is 

accessible for people with disabilities is 

important to a certified application 

counselor’s ability to provide effective 

assistance and act in the consumer’s 

best interest. Some commenters 

expressed concerns that 

accommodations for persons with 

disabilities may be costly or 

burdensome for small organizations or 

volunteers. We have therefore amended 

proposed § 155.225(b)(7), renumbered in 

the final rule as § 155.225(d)(5), to 

clarify that the requirement that 

certified application counselors provide 

information in a manner that is 

accessible to individuals with 

disabilities may be satisfied either 

directly or through an appropriate 

referral to a Navigator, non-Navigator 

assistance personnel authorized under 

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

to the Exchange’s call center. For 

example, if a consumer with a visual 

limitation seeks assistance from a 

certified application counselor who 

does not have the appropriate auxiliary 

aids to assist the consumer, such as 

materials in large print or Braille, or a 

modified computer keyboard and 

monitor, the certified application 

counselor may refer the consumer to a 

geographically accessible Navigator or 

non-Navigator assistance personnel 

whom the certified application 

counselor has reason to believe will be 

able to assist the consumer, or to the 

Exchange’s call center. 

Additionally, this subparagraph of the 

proposed rule included a reference to 

the Americans with Disabilities Act, and 

for clarity we have finalized that 

reference and included a reference to 

section 504 of the Rehabilitation Act, as 

well as citations to those provisions. 

We are not expanding this rule to 

impose CLAS requirements on certified 

application counselors. However, we 

expect certified application counselors 

to provide appropriate referrals to 

geographically accessible Navigators, 

non-Navigator assistance personnel, 

and/or the Exchange call center, if the 

certified application counselor is unable 

to assist a consumer with limited 

English proficiency. 

We note that many organizations are 

already required by federal, state, and 

local laws to provide accessible and 

appropriate services to the individuals 

they serve. For example, failure by a 

recipient of federal financial assistance 

to provide services consistent with 

Standards 5 through 8 of the National 

Standards for Culturally and 

Linguistically Appropriate Services in 

Health and Health Care could result in 

a violation of Title VI of the Civil Rights 

Act of 1964 and HHS’s regulation 

implementing that statute (See 42 U.S.C. 

2000d et seq. and 45 CFR Part 80). 

Similarly, certain public entities and 

public accommodations must provide 

accessible spaces and services in 

compliance with the Americans with 

Disabilities Act and section 504 of the 

Rehabilitation Act. Certified application 

counselors must continue to meet their 

existing federal, state, and local 

obligations to provide consumers with 

information that is culturally and 

linguistically appropriate and accessible 

for those with disabilities. We therefore 

expect that because of these 

requirements, some certified application 

counselors will already be prepared to 

provide information in a manner that is 

culturally and linguistically appropriate 

to the applicants they serve. 


ehiers on DSK2VPTVN1PROD with RULES_2
42848 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

In addition, as discussed earlier, 

organizations already providing 

assistance with applications and 

enrollment in health insurance plans 

and insurance affordability programs or 

other social service programs to diverse 

populations are encouraged to become 

certified to certify application 

counselors. Such organizations are 

likely to have familiarity with the 

communities intended to be served by 

the Exchange. Although outreach is not 

a required function of the certified 

application counselor program, many 

organizations will already have outreach 

procedures in place, as well as 

information about the demographics of 

the communities they serve. 

2. Withdrawal of Certification 

§ 155.225(e) (Renumbered From 

§ 155.225(c) in the Proposed Rule) 

We proposed that the Exchange must 

establish procedures to withdraw 

certification from individual certified 

application counselors or from all 

certified application counselors 

associated with a particular organization 

when it finds noncompliance with the 

terms and conditions of the certified 

application counselor agreement. 

Comment: Commenters were 

generally supportive of proposed 

§ 155.225(c), which provided for the 

withdrawal of certification from 

noncompliant certified application 

counselors. One commenter asked 

whether the actions of one individual or 

organization would trigger withdrawal 

of certification, or whether the Exchange 

would need to see a pattern of 

noncompliance. 

Response: We note that the final rule, 

in § 155.225(e), provides that the 

Exchange must establish procedures to 

withdraw designation from a particular 

organization for non-compliance with 

the terms and conditions of the 

organization’s agreement with the 

Exchange under § 155.225(b)(1)(i); each 

State Exchange that directly certifies 

individual certified application 

counselors must establish procedures to 

withdraw that certification when it 

finds noncompliance with the 

requirements of § 155.225; and each 

certified organization must establish 

procedures to withdraw certification 

from individual application counselors 

when it finds they have not complied 

with the requirements of § 155.225, 

including the standards specified in 

paragraphs (d)(3) through (d)(5). These 

changes to the final rule track the 

changes we have made to the program 

structure, such that each entity 

responsible for certifying or designating 

has the responsibility to ensure that the 

standards associated with that 

certification or designation are upheld, 

and to remove that certification or 

designation when the standards have 

been violated. Each Exchange and each 

organization has the flexibility to 

establish its own procedure for 

withdrawal of certification and/or 

designation, as applicable. HHS intends 

to issue guidance on the procedure that 

will apply in Federally-facilitated 

Exchanges. 

Comment: Some commenters also had 

additional oversight proposals. Some 

recommended that we require routine 

performance monitoring and oversight 

to ensure that counselors provide 

quality services, comply with minimum 

standards, and serve the best interest of 

consumers. Several suggested that 

performance metrics should include 

examining enrollment patterns to detect 

steering. Commenters also requested 

clarification regarding the monitoring 

and oversight of certified application 

counselors, including identification of 

the entity responsible for monitoring, 

specificity about the complaint process 

if a consumer has a bad experience with 

a certified application counselor, and 

information about accountability for 

errors made by certified application 

counselors. One commenter suggested 

that HHS consider imposing civil 

money penalties against certified 

application counselors who violate their 

agreements. A few commenters asked 

that HHS not rigidly rely on background 

checks to disqualify individuals from 

participation. 

Response: HHS plans to implement 

several processes through which 

Federally-facilitated Exchanges and 

State Partnership Exchanges may 

oversee the activities of certified 

application counselors. First, HHS has 

proposed to develop a casework 

tracking system through which 

consumer complaints, including those 

related to certified application 

counselors, can be monitored. (See 

proposed § 156.1010 in 78 FR 37032 

(June 19, 2013).) Furthermore, 

§ 155.225(a)(2) requires certified 

organizations to maintain a registration 

process and method to track the 

performance of certified application 

counselors. 

3. Availability of Information; 

Authorization (§ 155.225(f) 

(Renumbered From Paragraph (d) in the 

Proposed Rule)) 

In paragraph (d) of the proposed rule, 

we proposed that the Exchange must 

establish procedures to ensure that 

applicants are informed of the functions 

and responsibilities of certified 

application counselors and that 

applicants authorize the disclosure of 

their information to a certified 

application counselor. 

Comment: Several commenters 

suggested specifying that Exchanges 

should maintain a current registry on 

the Exchange Web site of certified 

application counselors or all assistance 

personnel. Another commenter 

suggested that counselors display a 

certificate or badge. 

Response: To ensure that consumers 

are able to seek out appropriate 

assistance, HHS will maintain on its 

Web site a public registry of consumer 

assistance options in each Federallyfacilitated Exchange, including 

Navigators, non-Navigators, and 

certified application counselor 

organizations. We expect that, based on 

the organization’s agreement with the 

Federally-facilitated Exchange, the 

organization will ensure that 

individuals and employees who call 

that organization for certified 

application counselor assistance will be 

connected with a certified application 

counselor. The final rule does not 

specify that State Exchanges must 

maintain a similar public registry, 

although we encourage it. 

Comment: Commenters were 

supportive of proposed § 155.225(d)(2), 

under which Exchanges would establish 

a procedure for applicants to authorize 

the disclosure of their application 

information to the certified application 

counselors. Some commenters 

emphasized the importance of the 

confidentiality of consumer information 

by requesting that certified application 

counselors be trained on confidentiality 

requirements. 

Response: For certified application 

counselors to comply with the privacy 

and security requirements specified in 

§ 155.225(d)(3), they must receive 

training on protecting the 

confidentiality of consumer 

information. Additionally, due to 

commenters’ emphasis on the 

importance of confidentiality, we revise 

the requirements in final paragraph (f) 

to clarify that an applicant or enrollee’s 

authorization must be provided prior to 

the certified application counselor’s 

obtaining access to the applicant’s or 

enrollee’s personally identifiable 

information, that the organization or 

application counselor must maintain a 

record of the authorization, and that the 

applicant or enrollee must be able to 

revoke their authorization at any time. 

4. Fees § 155.225(g) (Renumbered From 

Paragraph (e) in the Proposed Rule) 

In paragraph (e) of the proposed rule, 

we proposed that certified application 

counselors may not impose any charge 

on applicants for application assistance. 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42849 

Comment: Several consumer 

advocacy organizations supported the 

prohibition on charging applicants for 

application assistance. Additional 

comments included a question about 

whether certified application counselors 

would be permitted to receive fees for 

other functions, such as enrollment 

assistance, and a suggestion that we 

prohibit certified application counselors 

from imposing other conditions on the 

receipt of application assistance, such as 

requiring that those requesting 

assistance undergo certain health care 

services or fill out other unrelated 

paperwork. 

Response: Counselors may not impose 

additional conditions on the receipt of 

application assistance. We see no 

distinction between charging for 

application assistance and charging for 

enrollment assistance, and the final rule 

therefore clarifies that we would 

prohibit both, by adding language 

explaining that certified application 

counselors may not impose any charge 

on applicants for application or other 

assistance. 

5. Summary of Regulatory Changes 

We are finalizing the provisions 

proposed in § 155.225 of the proposed 

rule, with the following modifications: 

We revise paragraph (a) to clarify that 

each Exchange must have a certified 

application counselor program. We no 

longer require that each Exchange 

certify the staff of Exchange-designated 

organizations and organizations 

designated by state Medicaid and CHIP 

agencies pursuant to 42 CFR 435.908. 

We move the certified application 

counselor duties to paragraph (c). 

We re-designate proposed paragraph 

(b) ‘‘Standards of certification’’ as 

revised paragraph (d) ‘‘Standards of 

certification.’’ We add new paragraph 

(b) ‘‘Exchange designation of 

organizations.’’ Subparagraph (b)(1) 

allows an Exchange to designate an 

organization, including an organization 

designated as a Medicaid certified 

application counselor organization by a 

state Medicaid or CHIP agency, to 

certify its staff members or volunteers to 

act as certified application counselors 

who perform the duties and meet the 

standards and requirements for certified 

application counselors set forth in this 

section. Subparagraphs (b)(1)(i) and (ii) 

require the designated organization to 

enter into an agreement with the 

Exchange to comply with the standards 

and requirements of this section 

including the standards specified in 

subparagraphs (d)(3) through (d)(5); and 

requires it to maintain a registration 

process and method to track the 

performance of certified application 

counselors. 

Revised paragraph (b)(2) allows an 

Exchange the option of fulfilling the 

requirements of revised paragraph (a) by 

designating organizations to certify 

application counselors in compliance 

with paragraph (b)(1); directly certifying 

individual staff members or volunteers 

of Exchange designated organizations to 

provide the duties specified in 

paragraph (c) if the staff member or 

volunteer enters into an agreement with 

the Exchange to comply with the 

standards for certified application 

counselors in this section; or by a 

combination of subparagraphs (b)(2)(i) 

and (b)(2)(ii). 

Revised paragraph (c) ‘‘Duties’’ states 

that certified application counselors are 

certified to: Provide information to 

individuals and employees about the 

full range of QHP options and insurance 

affordability programs for which they 

are eligible; assist individuals and 

employees to apply for coverage in a 

QHP through the Exchange and for 

insurance affordability programs; and 

help to facilitate enrollment of eligible 

individuals in QHPs and insurance 

affordability programs. 

We revise the standards of 

certification in paragraph (d) 

(redesignated from paragraph (b) in the 

NPRM) to allow a designated 

organization, or an Exchange utilizing 

the option in § 155.225(b)(2)(ii), to 

certify a staff member or volunteer to 

perform the duties specified in 

subparagraph (c) only if the staff 

member or volunteer complies with the 

regulatory standards which we finalize 

and re-designate from the proposed rule, 

and enters into an agreement with the 

organization regarding compliance with 

the standards specified in paragraphs 

(d), (f), and (g). We revise paragraph 

(b)(1), that individual certified 

application counselors register with the 

Exchange, by requiring that individual 

certified application counselors register 

with the designated organization. In 

paragraph (d)(1) we finalize the 

requirement that a staff member or 

volunteer seeking certification to 

complete Exchange approved training. 

We have amended § 155.225(d)(1) 

(renumbered from paragraph (b)(2) in 

the proposed rule) to reflect the 

requirement that certified application 

counselors, like Navigators, should 

complete and achieve a passing score on 

a certification examination. We finalize 

the requirement in paragraph (d)(2) that 

requires a staff member or volunteer 

seeking certification to disclose to 

potential applicants any relationships 

the counselor has with QHPs, insurance 

affordability programs, or other conflicts 

of interest, and revise paragraph (d)(2) 

to specify that the disclosure must also 

be made to the designated organization, 

or to the Exchange if directly certified 

by the Exchange. In paragraph (d)(5), we 

revise the redesignated paragraph (b)(7) 

to provide more specificity as to the 

requirement to provide information in a 

manner that is accessible to individuals 

with disabilities and to clarify that this 

may be done either directly or through 

appropriate referral. We redesignate 

paragraph (b)(8) as (d)(6) and add that 

the certified application counselor’s 

agreement must include compliance 

with paragraphs (f) and (g). 

We re-designate and revise paragraph 

(e) ‘‘Withdrawal of designation and 

certification’’ to require the Exchange to 

establish procedures to withdraw 

designation from a particular 

organization it has designated under 

paragraph (b), when it finds 

noncompliance with the terms and 

conditions of the organization’s 

agreement required by paragraph (b)(1) 

or (b)(2). In subparagraph (b)(2), we 

require Exchanges that directly certify 

application counselors to establish 

procedures to withdraw certification 

from individual certified application 

counselors when it finds 

noncompliance with the requirements 

of this section. In subparagraph (b)(3), 

we require an organization designated 

by the Exchange to establish procedures 

to withdraw certification from 

individual certified application 

counselors when it finds 

noncompliance with the requirements 

of this section. 

Re-designated and revised paragraph 

(f) requires an organization designated 

by the Exchange, or, if applicable, an 

Exchange that certifies staff members or 

volunteers of organizations directly, to 

establish procedures to ensure that 

applicants: Are informed of the 

functions and responsibilities of 

certified application counselors; provide 

authorization prior to a certified 

application counselor obtaining access 

to an applicant’s personally identifiable 

information, and that the organization 

or certified application counselor 

maintains a record of the authorization 

provided; and, in new subparagraph 

(f)(3), may revoke at any time the 

authorization provided. 

Re-designated and revised paragraph 

(g) prohibits organizations designated by 

the Exchange and certified application 

counselors from charging applicants for 

application or other assistance related to 

the Exchange. 


ehiers on DSK2VPTVN1PROD with RULES_2
42850 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

9These 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. 

10These 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. 

11These 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. 

III. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995, we are required to provide 30- 

day notice in the Federal Register and 

solicit public comment before a 

collection of information requirement is 

submitted to the Office of Management 

and Budget (OMB) for review and 

approval. In order to fairly evaluate 

whether an information collection 

should be approved by OMB, section 

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

Reduction Act of 1995 (PRA) requires 

that we solicit comment on the 

following issues: 

• The need for the information 

collection and its usefulness in carrying 

out the proper functions of our agency. 

• The accuracy of our estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• Recommendations to minimize the 

information collection burden on the 

affected public, including automated 

collection techniques. 

In the January 22, 2013 (78 FR 4594) 

proposed rule, and the April 5, 2013 (78 

FR 20581) proposed rule, we requested 

public comment on each of the rule’s 

information collection requirements 

(ICRs). The comments and our 

responses to them are discussed below. 

The information collection 

requirements in § 155.225 were 

originally proposed in the January 22, 

2013 (78 FR 4594) Notice of Proposed 

Rulemaking (Medicaid, Children’s 

Health Insurance Programs, and 

Exchanges—CMS–2334–P). These 

requirements are being finalized in this 

Final Rule (Standards for Navigators 

and Non-Navigator Assistance 

Personnel; Consumer Assistance Tools 

and Programs of an Exchange and 

Certified Application Counselors— 

CMS–9958–F and CMS–2334–F2). 

Comments received in response to the 

proposed rule are also being addressed 

in this final rule. 

This final rule will establish conflict 

of interest and training standards, 

including standards for certification and 

recertification, for Navigators and nonNavigator assistance personnel in an 

Exchange being operated by HHS as a 

Federally-facilitated Exchange or as a 

State Partnership Exchange pursuant to 

HHS authority under section 1321(c)(1) 

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

through federal Exchange Establishment 

grants. The rule requires that these 

Navigators and non-Navigator assistance 

personnel provide an attestation that 

they are not ineligible individuals or 

entities and submit a plan for mitigating 

conflicts of interest, register with the 

Exchange, receive training, be initially 

certified, and receive subsequent 

recertification with the Exchange. 

Additionally, this final rule will 

establish certified application 

counselors as another type of assistance 

personnel available to provide 

information to consumers and facilitate 

their enrollment in QHPs and insurance 

affordability programs. This rule 

outlines the requirements for 

organizations designated by the 

Exchange to certify staff members and 

volunteers as certified application 

counselors and describes the duties of 

and standards for certified application 

counselors. The rule requires an 

organization seeking designation from 

the Exchange to agree to comply with 

the applicable standards and 

requirements of § 155.225 as well as 

maintain a registration process and 

method to track its certified application 

counselors. Individual certified 

application counselors at an 

organization designated by the 

Exchange must enter into an agreement 

with the designated organization to 

comply with certain standards set forth 

in the rule. The rule directs designated 

organizations to establish procedures to 

withdraw certification from 

noncompliant certified application 

counselors as well as to establish 

procedures to ensure that applicants are 

informed of the functions and 

responsibilities of certified application 

counselors, and provide authorization 

for the disclosure of applicant 

information to the certified application 

counselor. The rule also prohibits 

application counselors and 

organizations designated by the 

Exchange from imposing any charge on 

applicants for application assistance. 

Section III.A outlines information 

collection requirements associated with 

disclosure of conflicts of interest under 

§ 155.215(a). These disclosures include 

an attestation regarding eligibility to be 

a Navigator or non-Navigator assistance 

personnel to which § 155.215 applies; a 

plan for mitigating conflicts of interest; 

a requirement to provide information to 

consumers about their coverage options; 

and a requirement to disclose other 

potential, non-prohibited, conflicts of 

interest. Section III.B outlines 

information collection requirements 

associated with Navigator and nonNavigator assistance program 

registration, certification, and 

recertification requirements under 

§ 155.215(b). Sections III.C through E 

outline information collection 

requirements associated with the 

certified application counselor 

assistance program requirements, 

including designated organizations and 

individual application counselor 

certification processes, as well as 

training, recordkeeping, disclosures, 

and designation or certification 

withdrawal requirements. 

For purposes of the information 

collection requirements, Navigator 

personnel and non-Navigator assistance 

personnel to which § 155.215 applies 

are estimated to have a professional 

wage of $20 per hour.9 Navigator and 

non-Navigator assistance project leads 

to which § 155.215 applies are estimated 

to have a professional wage of $29 per 

hour.10 Navigator senior executives to 

which § 155.215 applies are estimated to 

have a professional wage of $48 per 

hour.11 The average professional wage 

for Navigator personnel, projects leads, 

senior executives, and non-Navigator 

assistance personnel and project leads 

to which § 155.215 applies is estimated 

to be $29.20 per hour. These are 

estimates commonly used for estimating 

paperwork burden and do not represent 

a recommendation or a requirement of 

how much Navigator and non-Navigator 

personnel to which § 155.215 applies 

are to be paid. There is nothing in the 

regulations released today that would 

require any of these workers to be paid 

any specific amount. 

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 to which § 155.215 applies; 

therefore the estimates discussed below 

are on a per individual basis. The 

application deadline for Navigator 

grants closed on June 7, 2013. At this 

time, grant applications are still 

undergoing review and it is not known 

how many applications meet all 

eligibility criteria to be considered for 

grant awards. Without this information 

it is not possible to appropriately 

estimate how many grants will be 

awarded, or how many individual staff 

will be serving the grantees. It is also 

not possible to estimate the number of 

non-Navigator assistance personnel and 

project leads to which § 155.215 applies. 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42851 

12The mitigation plan is required on an 

individual basis only if the individual is not 

working for an entity serving as non-Navigator 

assistance personnel. 13An individual could be serving as an entity. 

This is a new program without a 

comparable program to extrapolate 

estimates from. Exchanges may 

structure and fund these personnel in 

many different ways, and we do not 

want to underestimate and prejudice an 

Exchange from attempting to maximize 

the number of non-Navigator assistance 

personnel. We invited public comments 

on the number of Navigator grantees or 

the number of non-Navigator assistance 

personnel and project leads expected, 

but no comments were received on this 

issue. Additionally, because we do not 

have an estimate of how many 

Navigators or non-Navigator assistance 

personnel will be subject to § 155.215, 

we are unable to estimate the number of 

consumers expected to receive 

assistance specifically from Navigator 

grantees or non-Navigator assistance 

personnel subject to § 155.215; therefore 

estimates for disclosures to consumers 

discussed below are on a per consumer 

basis. We also invited comments on the 

number of consumers expected to 

receive assistance, but no comments 

were received on this issue. 

A. ICRs Regarding Disclosure of 

Conflicts of Interest (§ 155.215(a)) 

In accordance with § 155.215(a)(1)(i) 

and (iv) and (a)(2)(ii) and (v), Navigator 

program grantees and other entities and 

individuals providing assistance under 

§ 155.205(d) and (e) will be required to 

disclose conflicts of interest. This 

disclosure will include an attestation 

that an individual or entity is not an 

ineligible entity. Additionally, in 

accordance with § 155.215(a)(1)(ii) and 

(a)(2)(iii), a plan for mitigating any 

conflicts of interest will also be 

submitted. The cost associated with the 

attestation will apply to each Navigator 

entity and applicant, and to each 

individual or entity serving as nonNavigator assistance personnel. The cost 

associated with the plan for mitigating 

any conflicts of interest will apply to 

each Navigator program grantee and to 

each individual or entity serving as nonNavigator assistance personnel.12 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 

is $5, per Navigator project lead is 

$7.25, per Navigator senior executives is 

$12, per non-Navigator assistance 

personnel is $5, and per non-Navigator 

assistance personnel is $7.25. We 

estimate the total burden per person is 

0.25 hours and $7.30 on average. 

The plan for mitigating conflicts of 

interest will be required on a per entity 

basis; 13 therefore we assume for 

Navigator program grantees, the senior 

executive will be responsible for 

developing and providing the plan for 

mitigating conflicts of interest because 

only one plan is required per grantee. 

For purposes of the ICR we are 

assuming burden and cost estimates 

based on a non-Navigator assistance 

project lead wage of $29 per hour. 

We estimate that for a Navigator 

program grantee it will take a senior 

executive up to 5 hours to prepare and 

provide a plan for mitigating conflicts of 

interest. A non-Navigator assistance 

project lead will also require up to 5 

hours to prepare and provide a plan for 

mitigating conflicts of interest. With a 

wage of $48 per hour for senior 

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

estimate the total one-time annual cost 

burden for a Navigator program grantee 

is $240, and for non-Navigator 

assistance project leads is $145. 

In accordance with § 155.215(a)(1)(iii) 

and (a)(2)(iv), Navigator program 

grantees and non-Navigator assistance 

personnel will be required to provide 

information to consumers about the full 

range of QHP options and insurance 

affordability programs for which they 

are eligible. We assume for the 

Navigator program grantee that the 

Navigator personnel will prepare the 

disclosure, including completion of any 

necessary forms, and we estimate the 

total burden per disclosure, including 

completion of any necessary forms, is 1 

hour at a cost of $20. For non-Navigator 

assistance personnel we estimate the 

total burden per disclosure is 1 hour for 

preparing the disclosure at a cost of $20. 

We estimate the total burden per 

disclosure is 1 hour and $20 on average. 

In accordance with § 155.215(a)(1)(iv) 

and (a)(2)(v), Navigator personnel, 

projects leads, senior executives, nonNavigator assistance personnel, and 

non-Navigator assistance project leads 

will be required to disclose to the 

Exchange and to consumers: Any lines 

of insurance business not covered by the 

restrictions on participation and 

prohibitions on conduct in § 155.210(d), 

which they intend to sell while carrying 

out the consumer assistance functions; 

any existing and former employment 

relationships within the last five years 

with any health insurance issuers or 

issuers of stop loss insurance or 

subsidiaries of health insurance issuers 

or issuers of stop loss insurance; any 

existing employment relationships 

between a spouse or domestic partner 

and any health insurance issuers or 

issuers of stop loss insurance or 

subsidiaries of health insurance issuers 

or issuers of stop loss insurance; and 

any existing or anticipated financial, 

business, or contractual relationships 

with one or more health insurance 

issuers or issuers of stop loss insurance, 

or subsidiaries of health insurance 

issuers or issuers of stop loss insurance. 

We estimate the total time to prepare 

this disclosure is 0.16 hours (10 

minutes). We estimate the total cost for 

preparing this disclosure per Navigator 

personnel is $3.20, per Navigator project 

lead is $4.64, per Navigator senior 

executive is $7.68, per non-Navigator 

assistance personnel is $3.20, and per 

non-Navigator assistance project lead is 

$4.64. We estimate the total estimated 

burden per person is 0.16 hours and 

$4.67 on average. 

B. ICRs Regarding Training and 

Certification Standards (§ 155.215(b)) 

1. Registration Prior to Training 

In accordance with § 155.215(b)(1)(ii), 

Navigator personnel, project leads, 

senior executives, non-Navigator 

assistance personnel, and non-Navigator 

assistance project leads will be required 

to register with the Exchange prior to 

training. We estimate that it will take 

Navigator personnel, project leads, 

senior executives, non-Navigator 

assistance personnel, and non-Navigator 

assistance project leads each 0.25 hours 

(15 minutes) to register. With a wage of 

$20 per hour for Navigator and 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 is $5, for 

Navigator project leads is $7.25, for 

Navigator senior executives is $12, for 

non-Navigator assistance personnel is 

$5, and for non-Navigator assistance 

project leads is $7.25. We estimate the 

total burden per person is 0.25 hours 

and $7.30 on average. 

2. Certification and Recertification 

In accordance with § 155.215(b)(1), 

Navigator personnel, project leads, 

senior executives, non-Navigator 

assistance personnel, and non-Navigator 


ehiers on DSK2VPTVN1PROD with RULES_2
42852 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

assistance project leads will be required 

to complete a training program to obtain 

certification consisting of up to 30 hours 

of training including any approved 

certification exams. There are 

recordkeeping requirements associated 

with the certification and recertification 

provisions. Each person who receives 

training will be expected to obtain and 

maintain a record of certification. In 

accordance with § 155.215(b)(1)(iv), 

Navigator personnel, project leads, 

senior executives, non-Navigator 

assistance personnel, and non-Navigator 

assistance project leads who intend to 

continue beyond their initial period of 

performance will be required to be 

recertified on at least an annual basis. 

Each person who receives recertification 

will be expected to obtain and retain 

proof of recertification. We estimate that 

the time burden associated with 

maintaining proof of certification or 

recertification is 0.016 hours (1 minute); 

we assume proof will be maintained 

through electronic copies with minimal 

cost. 

We estimate the total cost for 

maintaining proof of certification or 

recertification per Navigator is $0.32; 

per Navigator project lead is $0.48; per 

Navigator senior executive is $0.75; per 

non-Navigator assistance personnel is 

$0.32, and per non-Navigator assistance 

project lead is $0.48. In the initial year 

the requirement is to maintain proof of 

initial certification; in subsequent years 

the requirement will be to maintain 

proof of recertification. Because these 

requirements are the same time and cost 

burden we are categorizing them as one 

annual burden. We estimate the total 

annual burden for maintaining proof of 

certification or recertification is 0.016 

hours and $0.47 on average. 

TABLE 1—ANNUAL RECORDKEEPING AND REPORTING REQUIREMENTS, BY RESPONDENT

Regulation section(s) OMB Control 

No. 

Burden per 

response 

(hours) 

Hourly labor 

cost of reporting 

($) ** 

Labor cost of 

reporting per 

response 

($) 

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 ........................................................................ ........................ 11 .67 .......................... 424 .27 0 

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

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

Comment: We received a few 

comments regarding the estimated 

wages; these comments generally stated 

an appreciation for an estimate of a 

livable wage; however the comments 

noted a concern that the wage estimates 

are unrealistic. No comments 

recommended specific wage estimates. 

Response: We are not modifying the 

wage estimates in this final rule. The 

estimates are not mandatory wages and 

are not broken down based on the role 

geographic differences may play in 

setting actual wages. There is nothing in 

the regulations released today that 

would require any of these workers to 

be paid any specific amount. These are 

estimates commonly used for estimating 

paperwork burden and do not represent 

a recommendation or a requirement of 

how much Navigator and non-Navigator 

personnel are to be paid. 

C. ICRs Regarding Certified Application 

Counselors (§ 155.225) 

Section 155.225(a) of the regulation 

provides that each Exchange must have 

a certified application counselor 

program. Section 155.225(b)(1) provides 

that the Exchange may designate certain 

organizations to certify certain staff 

members or volunteers to act as certified 

application counselors. In accordance 

with § 155.225(b)(2), each Exchange 

may opt to comply with the requirement 

to establish a certified application 

counselor program under § 155.225 by 

designating organizations to certify 

individual application counselors, as 

the Federally-facilitated Exchange 

intends to do, directly certifying 

individual staff members and volunteers 

of organizations to provide certified 

application counselor duties if such 

individuals enter into an agreement 

with the State Exchange, as was 

proposed in the proposed rule, or by 

both designating organizations and 

directly certifying individuals. We are 

unable to estimate the number of State 

Exchanges that will opt to establish a 

certified application counselor program 

by designating organizations to certify 

their staff members or volunteers to act 

as certified application counselors. The 

burden estimates we provide, unless 

specified otherwise, are on a per 

Exchange basis. 

Section 155.225(c) describes the 

duties of certified application 

counselors, which include providing 

information about insurance 

affordability programs and coverage 

options, assisting consumers with 

applications, and helping to facilitate 

enrollment and renewals. Section 

155.225(d) establishes the standards that 

staff members and volunteers at 

organizations designated by the 

Exchange must meet in order to be 

certified application counselors. 

Sections 155.225(e), (f), and (g) provide 

additional standards governing the 

conduct of Exchanges, designated 

organizations and individual certified 

application counselors, including 

withdrawal of designation or 

certification requirements, as well as a 

prohibition on charging applicants or 

enrollees for application or other 

assistance related to the Exchange. 

In our original burden estimates, we 

calculated the overall estimated burden 

associated with these provisions as 105 

hours per Exchange. We did not provide 

a detailed breakdown of this estimate. 

Our proposed estimate did not include 

all of the burdens on the Exchange as 

well as on certified application 

counselors and organizations seeking 

designation to certify individual 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42853 

14We estimate 19 Exchanges, including 18 State 

Exchanges (which includes Utah) and one 

Federally-facilitated Exchange, developing their 

own processes to designate organizations, rather 

than directly certifying individuals as provided 

under § 155.225(b). HHS will establish a single 

process in all Federally-facilitated Exchanges. We 

have proposed through rulemaking amendments to 

our regulations, that, if finalized as proposed, 

would permit Utah to operate a State Exchange for 

SHOP only. 

15Using data from the U.S. Bureau of Labor 

Statistics, a mid-level health policy analyst 

(occupation no. 13–2031) is estimated to have a 

wage of $49.35, including the cost of fringe benefits 

calculated at 35 percent of salary. 

16According to the U.S. Bureau of Labor 

Statistics, a senior manager (occupation no. 

11–1021) is estimated to have a wage of $79.08, 

including the cost of fringe benefits calculated at 35 

percent of salary. 

17According to the U.S. Bureau of Labor 

Statistics, an attorney (occupation no. 23–1011) is 

estimated to have a wage of $90.15, including the 

cost of fringe benefits calculated at 35 percent of 

salary. 

application counselors. The proposed 

rule’s estimates did not contemplate the 

finalized regulatory provisions. For 

example, our proposed estimates did 

not include either the impact on 

organizations seeking designation in 

Exchanges or the State Exchange option 

to certify directly application 

counselors, including entering into an 

agreement with the designated 

organization or with individual staff or 

volunteers. Therefore, while our overall 

proposed burden estimates pursuant to 

proposed § 155.225 were properly 

calculated, we note that the final rule 

reflects burden estimates based on the 

finalized regulation’s requirements on 

all respondents. We provide more 

detailed estimates and explanation 

below. 

D. ICRs Regarding Burdens on an 

Exchange (§ 155.225) 

The burdens on each Exchange 

include the following: The time and 

effort necessary to establish a process 

for designating organizations seeking to 

certify their staff or volunteers as 

application counselors in accordance 

with § 155.225(b)(1); the time and effort 

necessary to develop training materials 

for the training described in 

§ 155.225(d)(1); the time and effort 

necessary to develop the agreement 

identified in § 155.225(b)(1)(i); and the 

time and effort necessary to establish a 

withdrawal process in accordance with 

§ 155.225(e). Additionally, in the event 

a State Exchange opts to perform direct 

certifications of individual application 

counselors in accordance with 

§ 155.225(b)(2)(ii), there would be the 

time and effort necessary to certify 

individuals and to develop procedures 

for informing applicants of the functions 

of certified application counselors 

under § 155.225(f)(1) and authorizing 

disclosure of applicant information 

specified in § 155.225(f)(2). 

First, in accordance with 

§ 155.225(b)(1), each Exchange may 

designate organizations whose staff and 

volunteers will seek to become certified 

application counselors. Each Exchange 

including a State Exchange if it so 

chooses, may establish a process 

through which it designates 

organizations. HHS will establish this 

process in Federally-facilitated 

Exchanges, including all State 

Partnership Exchanges, and will 

designate organizations directly. While 

each State Exchange may choose its own 

process for implementing a certified 

application counselor program, HHS 

will create a single process for 

Federally-facilitated Exchanges, such as 

the development of a single model 

application and agreement that will be 

used by organizations applying for 

designation as well as procedures for 

withdrawal. We anticipate that this 

application will incorporate the 

agreement of the organization to adhere 

to the regulatory standards in this 

regulation. 

The creation of an application and 

agreement and procedures for 

withdrawal by the Exchange are 

required on a one-time basis; we 

estimate that it will take 19 Exchanges 14

developing a designation process up to 

20 hours to create a designation and 

withdrawal process in addition to 

creating a model application which will 

include a model agreement and be 

available online for Federally-facilitated 

Exchanges. For purposes of the cost 

burden, we estimate it will take a midlevel health policy analyst 15 up to 10 

hours to draft an application and 

agreement, a senior manager 16 up to 5 

hours for review and an attorney 17 up 

to 5 hours for legal review. We estimate 

the cost burden is $1,339.66 for each 

Exchange. 

There are recordkeeping requirements 

associated with developing and 

maintaining a model application. 19 

Exchanges establishing this process are 

expected to maintain a copy of the 

model application. We estimate that the 

time burden associated with 

maintaining a copy of the model 

application is 0.016 hours (1 minute); 

we assume a mid-level health policy 

analyst with a professional wage of 

$49.35 an hour will maintain the model 

application through electronic copies 

with minimal cost, which we estimate 

as $0.79 as a one-time requirement for 

the Exchange. We estimate the total cost 

burden is $1,340.45 for each Exchange 

establishing a process including 

recordkeeping. 

The cost for 19 Exchanges 

establishing a process for designating 

organizations includes the time and 

effort with reviewing each 

organization’s application and notifying 

the organization of the result of its 

review will apply to the Exchange for 

each organization that seeks to be 

designated. We anticipate that this 

application review will be a one-time 

requirement for the organization seeking 

designation. Therefore, we estimated the 

burden for reviewing the application on 

a per organization basis. We estimate 

that it will take the Exchange up to 1.16 

hours to review and approve an 

application. For purposes of the cost 

burden, we estimate it will take a midlevel health policy analyst up to 1 hour 

and a senior manager up to .16 hours 

(10 minutes) to review. The estimated 

cost burden is $62.01 for each 

organization. 

In accordance with § 155.225(b)(2), 

State Exchanges may opt to certify 

application counselors directly rather 

than designate certain organizations to 

do so, or they may do both. State 

Exchanges performing direct 

certification of individual certified 

application counselors may choose to 

develop a process through which each 

certified application counselor is 

certified, including developing an 

agreement by which the individual will 

agree to adhere to the standards 

specified in § 155.225. We estimate it 

will take 18 State Exchanges performing 

direct certifications of individual 

application counselors an average of 20 

hours to create its own certification 

process and model agreement for 

certified application counselors, 

including verifying the individual’s 

affiliation with an appropriate 

organization and issuing an 

identification number, if applicable, as 

well as procedures for providing 

authorization of applicant or enrollee 

information in accordance with 

§ 155.225(f). For the purpose of the cost 

burden, we estimate it will take a midlevel health policy analyst 10 hours, at 

$49.35 an hour and a senior manager 10 

hours, at $79.08 an hour to create this 

process. We estimate the cost burden for 

each State Exchange to create its own 

process is therefore $1,284.34. 

In accordance with § 155.225(b)(1)(i), 

an Exchange that has established a 

process for designating organizations 

will enter into agreements with 

designated organizations; in the case of 

State Exchanges performing direct 

certifications as allowed under 

§ 155.225(b)(2)(ii), the State Exchange 

will enter into an agreement with 

individual certified application 

counselors.. We estimate it will take a 


ehiers on DSK2VPTVN1PROD with RULES_2
42854 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

18According to the U.S. Bureau of Labor 

Statistics, a training specialist (occupation no. 

13–1151) is estimated to have a wage of $26.64, 

including the cost of fringe benefits calculated at 35 

percent of salary. 

19According to the U.S. Bureau of Labor 

Statistics, a training and development manager 

(occupation no. 11–3131) is estimated to have a 

wage of $64.43, including the cost of fringe benefits 

calculated at 35 percent of salary. 

senior manager at the applicable 

Exchange up to 15 minutes (.25 hours) 

to enter into each agreement. We 

estimate the cost burden is $19.77 per 

agreement. There are recordkeeping 

requirements associated with this 

requirement. We expect that the 

Exchange will maintain a copy of each 

agreement. We estimate that the time 

burden associated with maintaining 

proof of the signed agreement is 0.016 

hours (1 minute). We estimate the total 

cost for the Exchange to maintain proof 

of each agreement to be $1.27, for a total 

estimated cost burden of $21.04 per 

agreement. 

In accordance with § 155.225(d)(1), 

certified application counselors must 

complete Exchange-approved training 

regarding QHP options and insurance 

affordability programs, eligibility, and 

benefits rules and regulations, and 

achieve a passing score on all Exchangeapproved certification examinations, 

prior to functioning as a certified 

application counselor. It is expected 

that 19 Exchanges must therefore 

develop a training registration process 

and training materials for certified 

application counselors. In the preamble 

above, we encouraged states to develop 

a single set of training materials for 

Navigators, non-Navigator assistance 

personnel, and certified application 

counselors. We also explained that we 

will make federal certified application 

counselor training materials available to 

states. In light of this, our estimates for 

developing a training registration 

process and materials may be lower 

than the estimates used here with 

respect to State Exchanges that adopt 

federal training materials. Additionally, 

any Exchange may reuse training 

material used to train other assistance 

personnel, and may also use training 

materials that were developed by HHS 

for other types of assister training, 

including Navigator training. If 19 

Exchanges did choose to create a 

separate training registration process 

and materials for certified application 

counselors, instead of adopting the 

efficiencies outlined above, we estimate 

it will take a training specialist 18 10 

hours at $26.64 an hour and a training 

and development manager 19 5 hours at 

$64.43 an hour to develop a registration 

process and training materials for 

certified application counselors, for a 

total time burden of 15 hours. We 

estimate the cost burden for each 

Exchange developing its own process 

and materials is therefore $588.55. 

In accordance with § 155.225(e), when 

appropriate, each Exchange will 

withdraw designation from an 

organization when it finds 

noncompliance with the terms and 

conditions of the organization’s 

application counselor agreement. In 

addition, a State Exchange that performs 

direct certification of individual 

certified application counselors will 

withdraw certification from individuals 

when it finds noncompliance. In either 

case, the Exchange will investigate 

instances of noncompliance it identifies 

or that are reported, and notify the 

appropriate organization, or individual, 

as applicable, when it determines 

noncompliance necessitates 

withdrawing the applicable entity’s 

designation or individual’s certification, 

as applicable. We are unable to estimate 

the frequency with which potential 

noncompliance will be reported or the 

frequency with which an Exchange will 

determine that an organization’s or 

individual’s designation or certification, 

respectively, should be withdrawn. 

Therefore, the estimates associated with 

the burden for determining the necessity 

for withdrawing an organization’s 

designation or individual’s certification 

are on a per occurrence basis for each 

applicable organization or individual, 

respectively. 

We assume that each Exchange will 

investigate potential noncompliance 

and verify the basis for the withdrawal 

and notify the applicable entity of the 

withdrawal. There are recordkeeping 

requirements associated with these 

procedures. The Exchange is expected 

to maintain a record of each verification 

review and copy of any withdrawal 

notification. We estimate that the time 

burden associated with maintaining a 

record of each potential withdrawal 

occurrence is .016 hours (1 minute). We 

assume a mid-level health policy 

analyst with a professional wage of 

$49.35 an hour will maintain record and 

any notification of withdrawal 

electronically with minimal cost, which 

we estimate as $0.79 for each potential 

occurrence. 

We estimate that it will take the 

Exchange up to 3 hours to investigate 

and notify an organization or 

individual, as applicable, of the 

withdrawal, respectively. For purposes 

of the cost burden, we estimate it will 

take a mid-level health policy analyst 

up to 2 hours to investigate, draft, and 

send notification of withdrawal and a 

senior manager up to 1 hour to review. 

We estimate that the printing/mailing 

costs per notice will be $0.50. We 

estimate the cost burden is $178.57 per 

Exchange for each occurrence. 

E. ICRs Regarding Burdens on 

Designated Organizations and Certified 

Application Counselors (§ 155.225) 

1. Burdens on Designated Organizations 

Our proposed estimate of 105 hours 

also included several requirements that 

will fall on certified application 

counselors and designated organizations 

under the provisions of § 155.225. For 

example, with respect to designated 

organizations in Federally-facilitated 

Exchanges and certain State Exchanges, 

these include the time and effort for an 

organization to be designated by the 

Exchange to certify staff members and 

volunteers as application counselors in 

accordance with § 155.225(b)(1), 

including entering into an agreement in 

accordance with § 155.225(b)(1)(i); the 

time and effort required to maintain a 

registration process for certified 

application counselors in accordance 

with § 155.225(b)(1)(ii); the time and 

effort to establish procedures for 

withdrawing individual certified 

application counselors in accordance 

with § 155.225(e); and the time and 

effort of establishing procedures for 

providing authorization prior to a 

certified application counselor 

obtaining access to an applicant’s or 

enrollee’s personally identifiable 

information in accordance with 

§ 155.225(f). Because we are unable to 

estimate the number of organizations 

that will seek designation at this time, 

the burden estimates on organizations 

are on a per organization basis. 

In accordance with § 155.225(b)(1)(i), 

each organization designated by the 

Exchange must enter into an agreement 

with the Exchange. Registering and 

completing and submitting an 

application to be a designated 

organization will be done on a per 

organization basis; we estimate that it 

will take an organization up to 1 hour 

to review instructions, register, and 

complete and submit an application. For 

purposes of the cost burden, we 

estimate it will take a senior manager up 

to 1 hour. The estimated cost burden is 

$79.08 for each organization seeking 

designation. 

In accordance with § 155.225(b)(1)(ii) 

and (d), each designated organization 

must maintain procedures for its staff or 

volunteers to act as certified application 

counselors. This is a one-time 

requirement for the organization. We 

estimate that it will take a mid-level 

health policy analyst up to 7 hours, a 

senior manager up to 2 hours and an 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42855 

20According to the U.S. Bureau of Labor 

Statistics, an eligibility interviewer (occupation no. 

43–4061) is estimated to have a wage of $26.65, 

including the cost of fringe benefits calculated at 35 

percent of salary. 

21CMS National SHIP Resource Center, 

‘‘Welcome & Key CMS Initiatives,’’ in CMS New 

SHIP Director Training 3 (7th ed., 2013). 

attorney up to 1 hour for legal review to 

create such procedures. This process 

includes creating a registration process 

in accordance with 

§ 155.225(b)(1)(ii),creating an agreement 

for individual staff or volunteers seeking 

to act as certified application 

counselors, in accordance with 

§ 155.225(d); establishing procedures to 

withdraw certification from individual 

certified application counselors in 

accordance with § 155.225(e)(3); and 

establishing procedures for providing 

authorization to applicants and 

enrollees under § 155.225(f), for a total 

time burden of up to 10 hours. We 

estimate the cost burden associated with 

creating these procedures is $593.78. 

There are recordkeeping requirements 

associated with developing and 

maintaining a model agreement and 

authorization form, if the organization 

chooses to obtain authorization in 

writing. Each organization is expected 

to maintain a copy of the forms. We 

estimate that the time burden associated 

with maintaining a copy of the model 

agreement and authorization form is 

0.016 hours (1 minute); we assume these 

will be maintained through electronic 

copies with minimal cost. 

In accordance with § 155.225(b)(1), 

designated organizations must enter into 

an agreement with the Exchange 

regarding compliance with the 

standards set forth in § 155.225 by the 

staff and volunteers they certify as 

application counselors. We estimate it 

will take a senior manager at the 

organization up to .25 hours (15 

minutes) to enter into each agreement. 

We estimate the cost burden is $19.77 

per agreement. There are recordkeeping 

requirements associated with this 

requirement. We expect that the 

organization will maintain a copy of the 

agreement. We estimate that the time 

burden associated with maintaining 

proof of the signed agreement is 0.016 

hours (1 minute). The total cost 

estimated for the organization to 

maintain proof of the signed agreement 

is $1.27, for a total cost burden of $21.04 

per agreement. 

In accordance with § 155.225(e)(1), 

our estimates include the time that it 

will take for an organization to review 

the applicable Exchange’s notification of 

withdrawal of designation. We estimate 

it will take an organization up to 3 

hours on average to review and inform 

its staff and volunteers that the 

organization is no longer designated to 

have staff or volunteers act as certified 

application counselors. For purposes of 

the cost burden, we estimate that it will 

take a senior manager up to 3 hours to 

review and inform staff and volunteers 

as needed. We estimate the cost burden 

is $237.24 for each occurrence. 

2. Burdens on Individual Certified 

Application Counselors 

The burdens associated with 

individual certified application 

counselors include the time and effort 

necessary to register in accordance with 

§ 155.225(b)(1)(ii) or (b)(2)(ii), as 

applicable; enter into an agreement in 

which the individual agrees to comply 

with the standards set forth in 

§ 155.225; provide authorization to 

applicants and enrollees in accordance 

with § 155.225(f); and take appropriate 

measures in the event the individual’s 

certification is withdrawn by the 

Exchange or designated organization in 

accordance with § 155.225(e). 

Although nothing prohibits 

individual certified application 

counselors or organizations from being 

funded through sources such as 

applicable private, state, or federal 

programs, we expect that certified 

application counselors will not be 

guaranteed any specific funding. We 

estimate the professional wage of 

certified application counselors 20 for 

this type of work as equivalent to that 

of an eligibility interviewer for 

assistance from government programs 

and agency resources. An eligibility 

interviewer has a professional wage of 

$26.65 per hour. This is an estimate 

commonly used for estimating 

paperwork burden and does not 

represent a recommendation or a 

requirement of how much certified 

application counselors are to be paid. 

The actual wages, if any, of individuals 

performing certified application 

counselor work may be lower or higher, 

depending on the person’s primary 

profession. 

There is no experience or strong basis 

for estimating the number of certified 

application counselors. Because such 

estimates are required for this purpose, 

solely for this analysis, we looked to the 

State Health Insurance Assistance 

Program (SHIP) counselor program 

created by section 4360 of the Omnibus 

Budget Reconciliation Act (OBRA) of 

1990. The SHIP program uses large 

numbers of trained volunteers to help 

consumers navigate and enroll in health 

insurance plans and Medicare savings 

programs, such as the Qualified 

Medicare Beneficiary program. There 

are 15,250 SHIP counselors nationwide, 

and about 57 percent (or 8,692) of these 

counselors are volunteers.21 As such, for 

purposes of analysis, we estimate that 

there will be approximately 8,700 

certified application counselors 

nationwide, or an average of 170 per 

Exchange. We recognize that this is a 

new program so this estimate is 

speculative. 

In accordance with § 155.225, 

individuals must be certified to act as 

certified application counselors. This 

includes the time and effort associated 

with completing a registration process 

through a designated organization, in 

accordance with § 155.225(b)(1)(ii) or 

through a State Exchange in accordance 

with § 155.225(b)(2)(ii) if the state 

requires a registration process; the time 

and effort associated with disclosing 

any relationships or conflicts of interest 

in accordance with § 155.225(d)(2); and 

entering into an agreement with the 

organization or State Exchange, as 

applicable, regarding compliance with 

the certified application standards in 

accordance with § 155.225(d)(6) or 

(b)(2)(ii), respectively. We assume that it 

will take a certified application 

counselor up to .25 hours (15 minutes) 

to register, provide adequate 

disclosures, and review and enter into 

an agreement. As stated above, we 

anticipate that most certified 

application counselors will perform 

certified application counselor 

functions on a volunteer basis; however, 

for purposes of estimating the cost 

burden on these respondents only, we 

estimate the cost burden for each 

individual certified application 

counselor is $6.66, based on a 

professional wage equivalent of $26.65. 

There are recordkeeping requirements 

associated with this requirement. We 

expect that the individual certified 

application counselor will maintain 

proof of the signed agreement. We 

estimate that the time burden associated 

with maintaining proof of the signed 

agreement is 0.016 hours (1 minute). We 

estimate the total cost for the individual 

to maintain the agreement will be $0.43, 

for a total cost burden of $7.09 per 

agreement. 

In accordance with § 155.225(d)(1), 

certified application counselors must be 

trained regarding QHP options, 

insurance affordability programs, 

eligibility, and benefits rules and 

regulations governing all insurance 

affordability programs operated in the 

state, as implemented in the state, prior 

to functioning as a certified application 

counselor. There are recordkeeping 

requirements associated with the 


ehiers on DSK2VPTVN1PROD with RULES_2
42856 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

22These estimated Exchange burdens assume 19 

Exchanges, including 18 State Exchanges and one 

FFE, developing their own processes to designate 

organizations (rather than directly certifying 

individuals as provided under § 155.225(b)). HHS 

will establish a single process in all FFEs. We have 

proposed through rulemaking amendments to our 

regulations, that, if finalized as proposed, would 

permit Utah to operate a State Exchange for SHOP 

only. 

23These estimated State Exchange burdens 

assume 18 State Exchanges, including Utah. 

training certification; we expect each 

person who receives training to obtain 

and maintain a record of training 

certification. We estimate that the time 

burden associated with maintaining 

proof of training certification is 0.016 

hours (1 minute), since we assume that 

this proof will be maintained through 

electronic copies, at a minimal cost. The 

total cost estimated for each individual 

to maintain proof of training 

certification is $0.43. 

In accordance with § 155.225(d)(2), 

certified application counselors must 

disclose to potential applicants and 

enrollees any relationships the certified 

application counselor or sponsoring 

organization has with QHPs or 

insurance affordability programs, or 

other potential conflicts of interest. In 

addition, under § 155.225(f)(1) and (2), 

certified application counselors must 

provide for an authorization to 

applicants and enrollees to inform them 

of the functions and responsibilities of 

certified application counselors and 

obtain authorization for the disclosure 

of applicant and enrollee information to 

a certified application counselor prior to 

obtaining the individual’s personally 

identifiable information. Because we are 

unable to estimate the number of 

consumers a certified application 

counselor will assist in a year, we 

calculated this estimate on a per 

individual basis. We estimate it will 

take a certified application counselor 

0.25 hours (15 minutes) to provide these 

disclosures each time. The total cost 

estimate for disclosures by each 

individual certified application 

counselor is therefore $6.66. In addition, 

although nothing in this rule requires 

individuals to provide authorization in 

the form of a signed authorization, there 

are recordkeeping requirements 

associated with maintaining a record of 

the authorization being provided by the 

applicant or enrollee. We estimate that 

the time burden associated with 

maintaining record of the authorization 

is 0.016 hours (1 minute). We estimate 

the total cost for the individual to 

maintain the record of authorization is 

$0.43, for a total cost burden of $7.09 

per disclosure. 

In accordance with the withdrawal 

provisions under § 155.225(e)(2) and (3), 

our estimates reflect the time and effort 

for an individual certified application 

counselor to review a notification of 

withdrawal of certification. We estimate 

it will take a certified application 

counselor up to 3 hours on average to 

review such notification, including the 

time and effort needed to inform any 

applicants who may be in the process of 

receiving or seeking assistance from the 

certified application counselor. For 

purposes of the cost burden, we 

estimate that it will take a certified 

application counselor up to 3 hours to 

review the notification of withdrawal 

from its designated organization, or for 

those certified directly by a State 

Exchange from the State Exchange, and 

inform applicants as needed. We 

estimate the cost burden is $79.95 for 

each occurrence of withdrawal. 

F. Summary of Annual Burden 

Estimates 

ANNUAL RECORDKEEPING AND REPORTING REQUIREMENTS

Regulation section(s) Respondents Responses 

(total) 

Burden per 

response 

(hours) 

Total annual 

burden 

(hours) 

Labor cost of reporting 

($) 

Total Cost 

($) 

§ 155.225(b)(1) (Exchange 22 organization 

designation process).

19 19 20 380 1,339.66 (per respondent) 25,453 .54 

§ 155.225(b)(1) (designation forms recordkeeping).19 19 .016 .30 .79 (per respondent) ......... 15 .01 

§ 155.225(b)(1) (organization designation by Exchange).1 ........................ 1 ........................ 79.08 (for one respondent) ..........................

§ 155.225(b)(1) or (b)(2)(ii) 

(individual certification 

with organization or Exchange, respectively).

8,700 8,700 .25 2,175 7.09 (per certification) ...... 61,683 

§ 155.225(b)(1) or (b)(2)(i) 

(Exchange application 

review).

19 ........................ 1 .16 22.04 62.01 (per respondent) ..... 1,178 .19 

§ 155.225(b)(1)(ii), (d)(6), 

(e) and (f) (designated 

organization process for 

staff or volunteers).

1 ........................ 10 ........................ 593.78 (per respondent) ... ..........................

§ 155.225(b)(1)(i) or 

(b)(2)(ii) (Exchange executed agreement with 

organization or individual, as applicable).

1 ........................ .266 ........................ 21.04 (per agreement) ..... ..........................

§ 155.225(b)(2)(ii) (Exchange direct individual 

certification process 23).

18 18 20 360 1,284.34 (per respondent) 23,118 .12 

§ 155.225(d)(1) (training by 

Exchange).

19 19 15 285 588.55 (per respondent) ... 11,182 .45 

§ 155.225(d)(1) (training 

certificate retention).

8,700 8,700 .016 139 .43 ..................................... 3,741 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42857 

ANNUAL RECORDKEEPING AND REPORTING REQUIREMENTS—Continued 

Regulation section(s) Respondents Responses 

(total) 

Burden per 

response 

(hours) 

Total annual 

burden 

(hours) 

Labor cost of reporting 

($) 

Total Cost 

($) 

§ 155.225(d)(2) and (f) 

(disclosures).

8,700 8,700 .25 2,175 7.09 (per respondent) ....... 61,683 

§ 155.225(d)(6) (agreement between designated organization and 

staff).

1 ........................ .266 ........................ 21.04 (per respondent) ..... ..........................

§ 155.225(e) (withdrawal 

by Exchange).

1 ........................ 3 .016 ........................ 178.57 (per respondent) ... ..........................

§ 155.225(e)(1) (organization withdrawal).1 ........................ 3 ........................ 237.24 (per respondent) ... ..........................

§ 155.225(e)(2) and (3) (individual withdrawal).1 ........................ 3 ........................ 79.95 (per respondent) ..... ..........................

Total ........................... XXXX XXXX .......................... 5,536.34 ........................................... 188,041 .41 

IV. Regulatory Impact Statement 

A. Summary 

HHS is publishing this final rule to 

implement the protections intended by 

Congress in the most economically 

efficient manner possible. HHS has 

examined the effects of this rule as 

required by Executive Order 13563 (76 

FR 3821, January 21, 2011), Executive 

Order 12866 (58 FR 51735, September 

1993, Regulatory Planning and Review), 

the Regulatory Flexibility Act (RFA) 

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

the Unfunded Mandates Reform Act of 

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

13132 on Federalism, and the 

Congressional Review Act (5 U.S.C. 

804(2)). 

B. Executive Orders 12866 and 13563 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects; distributive impacts; 

and equity). Executive Order 13563 is 

supplemental to and reaffirms the 

principles, structures, and definitions 

governing regulatory review as 

established in Executive Order 12866. 

Section 3(f) of Executive Order 12866 

defines a ‘‘significant regulatory action’’ 

as an action that is likely to result in a 

proposed rule—(1) having an annual 

effect on the economy of $100 million 

or more in any one year, or adversely 

and materially affecting a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local or tribal 

governments or communities (also 

referred to as ‘‘economically 

significant’’); (2) creating a serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlement 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. OMB has determined that this 

final rule is a ‘‘significant regulatory 

action’’ under Executive Order 12866. 

Accordingly, OMB reviewed this final 

rule. 

1. Need for Regulatory Action 

This final regulation establishes 

conflict of interest, training and 

certification, and meaningful access 

standards applicable to Navigator 

programs in Federally-facilitated 

Exchanges, including State Partnership 

Exchanges, non-Navigator assistance 

programs in State Partnership 

Exchanges, and non-Navigator 

assistance programs in State Exchanges 

that are funded through federal 1311(a) 

Exchange Establishment grants. The 

final rule requires that these Navigators 

and non-Navigator assistance personnel 

register with and be certified by the 

Exchange. 

The final rule also establishes the 

certified application counselor program 

as a consumer assistance function of the 

Exchange separate from, and in addition 

to, Navigators and non-Navigator 

assistance personnel. The Exchange may 

choose to either designate an 

organization to certify its staff members 

or volunteers to act as certified 

application counselors or to certify 

application counselors directly, or both. 

We intend that Federally-facilitated 

Exchanges will designate organizations 

to certify staff or volunteers as 

application counselors. State Exchanges 

may choose which option to use. The 

final rule also includes standards for 

certified application counselors for 

registration, training including 

complying with privacy and security 

standards, acting in the best interest of 

applicants, and ensuring reasonable 

accommodations for persons with 

disabilities, and entering into an 

agreement with the designated 

organization to comply with these 

standards. Designated organizations 

must enter into an agreement with the 

Exchange to comply with these 

standards and be responsible for 

registration and oversight of their staff 

and volunteers as certified application 

counselors. 

The final rule also amends existing 

regulations to clarify that Navigators 

must meet any licensing, certification or 

other standards prescribed by the State 

or Exchange, if applicable, so long as 

such standards do not prevent the 

application of the provisions of title I of 

the Affordable Care Act; to add entities 

with relationships with issuers of stop 

loss insurance, including those who are 

compensated directly or indirectly by 

issuers of stop loss insurance in 

connection with enrollment in QHPs or 

non-QHPs, to the list of entities 

ineligible to become Navigators; and to 

clarify that the same ineligibility criteria 

that apply to Navigators providing 

services in any Federally-facilitated 

Exchange, including State Partnership 

Exchanges, also apply to non-Navigator 

assistance personnel providing 

assistance in State Partnership 

Exchanges and non-Navigator assistance 

personnel in State Exchanges funded 

through Exchange establishment grants. 

2. Summary of Impacts 

The final regulation helps ensure that 

Navigators in Federally-facilitated 

Exchanges, non-Navigator assistance 

personnel in State Partnership 


ehiers on DSK2VPTVN1PROD with RULES_2
42858 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

24 ‘‘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. 

Exchanges, and non-Navigator 

assistance personnel in State Exchanges 

funded through Exchange establishment 

grants will be fair and impartial, that 

certified application counselors will act 

in the best interest of applicants, and 

that all will be appropriately trained, 

and will provide services and 

information in a manner that is 

accessible to persons with limited 

English proficiency and persons with 

disabilities. The final rule also ensures 

that Navigators meet any licensing, 

certification or other standards 

prescribed by the State or Exchange, if 

applicable, so long as such standards do 

not prevent the application of the 

provisions of title I of the Affordable 

Care Act. 

Navigators and non-Navigator 

assistance personnel will incur costs in 

order to comply with the provisions of 

this final rule, which will be covered by 

the Navigator grants and other 

compensation provided by the Exchange 

to non-Navigator assistance personnel. 

Certified application counselors will 

also incur costs in order to comply with 

the provisions of this final rule; such 

costs will likely be covered by 

designated organizations. Designated 

organizations will also incur costs to 

comply with the provisions of this rule; 

we expect these costs to be low since 

they are likely to already have processes 

in place for oversight of their staff and 

volunteers. Nothing in this rule would 

prohibit certified application counselors 

from being funded through applicable 

private, state, or federal programs. HHS 

anticipates that the impacts of the final 

rule will not be economically 

significant. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

requires agencies that issue a regulation 

to analyze options for regulatory relief 

of small businesses if a rule has a 

significant impact on a substantial 

number of small entities. The RFA 

generally defines a ‘‘small entity’’ as— 

(1) A proprietary firm meeting the size 

standards of the Small Business 

Administration (SBA); (2) a nonprofit 

organization that is not dominant in its 

field; or (3) a small government 

jurisdiction with a population of less 

than 50,000 (states and individuals are 

not included in the definition of ‘‘small 

entity’’). HHS uses as its measure of 

significant economic impact on a 

substantial number of small entities a 

change in revenues of more than 3 to 5 

percent. 

HHS anticipates that the final rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Some of the entities that act as 

Navigators and non-Navigator assistance 

personnel, or designated certified 

application counselor organizations, 

may be small entities and will incur 

costs to comply with the provisions of 

this rule. It should be noted that serving 

as a Navigator or non-Navigator 

assistance personnel is voluntary, and 

the cost burden related to registering for 

accounts, verification of registration, 

initial online training and certification, 

continuing education and 

recertification, conflict of interest 

notification, and providing assistance to 

consumers will be covered by the 

Navigator grants, other compensation 

provided by the Exchange to nonNavigator assistance personnel, or any 

available state funds. Participation in 

the certified application counselor 

program is also voluntary and costs 

incurred by designated organizations are 

expected to be low and may be covered 

by available private or state funds. Due 

to lack of data, HHS is unable to 

estimate how many small entities would 

elect to serve as Navigators, nonNavigator assistance personnel, or 

designated organizations. 

The size threshold for ‘‘small’’ 

business established by the SBA is 

currently $7 million in annual receipts 

for insurance agencies and brokerages.24

As discussed earlier, we anticipate that 

agents and brokers will continue to be 

an important source of assistance for 

many consumers seeking access to 

health insurance coverage through an 

Exchange, including those who own 

and/or are employed by small 

businesses. The conflict of interest 

standards for Navigators will permit 

agents and brokers to serve as 

Navigators in an Exchange operated by 

HHS, provided that the agent or broker 

can satisfy the standards that will apply 

to all Navigators in the Exchange. 

Additionally, we anticipate that agents 

and brokers will also play a role in 

educating consumers about Exchanges 

and insurance affordability programs, 

and in helping consumers receive 

eligibility determinations, compare 

plans, and enroll in coverage to the 

extent permitted by a given state. 

D. Unfunded Mandates Reform Act 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

requires that agencies assess anticipated 

costs and benefits before issuing any 

rule that includes a federal mandate that 

could result in expenditure in any one 

year by state, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million in 1995 

dollars, updated annually for inflation. 

In 2013, that threshold level is 

approximately $141 million. 

UMRA does not address the total cost 

of a final rule. Rather, it focuses on 

certain categories of cost, mainly those 

‘‘Federal mandate’’ costs resulting 

from—(1) Imposing enforceable duties 

on state, local, or tribal governments, or 

on the private sector; or (2) increasing 

the stringency of conditions in, or 

decreasing the funding of, state, local, or 

tribal governments under entitlement 

programs. 

This final rule does not mandate 

expenditures by state governments, 

local governments, tribal governments, 

or the private sector, of $141 million. 

The cost burden for Navigators and 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 will be covered by 

the Navigator grants, other 

compensation provided by the Exchange 

to non-Navigator assistance personnel, 

or any available state funds, and will 

not exceed the UMRA threshold. As 

discussed in the preamble to the April 

5, 2013 proposed rule, State Exchanges 

and state partners in State Partnership 

Exchanges may use section 1311(a) 

Exchange Establishment grants to fund 

non-Navigator assistance programs. 

Section 1311(i)(6) prohibits Exchanges 

from using section 1311(a) grant funds 

to fund Navigator grants. Section 

1311(a) grant funds, however, may be 

used to cover the Exchange’s cost of 

administering the Navigator program, 

including, for example, the cost of 

Navigator training, grants management, 

and oversight. Although certified 

application counselors are not required 

to or expected to be funded, State 

Exchanges may apply section 1311(a) 

Establishment grants to costs related to 

the certified application counselor 

training program. Nothing in this rule 

would prohibit certified application 

counselors from being funded through 

other sources including applicable 

private, state, or federal programs. 

E. Federalism 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a rule 

that imposes substantial direct 

requirement costs on state and local 

governments or has federalism 

implications. 

The final rule clarifies that any 

Navigator licensing, certification, or 

other standards prescribed by the state 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42859 

or Exchange should not prevent the 

application of the provisions of title I of 

the Affordable Care Act. An entity or 

individual will be required to meet any 

licensing, certification, or other 

standards prescribed by the State or 

Exchange, if applicable, so long as such 

standards do not prevent the application 

of the provisions of title I of the 

Affordable Care Act. We are monitoring 

relevant state legislation and will work 

with states to help ensure that state 

legislation does not conflict with title I 

of the Affordable Care Act and the 

federal regulations implementing it. 

Throughout the process of developing 

this final regulation, HHS has attempted 

to balance the states’ interests and 

Congress’ intent to provide uniform 

minimum protections to consumers in 

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

view that we have complied with the 

requirements of Executive Order 13132. 

Pursuant to the requirements set forth in 

section 8(a) of Executive Order 13132, 

and by the signatures affixed to this 

regulation, the Department certifies that 

the Centers for Medicare & Medicaid 

Services has complied with the 

requirements of Executive Order 13132 

for the final regulation in a meaningful 

and timely manner. 

F. Congressional Review Act 

This final rule is subject to the 

Congressional Review Act provisions of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 

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

before a rule can take effect, the federal 

agency promulgating the rule shall 

submit to each House of the Congress 

and to the Comptroller General a report 

containing a copy of the rule along with 

other specified information. 

List of Subjects in 45 CFR Part 155 

Administrative practice and 

procedure, Advertising, Brokers, 

Conflict of interest, Consumer 

protection, Grant programs—health, 

Grants administration, Health care, 

Health insurance, Health maintenance 

organization (HMO), Health records, 

Hospitals, Indians, Individuals with 

disabilities, Loan programs—health, 

Organization and functions 

(Government agencies), Medicaid, 

Public assistance programs, Reporting 

and recordkeeping requirements, Safety, 

State and local governments, Technical 

assistance, Women, and Youth. 

For the reasons stated in the 

preamble, the Department of Health and 

Human Services amends 45 CFR part 

155 as set forth below: 

PART 155—EXCHANGE 

ESTABLISHMENT STANDARDS AND 

OTHER RELATED STANDARDS 

UNDER THE AFFORDABLE CARE ACT 

■ 1. The authority citation for part 155 

continues to read as follows: 

Authority: Title I of the Affordable Care 

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

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

1411, 1412, 1413, Pub. L. 111–148, 124 Stat. 

119 (42 U.S.C. 18021–18024, 18031–18033, 

18041–18042, 18051, 18054, 18071, and 

18081–18083.) 

■ 2. Section 155.205 is amended by 

revising paragraph (d) to read as 

follows: 

§ 155.205 Consumer assistance tools and 

programs of an Exchange. 

* * * * * 

(d) Consumer assistance. (1) The 

Exchange must have a consumer 

assistance function that meets the 

standards in paragraph (c) of this 

section, including the Navigator 

program described in § 155.210. Any 

individual providing such consumer 

assistance must be trained regarding 

QHP options, insurance affordability 

programs, eligibility, and benefits rules 

and regulations governing all insurance 

affordability programs operated in the 

state, as implemented in the state, prior 

to providing such assistance. 

(2) The Exchange must provide 

referrals to any applicable office of 

health insurance consumer assistance or 

health insurance ombudsman 

established under section 2793 of the 

Public Health Service Act, or any other 

appropriate State agency or agencies, for 

any enrollee with a grievance, 

complaint, or question regarding their 

health plan, coverage, or a 

determination under such plan or 

coverage. 

* * * * * 

■ 3. 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. 

* * * * * 

■ 4. 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 § 155.105(f) and to non-Navigator 

assistance personnel funded through an 

Exchange Establishment Grant under 

section 1311(a) of the Affordable Care 

Act: 

(1) Conflict-of-interest standards for 

Navigators. (i) All Navigator entities, 

including Navigator grant applicants, 

must submit to the Exchange a written 

attestation that the Navigator, including 

the Navigator’s staff: 

(A) Is not a health insurance issuer or 

issuer of stop loss insurance; 

(B) Is not a subsidiary of a health 

insurance issuer or issuer of stop loss 

insurance; 

(C) Is not an association that includes 

members of, or lobbies on behalf of, the 

insurance industry; and 

(D) Will not receive any consideration 

directly or indirectly from any health 

insurance issuer or issuer of stop loss 

insurance in connection with the 

enrollment of any individuals or 

employees in a QHP or non-QHP. 

(ii) All Navigator entities must submit 

to the Exchange a written plan to remain 

free of conflicts of interest during the 

term as a Navigator. 

(iii) All Navigator entities, including 

the Navigator’s staff, must provide 

information to consumers about the full 

range of QHP options and insurance 

affordability programs for which they 

are eligible. 

(iv) All Navigator entities, including 

the Navigator’s staff, must disclose to 

the Exchange and, in plain language, to 

each consumer who receives application 

assistance from the Navigator: 

(A) Any lines of insurance business, 

not covered by the restrictions on 

participation and prohibitions on 


ehiers on DSK2VPTVN1PROD with RULES_2
42860 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

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) and the duties of a 

Navigator set forth at § 155.210(e)(2). 

(ii) Submit to the Exchange a written 

attestation that the entity or 

individual— 

(A) Is not a health insurance issuer or 

issuer of stop loss insurance; 

(B) Is not a subsidiary of a health 

insurance issuer or issuer of stop loss 

insurance; 

(C) Is not an association that includes 

members of, or lobbies on behalf of, the 

insurance industry; and 

(D) Will not receive any consideration 

directly or indirectly from any health 

insurance issuer or issuer of stop loss 

insurance in connection with the 

enrollment of any individuals or 

employees in a QHP or non-QHP. 

(iii) Submit to the Exchange a written 

plan to remain free of conflicts of 

interest while carrying out consumer 

assistance functions under § 155.205(d) 

and (e). 

(iv) Provide information to consumers 

about the full range of QHP options and 

insurance affordability programs for 

which they are eligible. 

(v) Submit to the Exchange, and, in 

plain language, to each consumer who 

receives application assistance from the 

entity or individual: 

(A) Any lines of insurance business, 

not covered by the restrictions on 

participation and prohibitions on 

conduct in § 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) of this 

subchapter), and how they operate, 

including benefits covered, payment 

processes, rights and processes for 

appeals and grievances, and contacting 

individual plans; 

(ii) The range of insurance 

affordability programs, including 

Medicaid, the Children’s Health 

Insurance Program (CHIP), and other 

public programs; 

(iii) The tax implications of 

enrollment decisions; 

(iv) Eligibility requirements for 

premium tax credits and cost-sharing 

reductions, and the impacts of premium 

tax credits on the cost of premiums; 

(v) Contact information for 

appropriate federal, state, and local 

agencies for consumers seeking 

additional information about specific 

coverage options not offered through the 

Exchange; 

(vi) Basic concepts about health 

insurance and the Exchange; the 

benefits of having health insurance and 

enrolling through an Exchange; and the 

individual responsibility to have health 

insurance; 

(vii) Eligibility and enrollment rules 

and procedures, including how to 

appeal an eligibility determination; 

(viii) Providing culturally and 

linguistically appropriate services; 

(ix) Ensuring physical and other 

accessibility for people with a full range 

of disabilities; 

(x) Understanding differences among 

health plans; 

(xi) Privacy and security standards 

applicable under § 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 


ehiers on DSK2VPTVN1PROD with RULES_2
Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 42861 

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 or when 

requested by the consumer to ensure 

effective communication. Use of a 

consumer’s family or friends as oral 

interpreters can satisfy the requirement 

to provide linguistically appropriate 

services only when requested by the 

consumer as the preferred alternative to 

an offer of other interpretive services; 

(4) Provide oral and written notice to 

consumers with limited English 

proficiency, in their preferred language, 

informing them of their right to receive 

language assistance services and how to 

obtain them; 

(5) Receive ongoing education and 

training in culturally and linguistically 

appropriate service delivery; and 

(6) Implement strategies to recruit, 

support, and promote a staff that is 

representative of the demographic 

characteristics, including primary 

languages spoken, of the communities 

in their service area. 

(d) Standards ensuring access by 

persons with disabilities. The following 

standards related to ensuring access by 

people with disabilities will apply in an 

Exchange operated by HHS during the 

exercise of its authority under 

§ 155.105(f), and to non-Navigator 

assistance personnel funded through an 

Exchange Establishment Grant under 

section 1311(a) of the Affordable Care 

Act. Any entity or individual carrying 

out any consumer assistance functions 

under §§ 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, when necessary or when requested 

by the consumer to ensure effective 

communication. Use of a consumer’s 

family or friends as interpreters can 

satisfy the requirement to provide 

auxiliary aids and services only when 

requested by the consumer as the 

preferred alternative to an offer of other 

auxiliary aids and services; 

(3) Provide assistance to consumers in 

a location and in a manner that is 

physically and otherwise accessible to 

individuals with disabilities; 

(4) Ensure that authorized 

representatives are permitted to assist 

an individual with a disability to make 

informed decisions; 

(5) Acquire sufficient knowledge to 

refer people with disabilities to local, 

state, and federal long-term services and 

supports programs when appropriate; 

and 

(6) Be able to work with all 

individuals regardless of age, disability, 

or culture, and seek advice or experts 

when needed. 

(e) Monitoring. Any Exchange 

operated by HHS during the exercise of 

its authority under § 155.105(f) will 

monitor compliance with the standards 

in this section and the requirements of 

§§ 155.205(d) and (e) and 155.210. 

■ 5. Section 155.225 is added to read as 

follows: 

§ 155.225 Certified application counselors. 

(a) General rule. The Exchange must 

have a certified application counselor 

program that complies with the 

requirements of this section. 

(b) Exchange designation of 

organizations. (1) The Exchange may 

designate an organization, including an 

organization designated as a Medicaid 

certified application counselor 

organization by a state Medicaid or 

CHIP agency, to certify its staff members 

or volunteers to act as certified 

application counselors who perform the 

duties and meet the standards and 

requirements for certified application 

counselors in this section if the 

organization— 

(i) Enters into an agreement with the 

Exchange to comply with the standards 

and requirements of this section 

including the standards specified in 

paragraphs (d)(3) through (d)(5) of this 

section; and 

(ii) Maintains a registration process 

and method to track the performance of 

certified application counselors. 

(2) An Exchange may comply with 

paragraph (a) of this section either by— 

(i) Designating organizations to certify 

application counselors in compliance 

with paragraph (b)(1) of this section; 

(ii) Directly certifying individual staff 

members or volunteers of Exchange 

designated organizations to provide the 

duties specified in paragraph (c) of this 

section if the staff member or volunteer 

enters into an agreement with the 

Exchange to comply with the standards 

and requirements for certified 

application counselors in this section; 

or 

(iii) A combination of paragraphs 

(b)(2)(i) and (b)(2)(ii) of this section. 

(c) Duties. Certified application 

counselors are certified to— 

(1) Provide information to individuals 

and employees about the full range of 

QHP options and insurance affordability 

programs for which they are eligible; 

(2) Assist individuals and employees 

to apply for coverage in a QHP through 

the Exchange and for insurance 

affordability programs; and 

(3) Help to facilitate enrollment of 

eligible individuals in QHPs and 

insurance affordability programs. 

(d) Standards of certification. An 

organization designated by the 

Exchange to provide certified 

application counselor services, or an 

Exchange that chooses to certify 

individual staff members or volunteers 

directly under paragraph (b)(2)(ii) of this 

section, may certify a staff member or 

volunteer to perform the duties 

specified in paragraph (c) of this section 

only if the staff member or volunteer— 

(1) Completes Exchange approved 

training regarding QHP options, 

insurance affordability programs, 

eligibility, and benefits rules and 

regulations governing all insurance 

affordability programs operated in the 

state, as implemented in the state, and 

completes and achieves a passing score 

on all Exchange approved certification 

examinations, prior to functioning as a 

certified application counselor; 

(2) Discloses to the organization, or to 

the Exchange if directly certified by an 

Exchange, and potential applicants any 

relationships the certified application 

counselor or sponsoring agency has 

with QHPs or insurance affordability 

programs, or other potential conflicts of 

interest; 

(3) Complies with the Exchange’s 

privacy and security standards adopted 

consistent with § 155.260, and 

applicable authentication and data 

security standards; 


ehiers on DSK2VPTVN1PROD with RULES_2
42862 Federal Register / Vol. 78, No. 137 / Wednesday, July 17, 2013 / Rules and Regulations 

(4) Agrees to act in the best interest of 

the applicants assisted; 

(5) Either directly or through an 

appropriate referral to a Navigator or 

non-Navigator assistance personnel 

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

or 155.210, or to the Exchange call 

center authorized under § 155.205(a), 

provides information in a manner that is 

accessible to individuals with 

disabilities, as defined by the Americans 

with Disabilities Act, as amended, 42 

U.S.C. 12101 et seq. and section 504 of 

the Rehabilitation Act, as amended, 29 

U.S.C. 794; and 

(6) Enters into an agreement with the 

organization regarding compliance with 

the standards specified in paragraphs 

(d), (f), and (g) of this section. 

(e) Withdrawal of designation and 

certification. (1) The Exchange must 

establish procedures to withdraw 

designation from a particular 

organization it has designated under 

paragraph (b) of this section, when it 

finds noncompliance with the terms and 

conditions of the organization’s 

agreement required by paragraph (b) of 

this section. 

(2) If an Exchange directly certifies 

organizations’ individual certified 

application counselors, it must establish 

procedures to withdraw certification 

from individual certified application 

counselors when it finds 

noncompliance with the requirements 

of this section. 

(3) An organization designated by the 

Exchange under paragraph (b) of this 

section must establish procedures to 

withdraw certification from individual 

certified application counselors when it 

finds noncompliance with the 

requirements of this section. 

(f) Availability of information; 

authorization. An organization 

designated by the Exchange under 

paragraph (b) of this section, or, if 

applicable, an Exchange that certifies 

staff members or volunteers of 

organizations directly must establish 

procedures to ensure that applicants— 

(1) Are informed of the functions and 

responsibilities of certified application 

counselors; and 

(2) Provide authorization prior to a 

certified application counselor 

obtaining access to an applicant’s 

personally identifiable information and 

that the organization or certified 

application counselor maintains a 

record of the authorization provided. 

(3) May revoke at any time the 

authorization provided the certified 

application counselor, pursuant to 

paragraph (f)(2) of this section. 

(g) Fees. Organizations designated by 

the Exchange under paragraph (b) of this 

section and certified application 

counselors may not impose any charge 

on applicants for application or other 

assistance related to the Exchange. 

Dated: June 13, 2013. 

Marilyn Tavenner, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: June 14, 2013. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2013–17125 Filed 7–12–13; 4:15 pm] 

BILLING CODE 4120–01–P 


ehiers on DSK2VPTVN1PROD with RULES_2