Comment on FR Doc # E9-20169

Paragraph 164.408 “Notification to the Secretary”, requires a covered entity to “notify the Secretary”. This raises questions about exactly who may provide such notice on behalf of a covered entity. As professional administrators of Taft-Hartley multiemployer plans (many of which have no employees of their own), we have encountered similar questions before, such as who may serve as an “authorized individual” with respect to the annual Medicare Part D Creditable Coverage disclosures to CMS, and who may verify the authority of an Authorized Representative for purposes of the Retiree Drug Subsidy program. In those instances, initial lack of clarity followed by inconstant guidance have created confusion and hampered our efforts to serve our clients. Please do not delay in providing specific guidance clarifying who may provide the Secretary with breach notices. Such guidance will aid our clients’ efforts to prepare for compliance with these requirements. I recommend adopting guidelines similar to those described in the instructions for Creditable Coverage disclosures as follows: “An ‘Authorized Individual’ is the person completing the Disclosure to CMS Form who is either: a) employed by the entity; or b) contracted with the entity as an Authorized Individual to complete the Disclosure to CMS Form on behalf of the entity.”