Provisions of Final Regulations For the most part, this final rule

incorporates the provisions of the proposed rule. Those provisions of this final rule that differ from the proposed rule are as follows:

Changes to § 144.103

• Adds definitions of ‘‘product’’ and ‘‘plan’’ and clarifies that standards for uniform modification related to benefits and cost sharing apply at the plan-level. Changes to § 146.152

• Applies the definition of uniform modification of coverage and renewal notice requirements to issuers offering coverage in the small group market.

• Indicates that a State may only broaden the uniform modification standard criteria addressing cost-sharing structure and service area.

• Adds language to clarify and amend the term ‘‘pursuant to applicable Federal or State requirements.’’

• Deletes the reference to ‘‘counties’’ in the service area criterion.

Changes to § 146.180

• Adds that an opt-out election for multiple self-funded, non-Federal governmental plans subject to a single collective bargaining agreement must specify each group health plan subject to the agreement.

• Adds that a sponsor submitting opt- out elections for multiple self-funded,

non-Federal governmental plans that are not subject to a collective bargaining agreement, must submit a separate opt- out election document for each such plan.

• Replaces the special rule for timely filings of opt-out elections by U.S. mail with a special rule for timely filings of opt-out elections in electronic format, and provides that if the latest filing date falls on a Saturday, Sunday, or a State or Federal holiday, CMS accepts filings submitted the next business day. Changes to § 147.106

• Applies the definition of uniform modification of coverage and renewal notice requirements only to issuers offering coverage in the individual and small group markets.

• Adds language to clarify and amend the term ‘‘pursuant to applicable Federal or State requirements.’’

• Indicates that a State may only broaden the uniform modification standard criteria addressing cost-sharing structure and service area.

• Deletes the reference to ‘‘counties’’ in the service area criterion.

• Adds that Medicare eligibility or entitlement is not a basis for

nonrenewal or termination of an individual’s health insurance coverage in the individual market.

Changes to § 148.122

• Applies the definition of uniform modification of coverage and renewal notice requirements to issuers offering coverage in the individual market.

• Adds language to clarify and amend the term ‘‘pursuant to applicable Federal or State requirements.’’

• Indicates that a State may only broaden the uniform modification standard criteria addressing cost-sharing structure and service area.

• Deletes the reference to ‘‘counties’’ in the service area criterion.

Changes to § 148.220

• Aligns introductory text with the statutory language.

• Clarifies that, to be an excepted benefit, fixed indemnity insurance in the individual market can be provided only to individuals who attest in their application (1) that they have other health coverage that is minimum essential coverage; or (2). that they are treated as having minimum essential coverage due to their status as a bona fide resident of any possession of the United States pursuant to Code section 5000A(f)(4)(B).

• Clarifies that fixed indemnity insurance pays in a fixed dollar amount per period of hospitalization or illness, per service, or both.

• Requires notice to be displayed in the application for the fixed indemnity insurance (as opposed to the plan materials).

• Adds a new paragraph specifying an applicability date for the minimum essential coverage and notice

requirements to policies issued on or after January 1, 2015. For policies issued before that date, this paragraph also specifies an applicability date for the notice requirement to plan years beginning on or after January 1, 2015, and for the attestation requirement, to plan years beginning on or after October 1, 2016.

Changes to the Allocation of Reinsurance Contributions

• Modifies our allocation of reinsurance collections if those

collections fall short of our estimates for a particular benefit year: we will allocate the reinsurance collections for that benefit year first to the reinsurance payment pool, and second to

administrative expenses and the U.S. Treasury.

Changes to § 155.120

• Makes technical revisions to § 155.120(c) to clarify that organizations must comply with other, non-Exchange, applicable non-discrimination statutes.

• Revises § 155.120(c)(2) to clarify that organizations that limit their provision of certified application counselor services to a defined population under this exception must still comply with the non-

discrimination provisions in paragraph (c)(1)(ii) with respect to the provision of these services to that defined

population.

Changes to § 155.206

• Clarifies that the requirements applicable to consumer assistance entities under this section refer to the applicable Federal regulatory

requirements that have been implemented pursuant to section 1321(a)(1) of the Affordable Care Act, including provisions of any agreements, contracts, and grant terms and

conditions between HHS and the consumer assistance entity that interpret those statutory and regulatory

requirements or establish procedures for compliance with them.

• Clarifies that HHS must provide a written notice to a consumer assistance entity of its investigation, rather than requiring HHS to provide a written notice to an entity each time HHS learns of a potential violation.

• Adds a factor allowing HHS to take into consideration whether other remedies or penalties have been

imposed for the same conduct or occurrence.

• Provides a six-year statute of limitations period.

Changes to § 155.210

• Removes the provision specifying non-Federal standards that prohibit any individual or entity from acting as Navigators that would be eligible to participate under standards applicable to the FFE.

• Renumbers and extends to all Exchanges the provision regarding non- Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to Navigators. Adds specification for requirements that prevent the Exchange’s implementation of the Navigator program consistent with Federal requirements.

• Revises the provision specifying requirements to carry errors and omissions coverage and replaces it with ‘‘any requirement that, in effect, would render all Navigators in the Exchange to be licensed agents and brokers.’’

• Adds that in an FFE, no health care provider individual or entity shall be ineligible to operate as a Navigator solely because it receives consideration from a health insurance issuer for health care services provided.

• Adds that in an FFE, no individual or entity shall be ineligible to operate as a Navigator solely on the basis that it does not maintain its principal place of business in the Exchange service area.

• Moves the provision prohibiting compensation on a per-application, per- individual-assisted, or per-enrollment basis to § 155.215 to apply only in the FFE.

• Adds that gifts, gift cards, or cash may exceed nominal value for the purpose of providing reimbursement for legitimate expenses incurred by a consumer in effort to receive Exchange application assistance, such as, but not limited to, travel or postage expenses.

• Adds that Exchange funds cannot be used to purchase gifts or gift cards, or promotional items that market or promote the products or services of a third party.

• Adds that consumers may be solicited by going door-to-door or other unsolicited means of direct contact, including calling a consumer if there is a pre-existing relationship and other applicable laws are complied with.

• Adds that outreach and education activities may include going door-to- door or other unsolicited means of direct contact, including calling a consumer.

• Adds that automatic telephone dialing system or an artificial or

prerecorded voice may be used to initiate contact consumers if there is a pre-existing relationship and other applicable laws are complied with.

• Changes the requirement to obtain authorization to access a consumer’s personally identifiable information in a form and manner determined by the Secretary to a form and manner determined by the Exchange, adds that the authorization must be retained in a form and manner determined by the Exchange, and clarifies the retention period is no less than six years. Removes explicit reference to Federal regulations at 45 CFR 92.42 and 45 CFR 74.53.

• Clarifies that the duty to provide information in a fair, accurate and impartial manner includes providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application, clarifying the distinctions among QHPs, and helping consumers make informed decisions during the health coverage selection process.

Changes to § 155.215

• Expressly enumerates, rather than incorporates applicable provisions under § 155.210 by reference, the provisions regarding non-Federal standards that would prevent the application of the provisions of title I of the Affordable Care Act as applied to the non-Navigator assistance personnel program subject to § 155.215.

• Removes the provision specifying non-Federal standards that prohibit any individual or entity from acting as non- Navigator assistance personnel subject to § 155.215 that would be eligible to participate under standards applicable to the FFE.

• Extends to all Exchanges the provision regarding non-Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to non-Navigator assistance personnel subject to § 155.215. Adds specification for requirements that prevent the Exchange’s implementation of the non-Navigator assistance program consistent with Federal requirements.

• Adds that in an FFE, no health care provider individual or entity shall be ineligible to operate as non-Navigator assistance personnel solely because it receives consideration from a health insurance issuer for health care services provided.

• Adds that in an FFE, no individual or entity shall be ineligible to operate as non-Navigator assistance personnel solely on the basis that it does not maintain its principal place of business in the Exchange service area.

• Adds a provision prohibiting compensation on a per-application, per- individual-assisted, or per-enrollment basis to § 155.215 to apply only in the Federally-facilitated Exchange.

• Adds an effective date of November 15, 2014 for the prohibition on

compensation on a per-application, per- individual-assisted, or per-enrollment basis.

• Changes the requirement to obtain and maintain authorization to access a consumer’s personally identifiable information in a form and manner determined by the Secretary to a form and manner determined by the Exchange, and clarifies the retention period is no less than six years. Changes to § 155.225

• Adds duty to provide information to individuals and employees about the full range of QHP options and insurance affordability programs for which they are eligible, which includes providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application, clarifying the distinctions among QHPs, and helping consumers make informed decisions during the health coverage selection process.

• Revises provision specifying referrals to third parties not required to act in the best interest of applicants assisted to those not required to provide fair, accurate, and impartial

information.

• Removes the provision specifying non-Federal standards that prohibit any individual or entity from acting as certified application counselors that would be eligible to participate under standards applicable to the FFE.

• Renumbers and extends to all Exchanges the provision regarding non- Federal standards that would, as applied or implemented in a State, prevent the application of Federal requirements applicable to certified application counselors. Adds specification for requirements that prevent the Exchange’s implementation of the certified application counselor program consistent with Federal requirements.

• Adds that in an FFE, no health care provider individual or entity shall be ineligible to operate as certified

application counselors solely because it receives consideration from a health insurance issuer for health care services provided.

• Removes proposed requirement to maintain a physical presence in the Exchange service area. Adds that in an FFE, no individual or entity shall be ineligible to operate as a certified application counselor solely on the

basis that it does not maintain its principal place of business in the Exchange service area.

• Adds that gifts, gift cards, or cash may exceed nominal value for the purpose of providing reimbursement for legitimate expenses incurred by a consumer in effort to receive Exchange application assistance, such as, but not limited to, travel or postage expenses.

• Adds that consumers may be solicited by going door-to-door or other unsolicited means of direct contact, including calling a consumer if there is a pre-existing relationship and other applicable laws are complied with.

• Adds that outreach and education activities may include going door-to- door or other unsolicited means of direct contact, including calling a consumer.

• Adds that automatic telephone dialing system or an artificial or prerecorded voice may be used to initiate contact consumers if there is a pre-existing relationship and other applicable laws are complied with.

• Adds an effective date of November 15, 2014 for the prohibition on

compensation on a per-application, per- individual-assisted, or per-enrollment basis, and limits the application of this provision to certified application counselors in FFEs.

• Adds a requirement to obtain and maintain authorization to access a consumer’s personally identifiable information in a form and manner determined by the Secretary to a form and manner determined by the Exchange, and changes the retention period for the authorization to access a consumer’s personally identifiable information to no less than six years. Changes to § 155.260

• Inserts the numerical penalty amount instead of a reference to section 1411(h) of the Affordable Care Act where the maximum penalty is specified.

Changes to § 156.265

• Revises the provisions proposed in 156.265(d)(1) of the proposed rule as the entire paragraph (d), and removes all 156.265(d)(2), allowing each Exchange to establish its own premium payment dates.

Changes to § 156.270

• Directs that QHP issuers must follow the transaction rules established by the Exchange in accordance with § 155.430(e).

Changes to § 155.285

• Removes the references to sections 1411(h)(1) and (2) of the Affordable Care

Act and instead inserts the numerical maximum penalty amounts.

• Adds a factor allowing HHS to take into consideration whether other remedies or penalties have been imposed for the same conduct or occurrence at § 155.285(b)(1)(viii). Changes to § 155.410

• Clarifies that starting in 2014, the Exchange must provide written notice of annual open enrollment to each enrollee no earlier than the first day of the month before the open enrollment period begins and no later than the first day of the open enrollment period.

Changes to § 155.420

• Clarifies that later coverage effective dates for birth, adoption, placement for adoption, or placement for foster care will be effective the first of the month.

• Clarifies that earlier effective dates are allowed if all issuers in an Exchange agree to effectuate coverage only on the first day of the specified month.

• Adds that consumers may report a move in advance of the date of the move.

• Establishes a special enrollment period for individuals losing medically needy coverage.

Changes to § 155.625

• Clarifies, in paragraphs (a) and (b), that the Exchange may adopt an exemption eligibility determination made by HHS for applications submitted before the start of open enrollment for 2016.

Changes to § 155.705

• Revises the conditions under which a SHOP may permit a one-year

transition to employee choice.

• Adds a time frame for submission of the State Insurance Commissioner’s recommendation that employee choice not be implemented and for the SHOP’s decision based on that recommendation.

• Clarifies that the transitional policy only applies in 2015.

• Revised in 155.705(b)(3)(vi) that options should be singular as one option is available for FF–SHOPs and another for State-based SHOPs

Changes to § 155.725

• Limits the annual employer and employee election period, which begins no sooner than November 15, 2014, so that it applies only in FF–SHOPs. Changes to § 156.122

• Requires a health plan’s exception process to include the ability to expedite the reviews for exigent circumstances.

41_{We estimate 18 State Exchanges (which}

includes Utah’s SHOP) will develop their own processes for recertification. HHS will establish a single process in all FFEs.

Changes to § 156.130

• Removes the annual limitation on deductibles for small group plans. Changes to § 156.1120 and § 156.1125

• Clarifies, for the QRS and the ESS, the distinction between the required level of data submission and collection by QHP issuers, specified by HHS, and the level of public reporting or display by Exchanges.

Changes to § 158.243

• Does not finalize requirements for distribution of de minimis rebates. V. Waiver of Delay in Effective Date

Section 553(d) of the APA (5 U.S.C. 553(d)) requires that a final rule be effective not less than 30 days from the date of its publication in the Federal Register and the Congressional Review Act (5 U.S.C. 801(a)(3)), which requires a 60-day delayed effective date for major rules. 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 find good cause to waive the 30-day delay in effective date in connection with the amendments made in this rule at § 155.705 related to employee choice, because the delay is impracticable and contrary to the public interest.

A 30-day delay in the effectiveness of the amendments made to § 155.705 in this rule would mean that, in States with an FF–SHOP, State Insurance Commissioners could not comply with the deadline to recommend that employee choice not be implemented, and for a SHOP to make a decision based on that recommendation, as set forth in the rule. Pursuant to

§ 155.705(b)(3)(vii), HHS requires that both the State Insurance

Commissioner’s recommendation and the SHOP’s decision be completed prior to the end of the window within which QHPs can submit applications for QHP certification, and that in States with an FF–SHOP, the State Insurance

Commissioner’s recommendations must be submitted on or before June 2, 2014. The QHP certification application window for the FFE is expected to open on May 27, 2014, and is expected to close on June 27, 2014. This would mean that issuers would not know whether employee choice would be available in a State within an FF–SHOP prior to the close of the QHP application window. Accordingly, issuers would be unable to make fully informed decisions about SHOP participation and

appropriate product pricing when compiling and submitting their QHP certification applications, including the

rate information included in their applications. This uncertainty regarding implementation of employee choice potentially could result in fewer QHPs being offered in the State’s FF–SHOP or products being unnecessarily priced higher than necessary, which would negatively affect the small employers that would participate in the FF–SHOP, as well as their employees. In order to avoid these potential harms to small employers and employees, we believe the 30-day delay in the effective date of this provision would be impracticable and contrary to the public interest.

Additionally, it was impracticable for HHS to have proposed this approach sooner. The full scope of the issuer and State concerns about implementing employee choice that motivated the amendments to § 155.705 were not made known to HHS until early 2014.