76212 Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Rules and Regulations 

DELAWARE’S MOTOR VEHICLE EMISSION BUDGETS FOR THE 1997 ANNUAL PM2.5 NAAQS 

Type of control strategy SIP Year VOC NOX

Attainment Plan (Milestone Year) ................................................................................................ 2009 257 8,448 

Attainment Plan (Out Year) ......................................................................................................... 2012 199 6,273 

[FR Doc. 2013–29803 Filed 12–16–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Parts 147, 155 and 156 

[CMS–9945–IFC] 

RIN 0938–AS17 

Patient Protection and Affordable Care 

Act; Maximizing January 1, 2014 

Coverage Opportunities 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Interim final rule with comment 

period. 

SUMMARY: This interim final rule 

amends the date by which a qualified 

individual must select a qualified health 

plan (QHP) through any Exchange for an 

effective coverage date of January 1, 

2014. This rule generally allows 

consumers to select a QHP until 

December 23, 2013, which is a change 

from the previously stated regulatory 

date of December 15, 2013, but permits 

State Exchanges to select a different 

date. It also establishes a related policy 

regarding the date by which a consumer 

needs to pay any applicable initial 

premium to ensure timely effectuation 

of coverage. This rule pertains to the 

individual market and Small Business 

Health Options Program in both the 

Federally-facilitated Exchanges and 

State Exchanges. This rule does not 

change the plan selection or premium 

payment dates for coverage offered 

outside of the Exchanges. 

DATES: Effective date: These regulations 

are effective on December 15, 2013. 

Comment date: To be assured 

consideration, comments must be 

received at one of the addresses 

provided below, no later than 5 p.m. on 

December 23, 2013. 

ADDRESSES: In commenting, please refer 

to file code CMS–9945–IFC. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed) 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–9945–IFC, P.O. Box 8016, 

Baltimore, MD 21244–8016. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–9945–IFC, 

Mail Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

4. By hand or courier. Alternatively, 

you may deliver (by hand or courier) 

your written comments ONLY to the 

following addresses prior to the close of 

the comment period: 

a. For delivery in Washington, DC— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Room 445–G, Hubert 

H. Humphrey Building, 200 

Independence Avenue SW., 

Washington, DC 20201. 

(Because access to the interior of the 

Hubert H. Humphrey Building is not 

readily available to persons without 

Federal government identification, 

commenters are encouraged to leave 

their comments in the CMS drop slots 

located in the main lobby of the 

building. A stamp-in clock is available 

for persons wishing to retain a proof of 

filing by stamping in and retaining an 

extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, call 

telephone number (410) 786–7195 in 

advance to schedule your arrival with 

one of our staff members. 

Comments erroneously mailed to the 

addresses indicated as appropriate for 

hand or courier delivery may be delayed 

and received after the comment period. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Devon Trolley, (301) 492–4404, for 

questions related to this rule. 

SUPPLEMENTARY INFORMATION: 

Inspection of Public Comments: All 

comments received before the close of 

the comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following Web 

site as soon as possible after they have 

been received: http://regulations.gov. 

Follow the search instructions on that 

Web site to view public comments. 

Comments received timely will be 

also available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, 

Baltimore, Maryland 21244, Monday 

through Friday of each week from 8:30 

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

appointment to view public comments, 

phone 1–800–743–3951. 

Table of Contents 

I. Background 

II. Provisions of the Interim Final Rule 

III. Waiver of Proposed Rulemaking and 

Waiver of Delay in Effective Date 

IV. Collection of Information Requirements 

V. Regulatory Impact Analysis 

I. Background 

The Patient Protection and Affordable 

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

on March 23, 2010. The Health Care and 

Education Reconciliation Act of 2010 

(Pub. L. 111–152), which amended and 

revised several provisions of the Patient 

Protection and Affordable Care Act, was 

enacted on March 30, 2010. In this 

interim final rule, we refer to the two 

statutes collectively as the ‘‘Affordable 

Care Act.’’ 

As of October 2013, for coverage 

starting as soon as January 1, 2014, 

qualified individuals and qualified 

employers have been able to enroll in 

QHPs—private health insurance that has 

been certified as meeting certain 

standards—through competitive 

marketplaces called ‘‘Exchanges’’ or 

‘‘Health Insurance Marketplaces.’’ The 

word ‘‘Exchanges’’ refers to both State 

Exchanges, also called State-based 


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Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Rules and Regulations 76213 

1Patient Protection and Affordable Care Act; 

Establishment of Exchanges and Qualified Health 

Plans; Exchange Standards for Employers, 77 FR 

18310 (March 27, 2012). 

2Patient Protection and Affordable Care Act; 

Health Insurance Market Rules; Rate Review, 78 FR 

13406 (February 27, 2013), hereinafter referred to as 

the Market Reform Rule. 

3Available at: http://www.cms.gov/CCIIO/

Resources/Regulations-and-Guidance/Downloads/

ENR_OperationsPolicyandGuidance_5CR_

100313.pdf. 

Exchanges, and Federally-facilitated 

Exchanges, or ‘‘FFEs.’’ In this interim 

final rule, we use the terms ‘‘State 

Exchange’’ or ‘‘FFE’’ when we are 

referring to a particular type of 

Exchange. When we refer to ‘‘FFEs,’’ we 

are also referring to State Partnership 

Exchanges, which are a form of FFE. We 

use the term ‘‘State-based SHOPs’’ to 

refer to Small Business Health Options 

Programs (SHOPs) operated by a state 

and ‘‘FF–SHOPs’’ to refer to a SHOP 

operated by CMS. 

On March 27, 2012, we published a 

final rule entitled Patient Protection and 

Affordable Care Act; Establishment of 

Exchanges and Qualified Health Plans; 

Exchange Standards for Employers (77 

FR 18310),1 hereinafter referred to as the 

Exchange Establishment Rule. Section 

155.410(c) of the Exchange 

Establishment Rule established the 

effective coverage dates with respect to 

the date by which a qualified individual 

selects a QHP, and outlined basic 

enrollment processes for issuers. For a 

January 1, 2014 effective coverage date, 

§ 155.410(c) provides that a qualified 

individual must select a QHP on or 

before December 15, 2013. Through 

cross references in § 155.725(a)(2) to 

§ 156.260(a)(1) to § 155.410(c), the same 

coverage effective dates are applied to 

the SHOP. Through cross references in 

§ 147.104, the coverage effective dates 

are extended to all non-grandfathered 

health insurance coverage offered in the 

individual and small group markets.2

Section 156.265 establishes enrollment 

processes that QHP issuers must follow 

for qualified individuals, and requires 

QHP issuers to follow the premium 

payment process established by the 

Exchange. However, this section did not 

establish a date by which a premium 

must be paid to effectuate enrollment. 

We issued a draft guidance document 

titled ‘‘Federally-facilitated Marketplace 

Enrollment Operational Policy and 

Guidance’’ 3 (‘‘Draft Enrollment 

Guidance’’) on October 3, 2013, that 

specifies procedural guidance for the 

FFE regarding the enrollment process, 

including the premium payment 

process, some of which is impacted by 

this interim final rule and is referenced 

as appropriate throughout the preamble. 

Since the publication of the Exchange 

Establishment Rule and the Draft 

Enrollment Guidance, there have been 

unforeseen barriers to enrollment in the 

Exchanges. This interim final rule 

includes policy changes aimed at 

allowing additional enrollment 

opportunities for qualified individuals 

and qualified employers seeking January 

1 coverage. Policy clarifications 

regarding premium payment are also 

included. 

II. Provisions of the Interim Final Rule 

A. Part 147—Health Insurance Reform 

Requirements for the Group and 

Individual Health Insurance Markets 

The Exchange Establishment Rule 

outlined an initial open enrollment 

period from October 1, 2013 through 

March 31, 2014 and coverage effective 

dates based on when a plan is selected. 

Through the Market Reform Rule, 

published in the February 27, 2013 

Federal Register (78 FR 13406), the 

coverage effective dates established in 

§ 155.410(c) of the Exchange 

Establishment Rule apply to the entire 

individual and small group health 

insurance markets (except for 

grandfathered health plans). Since the 

provisions of this interim final rule are 

specifically designed to address 

unforeseen barriers to enrollment in 

QHPs offered through the Exchange, we 

do not believe it is necessary to extend 

the plan selection date for coverage 

purchased outside of the Exchange. 

Accordingly, this rule adds regulatory 

text at § 147.104(b)(1)(iii) to make clear 

that, for coverage offered outside an 

Exchange or SHOP, for plan selections 

received on or before December 15, 

2013, coverage must take effect on 

January 1, 2014 and that for plan 

selections received between December 

16th and December 31st, 2013, coverage 

generally must become effective 

February 1, 2014. These amendments 

maintain for individual and small group 

market coverage outside of an Exchange 

or SHOP the plan selection and 

coverage effective dates originally 

finalized in the Exchange Establishment 

Rule. However, we also permit issuers 

to align their plan selection and 

corresponding coverage effective dates 

with those in the applicable Exchange. 

We note that for ease of reference to 

the coverage effective dates in the 

SHOP, we have amended the cross 

reference in § 147.104(b)(1)(i) to refer to 

§ 155.725(a)(2) rather than § 155.725(h). 

B. Part 155—Exchange Establishment 

Standards and Other Related Standards 

Under the Affordable Care Act 

Section 155.410(c) of the Exchange 

Establishment Rule specifically 

provides that an Exchange must ensure 

a January 1, 2014 effective date of 

coverage for any QHP selected by a 

qualified individual on or before 

December 15, 2013. As noted above, the 

reference in § 155.725(a)(2) applies the 

same timeframe to QHPs selected in the 

SHOP. The following changes are made 

to paragraph (c) in this interim final rule 

to amend the dates by which a plan 

must be selected for the individual 

market Exchanges and the SHOPs for 

coverage to be effective January 1, 2014. 

In § 155.410(c)(1)(i), this rule amends 

the regulation text to specify that an 

Exchange must ensure a January 1, 2014 

coverage effective date for plan 

selections received on or before 

December 23, 2013, in contrast to the 

previous regulatory date of December 

15, 2013. This policy applies to the 

various types of plans sold through the 

Exchanges, including SHOP QHPs, 

multi-State plans, and stand-alone 

dental plans. While we do not expect to 

do so, we will consider moving this 

deadline to a later date should 

exceptional circumstances pose barriers 

to consumers enrolling on or before 

December 23, 2013. We note that, if a 

consumer is not able to enroll in a QHP 

with a coverage effective date of January 

1, 2014 due to an error made by the 

Exchange, it would warrant a special 

enrollment period as previously stated 

in § 155.420(d)(4). 

In § 155.410(c)(1)(iii), a conforming 

amendment is made to the regulatory 

text so that standard coverage effective 

dates apply only to plan selections 

starting after January 16, instead of the 

previously stated December 16. This 

means that the schedule of coverage 

effective dates based on plan selection 

will generally resume as previously 

established in § 155.410 in the Exchange 

Establishment Rule starting for plan 

selections made on December 24, 2013 

or later. For example, if a plan selection 

is made between December 24, 2013 and 

January 15, 2014, the coverage effective 

date will be no later than February 1, 

2014, unless the issuer elects to make 

the coverage effective earlier. If a plan 

selection is made between January 16 

and January 31, of 2014, the coverage 

effective date will be March 1, 2014. We 

note that, generally, the dates by which 

an Exchange must ensure coverage 

based on the date of plan selection are 

considered the latest date for 

effectuation; nothing prohibits an issuer 

from establishing coverage effective 


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76214 Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Rules and Regulations 

dates earlier than those listed in 

§ 155.410(c). 

In § 155.410(c)(1)(iv), this interim 

final rule permits a State Exchange or a 

State-based SHOP to establish later plan 

selection dates for coverage that must be 

effective on January 1, 2014. Given the 

varying experiences of State Exchanges 

and SHOPs, we believe that this 

flexibility would avoid any 

inconsistencies with those states that 

may have already extended the plan 

selection date and that may have 

different procedural requirements 

regarding the consumer payment date 

from those applicable in the FFEs and 

FF–SHOPs. Section 155.410(c)(1)(iv) 

also provides that a SHOP can require 

plan selection by as early as December 

15, 2013 to ensure coverage effective 

January 1, 2014, as we understand that 

some State-based SHOPs have already 

established their own deadlines for QHP 

selection or may wish to align plan 

selection dates with the rest of the small 

group market. 

The FF–SHOPs will require issuers to 

ensure a January 1, 2014 coverage date 

for plan selections received on or before 

December 23, 2013, which differs from 

date by which plan selections must be 

received in the small group market 

outside the FF–SHOPs to ensure a 

January 1, 2014 coverage effective date. 

In states with an FF–SHOP, we expect 

issuers to allow a small employer to 

enroll employees in a SHOP QHP on or 

before December 23, 2013 for a January 

1, 2014 coverage effective date if the 

employer has indicated that it is seeking 

SHOP coverage. If the employer 

indicates that it is seeking SHOP 

coverage, the employer would need to 

ensure that issuer has received all 

employee enrollment forms for those 

employees not waiving coverage on or 

before December 23, 2013. Employers 

may indicate their desire to seek SHOP 

coverage by selecting a SHOP QHP, or 

by following any issuer guidance on 

how to make the indication. 

In § 155.410(c)(1)(v), this rule states 

that the Exchange may allow issuers to 

provide for a coverage effective date of 

January 1, 2014 for plan selections 

received after December 23,2013 but on 

or before January 31, 2014, if a QHP 

issuer is willing to accept such 

enrollments. We note that if the QHP 

issuer allows enrollment in January for 

a January 1 coverage effective date, any 

services provided to the enrollee in 

January would need to be covered 

retroactively as if the enrollee had been 

enrolled from January 1. QHP issuers in 

an FFE will have this option, and while 

we understand that late enrollment may 

create challenges for issuers in 

processing the premium payments and 

providing retroactive coverage, we urge 

issuers to consider a January 1, 2014 

coverage effective date for plan 

selections after December 23, 2013 for 

this year, given the newness of the 

enrollment process. 

By moving the plan selection date 

later into December, we believe that 

clarifying the timing of a consumer’s 

payment of premium becomes more 

critical. In the Draft Enrollment 

Guidance, we set forth a process for the 

FFEs that involved any applicable 

initial premium being paid on or before 

the day before the coverage effective 

date. However, given the shorter 

timeframe between plan selection and 

the coverage effective date established 

in this rule for coverage effective on 

January 1, 2014, we desire to both 

provide more flexibility to consumers 

and issuers regarding the payment date 

and to more firmly establish the way in 

which a payment date is established in 

the FFEs. 

Accordingly, this interim final rule 

adds regulatory text at § 156.265(d)(2) to 

establish that a QHP issuer in an FFE 

must establish the date by which a 

qualified individual who has selected a 

QHP within the initial open enrollment 

period must make a premium payment 

in order to effectuate coverage by the 

applicable coverage effective date, 

provided that payment dates are no 

earlier than the last day before the 

coverage effective date and are 

consistently applied to all applicants in 

a non-discriminatory manner. We note 

that this payment date policy applies 

only for the initial open enrollment 

period; we intend to address payment 

policies applicable beyond the initial 

open enrollment period in future 

rulemaking. In addition, this policy 

applies specifically to the FFEs. State 

Exchanges can establish their own 

payment policies. 

We note that QHP issuers in an FFE 

may accept premium payments after 

January 1, 2014 for coverage that would 

be effectuated with a retroactive 

effective date of January 1, 2014, to the 

extent permitted by applicable state law. 

With a later plan selection date, we 

believe that this flexibility will allow 

issuers additional time to process a 

payment and to effectuate enrollments, 

which we think may be helpful if 

consumer activity increases as the plan 

selection date for coverage effective 

January 1, 2014 nears. State Exchanges 

can elect to have the same policy or set 

a different policy for payment cutoff 

dates. 

We recognize that, in the FFEs, the 

flexibility provided to issuers to 

establish premium payment dates and to 

accept payments after a coverage 

effective date of January 1, 2014 will 

require additional flexibility regarding 

the submission of enrollment 

confirmation transactions from QHP 

issuers to the FFEs. The Draft 

Enrollment Guidance outlines a 

procedural timeline that specifies that 

QHP issuers must send enrollment 

confirmation transactions to the FFE by 

the fifth calendar day of the effective 

month of coverage. Instead, the FFEs 

will accept enrollment confirmation 

transactions from QHP issuers for 

coverage beginning on January 1, 2014 

throughout the month of January. 

We note that this interim final rule 

also does not require the full premium 

to be paid to effectuate coverage. For 

example, the Draft Enrollment Guidance 

stated that, in the individual market 

FFEs, QHP issuers could implement a 

premium payment threshold policy. 

QHP issuers electing to establish such a 

policy may effectuate enrollment when 

the enrollee pays an amount less than 

the total amount owed by the enrollee 

but greater than the threshold amount 

established by the issuer. This rule 

provides flexibility to QHP issuers in 

the FFEs to set payment dates, which 

can include a single payment date for 

the full premium or an initial payment 

date for a threshold amount of the 

premium with subsequent payment 

dates for the remaining amounts. 

Payment dates and other enrollment 

procedures would need to be 

consistently applied in a nondiscriminatory manner for all FFE 

enrollees. We note that, while issuers 

may permit less than full payment of the 

applicable premium prior to effectuating 

coverage, the grace period described in 

§ 156.270(d) for enrollees receiving 

advance payments of the premium tax 

credit still requires that at least one full 

month’s premium has been paid. 

Even if an issuer sets a payment date 

for a January 1, 2014 coverage effective 

date beyond December 31, 2013, the 

coverage must take effect January 1, 

2014 as long as the plan selection is 

made by the applicable date, as set forth 

in § 155.410(c) as amended by this 

interim final rule, and payment is made 

by the issuer-established date, 

regardless of when the enrollment 

confirmation transaction is sent to the 

FFE. For QHP issuers in the FFEs that 

accept payments after January 1 for a 

coverage effective date of January 1, 

2014, we note that this rule does not 

establish specific standards related to 

the communication with consumers 

regarding the distribution of welcome 

materials and insurance cards and the 

way in which coverage for any services 

rendered before the enrollment is fully 

processed. However, we note that an 


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Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Rules and Regulations 76215 

4Standards Related to Essential Health Benefits, 

Actuarial Value, and Accreditation Final Rule, 

published in the February 25, 2013 Federal Register 

(78 FR 12834) (EHB Rule). 

5Available at: http://www.cms.gov/CCIIO/

Resources/Regulations-and-Guidance/Downloads/

2014_letter_to_issuers_04052013.pdf. 

effective coverage date of January 1, 

2014 means that the individual must 

receive coverage for any services 

received on or after that date, even if the 

payment and enrollment are not 

processed by that time. 

C. Other Policies to Smooth Transitions 

In addition to the change in coverage 

effective dates outlined in this interim 

final rule, we also strongly encourage 

issuers to take other approaches to ease 

the transition to QHPs for consumers 

who may be switching from other 

coverage. Two areas of focus for a 

smooth transition are access to 

providers and prescription drug 

coverage. 

When shopping for coverage on an 

Exchange, prospective enrollees may 

base QHP selection decisions on 

whether their provider is considered innetwork using the issuer’s online 

provider directory. However, evolving 

provider networks may result in some 

issuer provider directories containing 

outdated information. As a result, an 

enrollee may later discover that his or 

her provider is considered out-ofnetwork. We are concerned that this 

could cause hardship to new QHP 

enrollees in the early months of 

coverage and could disrupt what could 

otherwise be a more seamless transition 

into a QHP. We strongly encourage QHP 

issuers to take any steps possible to ease 

this transition. 

In particular, we interpret the 

requirement at § 156.230(b) that issuers 

make their provider directories for 

QHPs available to the Exchange for 

publication online to mean that issuers 

must make current provider directories 

for QHPs available to the Exchange for 

publication online. Accordingly, issuers 

should ensure that provider directories 

listed with for the QHPs on Exchanges 

contain the most current listing of innetwork providers so that consumers are 

relying upon accurate information to 

make enrollment decisions. 

For those directories that cannot be 

maintained in a current status, we 

believe that it would be reasonable for 

issuers to consider services received 

out-of-network as having been received 

in-network (subject to in-network 

coverage and cost-sharing standards) 

with respect to any provider listed in 

the version of the provider directory as 

of the date of that enrollee’s enrollment 

for the beginning months of coverage. 

We strongly encourage issuers to adopt 

this approach. 

We also encourage issuers to adopt 

policies in January to prevent 

disruptions in treatment of episodes of 

care (for example, considering a 

provider as in the plan’s network for an 

acute episode of care at the start of the 

plan year). Some states like Arkansas 

have adopted policies like this. We are 

considering factoring into the QHP 

renewal process, as part of the 

determination regarding whether 

making a health plan available is in the 

interest of qualified individuals and 

qualified employers, whether 

consumers have up-to-date provider 

directories and how QHPs ensure 

continuity of care during transitions. 

Prescription drug coverage is another 

area where we strongly urge issuers to 

take steps to ensure a smooth transition 

for new QHP enrollees. In the Essential 

Health Benefits Final Rule 4 at 

§ 156.122(c), we established that issuers 

providing EHB must have in place 

procedures that allow enrollees to 

request and gain access to clinically 

appropriate drugs not covered by the 

health plan. We believe that the 

standard for issuers to have a drug 

exceptions process, as established in 

§ 156.122(c), will provide strong 

protections on an ongoing basis to 

enrollees with health needs that require 

drugs that are not on an issuer’s 

formulary, particularly if issuers use the 

process outlined in the 2014 Letter to 

Issuers on Federally-facilitated and 

State Partnership Exchanges.5

However, we are also cognizant that 

new enrollees may be unfamiliar with 

what is covered in their new plan’s 

formulary and the drug exceptions 

process. Also, some enrollees whose 

drugs are covered by a QHP issuer’s 

formulary may need to obtain prior 

authorization or go through step therapy 

in order to have coverage for the drug. 

Since new QHP enrollees may need 

more immediate coverage for drugs they 

have been prescribed and are currently 

taking, we strongly urge QHP issuers to 

temporarily cover non-formulary drugs 

(including drugs that are on a QHP 

issuer’s formulary but require prior 

authorization or step therapy) as if they 

were on formulary (or without imposing 

prior authorization or step therapy 

requirements) during the first 30 days of 

coverage, starting on January 1, 2014. 

While not required, we encourage this 

approach because this policy would 

accommodate the immediate needs of 

QHP enrollees, while allowing the 

issuer and/or the enrollee sufficient 

time to go through the prior 

authorization and/or drug exception 

processes. 

III. Waiver of Proposed Rulemaking 

and Waiver of Delay in Effective Date 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register and invite public comments on 

the proposed rule, typically for 30 days, 

before publishing a final rule that 

responds to comments and sets forth 

final regulations that generally take 

effect at least thirty days later. This 

procedure can be waived, however, if an 

agency finds good cause that a noticeand-comment procedure is 

impracticable, unnecessary, or contrary 

to the public interest and incorporates a 

statement of the finding and its reasons 

in the rule issued. CMS for good cause, 

under 5 U.S.C. 553(b)(B), finds that the 

notice-and-comment requirements of 

the Administrative Procedure Act (APA) 

would be impracticable and contrary to 

the public interest given the unforeseen 

nature of the barriers to enrollment in 

QHPs in the Exchanges and the time 

remaining for individuals to enroll in 

coverage that would be effective January 

1, 2014, as further described below. 

Additionally, section 553(d) of the 

APA (5 U.S.C. 553(d)) ordinarily 

requires that a final rule be effective not 

less than 30 days from the date of their 

publication in the Federal Register. 

This 30-day delay in effective date can 

be waived, however, if otherwise 

provided by an agency for good cause 

found and published with the rule. For 

the reasons set forth below, we also find 

good cause to waive the 30-day delay in 

effective date as unnecessary, 

impracticable and contrary to the public 

interest. 

In this case, given the short timeframe 

under which this change must be 

implemented, delaying the 

promulgation and effectiveness of these 

rules would inhibit the ability of 

Exchanges and QHP issuers to effectuate 

the extended opportunity to enroll in a 

QHP. Exchanges may need to make 

system and process adjustments 

immediately, to ensure that consumers 

have the additional flexibility to submit 

applications and select a plan. We 

consider providing additional time to 

enroll to be a benefit to consumers. The 

need to provide additional 

opportunities for consumers to enroll 

was not clear until a date by which a 30- 

day comment period and 30-day delay 

of the effective date would make it 

impossible to implement on time. If we 

were to open the policy for 30 days of 

public comments and a 30-day delay of 

effective date, the policy would not be 

effective until well beyond January 1, 

2014, which would be contrary to the 

public interest. 


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76216 Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Rules and Regulations 

6Health Insurance Issuers Implementing Medical 

Loss Ratio (MLR) Requirements Under the Patient 

Protection and Affordable Care Act; Interim Final 

Rule, 75 FR 74864, 74918–20 (December 1, 2010) 

(codified at 45 CFR part 158). 7According to SBA size standards, entities with 

average annual receipts of $7 million or less would 

be considered small entities for North American 

Industry Classification System (NAICS) Code 

524114 (Direct Health and Medical Insurance 

Carriers). For more information, see ‘‘Table of Size 

Standards Matched To North American Industry 

Classification System Codes,’’ effective March 26, 

2012, U.S. Small Business Administration, available 

at http://www.sba.gov. 

We note that the Exchange 

Establishment Rule at § 155.410(c)(2) 

provided that an Exchange could 

establish shorter coverage effective date 

timeframes (such as December 23 for 

coverage effective January 1) if, among 

other requirements, the Exchange can 

demonstrate that all participating QHP 

issuers agree to such timeframes. This 

condition would likely be an obstacle if 

CMS were seeking to establish the 

December 23, 2013 date under the 

current regulations. However, CMS has 

the legal authority to, by rulemaking, 

amend the regulation as necessary to 

impose the requirement that issuers 

accept enrollments as late as December 

23 for coverage effective January 1. 

Further, this interim final rule does not 

introduce substantially different 

policies, but instead alters operational 

cutoff dates by about one week. 

Given the unusual circumstances and 

for the reasons outlined above, CMS 

finds good cause under the APA, 5 

U.S.C. 553(b)(B), to waive the 30 day 

comment period in notice-and-comment 

rulemaking and to waive the 30-day 

delay in effective date and proceed 

directly with the issuance of an interim 

final rule with an immediate effective 

date. 

IV. Collection of Information 

Requirements 

This rule does not impose new or 

alter existing information collection and 

recordkeeping requirements. 

Consequently, it need not be reviewed 

by the Office of Management and 

Budget under the authority of the 

Paperwork Reduction Act of 1995. 

V. Regulatory Impact Analysis 

We have examined the impact of this 

interim final rule as required by 

Executive Order 12866 on Regulatory 

Planning and Review (September 30, 

1993) and Executive Order 13563 on 

Improving Regulation and Regulatory 

Review (January 18, 2011), the 

Regulatory Flexibility Act (RFA) 

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

section 202 of the Unfunded Mandates 

Reform Act of 1995 (March 22, 1995; 

Pub. L. 104–4), Executive Order 13132 

on Federalism (August 4, 1999), and the 

Congressional Review Act (5 U.S.C. 

804(2)). 

Executive Orders 12866 and 13563 

direct 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). A regulatory impact analysis 

(RIA) must be prepared for major rules 

with economically significant effects 

($100 million or more in any 1 year). It 

is CMS’s belief that this interim final 

rule does not reach this economic 

threshold and thus is not considered a 

major rule. 

Since the publication of the Exchange 

Establishment Rule, there have been 

unforeseen barriers to enrollment in 

Exchanges. This interim final rule 

provides flexibility to the regulations 

regarding plan selection and the 

effective date of coverage in order to 

allow additional opportunities for 

qualified individuals and qualified 

employers seeking coverage with an 

effective date of coverage on January 1, 

2014. This rule also clarifies that QHP 

issuers in the FFEs can establish 

payment dates no earlier than the day 

before the effective date of coverage. We 

believe that this regulation will benefit 

potential enrollees by giving them more 

time to select a QHP and have their 

coverage become effective by January 1, 

2014. We do not believe these actions 

would impose any significant new costs 

on issuers. 

A. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601, et seq.) (RFA) requires 

agencies to prepare an initial regulatory 

flexibility analysis to describe the 

impact of the rule on small entities, 

unless the head of the agency can certify 

that the rule would not have a 

significant economic 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 

not-for-profit 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.’’ CMS uses 

as its measure of significant economic 

impact on a substantial number of small 

entities a change in revenues of more 

than 3 percent. 

The RFA requires agencies to analyze 

options for regulatory relief of small 

businesses, if a rule has a significant 

impact on a substantial number of small 

entities. For purposes of the RFA, small 

entities include small businesses, 

nonprofit organizations, and small 

government jurisdictions. Small 

businesses are those with sizes below 

thresholds established by the SBA. For 

the purposes of the regulatory flexibility 

analysis, we expect the following types 

of small entities to be affected by this 

interim final rule: (1) QHP issuers. 

As discussed in Health Insurance 

Issuers Implementing Medical Loss 

Ratio (MLR) Requirements Under the 

Patient Protection and Affordable Care 

Act; Interim Final Rule,6 few, if any, 

issuers are small enough to fall below 

the size thresholds for small business 

established by the SBA. In that rule, we 

used a data set created from 2009 NAIC 

Health and Life Blank annual financial 

statement data to develop an updated 

estimate of the number of small entities 

that offer comprehensive major medical 

coverage in the individual and group 

markets. For purposes of that analysis, 

CMS used total Accident and Health 

earned premiums as a proxy for annual 

receipts. We estimated that there are 28 

small entities with less than $7 million 

in accident and health earned premiums 

offering individual or group 

comprehensive major medical 

coverage.7 However, this estimate may 

overstate the actual number of small 

health insurance issuers offering such 

coverage, since it does not include 

receipts from these companies’ other 

lines of business. 

Therefore, we are not preparing an 

analysis for the RFA because we have 

determined, and the Secretary certifies, 

that this interim final rule will not have 

a significant economic impact on a 

substantial number of small entities. 

B. Unfunded Mandates 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

requires that agencies assess anticipated 

costs and benefits and take certain other 

actions before issuing a proposed rule 

(and subsequent final rule) that includes 

any federal mandate that may result in 

expenditures in any one year by a 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 is approximately $141 

million. UMRA does not address the 

total cost of a rule. Rather, it focuses on 

certain categories of costs, 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 


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Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Rules and Regulations 76217 

stringency of conditions in, or 

decreasing the funding of, State, local, 

or tribal governments under entitlement 

programs. 

This interim final rule amends the 

date by which a QHP must be selected 

for an effective date of coverage of 

January 1, 2014. There may be minor 

additional costs for Exchanges to make 

system and process adjustments before 

December 16, 2013, to ensure that 

consumers have the additional 

flexibility to submit applications and 

select a plan. CMS has concluded that 

this rule does not place any mandates 

on state, local, or tribal governments or 

the private sector that exceed the 

threshold for 2013. 

C. Federalism 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

costs on state and local governments, 

preempts state law, or otherwise has 

Federalism implications. There may be 

minor additional costs for States to 

make system and process adjustments 

before December 16, 2013, to ensure that 

consumers have the additional 

flexibility to submit applications and 

select a plan. This rule does not impose 

any costs on state or local governments 

not otherwise imposed by alreadyfinalized provisions of the regulations 

implementing the Affordable Care Act. 

In compliance with the requirement 

of Executive Order 13132 that agencies 

examine closely any policies that may 

have Federalism implications or limit 

the policy-making discretion of the 

states, CMS has engaged in efforts to 

consult with and work cooperatively 

with affected states, including 

participating in conference calls with 

and attending conferences of the NAIC, 

and consulting with state insurance 

officials on an individual basis. We 

believe that this rule does not impose 

substantial direct costs on state and 

local governments, preempt state law, or 

otherwise have federalism implications. 

We are amending the date by which a 

plan may be selected for coverage 

effective January 1, 2014. 

Under the requirements set forth in 

section 8(a) of Executive Order 13132, 

and by the signatures affixed to this 

regulation, the Department of Health 

and Human Services certifies that CMS 

has complied with the requirements of 

Executive Order 13132 for the attached 

interim final rule in a meaningful and 

timely manner. 

In accordance with the provisions of 

Executive Order 12866, this regulation 

was reviewed by the Office of 

Management and Budget. 

D. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801, et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. We will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This interim final 

rule is not a ‘‘major rule’’ as defined by 

5 U.S.C. 804(2). 

List of Subjects 

45 CFR Part 147 

Health care, Health insurance, 

Reporting and recordkeeping 

requirements. 

45 CFR Part 155 

Administrative practice and 

procedure, Health care access, Health 

insurance, Reporting and recordkeeping 

requirements, State and local 

governments, Cost-sharing reductions, 

Advance payments of premium tax 

credit, Administration and calculation 

of advance payments of the premium 

tax credit, Plan variations, Actuarial 

value. 

45 CFR Part 156 

Administrative practice and 

procedure, Advertising, Advisory 

committees, 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, Sunshine 

Act, Technical Assistance, Women, and 

Youth. 

For the reasons set forth in the 

preamble, the Department of Health and 

Human Services amends 45 CFR parts 

147, 155, and 156 as set forth below: 

PART 147—HEALTH INSURANCE 

REFORM REQUIREMENTS FOR THE 

GROUP AND INDIVIDUAL HEALTH 

INSURANCE MARKETS 

■ 1. The authority citation for part 147 

continues to read as follows: 

Authority: Secs. 2701 through 2763, 2791, 

and 2792 of the Public Health Service Act (42 

U.S.C. 300gg through 300gg–63, 300gg–91, 

and 300gg–92), as amended. 

■ 2. Section 147.104 is amended by 

revising the last sentence of paragraphs 

(b)(1)(i) and (b)(1)(ii) and adding 

paragraph (b)(1)(iii) to read as follows: 

§ 147.104 Guaranteed availability of 

coverage. 

* * * * * 

(b) * * * 

(1) * * * 

(i) * * * With respect to coverage in 

the small group market, and in the large 

group market if such coverage is offered 

in a Small Business Health Options 

Program (SHOP) in a state, coverage 

must become effective consistent with 

the dates described in § 155.725(a)(2) of 

this subchapter, except as provided in 

paragraph (b)(1)(iii) of this section. 

(ii) * * * Coverage must become 

effective consistent with the dates 

described in § 155.410(c) and (f) of this 

subchapter, except as provided in 

paragraph (b)(1)(iii) of this section. 

(iii) Exception in certain effective 

dates of coverage. Only with respect to 

coverage offered outside of an Exchange 

or SHOP, for a plan selection received 

by an issuer on or before December 15, 

2013, the issuer must ensure a coverage 

effective date of January 1, 2014, and for 

a plan selection received by an issuer 

between the 16th and 31st of the month 

of December 2013, an issuer generally 

must ensure a coverage effective date of 

February 1, 2014. The preceding 

sentence does not prevent an issuer 

from aligning the plan selection and 

coverage effective dates with those 

required by the Exchange or SHOP, as 

applicable, in the applicable state, 

consistent with § 155.410(c) of this 

subchapter. 

* * * * * 

PART 155—EXCHANGE 

ESTABLISHMENT STANDARDS AND 

OTHER RELATED STANDARDS 

UNDER THE AFFORDABLE CARE ACT 

■ 3. 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, 1332, 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). 


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76218 Federal Register / Vol. 78, No. 242 / Tuesday, December 17, 2013 / Rules and Regulations 

■ 4. Section 155.410 is amended by 

revising paragraph (c)(1) to read as 

follows: 

§ 155.410 Initial and annual open 

enrollment periods. 

* * * * * 

(c) * * * 

(1) Regular effective dates. For a QHP 

selection received by the Exchange from 

a qualified individual— 

(i) On or before December 23, 2013, 

the Exchange must ensure a coverage 

effective date of January 1, 2014. 

(ii) Between the first and fifteenth day 

of any subsequent month during the 

initial open enrollment period, the 

Exchange must ensure a coverage 

effective date of the first day of the 

following month. 

(iii) Between the sixteenth and last 

day of the month for any month 

between January 2014 and March 31, 

2014 or between the twenty-fourth and 

the thirty-first of the month of December 

2013, the Exchange must ensure a 

coverage effective date of the first day of 

the second following month. 

(iv) Notwithstanding the requirement 

of paragraph (c)(1)(i) of this section, an 

Exchange or SHOP operated by a State 

may require a January 1, 2014 effective 

date for plan selection dates later than 

December 23, 2013; a SHOP may also 

establish plan selection dates as early as 

December 15, 2013 for enrollment in 

SHOP QHPs for a January 1, 2014 

coverage effective date. 

(v) Notwithstanding the regular 

effective dates set forth in this section, 

an Exchange may allow issuers to 

provide for a coverage effective date of 

January 1, 2014 for plan selections 

received after December 23, 2013 and on 

or before January 31, 2014, if a QHP 

issuer is willing to accept such 

enrollments. 

* * * * * 

PART 156—HEALTH INSURANCE 

ISSUER STANDARDS UNDER THE 

AFFORDABLE CARE ACT, INCLUDING 

STANDARDS RELATED TO 

EXCHANGES 

■ 5. The authority citation for part 156 

continues to read as follows: 

Authority: Title I of the Affordable Care 

Act, Sections 1301–1304, 1311–1312, 1321, 

1322, 1324, 1334, 1341–1343, and 1401– 

1402, Pub. L. 111–148, 124 Stat. 119 (42 

U.S.C. 18042). 

■ 6. Section 156.265 is amended by 

revising paragraph (d) to read as 

follows: 

§ 156.265 Enrollment process for qualified 

individuals. 

* * * * * 

(d) Premium payment. Regarding 

premium payment, a QHP issuer— 

(1) Must, follow the premium 

payment process established by the 

Exchange in accordance with § 155.240. 

(2) Must, for QHPs offered through a 

Federally-facilitated Exchange, establish 

the date by which a qualified individual 

that has selected a QHP within the 

enrollment period dates in § 155.410(b) 

of this subchapter must make a 

premium payment in order to effectuate 

coverage by the applicable coverage 

effective date, provided that: 

(i) The payment date is no earlier than 

the day before the coverage effective 

date. 

(ii) The payment date policy is 

applied consistently to all applicants in 

a non-discriminatory manner. 

* * * * * 

Dated: December 4, 2013. 

Marilyn Tavenner, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: December 5, 2013. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2013–29918 Filed 12–12–13; 4:15 pm] 

BILLING CODE 4120–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[WC Docket No. 13–39; FCC 13–135] 

Rural Call Completion 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document the Federal 

Communications Commission 

(Commission) improves its ability to 

monitor problems with completing calls 

to rural areas, and enforce restrictions 

against blocking, choking, reducing, or 

restricting calls. The Report and Order 

applies the new rules to providers of 

long-distance voice service that make 

the initial long-distance call path choice 

for more than 100,000 domestic retail 

subscriber lines, counting the total of all 

business and residential fixed 

subscriber lines and mobile phones and 

aggregated over all of the providers’ 

affiliates (referred to herein as ‘‘covered 

providers’’). In most cases, this is the 

calling party’s long-distance provider. 

Covered providers include LECs, 

interexchange carriers (IXCs), 

commercial mobile radio service 

(CMRS) providers, and VoIP service 

providers. These rules do not apply to 

intermediate providers. Covered 

providers must file quarterly reports and 

retain the call detail records for at least 

six calendar months. The Report and 

Order also allows qualifying providers 

to certify that they meet the conditions 

for a Safe Harbor that would reduce 

reporting and retention obligations. In 

addition, the Commission has delegated 

to the Wireline Competition Bureau, in 

consultation with the Enforcement 

Bureau, the authority to act on requests 

from qualified providers for waiver of 

these rules. The Report and Order also 

adopts a rule prohibiting all originating 

and intermediate providers from 

causing audible ringing to be sent to the 

caller before the terminating provider 

has signaled that the called party is 

being alerted. 

DATES: Effective January 16, 2014 except 

for § 64.2201 of the Commission’s rules, 

which will become effective January 31, 

2014, and §§ 64.2103, 64.2105, and 

64.2107 and the information collection 

in paragraph 67 of this Report and 

Order, which contains information 

collection requirements that have not 

been approved by Office of Management 

and Budget. The Federal 

Communications Commission will 

publish a document in the Federal 

Register announcing the effective date 

of §§ 64.2103, 64.2105, and 64.2107. 

FOR FURTHER INFORMATION CONTACT: 

Gregory D. Kwan, Competition Policy 

Division, Wireline Competition Bureau, 

at (202) 418–1191. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order in WC Docket No. 13–39, 

FCC 13–135, released on November 8, 

2013. The complete text of this 

document is available for public 

inspection during regular business 

hours in the FCC Reference Information 

Center, Room CY–A257, 445 12th Street 

SW., Washington, DC 20554. It is also 

available on the Commission’s Web site 

at http://www.fcc.gov. This summarizes 

only the Report and Order in WC Docket 

No. 13–39; A summary of the 

Commission’s Further Notice of 

Proposed Rulemaking in WC Docket No. 

13–39 is published elsewhere in this 

issue of the Federal Register. 

Synopsis of Report and Order 

I. Introduction 

1. In this Order, we adopt rules to 

address significant concerns about 

completion of long-distance calls to 

rural areas. Doing so will help ensure 

that long-distance calls to all 

Americans, including rural Americans, 

are completed. The record in this 

proceeding leaves no doubt that 

completion rates for long-distance calls 


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