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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
and agents and brokers to operate enrollment websites through which consumers can apply for coverage, receive an eligibility determination from the Exchange, and purchase an individual market QHP offered through the Exchange with APTC and CSRs, if otherwise eligible. Subject to meeting HHS approval requirements under 155.221j1 and 2, the Exchange DE
option may be implemented in states with a State Exchange beginning in plan year 2022 and in SBEFP or FFE states beginning in plan year 2023. We also finalized a 2023 user fee rate of 1.5
percent of the total monthly premiums charged by issuers for each policy in FFE and SBEFP states that elect the Exchange DE option. Since the publication of part 1 of the 2022
Payment Notice final rule, there have been significant changes to policy and operational priorities resulting from recent shifting policy goals, as well as the enactment of new federal laws.
Given these changes, as well as a general lack of interest expressed by states in the option, and potential for the Exchange DE option to be misaligned with administration priorities, we propose to remove 155.221j and repeal the Exchange DE
option.
On January 20, 2021, President Biden issued the Executive Order, On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government E.O.
13985,35 directing that as a policy matter the federal government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. On January 28, 2021, President Biden issued E.O. 14009.36 Section 3 of E.O.
14009 directs HHS, and the heads of all other executive departments and agencies with authorities and responsibilities related to Medicaid and the ACA, to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions to determine whether they are inconsistent with policy priorities described in Section 1
of E.O. 14009, to include protecting and strengthening the ACA by assisting people who are potentially eligible for coverage, and eliminating unnecessary difficulties to obtaining health insurance. Specifically, this agency review must evaluate whether existing policies or regulations, . . . undermine 35 86
36 86

FR 7009 Jan. 25, 2021.
FR 7793 Feb. 2, 2021.

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the Health Insurance Marketplace 37 or the individual, small group, or large group markets for health insurance . . . or . . . present unnecessary barriers to individuals and families attempting to access Medicaid or ACA
coverage . . . 38
Section 2 of E.O. 14009 also requires that the Secretary of HHS consider whether to implement an Exchange special enrollment period for exceptional circumstances pursuant to 155.420d9 and other existing authorities, for uninsured and underinsured individuals to obtain coverage in light of the special circumstances caused by the COVID19
pandemic. After E.O. 14009 was issued, HHS used its discretion to make such a special enrollment period available to uninsured and underinsured consumers through HealthCare.gov from February 15, 2021, through May 15, 2021. To support outreach, education and enrollment efforts for this special enrollment period, HHS has provided $2.3 million in additional funding to current Navigator grantees in the FFE.39
All State Exchanges followed suit and implemented corresponding special enrollment periods on similar timelines.
HHS later made a decision to extend the ability of consumers to access the special enrollment period through HealthCare.gov through August 15, 2021, and many State Exchanges extended their special enrollment periods, as well. As of May 31, 2021, 1.2
million new consumers had selected plans through HealthCare.gov, which represents a substantial increase from previous years when special enrollment periods were available primarily for normal qualifying life events.40
In addition, Congress recently passed the ARP,41 which was signed into law on March 11, 2021. The ARP establishes new ACA programs, including a new grant program for Exchange modernization, which appropriates $20,000,000 in federal funding, which is available until September 30, 2022, to State Exchanges to implement Exchange system, program, or technology updates to ensure compliance with applicable federal requirements. It also modifies eligibility criteria for existing ACA
programs. For example, the provisions 37 Health Insurance Marketplace is a registered service mark of the U.S. Department of Health &
Human Services.
38 86 FR 7793 Feb. 2, 2021.
39 https www.cms.gov/newsroom/press-releases/
cms-announces-additional-navigator-fundingsupport-marketplace-special-enrollment-period.
40 https www.cms.gov/newsroom/fact-sheets/
2021-marketplace-special-enrollment-period-report2.
41 Public Law 1172.

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in the ARP include a temporary change for taxable years 2021 and 2022 that allows consumers with household income above 400 percent of the FPL to be applicable taxpayers potentially eligible for PTC, an update to applicable percentage tables to increase the amount of PTC for qualified individuals in all income brackets, and a modification of eligibility for PTC for consumers receiving, or approved to receive, unemployment compensation in 2021.
Beginning on April 1, HHS
operationalized these new requirements through HealthCare.gov, and is providing technical assistance to State Exchanges that are operationalizing these requirements at the state level.
Approximately 1.9 million consumers have returned to HealthCare.gov to reduce their monthly premiums after APTC by over 40 percent, from $100 to $57, on average, while for new consumers selecting plans during the special enrollment period, the average monthly premium after APTC fell by 25
percent.42
There are also new obligations established via other health care-related legislation for which HHS is responsible to implement in coordination with states and other federal Departments.
This includes the No Surprises Act,43
which was enacted on December 27, 2020, and establishes an extensive array of federal and state requirements and programs to protect consumers against surprise medical bills.
Given our obligation to review all existing policies and regulations in line with E.O. 14009, E.O. 13985, and recent actions by Congress, including the health care-related provisions of the ARP and other new federal legislation, for which HHS is now responsible or centrally involved in implementing, we have determined that all available resources should be directed to ensuring we are able to efficiently and effectively meet those obligations. Permitting the establishment of the Exchange DE
option would detract from those efforts.
Furthermore, meeting the new requirements of the health care provisions of the ARP would add complexity to Exchange operations that could reduce the prospects for successful implementation of the Exchange DE option, even if temporarily. For instance, states and DE
entities would need to coordinate and implement new procedures to ensure that consumers receive eligibility 42 https www.cms.gov/newsroom/fact-sheets/
2021-marketplace-special-enrollment-period-report1.
43 Title I of Division BB of the Consolidated Appropriations Act, 2021, Public Law 116260
Dec. 27, 2020.

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