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Federal Register / Vol. 86, No. 184 / Monday, September 27, 2021 / Rules and Regulations 9. Regulatory Review Cost Estimation If regulations impose administrative costs on private entities, such as the time needed to read and interpret this proposed or final rule, HHS should estimate the cost associated with regulatory review. Due to the uncertainty involved with accurately quantifying the number of entities that will review the rule, HHS assumes that the total number of unique commenters on part three of the 2022 Payment Notice proposed rule will be the number of reviewers of this final rule. HHS
acknowledges that this assumption may understate or overstate the costs of reviewing this rule. It is possible that not all commenters reviewed the proposed rule in detail, and it is also possible that some reviewers chose not to comment on the proposed rule. For these reasons, HHS believed that the number of commenters on part three of the 2022 Payment Notice proposed rule, in addition to the number of states and issuers in the individual, small and large group markets nationwide, would be a fair estimate of the number of reviewers of the final rule. HHS
welcomed any comments on the approach in estimating the number of entities which will review the proposed rule.
HHS also recognized that different types of entities are in many cases affected by mutually exclusive sections of this final rule, and therefore, for the purposes of this estimate, HHS assumes that each reviewer reads approximately 50 percent of the rule. HHS sought comments on this assumption.
Using the wage information from the Bureau of Labor Statistics BLS for medical and health service managers Code 119111, HHS estimates that the cost of reviewing this rule is $114.24 per hour, including overhead and fringe benefits.224 Assuming an average reading speed, HHS estimates that it would take approximately 1 hour for the staff to review half of this final rule.
HHS assumes 652 entities will review this final rule. For each entity that reviews the rule, the estimated cost is approximately $114.24 1 hour
$114.24. Therefore, HHS estimates that the total cost of reviewing this regulation is approximately $74,588.80
$114.24 652 reviewers.

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D. Regulatory Alternatives Considered In developing the policies contained in this final rule, HHS considered numerous alternatives to the provisions.
Below HHS discusses the key regulatory alternatives that HHS considered.
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HHS considered taking no action related to adding a new paragraph at 155.420d16, to provide a monthly special enrollment period for qualified individuals or enrollees, or the dependent of a qualified individual or enrollee, who are eligible for APTC and whose household income is expected to be no greater than 150 percent of the FPL. However, HHS believes that many consumers will benefit from having additional opportunities to enroll in low-cost Exchange coverage, and that those who will be eligible for this special enrollment period and who do not enroll during the annual open enrollment period are likely to have been unaware of their option to enroll in a plan with no monthly premium through the Exchange, after application of APTC. HHS also considered whether, if HHS were to provide this special enrollment period, whether it should be limited to periods of time when enhanced APTC benefits were also available, such as those provided by the section 9661 of the ARP. Based on public comments and in order to help mitigate adverse selection concerns, HHS is limiting availability of this special enrollment period to periods of time when APTC benefits are available such that the applicable taxpayers applicable percentage is set at zero, such as during tax years 2021 and 2022, as provided by section 9661 of the ARP.
Finally, HHS also considered and received comment on other strategies to help individuals who may benefit from the proposed special enrollment period, some of whom may qualify for another existing special enrollment period or could benefit from assistance with transitioning between Medicaid and Exchange coverage. HHS will continue to consider innovative and thoughtful steps that HHS and Exchanges may take to assist consumers with transitions between different coverage types and help them to maintain continuous coverage. However, HHS is also finalizing the proposed special enrollment period to maximize opportunities for consumers to enroll in free or low-cost coverage of which they may not be aware.
HHS considered taking no action related to its clarification, for purposes of the special enrollment period rules at 155.420, that a qualified individual, enrollee, or his or her dependent who qualifies for APTC because they meet the criteria at 155.305f, but who qualifies for a maximum APTC amount of zero dollars, is not considered APTC
eligible. However, HHS is finalizing as proposed because, in consideration of generally supportive public comments,
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HHS continues to believe that consumers and other stakeholders will benefit from this clarification because it improves transparency of Exchanges implementation of the special enrollment period qualifying events provided at 155.420d6.
HHS considered restoring user fee rates to their 2021 levels at 3 percent and 2.5 percent of total monthly premium for issuers in the FFEs and SBEFPs, respectively. However, based on HHSs analysis of estimated 2022
enrollment, premiums, and contract costs, HHS determined that this increase would be unnecessary to finance the Exchange essential functions.
Regarding the section 1332 waiver provisions in this rule, the Departments considered rescinding the 2018
Guidance and the regulatory updates and policies finalized in part 1 of the 2022 Payment Notice final rule such that the Departments would rely on the statute for review and approval of section 1332 waiver applications. The Departments did not choose this option because not outlining policies, interpretations, and standards to help explain the section 1332 program requirements and the Departments interpretations thereof would lead to uncertainty for states considering section 1332 waiver applications. The Departments also considered codifying the policies and interpretations in the 2015 Guidance in regulation, but determined finalizing new policies and interpretations some of which align with previous guidance and rulemaking was the clearest way to explain the requirements for submission and approval of section 1332 waivers.
E. Regulatory Flexibility Act RFA
The Regulatory Flexibility Act, 5
U.S.C. 601, et seq., requires agencies to prepare a final regulatory flexibility analysis to describe the impact of the final rule on small entities, unless the head of the agency can certify that the rule will not have a significant economic impact on a substantial number of small entities. The RFA
generally defines a small entity as 1
A proprietary firm meeting the size standards of the Small Business Administration SBA, 2 a not-forprofit organization that is not dominant in its field, or 3 a small government jurisdiction with a population of less than 50,000. States and individuals are not included in the definition of small entity. HHS considers a rule to have a significant economic impact on a substantial number of small entities if at least 5 percent of small entities experience a change in revenues of more than 3 to 5 percent.

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