On April 3, 2013, the Department of Health and Human Services released proposed regulations establishing standards to govern navigators and non-navigator assisters in the federally facilitated exchange as well as clarifying standards on the role of navigators and on who can serve as a navigator in all exchanges.

The controversial navigator program

The navigator program has proven surprisingly controversial.  The Affordable Care Act’s navigator program was modeled after the successful State Health Insurance Assistance Program (SHIP)  which has offered assistance to Medicare beneficiaries trying to figure out the complexities of Medicare Advantage and Prescription Drug Plan offerings.  The original concept of the ACA navigator program was that exchanges would give grants to community and small business organizations to educate and provide unbiased information to individuals and small employers to help them navigate the new health insurance marketplace and enroll in health insurance plans.  Navigators will be particularly helpful to millions of uninsured Americans who will be purchasing health insurance on their own for the first time and who will be eligible either for Medicaid or for premium assistance tax credits. Many of these consumers will be unfamiliar with health insurance or not literate in English.  HHS has also created a non-navigator consumer assistance program for states without federal exchanges based on an understanding that consumers in those states will need help, but that navigator programs under the ACA cannot be funded by federal establishment grants and that exchanges will not have their own funding for navigators until their exchanges are up and running.

The navigator program has become surprisingly controversial.  Insurance agents and brokers have seen it as threatening their territory. Agents seem to be concerned that if navigators help consumers enroll in health insurance plans, agents will lose the commissions to which they are entitled when they themselves market insurance products.  Agents are also concerned that if unqualified navigators or other assisters are allowed to recommend insurance products to consumers, consumers may purchase products that do not meet their needs.  Agent organizations have been lobbying state legislatures across the country to license navigators and in so doing to place barriers in the path of entities or individuals that might consider becoming navigators while also limiting the activities in which navigators can engage.  Responding to lobbying by politically powerful agent organizations, states that have shown little interest in participating in any way in the implementation of the ACA have been enacting legislation to regulate the navigator program.  Many of these states will have federal exchanges.  The proposed regulations lay down standards for the navigator program in the federal exchange which will preempt more restrictive state standards. It also clarifies the extent to which states can license navigators in both the state and federal exchanges.

The preamble to the proposal explains the role of the navigator.  Navigators will not make eligibility decisions or select qualified health plans (QHPs) for consumers, but will rather help them through the enrollment process.  In the words of the preamble, “Navigators may play an important role in facilitating a consumer’s enrollment in a QHP by providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application, clarifying the distinctions among QHPs, and helping qualified individuals make informed decisions during the health plan selection process.”   Navigators are not agents—they cannot legally solicit, negotiate, and sell insurance contracts and receive a commission—but they do have a definite role to play in assisting and informing consumers in the insurance purchase process, and are not mere observers of this process.

Non-navigator assister programs

The proposal clarifies again that states without federal exchanges are expected to establish not only navigator programs but also “non-navigator assistance programs,” which have sometimes been referred to as “in-person assistance programs.” This program will play a vital role during 2013, as consumers will desperately need help making sense of the insurance marketplace as it comes on line, but states are prohibited by the ACA from using establishment grants to create navigator programs, and will not be able to pay for navigators on their own until they are up and running and have their own funds to pay for them.  States can, however, use establishment funds to create assister programs.  (They can also use establishment grant funds to cover navigator program administrative costs).  It is expected that states that establish state-based exchanges, as well as states that establish state consumer assistance partnership exchanges, will establish non-navigator community assistance programs that will continue to help consumers at least until their navigator programs are up and running.

While navigator programs are grant programs, non-navigator assistance programs can be operated through contracts, direct hiring, or grants.   In federally facilitated exchanges other than partnership exchanges, the federal government will make grants to navigator programs and does not expect  to have non-navigator assisters.    The proposed regulation generally holds assisters to the same requirements as navigators.

The proposed rule begins by proposing an amendment to an existing rule to clarify that “any Navigator licensing, certification, or other standards prescribed  by the state or Exchange must not prevent the application of the provisions of Title I of the Affordable Care Act.”  An amendment is also proposed to the existing exchange regulations to strengthen the conflict of interest standards governing navigators.  These amended regulations apply to all exchanges—state, partnership, and fully federal.

Preemption of state regulation

Earlier exchange rules had stated that navigators will have to meet licensure or certification standards established by the states or exchanges.  The amended rule clarifies that state licensure or certification rules must not prevent the application of ACA navigator requirements.  States may not require navigators to be licensed as agents or to carry errors and omissions insurance like agents.  Although the amended rule could be clearer, it presumably has implications for states that are considering background check, fingerprinting, surety bond, or other requirements that could cumulatively make attaining navigator status so burdensome that the program will not be viable.  Severe state limitations on the kind of advice and guidance navigators can offer consumers should also be preempted.

Conflict-of-interest standards

The proposed rule further provides details on conflict-of-interest standards and standards relating to training, certification, and recertification for navigators and non-navigators in federal and partnership exchanges.  These standards include details on certification, registration, training, and examination of navigators and assisters.  They also establish standards to ensure meaningful access to services for individuals with limited English proficiency and people with disabilities for navigators and assisters in federal and partnership exchanges.  While these standards do not explicitly apply to state-based exchange navigator programs, they do apply to state assister programs funded through federal exchange establishment grants and are proposed as a “useful model” for state-funded programs.  The proposed rule does not apply to certified application counselors, a new category established by the recent proposed rule on Medicaid eligibility http://www.gpo.gov/fdsys/pkg/FR-2013-01-22/pdf/2013-00659.pdf, but comments are requested on whether they should apply to this category of assisters as well.

The conflict of interest prohibition found in the original rule is expanded.  Under existing rules navigators may not be health insurance issuers, subsidiaries of issuers, associations of insurers or  insurer lobbyists, or receive direct or indirect consideration for insurers, including trailer commissions for past sales.  The proposed rule expands prohibited relationships to include relationships with stop loss issuers or subsidiaries of stop loss issuers, or consideration from stop loss issuers.  There has been increasing concern that insurers may tempt small employers to forego the purchase of group insurance and rather to “self-insure” purchasing generous stop-loss insurance to limit their risk, thus opting out of many of the ACA’s small group market protections.  The new prohibition will limit the ability of stop loss insurers to use navigators to steer small businesses in this direction.  Navigator conflict-of-interest standards would also apply to non-navigator assisters, including state non-navigator assisters funded by federal establishment grants.

Navigators will be required to submit to the exchange an attestation that they are free from conflicts of interest and a written plan to ensure that they will remain free from conflicts of interest.  Navigators must provide consumers with information on the full range of QHP options and insurer affordability programs.  The proposed rule recognizes, however, that conflicts of interest may potentially exist, and these must be disclosed.  Agents or brokers that serve as navigators may not sell health or stop loss insurance, but may sell other lines of insurance.  If they do so, this must be disclosed.  This exception is troublesome to the extent that an agent could be a navigator but be allowed to sell (with disclosure) complementary lines of insurance coverage (such as adult vision or dental or long-term care) or non-health lines of insurance available from insurers that also market health insurance in the exchange. Navigators and their staff members would also have to disclose any past relationships with health or stop loss insurers in the past five years, any insurer relationships with spouses or domestic partners, and any existing or anticipated financial, business, or contractual relationships with insurers.

Training and certification standards

The proposed rule also establishes training standards for entities and individuals carrying out navigator standards. HHS had earlier proposed that navigators and assisters “be trained 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, prior to providing such assistance.”  The proposed rule specifies that navigators and non-navigator assisters in federal exchanges and federally funded non-navigator assisters in state exchanges must receive up to 30 hours of training.  These personnel must register with the exchange, be certified as having received the necessary training, and pass a HHS-approved exam. The rule specifies in detail the topics that must be covered by the training program, including privacy and security issues.  Navigators must receive continuing education and be recertified on at least an annual basis.  Navigator and non-navigator assisters must be trained to assist with SHOP exchange as well as individual exchange issues, although in general a navigator may refer a consumer to other exchange resources where an issue arises beyond the navigator’s competence.

While the training and certification standards section of the proposed rule does not clearly refer to preemption, they do set out specific requirements for navigators in the federal exchange, navigator and non-navigator assisters in partnership exchanges, and non-navigator assisters in state exchanges funded by federal funds.  Although states may license or certify navigators or assisters, presumably state education, training, or examination requirements more burdensome or materially different from those prescribed in the federal rule will be preempted as preventing the application of the federal rule.

Cultural and linguistic appropriateness and disability discrimination standards

Finally, the proposed rule addresses requirements for providing culturally and linguistically appropriate services, as well as services to the disabled.  The proposed rule would require navigators to be familiar with the racial, ethnic, and cultural groups in their area, have access to oral interpretation and written translations of appropriate documents in non-English languages without cost to the consumer, to rely on family or friends for interpreters only when that is the consumers preferred alternative, and to have access to telephone interpretive services. Non-English speakers must be informed of the availability of these services.  Programs must implement strategies to recruit and promote a staff that is representative of the demographic characteristics of the community.  Auxiliary aids and services must also be available without cost to ensure that services are available to people with disabilities.  Federally facilitated exchanges and state partnership exchanges must monitor compliance with navigator program requirements.