CMS-10494 - Appendix G_CDO-CAC Model Agreement

OMB control number: 0938-1205
Expiration Date: XX/2021

MODEL AGREEMENT BETWEEN CERTIFIED APPLICATION COUNSELOR
DESIGNATED ORGANIZATION IN A STATE IN WHICH THE FEDERALLYFACILITATED EXCHANGE IS OPERATING AND CERTIFIED APPLICATION
COUNSELOR

THIS AGREEMENT (“Agreement”) is entered into between
________________________________, an organization that The Centers for Medicare &
Medicaid Services (“CMS”), which manages and oversees the Federally-facilitated Exchanges
(“FFEs”), has designated as a Certified Application Counselor Designated Organization in
______________________________________________________________________________
[Insert name(s) of applicable FFE state(s) in which organization is designated], a State/States in
which an FFE is operating (hereinafter referred to as “CDO”) and
____________________________________, a staff member or volunteer of the CDO who
wishes to be certified by the CDO to act as a Certified Application Counselor (hereinafter
referred to as “Staff Member/Volunteer”) and to perform the duties and meet the standards and
requirements of 45 CFR 155.225. The CDO and Staff Member or Volunteer are hereinafter
sometimes referred to as “Party,” or, collectively, as the “Parties.”
WHEREAS:
1. Pursuant to 45 CFR 155.225(b), CMS may designate an organization to certify its staff
members or volunteers to act as Certified Application Counselors.
2. CMS has designated CDO to certify staff members and volunteers to act as certified
application counselors in an FFE.
3. Pursuant to 45 CFR 155.225(c), CACs are expected to provide the following services to
Consumers:
a. Provide information about the full range of Qualified Health Plan (QHP) options
and Insurance Affordability Programs for which Consumers are eligible which
includes: providing fair, impartial, and accurate information that assists
Consumers with submitting the eligibility application; clarifying the distinctions
among health coverage options, including QHPs; and helping Consumers make
informed decisions during the health coverage selection process;
b. Assist with applications for coverage in a QHP through the FFE and for Insurance
Affordability Programs; and
c. Help to facilitate enrollment in QHPs and Insurance Affordability Programs.
4. The CDO, and the staff members and volunteers that the CDO certifies as CACs, will
need to create, collect, disclose, access, maintain, store, and/or use the Personally
Identifiable Information (“PII”) from CMS and Consumers, to the extent that these
activities are necessary to carry out the Authorized Functions that the Affordable Care
Act (“ACA”), implementing regulations, and this Agreement permit.

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5. 45 CFR 155.225(d)(3) requires all CACs to comply with the Exchange’s privacy and
security standards adopted consistent with 45 CFR 155.260, and applicable
authentication and data security standards.
6. CMS, in the administration of the FFEs, has adopted privacy and security standards for
CDO, as set forth in Appendix A, “Privacy and Security Standards for Certified
Application Counselors and Certified Application Counselor Designated Organizations.”
Compliance with this Agreement satisfies the requirement under 45 CFR 155.225(d)(3)
to comply with Exchange privacy and security standards and applicable authentication
and data security standards.
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,” and/or in 45 CFR
155.20, which definitions are hereby incorporated by reference.

II.

OBLIGATIONS AND CONDITIONS
a. Staff Member/Volunteer’s Obligations and Conditions. To carry out the functions of a
CAC, as authorized by 45 CFR 155.225, and as a condition of Staff
Member/Volunteer’s certification by CDO, Staff Member/Volunteer agrees to the
following:
i. Prior to functioning as a CAC, Staff Member/Volunteer shall do all of the
following:
1. Register with CDO and receive a unique identifying number and a
CAC Certificate, in accordance with CDO’s procedures;
2. Register for all CMS-approved training using Staff
Member/Volunteer’s unique CAC identification number and the name
that will appear on both his or her CAC Certificate and Training
Certificate;
3. Complete all CMS-approved training regarding QHP options,
Insurance Affordability Programs, eligibility, and benefits rules and
regulations governing all Insurance Affordability Programs operated in
the state, as implemented in the state;
4. Complete and achieve a passing score on all CMS-approved training
examinations;

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5. Provide proof in the form of his or her printed Certificate of Complete
to CDO that he or she has fulfilled the training and certification
examination requirements specified in Section II.a.i.2 through 4;
6. Meet any licensing, certifications, or other standards prescribed by the
State of FFE, if applicable, so long as such standards do not prevent
the application of the provisions of title I of the Affordable Care Act;
7. Execute this Agreement.
ii. Staff Member/Volunteer shall disclose to CDO any relationship Staff
Member/Volunteer has with QHPs or Insurance Affordability Programs, or
other potential conflicts of interest;
iii. Staff Member/Volunteer shall comply with FFE’s Privacy and Security
Standards and Implementation Specifications for Non-Exchange Entities
specified in Section III and with Appendix A of this Agreement;
iv.

When assisting Consumers, Staff Member/Volunteer shall:
1. Follow CDO’s established procedures to prominently display to
Consumers a current and effective CAC Certificate provided by CDO
evidencing the individual’s certification as a CAC each time Staff
Member/Volunteer assists any Consumers;
2. Follow CDO’s established procedures to inform Consumers of
functions and responsibilities of CACs;
3. Follow CDO’s established procedures to obtain the authorization
required by 45 CFR 155.225(f) and section III.d of this Agreement,
prior to creating, collecting, disclosing, accessing, maintaining,
storing, and using PII of Consumers to carry out the Authorized
Functions listed at Section III.b of this Agreement. This authorization
is separate and distinct from any informed consent obtained pursuant
to section 2(b) of Appendix A of this Agreement;
4. Follow CDO’s established procedures to maintain a record of the
authorization provided under Section III.d for a period of no less than
six (6) years, unless a different and longer retention period has already
been provided under other applicable Federal law;
5. Permit the Consumer to revoke the authorization described in Section
III.d at any time;

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6. Provide his or her unique CAC identification number to any Consumer
being assisted so that the application reflects that he or she has
provided assistance;
7. Not impose any charge or fee on Consumers for application or other
assistance related to the FFE;
8. Not act as tax advisors or attorneys when providing assistance as
CACs and cannot provide tax or legal advice within the capacity as
CAC;
9. Act in the best interests;
10. Either directly or through an appropriate referral to a Navigator or
non-Navigator assistance personnel authorized under 45 CFR §§
155.205(d) and (e) or 155.210, or to the FFE call center, provide
information in a manner that is accessible to individuals with
disabilities, as defined by the Americans with Disabilities Act, as
amended, 42 USC § 12101, et seq. and section 504 of the
Rehabilitation Act, as amended, 29 USC § 794;
11. Provide information to Consumers 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 health coverage options, including
QHPs; and helping Consumers make informed decisions during the
health coverage selection process;
12. Assist them in applying for coverage in a QHP through the FFE and
for Insurance Affordability Programs;
13. Help to facilitate their enrollment in QHPs and Insurance Affordability
Programs;
14. Follow CDO’s procedures to disclose to them any relationships the
CAC has with QHPs or Insurance Affordability Programs, or other
potential conflicts of interest;
15. [FOR USE ONLY IF THE CDO DECIDES TO REQUIRE THIS]
Follow CDO’s procedures to disclose to them any relationships the
CAC has with QHPs or Insurance Affordability Programs, or other
potential conflicts of interest, using language supplied by CDO;

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16. Not provide to a Consumer gifts or any value as an inducement for
enrollment, and not provide gifts to Consumers for purposes other than
as an inducement for enrollment that exceed Nominal Value, either
individually or in the aggregate when provided to that individual
during a single encounter. The term “gifts” includes gift items, gift
cards, cash cards, and promotional items that market or promote the
products or services of a third party, but does not include the
reimbursement of legitimate expenses, incurred by a Consumer in an
effort to receive Exchange application assistance, such as, , travel or
postal expenses;
17. Not solicit any Consumer for application or enrollment assistance by
going door-to-door or through other unsolicited means of direct
contact, including calling a Consumer to provide application or
enrollment assistance without the Consumer initiating the contact,
unless the individual has a pre-existing relationship with the individual
CAC or the CDO, and other applicable State and Federal laws are
otherwise complied with. Outreach and education activities may be
conducted by going door-to-door or through other unsolicited means
of direct contact, including calling a Consumer; and
18. Not initiate any telephone call to a Consumer using an automatic
telephone dialing system or an artificial or prerecorded voice, except
in cases where the individual certified application counselor or
designated organization has a relationship with the Consumer and so
long as other applicable State and Federal laws are otherwise complied
with.

v. For as long as the CAC continues providing CAC services, seek recertification
on at least an annual basis after successfully completing recertification
training;
vi. Upon termination or nonrenewal of CAC’s agreement with CDO, or
withdrawal of designation from CDO or withdrawal of certification from
CAC, immediately cease holding himself or herself out as a CAC to any
Consumer, and immediately cease providing CAC services to the public;
vii. Not sell or otherwise transfer information that was provided to the CAC by
Consumers to any person or entity other than for such actions as are
specifically permitted by this Agreement or as expressly authorized;
viii. Not collect or otherwise maintain information provided by Consumers, except
as specifically provided for in this Agreement;

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ix. Not receive any consideration directly or indirectly from any health insurance
issuer or issuer of stop-loss insurance in connection with the enrollment of any
individuals in a QHP or non-QHP. This prohibition does not apply to
consideration the CAC receives from a health insurance for health care
services provided; and
x. As evidenced by my signature hereon, I hereby agree to provide the duties and
services described herein without compensation of any kind (other than the
wages I may nonetheless earn as an employee of CDO for work performed on
behalf of my employer), and hereby waive my rights to any fee, remuneration
or compensation to which I might somehow be entitled to receive from the
Government of the United States of America under applicable law.
III.

OBLIGATIONS RELATED TO THE PRIVACY AND SECURITY OF PERSONALLY
IDENTIFIABLE INFORMATION.
a. Staff Member/Volunteer hereby acknowledges and agrees to accept and abide by the
standards and implementation specifications set forth below and in Appendix A,
“Privacy and Security Standards for Certified Application Counselors and Certified
Application Counselor Designated Organizations,” which is incorporated by
reference in this Agreement, when engaging in any activity as a CAC Authorized
Function pursuant to 45 CFR 155.225. Staff Member/ Volunteer is thereby bound to
strictly adhere to the privacy and security standards.
b. Authorized Functions. Staff Member/ Volunteer may create, collect, disclose, access,
maintain, store, and use PII of Consumers in order to:
i.

Provide information to Consumers about the full range of QHP options and
Insurance Affordability Programs for which these persons are eligible, which
includes: providing fair, impartial, and accurate information that assists
Consumers with submitting the eligibility application; clarifying the
distinctions among health coverage options, including QHPs; and helping
Consumers make informed decisions during the health coverage selection
process;

ii.

Assist Consumers with applications for coverage in a QHP through the FFE
and for Insurance Affordability Programs;

iii.

Help to facilitate the enrollment of Consumers in QHPs and Insurance
Affordability Programs; and

iv.

Perform other functions related to carrying out additional obligations as may
be required under applicable state law or regulation, provided that (1) such a
state requirement does not prevent the application of the provisions of title I of
the Affordable Care Act within the meaning of section 1321(d) of the
Affordable Care Act, and (2) Staff Member/Volunteer notifies Consumers in
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advance, in writing, that collection, handling, disclosure, access maintenance,
storage, and/or use of their PII might be required under applicable state law or
regulations. Staff Member/Volunteer should provide the required notification
through the authorization obtained in accordance with 155.22(f); and
v.

Perform other functions authorized under 45 CFR 155.225, including
functions substantially similar to those enumerated above, and such other
functions that may be approved by CDO in writing from time to time, but only
if CMS has expressly permitted CDO to carry out those functions.

c. PII Received. Subject to the terms and conditions of this Agreement and applicable
laws, in performing the Authorized Functions under this Agreement, Staff Member/
Volunteer may create, collect, disclose, access, maintain, store, and use the following
data and PII from Consumers, including but not limited to:
Access to or enrollment in employer or other health coverage
American Indian/Alaska Native status
APTC percentage and amount applied
Auto disenrollment information
Applicant Name
Applicant Address
Applicant Birthdate
Applicant Telephone number
Applicant Email
Applicant spoken and written language preference
Applicant Medicaid Eligibility indicator, start and end dates
Applicant Children’s Health Insurance Program 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 Cost-sharing Reduction (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
Citizenship Status
Contact Name
Contact Address
Contact Birthdate
Contact Telephone number
Contact Email
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Contact spoken and written language preference
Enrollment group history (past six months)
Enrollment type period
FFE Applicant ID
FFE Member ID
Gender
Immigration document type and document numbers
Issuer Member ID
Membership in a Federally-recognized tribe
Net premium amount
Pregnancy indicator
Premium Amount, start and end dates
Race/ethnicity
Sex
Special enrollment period reason
Subscriber Indicator and relationship to subscriber
Social Security Number
Tax filing status (tax filer, tax dependent, non-flier)
Tobacco use indicator and last date of tobacco
d. Authorization. Before Staff Member/Volunteer creates, collects, discloses, accesses,
maintains, stores, or uses any of a Consumer’s PII, Staff Member/Volunteer will
obtain from Consumer the authorization required by 45 CFR 155.225(f) for Staff
Member/Volunteer to create, collect, disclose, access, maintain, store, and use the
Consumer’s PII to carry out the Authorized Functions listed at Section III.b of this
Agreement, and will permit the authorization to be revoked at any time. This
authorization is separate and distinct from any informed consent obtained pursuant to
section 2(b) of Appendix A of this Agreement. The Staff Member/Volunteer should
ensure that a record of the authorization provided is maintained in a manner
consistent with the privacy and security standards set forth in Appendix A.
e. Collection of PII. Except for collections, uses, or disclosures that are specifically
authorized by Consumers in accordance with Section 2(b) of Appendix A, PII
collected from Consumers may be used only for the Authorized Functions specified
in Section III.b of this Agreement.
f. Storing PII. To the extent that Staff Member/Volunteer maintains or stores PII, he or
she must agree to comply with all provisions of this Agreement and Appendix A that
apply to the maintenance or storage of PII.
g. Ability of Consumer to Limit Collection and Use. Staff Member/Volunteer agrees to
allow the Consumer to limit Staff Member/Volunteer’s creation, collection, use,
maintenance, storage, and disclosure of their PII to the sole purpose of obtaining Staff
Member/Volunteer’s assistance for FFE purposes, and for performing Authorized
Functions specified in Section III.b of this Agreement.

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IV.

EFFECTIVE DATE; TERM AND RENEWAL.
a. Effective Date and Term. This Agreement becomes effective on the date the last of
the two Parties signs this Agreement and ends one year from the effective date.
b. Renewal. This Agreement will automatically renew for subsequent and consecutive
one (1) year periods upon the expiration of this Agreement, unless:
i. CDO is no longer designated by CMS; or
ii. CDO, in its sole and absolute discretion, notifies Staff Member/Volunteer
with 30 Days’ advance written notice that it has determined that the
Agreement will not be renewed. Such notice will specify whether and under
what conditions CDO will renew the Agreement; or
iii. CDO terminates the Agreement pursuant to Section V of this Agreement.

V.

Termination
a. Termination without Cause. Either Party may terminate this Agreement without
cause and for its convenience upon at least thirty (30) Days’ prior written notice to
the other Party.
b. Termination with Cause. This Agreement shall terminate immediately when Staff
Member/Volunteer no longer holds a position as a staff member or volunteer at CDO,
or when CDO withdraws Staff Member/Volunteer’s certification as a CAC, or when
CMS has withdrawn CDO’s designation as a CDO. CDO may terminate this
Agreement for cause as soon as possible, but in no event later than twenty (20) Days
after the triggering event (identification or notification of noncompliance) if CDO
learns or is notified by CMS that Staff Member/Volunteer has failed to comply with
the terms and conditions of this Agreement or with any applicable requirements of 45
CFR 155.225, unless Staff Member/Volunteer commences curing such breach(es)
within such 20-Day period to the reasonable satisfaction CDO, and thereafter
diligently implements such cure to completion. The 20-Day notice from CDO shall
contain a description of the material breach, whereupon Staff Member/Volunteer
shall have seven (7) Days from the date of the notice in which to propose a plan and a
time frame to cure the material breach, which plan and time frame may be rejected,
approved or amended in CDO’s sole but reasonable discretion. Notwithstanding the
foregoing, Staff Member /Volunteer shall be considered in "Habitual Default" of this
Agreement in the event that it has been served with a 20-Day notice under this
subsection more than three (3) times in any calendar year, whereupon CDO may, in
its sole discretion, immediately thereafter terminate this Agreement upon notice to
Staff Member/Volunteer without any further opportunity to cure or propose cure.
c. Consequences of Termination or Nonrenewal. If this Agreement is not renewed
pursuant to Section IV.b or is terminated pursuant to Sections V.a or V.b of this
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Agreement, Staff Member/Volunteer’s certification as a CAC is automatically
withdrawn. If that occurs Staff Member/Volunteer must immediately cease holding
himself or herself out as a CAC to any Consumer, must immediately cease providing
CAC services to the public, and must carry out the procedures described in Section
II.vi of this Agreement.
VI.

DESTRUCTION OF PII. Staff Member/Volunteer covenants and agrees to destroy all
PII in his or her possession at the end of the record retention period required under
Appendix A. Staff Member/Volunteer’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.

VII.

GENERAL PROVISIONS.
a. Assignment and Delegation. Staff Member/Volunteer shall not assign its rights or
delegate its performance under this Agreement. CDO shall not assign its rights or
delegate its performance under this Agreement without the express prior written
consent of CMS.
b. Disclaimer of Joint Venture. Neither this Agreement nor the activities of the Parties
contemplated under this Agreement shall be deemed or construed to create in any
way any partnership, joint venture or agency relationship between either or both of
the Parties hereto on one hand and the United States of America (or any of its
agencies or departments) on the other. Neither CDO nor Staff Member/Volunteer is,
nor shall either CDO or Staff Member/Volunteer hold itself out to be, vested with any
power, authority or right to act on behalf of the United States of America in any
manner as an agent or representative thereof, or to bind the United States in any
manner or fashion.
c. Amendments. CDO may amend this Agreement for purposes of reflecting changes in
applicable law, regulations, or CMS implementation guidance, with such amendments
taking effect upon thirty (30) Days’ written notice to Staff Member/Volunteer (“CDO
notice period”). Staff Member/Volunteer may reject such amendment, by providing
to CDO, during the CDO notice period, thirty (30) Days’ written notice of its intent to
reject the amendment (“rejection notice period”). Any such rejection of such
amendment made by CDO for purposes of reflecting changes in applicable law,
regulations, or CMS implementation guidance shall result in the termination of this
Agreement upon expiration of the rejection notice period.
d. Compliance with Law. CDO and Staff Member/Volunteer shall 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
limited to, any additional and applicable standards required by statute, and any
regulations or policies implementing or interpreting such statutory provisions
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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 controls.
e. Governing Law. This Agreement will be governed by the laws and common law of
_________, including without limitation such regulations as may be promulgated by
HHS or any of its constituent agencies, without regard to any conflict of laws statutes
or rules. The Parties further agree and consent to the jurisdiction of _____ Courts
located within _______ and the courts of appeal therefrom, and waives any claim of
lack of jurisdiction or forum non conveniens.
f. Notice. All notices to Parties specifically required under this Agreement shall be
given in writing and shall be delivered as follows:
If to CDO:
By email:
By mail:
If to Staff Member/Volunteer, to Staff Member’s/Volunteer’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 email 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. A Party to this Agreement may change its contact
information for notices and other communications by providing written notice of such
changes in accordance with this provision. Such notice should be provided thirty (30)
days in advance of such change, unless circumstances warrant a shorter timeframe.
g. 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.

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This “Agreement between CDO and Staff Member/Volunteer has been signed by:

FOR CDO:

Signature:
______________________________
[Name and Title of person authorized to enter
into agreements on behalf of organization to
bind the organization]
Printed Name:
____________________
Date: __________

FOR Staff Member/Volunteer:
CAC ID issued:____________________
Signature:
_______________________________
[Name of staff member/volunteer serving as a
CAC]
Printed Name:
__________________________________
Date: ____________

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