CMS-10650 IM Agent Broker Privacy and Security Agreement

OMB Control No.: 0938-NEW
Expiration Date: XX/2021
Please carefully read the following Agreement and Appendices, which are incorporated by
reference into the Agreement. By clicking “I Agree” when this option is made available to you,
you understand this constitutes your electronic signature and you accept/agree to be bound by
and abide by the terms and conditions of the Agreement. If you do not want to accept/agree to
the terms and conditions of the Agreement, you must click “I Do Not Agree”.
You can access the Appendices to this Agreement by clicking on the following links:
Appendix A
Appendix B
AGREEMENT BETWEEN AGENT OR BROKER AND THE CENTERS FOR
MEDICARE & MEDICAID SERVICES FOR INDIVIDUAL MARKET FEDERALLYFACILITATED EXCHANGES AND THE STATE-BASED EXCHANGES ON THE
FEDERAL PLATFORM
THIS AGREEMENT (“Agreement”) is entered into by and between THE CENTERS FOR
MEDICARE & MEDICAID SERVICES (“CMS”), as the Party (as defined below) responsible
for the management and oversight of the Federally-facilitated Exchanges* (“FFEs”) and the
Federal eligibility and enrollment platform by the State-based Exchanges on the Federal
Platform** (SBE-FPs), including the CMS Data Services Hub (“Hub”), and the Agent, Broker,
or entity who established this account and whose name appears on the Marketplace Learning
Management System (MLMS) account (hereinafter referred to as “ABE”), and who , among
other things, assists Consumers, Applicants, Qualified Individuals and Enrollees in applying for
Advance Payments of the Premium Tax Credits (“APTCs”) and Cost-sharing Reductions
(“CSRs”) for Qualified Health Plans (“QHPs”), and/or in completing enrollment in QHPs
offered in the individual market through an FFE or SBE-FP, and provides Customer Service
(CMS and ABE hereinafter referred to as “Party”, or collectively, as the “Parties”).
*References to the Federally-facilitated Exchanges equates to the Federally-facilitated
Marketplaces
** References to the State-based Exchanges on the Federal Platform equates to the State-based
Marketplaces on the Federal platform
WHEREAS:
1. Section 1312(e) of the Affordable Care Act (“ACA”) provides that the Secretary of the
U.S. Department of Health and Human Services (“HHS”) shall establish procedures that
permit Agents and Brokers to enroll Qualified Individuals in QHPs through an Exchange,
and to assist individuals in applying for Advance Payments of the Premium Tax Credit
(“APTCs”) and Cost-sharing Reductions (“CSRs”), to the extent allowed by States. To
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participate in an FFE or SBE-FP, Agents and Brokers must complete all necessary
registration and training requirements under 45 CFR 155.220.
2. To facilitate the operation of the FFEs and SBE-FPs, CMS desires to permit ABE to
create, collect, disclose, access, maintain, store, or use their Personally Identifiable
Information (“PII”) from CMS, Consumers, Applicants, Qualified Individuals and
Enrollees, or their legal representative or Authorized Representative, to the extent that
these activities are necessary to carry out the Authorized Functions that the ACA and
implementing regulations permit.
3. ABE is an entity or individual licensed by the applicable State Department of Insurance
(“DOI”) in at least one FFM or SBM-FP state who desires to create, collect, disclose,
access, maintain, store, and use PII from CMS, Consumers, Applicants, Qualified
Individuals and Enrollees to perform the Authorized Functions described in Sections II.a
of this Agreement.
4. 45 CFR 155.260(b) provides that an Exchange must, among other things, require privacy
and security standards that are consistent with the principles in 45 CFR 156.260(a)(1)
through (a)(6), including being at least as protective as the standards the Exchange has
established and implemented for itself under 45 CFR 155.260(a)(3), as a condition of
contract or agreement with Non-Exchange Entities, and ABE is a Non-Exchange Entity.
5. CMS, in the administration of the FFEs and the Hub, as well as the Federal eligibility and
enrollment platform relied upon by SBE-FPs, has adopted privacy and security standards
concerning PII, as set forth in Appendix A, “Privacy and Security Standards and
Implementation Specifications for Non-Exchange Entities.”
Now, therefore, in consideration of the promises and covenants herein contained, the adequacy
of which the Parties acknowledge, the Parties agree as follows.
I.

Definitions.

Capitalized terms not otherwise specifically defined herein shall have the meaning set forth in
the attached Appendix B, “Definitions.” If the term is not defined herein or in the attached
Appendix B, the definition in 45 CFR 155.20 shall apply.
II.

Acceptance of Standard Rules of Conduct.

ABE hereby acknowledges and agrees to accept and abide by the standard rules of conduct set
forth below and in Appendix A, “Privacy and Security Standards and Implementation
Specifications for Non-Exchange Entities,” which is incorporated by reference in this
Agreement, while engaging in any activity as an Agent or Broker for purposes of the facilitating
enrollment through the FFEs or SBE-FPs. ABE shall be bound to strictly adhere to the privacy
and security standards, and to ensure that its Workforce that creates, collects, accesses, stores,
maintains, discloses, or uses PII in the FFEs or SBE-FPs, strictly adhere to the same.
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a. Authorized Functions. ABE may create, collect, disclose, access, maintain, store, and
use PII for:
1. Assisting with applications for QHP eligibility;
2. Supporting QHP selection and enrollment by assisting with plan selection and
plan comparisons;
3. Assisting with applications for the receipt of APTCs or CSRs, and selecting
an APTC amount;
4. Facilitating the collection of standardized attestations acknowledging the
receipt of the APTC or CSR determination, if applicable;
5. Assisting with the application for and determination of certificates of
exemption;
6. Assisting with filing appeals of eligibility determinations in connection with
the FFEs or SBE-FPs;
7. Transmitting information about the Consumer’s, Applicant’s, Qualified
Individual’s, or Enrollee’s decisions regarding QHP enrollment and/or CSR
and APTC information to the FFEs or SBE-FPs;
8. Facilitating payment of the initial premium amount to appropriate QHP;
9. Facilitating an Enrollee’s ability to disenroll from a QHP; and
10. Educating Consumers, Applicants, or Enrollees on insurance affordability
programs, and if applicable, informing such individuals of eligibility for
Medicaid or Children’s Health Insurance Program (CHIP).
11. Assisting an Enrollee’s ability to report changes in eligibility status to the FFE
or SBE-FP throughout the coverage year, including changes that may impact
eligibility (e.g., adding a dependent);
12. Correcting errors in the application for QHP enrollment;
13. Informing or reminding Enrollees when QHP coverage should be renewed,
when Enrollees may no longer be eligible to maintain their current QHP
coverage because of age, or to inform Enrollees of coverage QHP options at
renewal;
14. Providing appropriate information, materials, and programs to inform and
educate Consumers, Applicants, Qualified Individuals, and Enrollees about
the use and management of their health information and services and options
offered through the selected QHP and among the available QHP options;
15. Contacting Consumers, Applicants, Qualified Individuals, and Enrollees to
assess their satisfaction or resolve complaints with services provided by ABE
in connection with the FFEs, SBE-FPs or QHPs;
16. Providing assistance in communicating with QHP Issuers;
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17. Carrying out ABE’s legal responsibilities related to QHP Issuer functions in
the FFEs or SBE-FPs, as permitted or required by ABE’s contractual
relationships with QHP Issuers; and
18. Other functions substantially similar to those enumerated above and such
other functions that shall may be approved by CMS in writing from time to
time.
b. PII Received. Subject to the terms and conditions of this Agreement and applicable
laws, in performing the tasks contemplated under this Agreement, ABE may create,
collect, disclose, access, maintain, store, and use the following data and PII from
Consumers, Applicants, Qualified Individuals, and Enrollees, or these individuals’
legal representative or Authorized Representative, including but not limited to:
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APTC percentage and amount applied
Auto disenrollment information
Applicant Name
Applicant Address
Applicant Birthdate
Applicant Telephone number
Applicant Email
Applicant Social Security Number
Applicant spoken and written language preference
Applicant Medicaid Eligibility indicator, start and end dates
Applicant CHIP eligibility indicator, start and end dates
Applicant QHP eligibility indicator, start and end dates
Applicant APTC percentage and amount applied eligibility indicator, start and
end dates
Applicant household income
Applicant Maximum APTC amount
Applicant CSR eligibility indicator, start and end dates
Applicant CSR level
Applicant QHP eligibility status change
Applicant APTC eligibility status change
Applicant CSR eligibility status change
Applicant Initial or Annual Open Enrollment Indicator, start and end dates
Applicant Special Enrollment Period eligibility indicator and reason code
Contact Name
Contact Address
Contact Birthdate
Contact Telephone number
Contact Email
Contact spoken and written language preference
Enrollment group history (past six months)
Enrollment type period
FFE Applicant ID

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•
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FFE Member ID
Issuer Member ID
Net premium amount
Premium Amount, start and end dates
Credit or Debit Card Number, Name on Card
Checking account and routing number
Special enrollment period reason
Subscriber Indicator and relationship to subscriber
Tobacco use indicator and last date of tobacco use
Custodial parent
Health coverage
American Indian/Alaska Native status and name of tribe
Marital status
Race/ethnicity
Requesting financial assistance
Responsible person
Applicant/Employee/dependent sex name
Student status
Subscriber indicator and relationship to subscriber
Total individual responsibility amount

c. Collection of PII. PII collected from Consumers, Applicants, Qualified Individuals, or
Enrollees, or these individuals’ legal representative or Authorized Representative, in
the context of completing an application for QHP, APTC or CSR eligibility, or any
data transmitted from or through the Hub, may be used only for the Authorized
Functions specified in Section II.a of this Agreement. Such information may not be
reused for any other purpose.
d. Collection and Use of Information Provided Under Other Authorities. This
Agreement does not preclude ABE from separately collecting information from
Consumers, Applicants, Qualified Individuals, or Enrollees, or their legal
representative or Authorized Representative, for a non-FFE/non-SBE-FP/non-Hub
purpose, and using, reusing, and disclosing such non-FFE/non-SBE-FP/non-Hub
information obtained separately as permitted by applicable law and/or other
applicable authorities. Such information must be separately collected and stored from
any PII collected in accordance with Section II.c of this Agreement.
e. Ability of Consumer to Limit Collection and Use. ABE agrees to allow the
Consumer, Applicant, Qualified Individual or Enrollee, or these individuals’ legal
representative or Authorized Representative, to limit the ABE’s creation, collection,
use, maintenance, storage, and disclosure of their PII to the sole purpose of obtaining
ABE’s assistance in applying for QHP, APTC or CSR eligibility, and for performing
Authorized Functions specified in Section II.a of this Agreement.
III.

Effective Date; Term and Renewal.
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a. Effective Date and Term. This Agreement becomes effective on the date that ABE
electronically executes this Agreement and ends on the day before the first day of the
open enrollment period under 45 CFR 155.410(e)(2) for the benefit year beginning
January 1, 2018.
b. Renewal. This Agreement may be renewed in the sole and absolute discretion of
CMS for subsequent and consecutive one (1) year periods upon thirty (30) Days’
advance written notice to ABE.
IV.

Termination.
a. Termination without Cause. Either Party may terminate this Agreement without cause
and for its convenience upon thirty (30) Days’ prior written notice to the other Party.
Consistent with 45 CFR 155.220(f), ABE must include the intended date of
termination in its notice. If a date is not specified, or the date is not acceptable to
CMS, CMS may set a different termination date that is no less than 30 days from the
date on the ABE’s notice of termination. This Agreement shall automatically
terminate at the end of its term (unless renewed as provided for in Section III.b. of
this Agreement) or in connection with the rejection of an amendment as provided for
in Section VI.i. of this Agreement.
b. Termination for Cause. The termination of this Agreement for cause and the
reconsideration of any such termination shall be governed by the termination and
reconsideration standards adopted by the FFE under 45 CFR 155.220(g).
Notwithstanding the foregoing, ABE shall be considered in "Habitual Default" of this
Agreement in the event that it has been served with a non-compliance notice under 45
CFR 155.220(g) more than three (3) times in any calendar year, whereupon CMS
may, in its sole discretion, immediately thereafter terminate this Agreement upon
notice to ABE without any further opportunity to resolve the breach and/or noncompliance.
c. Termination for Failure to Maintain Valid State Licensure. ABE acknowledges and
agrees that valid state licensure in each state in which ABE assists Consumers,
Applicants, Qualified Individuals, or Enrollees in applying for or obtaining coverage
under a qualified health plan through an FFE or SBE-FP is a precondition to ABE’s
authority under this Agreement. Accordingly, CMS may terminate this Agreement
upon thirty (30) Days’ prior written notice if ABE fails to maintain valid licensure in
at least one FFE or SBE-FP state and in each state that ABE facilitates enrollment in a
QHP through an FFE or SBE-FP. Any such termination shall be governed by the
termination and reconsideration standards adopted by the FFE under 45 CFR
155.220(g).

V.

Destruction of PII.
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ABE covenants and agrees to destroy all PII in its possession at the end of the record
retention period required under Appendix A. If, upon the termination or expiration of this
Agreement, ABE has in its possession PII for which no retention period is specified in
Appendix A, such PII shall be destroyed within 30 Days of the termination or expiration
of this Agreement. ABE’s duty to protect and maintain the privacy and security of PII, as
provided for in Appendix A of this Agreement, shall continue in full force and effect until
such PII is destroyed and shall survive the termination or expiration of this Agreement.
VI.

Miscellaneous.
a. Notice. All notices specifically required under this Agreement shall be given in
writing and shall be delivered as follows:
If to CMS:
Centers for Medicare & Medicaid Services (CMS)
Center for Consumer Information & Insurance Oversight (CCIIO)
Attn: Office of the Director
Room 739H
200 Independence Avenue, SW
Washington, DC 20201
If to ABE, to ABE’S address on record.
Notices sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by facsimile
shall be deemed to have been given when the appropriate confirmation of receipt has
been received; provided, that notices not given on a business day (i.e., Monday –
Friday excluding Federal holidays) between 9:00 a.m. and 5:00 p.m. local time where
the recipient is located shall be deemed to have been given at 9:00 a.m. on the next
business day for the recipient. Either Party to this Agreement may change its contact
information for notices and other communications by providing 30 Days’ written
notice of such change in accordance with this provision.
b. Assignment and Subcontracting. ABE shall not assign this Agreement in whole or in
part, whether by merger, acquisition, consolidation, reorganization or otherwise, nor
subcontract any portion of the services to be provided by ABE under this Agreement,
nor otherwise delegate any of its obligations under this Agreement, without the
express, prior written consent of CMS, which consent may be withheld, conditioned,
granted or denied in CMS’s sole and absolute discretion. ABE further shall not assign
this Agreement or any of its rights or obligations hereunder without the prior written
consent of CMS. If ABE attempts to make an assignment, subcontract its service
obligations or otherwise delegate its obligations hereunder in violation of this
provision, such assignment, subcontract or delegation shall be deemed void ab initio
and of no force or effect, and ABE shall remain legally bound hereto and responsible
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for all obligations under this Agreement. ABE shall further be thereafter subject to
such compliance actions as may otherwise be provided for under applicable law.
c. Survival. ABE’s duty to protect and maintain the privacy and security of PII under
this Agreement shall survive the expiration or earlier termination of this Agreement.
d. Severability. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement. In the event that any provision of this Agreement is determined to be
invalid, unenforceable or otherwise illegal, such provision shall be deemed restated,
in accordance with applicable law, to reflect as nearly as possible the original
intention of the parties, and the remainder of the Agreement shall be in full force and
effect.
e. Disclaimer of Joint Venture. Neither this Agreement nor the activities of ABE
contemplated by and under this Agreement shall be deemed or construed to create in
any way any partnership, joint venture or agency relationship between the
Parties. Neither Party is, nor shall either Party hold itself out to be, vested with any
power or right to bind the other Party contractually or to act on behalf of the other
Party, except to the extent expressly set forth in ACA and the regulations codified
thereunder, including as codified at 45 CFR part 155.
f. Remedies Cumulative. No remedy herein conferred upon or reserved to CMS under
this Agreement is intended to be exclusive of any other remedy or remedies available
to CMS under operative law and regulation, and each and every such remedy, to the
extent permitted by law, shall be cumulative and in addition to any other remedy now
or hereafter existing at law or in equity or otherwise.
g. Compliance with Law. ABE covenants and agrees to comply with any and all
applicable laws, statutes, regulations or ordinances of the United States of America,
and any Federal Government agency, board or court, that are applicable to the
conduct of the activities that are the subject of this Agreement, including but not
necessarily limited to, any additional and applicable standards required by statute, and
any regulations or policies implementing or interpreting such statutory provisions
hereafter issued by CMS. In the event of a conflict between the terms of this
Agreement and, any statutory, regulatory, or sub-regulatory guidance released by
CMS, the requirement which constitutes the stricter, higher or more stringent level of
compliance shall control.
h. Governing Law. This Agreement will be governed by the laws and common law of
the United States of America, including without limitation such regulations as may be
promulgated from time to time by HHS or any of its constituent agencies, without
regard to any conflict of laws statutes or rules. ABE further agrees and consents to the
jurisdiction of the Federal Courts located within the District of Columbia and the
courts of appeal therefrom, and waives any claim of lack of jurisdiction or forum non
conveniens.
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i. Amendment. CMS may amend this Agreement for purposes of reflecting changes in
applicable law or regulations, with such amendments taking effect upon thirty (30)Days’ written notice to ABE (“CMS notice period”). Any amendments made under
this provision will only have prospective effect and will not be applied
retrospectively. ABE may reject such amendment, by providing to CMS, during the
CMS notice period, thirty (30)-Days’ written notice of its intent to reject the
amendment (“rejection notice period”). Any such rejection of an amendment made by
CMS shall result in the termination of this Agreement upon expiration of the rejection
notice period.
j. Audit. ABE agrees that CMS, the Comptroller General, the Office of the Inspector
General of HHS or their designees have the right to audit, inspect, evaluate, examine,
and make excerpts, transcripts, and copies of any books, records, documents, and
other evidence of ABE compliance with the requirements of this Agreement, upon
reasonable notice to ABE and during ABE’s regular business hours and at ABE’s
regular business location. ABE further agrees to allow reasonable access to the
information and facilities requested by CMS, the Comptroller General, the Office of
the Inspector General of HHS or their designees for the purpose of such an audit.

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Accept Privacy and Security Agreement
Do you agree to accept the privacy and security terms and conditions of the Agreement
between Agent or Broker and CMS for the Federally-facilitated Exchange and State-Based
Exchange on the Federal Platform Individual Market?
Select “I Agree” to provide your electronic signature.
Select your response and then click Submit. After you have submitted your response, please
close the window by clicking 'Exit' in the upper right corner. This will ensure that your response
is entered successfully.
I Agree
I Do Not Agree
Correct Answer:
You have accepted the terms and conditions of the Agreement between Agent or Broker and
CMS for the Federally-facilitated Exchange and State-Based Exchange on the Federal Platform
Individual Market. Your records will be updated accordingly to reflect your electronic signature.
Incorrect Answer:
You have not accepted the terms and conditions of the Agreement between Agent or Broker and
CMS for the Federally-facilitated Exchange and the State-based Exchange on the Federal
Platform Individual Market. As a result, you will not be registered as an agent or broker in the
Federally-facilitated Marketplaces or the State-based Marketplaces on the Federal Platform for
the Individual Marketplace.

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APPENDIX A
PRIVACY AND SECURITY STANDARDS
AND
IMPLEMENTATION SPECIFICATIONS FOR NON-EXCHANGE ENTITIES
Statement of Applicability:
These standards and implementation specifications are established in accordance with Section
1411(g) of the Affordable Care Act (42 U.S.C. § 18081(g)) and 45 CFR 155.260. Capitalized
terms not otherwise specifically defined herein shall have the meaning assigned in Appendix B,
“Definitions.” If the term isn’t defined herein or in Appendix B, the definition in 45 CFR 155.20
shall apply.
The standards and implementation specifications that are set forth in this Appendix A are
consistent with the principles in 45 CFR 155.260(a)(1) through (a)(6), including being at least as
protective as the privacy and security standards and implementation specifications that we have
established for the Federally-Facilitated Exchanges (“FFEs”).
The FFEs will enter into contractual agreements with all Non-Exchange Entities that gain access
to Personally Identifiable Information (“PII”) exchanged with the FFEs or SBE-FPs, or directly
from Consumers, Applicants, Qualified Individuals, Enrollees, Qualified Employees, and
Qualified Employers, or these individuals’ legal representatives or Authorized Representatives.
That agreement and its appendices, including this Appendix A, govern any PII that is created,
collected, disclosed, accessed, maintained, stored, or used by Non-Exchange Entities in the
context of an FFE or SBE-FP. In signing that contractual agreement, in which this Appendix A
has been incorporated, Non-Exchange Entities agree to comply with the standards and
implementation specifications laid out in this document and the applicable standards, controls,
and applicable implementation specifications within the privacy and security standards as
established by the FFEs under 155.260(a)(3) and as applicable to non-Exchange entities under
155.260(b)(3) while performing the Authorized Functions outlined in their respective
agreements.

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NON-EXCHANGE ENTITY PRIVACY AND SECURITY STANDARDS AND
IMPLEMENTATION SPECIFICATIONS
Non-Exchange Entities must meet the following privacy and security standards.
(1) Individual Access to PII: In keeping with the standards and implementation specifications
used by the FFE, Non-Exchange Entities that maintain and/or store PII must provide
Consumers, Applicants, Qualified Individuals, Enrollees, Qualified Employees, and
Qualified Employers, or these individuals’ legal representatives and Authorized
Representatives, with a simple and timely means of appropriately accessing PII pertaining to
them and/or the person they represent in a physical or electronic readable form and format.
a. Standard: Non-Exchange Entities that maintain and/or store PII must implement
policies and procedures that provide access to PII upon request.
i. Implementation Specifications:
1. Access rights must apply to any PII that is created, collected,
disclosed, accessed, maintained, stored, and used by the NonExchange Entity to perform any of the Authorized Functions outlined
in their respective agreements with CMS.
2. The release of electronic documents containing PII through any
electronic means of communication (e.g., e-mail, web portal) must
meet the verification requirements for the release of “written
documents” in Section (5)b. below.
3. Persons legally authorized to act on behalf of the Consumers,
Applicants, Qualified Individuals, Enrollees, Qualified Employees,
and Qualified Employers regarding their PII, including individuals
acting under an appropriate power of attorney that complies with
applicable state and federal law, must be granted access in accordance
with their legal authority. Such access would generally be expected to
be coextensive with the degree of access available to the Subject
Individual.
4. At the time the request is made, the Consumer, Applicant, Qualified
Individual, Enrollee, or these individuals’ legal representatives or
Authorized Representatives should generally be required to specify
which PII he or she would like access to. The Non-Exchange Entity
may assist them in determining their Information or data needs if such
assistance is requested.
5. Subject to paragraphs (1)a.i.6. and 7. below, Non-Exchange Entities
generally must provide access to the PII in the form or format
requested, if it is readily producible in such form or format.
6. The Non-Exchange Entity may charge a fee only to recoup their costs
for labor for copying the PII, supplies for creating a paper copy or a
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copy on electronic media, postage if the PII is mailed, or any costs for
preparing an explanation or summary of the PII if the recipients has
requested and/or agreed to receive such summary. If such fees are
paid, the Non-Exchange Entity must provide the requested copies in
accordance with any other applicable standards and implementation
specifications.
7. A Non-Exchange Entity that receives a request for notification of, or
access to PII must verify the requestor’s identity in accordance with
Section (5)b. below.
8. A Non-Exchange Entity must complete its review of a request for
access or notification (and grant or deny said notification and/or
access) within 30 days of receipt of the notification and/or access
request.
9. Except as otherwise provided in (1)a.i.10., if the requested PII cannot
be produced, the Non-Exchange Entity must provide an explanation
for its denial of the notification or access request, and, if applicable,
information regarding the availability of any appeal procedures,
including the appropriate appeal authority’s name, title, and contact
information.
10. Unreviewable grounds for denial. Non-Exchange Entities may deny
access to PII that they maintain or store without providing an
opportunity for review, in the following circumstances:
A. If the PII was obtained or created solely for use in legal
proceedings;
B. If the PII is contained in records that are subject to a law that
either permits withholding the PII or bars the release of such
PII.
(2) Openness and Transparency. In keeping with the standards and implementation
specifications used by the FFE, Non-Exchange Entities must ensure openness and
transparency about policies, procedures, and technologies that directly affect Consumers,
Applicants, Qualified Individuals, Enrollees, Qualified Employers, and Qualified Employees,
and their PII.
a. Standard: Privacy Notice Statement. Prior to collecting PII, the Non-Exchange
Entity must provide a notice that is prominently and conspicuously displayed on a
public facing Web site, if applicable, or on the electronic and/or paper form the
Non-Exchange Entity will use to gather and/or request PII.
i. Implementation Specifications.
1. The statement must be written in plain language and provided in a
manner that is accessible and timely to people living with
disabilities and with limited English proficiency.
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2. The statement must contain at a minimum the following
information:
A.
B.
C.
D.

Legal authority to collect PII;
Purpose of the information collection;
To whom PII might be disclosed, and for what purposes;
Authorized uses and disclosures of any collected
information;
E. Whether the request to collect PII is voluntary or
mandatory under the applicable law;
F. Effects of non-disclosure if an individual chooses not to
provide the requested information.

3. The Non-Exchange Entity shall maintain its Privacy Notice
Statement content by reviewing and revising as necessary on an
annual basis, at a minimum, and before or as soon as possible after
any change to its privacy policies and procedures.
If the Non-Exchange Entity operates a Web site, it shall ensure that descriptions of its privacy
and security practices, and information on how to file complaints with CMS and the NonExchange Entity, are publicly available through its Web site.
(3) Individual choice. In keeping with the standards and implementation specifications used by
the FFE, Non-Exchange Entities should ensure that Consumers, Applicants, Qualified
Individuals, Enrollees, Qualified Employees, and Qualified Employers, or these individuals’
legal representatives or Authorized Representatives, are provided a reasonable opportunity
and capability to make informed decisions about the creation, collection, disclosure, access,
maintenance, storage, and use of their PII.
a. Standard: Informed Consent. The Non-Exchange Entity may create, collect, disclose,
access, maintain, store, and use PII from Consumers, Applicants, Qualified
Individuals, Enrollees, or these individuals’ legal representatives or Authorized
Representatives, only for the functions and purposes listed in the Privacy Notice
Statement and any relevant agreements in effect as of the time the information is
collected, unless the FFE, SBE-FP or Non-Exchange Entity obtains informed consent
from such individuals.
i. Implementation specifications:
1. The Non-Exchange Entity must obtain informed consent from
individuals for any use or disclosure of information that is not
permissible within the scope of the Privacy Notice Statement and any
relevant agreements that were in effect as of the time the PII was
collected. Such consent must be subject to a right of revocation.
2. Any such consent that serves as the basis of a use or disclosure must:
A. Be provided in specific terms and in plain language;
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B. Identify the entity collecting or using the PII, and/or making
the disclosure;
C. Identify the specific collections, use(s), and disclosure(s) of
specified PII with respect to a specific recipient(s);
D. Provide notice of an individual’s ability to revoke the consent
at any time.
3. Consent documents must be appropriately secured and retained for 10
years.
(4) Creation, collection, disclosure, access, maintenance, storage, and use limitations. In
keeping with the standards and implementation specifications used by the FFE, NonExchange Entities must ensure that PII is only created, collected, disclosed, accessed,
maintained, stored, and used, to the extent necessary to accomplish a specified purpose(s) in
the contractual agreement and any appendices. Such information shall never be used to
discriminate against a Consumer, Applicant, Qualified Individual, Enrollee, Qualified
Employee, or Qualified Employer.
a. Standard: Other than in accordance with the consent procedures outlined above, the
Non-Exchange Entity shall only create, collect, disclose, access, maintain, store, and
use PII:
i. To the extent necessary to ensure the efficient operation of the Exchange;
ii. In accordance with its published Privacy Notice Statement and any applicable
agreements that were in effect at the time the PII was collected, including the
consent procedures outlined above in Section (3) above; and/or
iii. In accordance with the permissible functions outlined in the regulations and
agreements between CMS and the Non-Exchange Entity.
b. Standard: Non-discrimination. The Non-Exchange Entity should, to the greatest
extent practicable, collect PII directly from the Consumer, Applicant, Qualified
Individual, Enrollee, Qualified Employee, or Qualified Employer, when the
information may result in adverse determinations about benefits.
c. Standard: Prohibited uses and disclosures of PII
i. Implementation Specifications:
1. The Non-Exchange Entity shall not request Information regarding
citizenship, status as a national, or immigration status for an individual
who is not seeking coverage for himself or herself on any application.
2. The Non-Exchange Entity shall not require an individual who is not
seeking coverage for himself or herself to provide a Social Security
number (SSN), except if an Applicant’s eligibility is reliant on a tax
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filer’s tax return and their SSN is relevant to verification of household
income and family size.
3. The Non-Exchange Entity shall not use PII to discriminate, including
employing marketing practices or benefit designs that will have the
effect of discouraging the enrollment of individuals with significant
health needs in QHPs.
(5) Data quality and integrity. In keeping with the standards and implementation specifications
used by the FFE, Non-Exchange Entities should take reasonable steps to ensure that PII is
complete, accurate, and up-to-date to the extent such data is necessary for the Non-Exchange
Entity’s intended use of such data, and that such data has not been altered or destroyed in an
unauthorized manner, thereby ensuring the confidentiality, integrity, and availability of PII.
a. Standard: Right to Amend, Correct, Substitute, or Delete PII. In keeping with the
standards and implementation specifications used by the FFEs and SBE-FPs, NonExchange Entities must offer Consumers, Applicants, Qualified Individuals,
Enrollees, Qualified Employees, and Qualified Employers, or these individuals’ legal
representatives or Authorized Representatives, an opportunity to request amendment,
correction, substitution, or deletion of PII maintained and/or stored by the NonExchange Entity if such individual believes that the PII is not accurate, timely,
complete, relevant, or necessary to accomplish an Exchange-related function, except
where the Information questioned originated from other sources, in which case the
individual should contact the originating source.
i. Implementation Specifications:
1. Such individuals shall be provided with instructions as to how they
should address their requests to the Non-Exchange Entity’s
Responsible Official, in writing or telephonically. They may also be
offered an opportunity to meet with such individual or their delegate(s)
in person.
2. Such individuals shall be instructed to specify the following in each
request:
A. The PII they wish to correct, amend, substitute or delete;
B. The reasons for requesting such correction, amendment,
substitution, or deletion, along with any supporting justification
or evidence.
3. Such requests must be granted or denied within no more than 10
working days of receipt.
4. If the Non-Exchange Entity (or their delegate) reviews these materials
and ultimately agrees that the identified PII is not accurate, timely,
complete, relevant or necessary to accomplish the function for which
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the PII was obtained/provided, the PII should be corrected, amended,
substituted, or deleted in accordance with applicable law.
5. If the Non-Exchange Entity (or their delegate) reviews these materials
and ultimately does not agree that the PII should be corrected,
amended, substituted, or deleted, the requestor shall be informed in
writing of the denial, and, if applicable, the availability of any appeal
procedures. If available, the notification must identify the appropriate
appeal authority including that authority’s name, title, and contact
information.
b. Standard: Verification of Identity for Requests to Amend, Correct, Substitute or
Delete PII. In keeping with the standards and implementation specifications used by
the FFE, Non-Exchange Entities that maintain and/or store PII must develop and
implement policies and procedures to verify the identity of any person who requests
access to; notification of; or amendment, correction, substitution, or deletion of PII
that is maintained by or for the Non-Exchange Entity. This includes confirmation of
an individuals’ legal or personal authority to access; receive notification of; or seek
amendment, correction, substitution, or deletion of a Consumer’s, Applicant’s,
Qualified Individuals’, Enrollee’s, Qualified Employee’s, or Qualified Employer’s
PII.
i. Implementation Specifications:
1. The requester must submit through mail, via an electronic upload
process, or in-person to the Non-Exchange Entity’s Responsible
Official, a copy of one of the following government-issued
identification: a driver’s license, school identification card, voter
registration card, U.S. military card or draft record, identification card
issued by the federal, state or local government, including a U.S.
passport, military dependent’s identification card, Native American
tribal document, or U.S. Coast Guard Merchant Mariner card.
2. If such requester cannot provide a copy of one of these documents, he
or she can submit two of the following documents that corroborate one
another: a birth certificate, Social Security card, marriage certificate,
divorce decree, employer identification card, high school or college
diploma, and/or property deed or title.
c. Standard: Accounting for Disclosures. Except for those disclosures made to the
Non-Exchange Entity’s Workforce who have a need for the record in the performance
of their duties; and the disclosures that are necessary to carry out the required
functions of the Non-Exchange Entity, Non-Exchange Entities that maintain and/or
store PII shall maintain an accounting of any and all disclosures.
i. Implementation Specifications:
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1. The accounting shall contain the date, nature, and purpose of such
disclosures, and the name and address of the person or agency to
whom the disclosure is made
2. The accounting shall be retained for at least 10 years after the
disclosure, or the life of the record, whichever is longer.
3. Notwithstanding exceptions in Section (1)a.10, this accounting shall be
available to Consumers, Applicants, Qualified Individuals, Enrollees,
Qualified Employees, Qualified Employers, or these individuals’ legal
representatives or Authorized Representatives, on their request per the
procedures outlined under the access standards in Section (1) above.
(6) Accountability. In keeping with the standards and implementation specifications used by the
FFE, Non-Exchange Entities should adopt and implement the privacy and security standards
as established by the FFE under 155.260(a)(3) and as applicable to non-Exchange entities
under 155.260(b)(3), in a manner that ensures appropriate monitoring and other means and
methods to identify and report Incidents and/or Breaches.
a. Standard: Reporting. The Non-Exchange Entity must implement Breach and
Incident handling procedures that are consistent with CMS’ Incident and Breach
Notification Procedures 1 and memorialized in the Non-Exchange Entity’s own
written policies and procedures. Such policies and procedures would:
i. Identify the Non-Exchange Entity’s Designated Privacy Official, if applicable,
and/or identify other personnel authorized to access PII and responsible for
reporting and managing Incidents or Breaches to CMS.
ii. Provide details regarding the identification, response, recovery, and follow-up
of Incidents and Breaches, which should include information regarding the
potential need for CMS to immediately suspend or revoke access to the Hub
for containment purposes; and
iii. Require reporting any Incident or Breach of PII to the CMS IT Service Desk
by telephone at (410) 786-2580 or 1-800-562-1963 or via email notification at
[email protected] within one hour of discovery.
b. Standard: Standard Operating Procedures. The Non-Exchange Entity shall
incorporate privacy and security standards and implementation specifications, where
appropriate, in its standard operating procedures that are associated with functions
involving the creation, collection, disclosure, access, maintenance, storage, or use of
PII.
i. Implementation Specifications:
1

Available at http://www.cms.gov/Research-Statistics-Data-and-Systems/CMS-InformationTechnology/InformationSecurity/Downloads/RMH_VIII_7-1_Incident_Handling_Standard.pdf

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1. The privacy and security standards and implementation specifications
shall be written in plain language and shall be available to all of the
Non-Exchange Entity’s Workforce members whose responsibilities
entail the creation, collection, maintenance, storage, access, or use of
PII.
2. The procedures shall ensure the Non-Exchange Entity’s cooperation
with CMS in resolving any Incident or Breach, including (if requested
by CMS) the return or destruction of any PII files it received under the
Agreement; the provision of a formal response to an allegation of
unauthorized PII use, reuse or disclosure; and/or the submission of a
corrective action plan with steps designed to prevent any future
unauthorized uses, reuses or disclosures.
3. The standard operating procedures must be designed and implemented
to ensure the Non-Exchange Entity and its Workforce comply with the
standards and implementation specifications contained herein, and
must be reasonably designed, taking into account the size and the type
of activities that relate to PII undertaken by the Non-Exchange Entity,
to ensure such compliance.
c. Standard: Training and Awareness. The Non-Exchange Entity shall develop training
and awareness programs for members of its Workforce that create, collect, disclose,
access, maintain, store, and use PII while carrying out any Authorized Functions.
i. Implementation Specifications:
1. The Non-Exchange Entity must require such individuals to
successfully complete privacy and security training, as appropriate for
their work duties and level of exposure to PII, prior to when they
assume responsibility for/have access to PII.
2. The Non-Exchange Entity must require periodic role-based training on
an annual basis, at a minimum.
3. The successful completion by such individuals of applicable training
programs, curricula, and examinations offered through the FFE is
sufficient to satisfy the requirements of this paragraph.
(7) Safeguarding PII. In keeping with the standards and implementation specifications used by
the FFE, a Non-Exchange Entity must ensure that PII is protected with reasonable
operational, administrative, technical, and physical safeguards to ensure its confidentiality,
integrity, and availability and to prevent unauthorized or inappropriate access, use, or
disclosure.
a. Standard: Security Controls. The Non-Exchange Entity is required to establish and
implement operational, technical, administrative and physical safeguards that are
consistent with any applicable laws and ensure that:
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i. PII is only used by or disclosed to those authorized to receive or view it;
ii. PII is protected against any reasonably anticipated threats or hazards to the
confidentiality, integrity, and availability of such information;
iii. PII is protected against any reasonably anticipated uses or disclosures of such
information that are not permitted or required by law; and
iv. PII is securely destroyed or disposed of in an appropriate and reasonable
manner and in accordance with retention schedules.
b. Standard: Required Monitoring of Security Controls. A Non-Exchange Entity must
monitor, periodically assess, and update its security controls and related system risks
to ensure the continued effectiveness of those controls.
c. Standard: A Non-Exchange Entity must develop and utilize secure electronic
interfaces when transmitting PII electronically.

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APPENDIX B
DEFINITIONS
This Appendix defines terms that are used in the Agreement and other Appendices. Any
capitalized term used in the Agreement or Appendices that are not defined therein and not
defined here has the meaning provided in 45 CFR 155.20.
(1)

Affordable Care Act (ACA) means the Patient Protection and Affordable Care Act
(Public Law 111-148), as amended by the Health Care and Education Reconciliation Act
of 2010 (Public Law 111-152), which are referred to collectively as the Affordable Care
Act.

(2)

Access means availability of a SORN Record to a subject individual.

(3)

Advance Payments of the Premium Tax Credit (APTC) has the meaning set forth in
45 CFR 155.20.

(4)

Agent or Broker has the meaning set forth in 45 CFR 155.20.

(5)

Applicant has the meaning set forth in 45 CFR 155.20.

(6)

Application Filer has the meaning set forth in 45 CFR 155.20.

(7)

Authorized Function means a task performed by a Non-Exchange Entity that the NonExchange Entity is explicitly authorized or required to perform based on applicable law
or regulation, and as enumerated in the Agreement that incorporates this Appendix B.

(8)

Authorized Representative means a person or organization meeting the requirements set
forth in 45 CFR 155.227.

(9)

Breach is defined by OMB Memorandum M-07-16, Safeguarding and Responding to the
Breach of Personally Identifiable Information (May 22, 2007), as the compromise,
unauthorized disclosure, unauthorized acquisition, unauthorized access, loss of control or
any similar term or phrase that refers to situations where persons other than authorized
users or for an other than authorized purpose have access or potential access to Personally
Identifiable Information (PII), whether physical or electronic.

(10)

CCIIO means the Center for Consumer Information and Insurance Oversight within the
Centers for Medicare & Medicaid Services (CMS).

(11)

Certified Application Counselor means an organization, staff person, or volunteer
meeting the requirements set forth in 45 CFR 155.225.

(12)

CMS means the Centers for Medicare & Medicaid Services.

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(13)

CMS Companion Guides means a CMS-authored guide, available on the CMS web site,
which is meant to be used in conjunction with and supplement relevant implementation
guides published by the Accredited Standards Committee.

(14)

CMS Data Services Hub (Hub) is the CMS Federally-managed service to interface data
among connecting entities, including HHS, certain other Federal agencies, and State
Medicaid agencies.

(15)

CMS Data Services Hub Web Services (Hub Web Services) means business and
technical services made available by CMS to enable the determination of certain
eligibility and enrollment or Federal financial payment data through the Federallyfacilitated Exchange or State-based Exchange on the Federal Platform website, including
the collection of personal and financial information necessary for Consumer, Applicant,
Qualified Individual, Qualified Employer, Qualified Employee, or Enrollee account
creations; Qualified Health Plan (QHP) application submissions; and Insurance
Affordability Program eligibility determinations.

(16)

CMS Companion Guide means a CMS-authored guide, available on the CMS web site,
which is meant to be used in conjunction with and supplement relevant implementation
guides published by the Accredited Standards Committee.

(17)

Compliance and Oversight Activities are the routine activities and processes conducted
by a QHP Issuer as related to ensuring operational integrity, including but not limited to
internal reviews and audits of business procedures and processes and maintaining records
as required by State or Federal law.

(18)

Consumer means a person who, for himself or herself, or on behalf of another
individual, seeks information related to eligibility or coverage through a Qualified Health
Plan (QHP) or other Insurance Affordability Program, or whom an agent or broker
(including Web-brokers), Navigator, Issuer, Certified Application Counselor, or other
entity assists in applying for a coverage through QHP, applying for APTCs and CSRs,
and/or completing enrollment in a QHP through the Federally-facilitated Exchanges or
State-based Exchanges on the Federal Platform for individual market coverage.

(19)

Controlling Health Plan (CHP) has the meaning set forth in 45 CFR 162.103.

(20)

Cost-sharing Reduction (CSR) has the meaning set forth in 45 CFR 155.20.

(21)

Customer Service means assistance regarding Health Insurance Coverage provided to a
Consumer, Applicant, Qualified Individual, Qualified Employer, or Qualified Employee,
including but not limited to responding to questions and complaints and providing
information about Health Insurance Coverage and enrollment processes in connection
with an FFE or SBE-FP.

(22)

Day or Days means calendar days unless otherwise expressly indicated in the relevant
provision of the Agreement that incorporates this Appendix B.
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(23)

Department of Insurance (DOI) means the State agency or regulatory authority that,
among other things, licenses, oversees, and regulates Issuers, Agents, and Brokers, as
applicable.

(24)

Designated Privacy Official means a contact person or office responsible for receiving
complaints related to Breaches or Incidents, able to provide further information about
matters covered by the notice, responsible for the development and implementation of the
privacy and security policies and procedures of the Non-Exchange Entity, and ensuring
the Non-Exchange Entity has in place appropriate safeguards to protect the privacy and
security of PII.

(25)

Enrollee has the meaning set forth in 45 CFR 155.20.

(26)

Enrollment Reconciliation is the process set forth in 45 CFR 155.400(d).

(27)

Exchange has the meaning set forth in 45 CFR 155.20.

(28)

Federally-facilitated Exchange (FFE) means an Exchange (or Marketplace)
established by HHS and operated by CMS under Section 1321(c)(1) of the ACA for
individual or small group market coverage, including the Federally-facilitated Small
Business Health Options Program (FF-SHOP). Federally-facilitated Marketplace
(FFM) has the same meaning as FFE.

(29)

Federal Privacy Impact Assessment (PIA) is an analysis of how information is
handled: (i) to ensure handling conforms to applicable legal, regulatory, and policy
requirements regarding privacy; (ii) to determine the risks and effects of collecting,
maintaining and disseminating information in identifiable form in an electronic
information system; and (iii) to examine and evaluate protections and alternative
processes for handling information to mitigate potential privacy risks, as defined in OMB
Memorandum M-03-22, OMB Guidance for Implementing the Privacy Provisions of the
E-Government Act of 2002 (September 26, 2003).

(30)

Health Insurance Coverage has the meaning set forth in 45 CFR 155.20.

(31)

Health Insurance Exchanges Program (HIX) means the System of Records that CMS
uses in the administration of the FFE. As a System of Records, the use and disclosure of
the SORN Records maintained by the HIX must comply with the Privacy Act of 1974,
the implementing regulations at 45 CFR Part 5b, and the “routine uses” that were
established for the HIX in the Federal Register at 78 Fed.Reg. 8538 (February 6, 2013),
and amended by 78 Fed.Reg. 32256 (May 29, 2013).

(32)

HHS means the U.S. Department of Health & Human Services.

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(33)

Health Insurance Portability and Accountability Act (HIPAA) means the Health
Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, as amended,
and its implementing regulations.

(34)

Incident, or Security Incident, means the act of violating an explicit or implied security
policy, which includes attempts (either failed or successful) to gain unauthorized access
to a system or its data, unwanted disruption or denial of service, the unauthorized use of a
system for the processing or storage of data; and changes to system hardware, firmware,
or software characteristics without the owner’s knowledge, instruction, or consent.

(35)

Information means any communication or representation of knowledge such as facts,
data, or opinions in any medium or form, including textual, numerical, graphic,
cartographic, narrative, or audiovisual.

(36)

Insurance Affordability Program means a program that is one of the following:
(1) A State Medicaid program under title XIX of the Social Security Act.
(2) A State children’s health insurance program (CHIP) under title XXI of the Social
Security Act.
(3) A State basic health program established under section 1331 of the Affordable
Care Act.
(4) A program that makes coverage in a Qualified Health Plan through the Exchange
with Advance Payments of the Premium Tax Credit established under section 36B of
the Internal Revenue Code available to Qualified Individuals.
(5) A program that makes available coverage in a Qualified Health Plan through the
Exchange with Cost-sharing Reductions established under section 1402 of the
Affordable Care Act.

(37)

Issuer has the meaning set forth in 45 CFR 144.103.

(38)

Non-Exchange Entity has the meaning at 45 CFR 155.260(b), including but not limited
to Navigators, agents, and brokers.

(39)

OMB means the Office of Management and Budget.

(40)

Personally Identifiable Information (PII) has the meaning contained in OMB
Memoranda M-07-16 (May 22, 2007) and means information which can be used to
distinguish or trace an individual’s identity, such as their name, Social Security number,
biometric records, etc., alone, or when combined with other personal or identifying
information that is linked or linkable to a specific individual, such as date and place of
birth, mother’s maiden name, etc.

(41)

Qualified Employee has the meaning set forth in 45 CFR 155.20.
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(42)

Qualified Employer has the meaning set forth in 45 CFR 155.20.

(43)

Qualified Health Plan (QHP) has the meaning set forth in 45 CFR 155.20.

(44)

Qualified Individual has the meaning set forth in 45 CFR 155.20.

(45)

Responsible Official means an individual or officer responsible for managing a NonExchange Entity or Exchange’s records or information systems, or another individual
designated as an individual to whom requests can be made, or the designee of either such
officer or individual who is listed in a Federal System of Records Notice as the system
manager, or another individual listed as an individual to whom requests may be made, or
the designee of either such officer or individual.

(46)

Security Control means a safeguard or countermeasure prescribed for an information
system or an organization designed to protect the confidentiality, integrity, and
availability of its information and to meet a set of defined security requirements.

(47)

State means a State that has licensed the Agent, Broker or Web-broker that is a party to
this Agreement and in which the Agent, Broker or Web-broker is operating.

(48)

State-based Exchange on the Federal Platform (SBE-FP) means an Exchange (or
Marketplace) established by a State that receives approval under 45 CFR 155.106(c) to
utilize the Federal platform to support select eligibility and enrollment functions. Statebased Marketplace on the Federal Platform (SBM-FP) has the same meaning as SBEFP.

(49)

State Partnership Exchange means a type of FFE in which a State assumes
responsibility for carrying out certain activities related to plan management, consumer
assistance, or both.

(50)

Subhealth Plan (SHP) has the meaning set forth in 45 CFR 162.103.

(51)

Subject Individual means that individual to whom a SORN Record pertains.

(52)

System of Records means a group of Records under the control of any Federal agency
from which information is retrieved by name of the individual or by some identifying
number, symbol, or other identifying particular assigned to the individual.

(53)

System of Records Notice (SORN) means a notice published in the Federal Register
notifying the public of a System of Records maintained by a Federal agency. The notice
describes privacy considerations that have been addressed in implementing the system.

(54)

System of Record Notice (SORN) Record means any item, collection, or grouping of
information about an individual that is maintained by an agency, including but not limited
to that individual’s education, financial transactions, medical history, and criminal or
employment history and that contains that individual’s name, or an identifying number,
symbol, or the identifying number, symbol, or other identifying particular assigned to the
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individual, such as a finger or voice print or a photograph, that is part of a System of
Records.
(55)

Trading Partner means an entity that exchanges enrollment or financial management
data with a Hub contractor.

(56)

Web-broker means an agent or broker who uses a non-Federally-facilitated Exchange
internet web site to assist Consumers, Applicants, Qualified Individuals, and Enrollees in
the QHP selection and enrollment process as described in 45 CFR 155.220(c).

(57)

Workforce means a Non-Exchange Entity’s, FFE’s or SBE-FP’s employees, agents,
contractors, subcontractors, officers, directors, agents, representatives, and any other
individual who may create, collect, disclose, access, maintain, store, or use PII in the
performance of his or her duties.

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