CMS-10877 - Appendix R - NPRM Comments Received

Direct Enrollment Entities (CMS-10877/0938-NEW)
60-Day Public Comment Response Summary (Ended 01/23/2024)
Adding and Amending Language to Ensure Web-brokers & DE Entities Operating in State Exchanges Meet Certain HHS Standards
Applicable in the FFEs and SBE-FPs (45 CFR 155.220 & 155.221)
Comment Type
Burden

03/20/2024

Comment Summary
One commenter suggested that the
burden estimates could be substantially
reduced if the State Exchanges leverage
or choose to mirror the HHS
requirements.

1

Response
We appreciate the comment that the burden estimates could be
substantially reduced if the State Exchanges leverage the HHS
requirements. Although we agree with this comment, the flexibilities
afforded to State Exchanges as part of this finalized policy,
particularly with regards to implementation of web-broker programs
and requirements, present the possibility of significant differences
between web-broker programs in different States while also
establishing baseline consumer protections across the State
Exchanges. We formulated these burden estimates to account for a
possible scenario of varied web-broker program requirements across
State Exchanges. However, we encourage State Exchanges to leverage
the HHS requirements and believe the implementation costs for both
State Exchanges and web-brokers may be substantially reduced if the
State Exchanges leverage the HHS requirements. However, the
assumption that states can save money by mirroring HHS standards
assumes that all entities participating have complied and met the HHS
standards, as verified by HHS, and ignores the possibility that entities
may participate in a given State’s web-broker or DE Entity program as
a net new entity, with no experience or documented compliance at
the Federal level. We carefully considered this commenter’s feedback
and reduced relevant burden estimates for requirements where we
believe there is a high likelihood that State Exchanges will adopt the
same requirements as the FFE.

Direct Enrollment Entities

CLOSE HOLD – DO NOT SHARE INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed and may be
privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not authorized to receive the information.
Unauthorized disclosure may result in prosecution to the full extent of the law.

Comment Type
Burden

03/20/2024

Comment Summary
One commenter noted concern that it is
misleading to present a separate burden
analysis for web-brokers and DE entities,
as the majority of web-brokers are DE
entities and the burden complying with
web-broker standards on top of EDE
standards is minimal.

2

Response
We disagree where the commenter suggested it is misleading to
present a separate burden analysis for web-brokers and DE entities.
Although the majority of DE entities are web-brokers, there exist
some DE entities that are not web-brokers (for example, Issuer DE
Technology Providers). For that reason, we believed it was important
to provide a comprehensive burden estimate for participating in webbroker programs and DE entity programs. However, we acknowledge
there is significant overlap between the requirements for webbrokers and DE entities, and, accordingly, have reduced the entity
burden estimates for DE Entities distinct from web-brokers. We note,
however, given the State’s requirements for a DE Entity under §
155.221 may require a different burden for an entity to implement
and comply with compared to the state’s requirements for a webbroker under § 155.220.

Direct Enrollment Entities

CLOSE HOLD – DO NOT SHARE INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed and may be
privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not authorized to receive the information.
Unauthorized disclosure may result in prosecution to the full extent of the law.

Comment Type
Burden

03/20/2024

Comment Summary
Two commenters felt that the cost
estimates for States to implement this
finalized proposal are overstated and fail
to incorporate the potential cost savings
and additional user fee revenues that
States could realize through utilization
of web-brokers or DE entities, including
reduced burdens on State call centers
and State Exchanges.

3

Response
We acknowledge the concern that the burden estimates for State
Exchanges to implement web-broker/DE programs are overstated. As
acknowledged, this finalized policy provides flexibility to State
Exchanges in their implementation of web-broker/DE programs.
These burden estimates account for the possibility that State
Exchanges may implement web-broker programs differing from the
FFE program. We encourage State Exchanges to leverage the HHS
requirements when developing their web-broker/DE programs and
we anticipate that doing so would substantially reduce the burden for
State Exchanges to develop and implement these programs. In
addition, we acknowledge the comment that web-broker/DE
programs may provide additional user fee revenues and cost savings
to State Exchanges associated with reduced burdens on State call
centers and State Exchanges. Although we acknowledge that there
could be cost savings associated with implementing web-broker/DE
programs in State Exchanges, we have not conducted a detailed
analysis on the cost savings associated with the implementation of
web-broker programs in the FFE and, therefore, cannot quantify the
extent of any such savings. Furthermore, these estimates are specific
to defining the oversight policies and procedures, and the
implementation of such oversight for web-brokers and DE entities
under § 155.220 and § 155.221; these estimates are not intended to
calculate the total cost—or savings—for any given State to implement
a web-broker or DE program, including the costs of developing and
maintaining the technical infrastructure to maintain a web-broker
and DE entity program. However, we do recognize the potential for
savings and are open to feedback as we continue to work with our
State partners on implementation of these programs.

Direct Enrollment Entities

CLOSE HOLD – DO NOT SHARE INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed and may be
privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not authorized to receive the information.
Unauthorized disclosure may result in prosecution to the full extent of the law.

Comment Type
Burden

Burden

03/20/2024

Comment Summary
One commenter expressed concern that
the burden estimates were based on
salary information for Washington, DC,
citing higher salaries for that locality as
compared to employees in the majority
of State Exchanges
One commenter requested clarification
for how the estimated hours for
contractor oversight of State Exchanges
were determined.

4

Response
We acknowledge the concern regarding the use of Washington, DC,
labor rates in calculating these burden estimates. In the absence of a
national average pay scale, we acknowledge there will be variations in
regional pay scales among State Exchanges, including some which
may be higher or lower than the rates used to calculate these
estimates.
With regards to the estimates for contractor oversight of State
Exchanges, we are clarifying that these estimates were calculated by
mapping labor for the relevant requirements to GS categories based
on the applicable FFE contractor support labor costs and hours for the
applicable requirements and estimated number of entities. We
acknowledge that any given State may experience a higher or lower
cost for implementing these programs depending on the extent (that
is, scope and frequency) of the State’s oversight mechanisms, the
scope of the State’s specific requirements for these programs, and
the general quality and compliance posture of web-brokers or DE
entities intending to participate in the State.

Direct Enrollment Entities

CLOSE HOLD – DO NOT SHARE INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed and may be
privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not authorized to receive the information.
Unauthorized disclosure may result in prosecution to the full extent of the law.

Comment Type
Burden

03/20/2024

Comment Summary
Response
One commenter provided detailed
We appreciate the feedback on these burden estimates from a webfeedback on the estimated burden hours broker/DE entity currently operating in the FFEs. We recognize the
based on their experience as a webvalue of feedback from an entity with experience implementing the
broker and DE entity operating in the
FFE program requirements and we carefully considered this feedback
FFEs.
and have adjusted the burden estimates where applicable. In making
these adjustments, we considered that the commenter has
considerable experience operating in the FFE. As the commenter
acknowledged, other web-brokers/DE entities may have differing
levels of technical expertise and capacity. We have accounted for the
costs associated with implementing these requirements from the
perspective of web-brokers/DE entities with limited experience.
However, we agree that the burden may be substantially lower for
web-brokers/DE entities with increased technical experience and
capacity. In considering the feedback on these burden estimates, we
note there were several assumptions made regarding the State
Exchanges’ provision of data to web-brokers/DE entities (for example,
the provision of QHP data and agent or broker registration data).
These burden estimates account for a scenario where there may be
variability between the format of data provided across State
Exchanges. We encourage State Exchanges to leverage the data
formats used in the FFEs and are committed to providing technical
assistance to State Exchanges to facilitate such standardization.

5

Direct Enrollment Entities

CLOSE HOLD – DO NOT SHARE INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed and may be
privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not authorized to receive the information.
Unauthorized disclosure may result in prosecution to the full extent of the law.

Comment Type
Burden

Comment Summary
One commenter suggested that the
burden estimates are inappropriately
based on the premise that States will
implement DE programs in the same
manner as the FFEs.

Burden

One commenter suggested that the
burden estimates should be limited to
the number of primary EDE entities
expected to participate in State
Exchanges.

03/20/2024

6

Response
We disagree with the comment that these burden estimates were
inappropriately based on the premise that States will implement DE
programs in the same manner as the FFEs. The nature of this policy
requires a consideration of the baseline federal consumer protection
requirements, while accounting for the potential variation in the
ultimate DE requirements determined by each State Exchange. These
requirements will provide baseline consumer protections across the
State Exchanges but also allows flexibility with regards to State
Exchange implementation of DE requirements. Accordingly, States
may implement more stringent or less stringent standards and
oversight processes; these estimates intend to strike a balance
between the Federal implementation and the varied hypothetical
possibilities for a State’s requirements and oversight process.
We agree with the commenter’s suggestion that the burden
estimates should be limited to the number of primary EDE entities
expected to participate in State Exchanges. We have adjusted the
burden estimates to reflect the current number of primary entities
operating in the FFEs and to account for the possibility of new
primary DE entities entering the State Exchanges.

Direct Enrollment Entities

CLOSE HOLD – DO NOT SHARE INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed and may be
privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not authorized to receive the information.
Unauthorized disclosure may result in prosecution to the full extent of the law.

Mandating HealthCare.gov Changes to Be Reflected on DE Entity Non-Exchange Websites within a Notice Period Set by HHS (45
CFR 155.221(b))
Comment Type

Comment Summary

Response

Burden

One commenter noted they believe this
proposal will propose little to no
additional burden on most DE entities
because it is believed that many of the
applicable entities may already be
complying with the proposed standards.

We appreciate this comment and agree, as described in the proposed
rule, that the majority of DE entities are already complying with the
requirements associated with this proposal because they are subject
to the existing HHS-initiated change request outlined in the ThirdParty Auditor Guidelines. However, we believe the provided burden
estimates appropriately characterize the burden for the existing HHSinitiated change request process and for the expansion of this process
to Classic DE entities and to DE entities operating in State Exchanges.

03/20/2024

7

Direct Enrollment Entities

CLOSE HOLD – DO NOT SHARE INFORMATION NOT RELEASABLE TO THE PUBLIC UNLESS AUTHORIZED BY LAW: This information has not been publicly disclosed and may be
privileged and confidential. It is for internal government use only and must not be disseminated, distributed, or copied to persons not authorized to receive the information.
Unauthorized disclosure may result in prosecution to the full extent of the law.