Late in the day on July 12, 2013, the Department of Health and Human Services published a final rule on exchange navigator and non-navigator personnel, exchange consumer assistance tools and programs, and certified application counselors. The rule marks a milestone:  For the first time in months, there are no HHS exchange-related proposed or final rules under review by the Office of Management and Budget.

HHS has yet to finalize a recently proposed “cats and dogs” rule that ties up a few remaining implementation issues, as well as a few provisions that were not addressed by the July 5, eligibility and appeals regulation.  However, despite the loud and persistent cries of ACA opponents that ACA implementation is in shambles, the rules are basically in place for the exchanges to open their doors on October 1, 2013, and for ACA reforms to begin operation on January 1, 2014.

The July 12 rule finalizes HHS’s proposed navigator rule, published in April, 2013, and certified application counselor provisions of a proposed rule published in January, 2013.  The new rule deals with the various programs that will assist consumers in learning about and enrolling in the ACA’s premium assistance programs and qualified health plans through the health insurance exchanges.  There are three of these: the navigator program, the only program officially recognized in the statue; “non-navigator assistance personnel,” which have at times in the past been referred to as in-person assisters; and certified application counselors.

HHS also released a helpful fact sheet setting out the distinctions among the various categories.   Another helpful resource for understanding the various consumer assistance programs is Georgetown’s Center for Children and Families blog, which has frequently posted information on consumer assistance programs.

Millions of uninsured Americans will be eligible to purchase health insurance through the exchange using federal premium tax credits in January of 2014.  Polls repeatedly show, however, that many Americans, including those who most need its help, are unaware of the ACA or do not understand that it will help them.  Furthermore, ongoing attacks on the ACA by its opponents continue to confuse and mislead Americans.  Clearly a massive education and outreach program is needed as the ACA is implemented to extend its benefits to all of those whom it is intended to help.

The three types of consumer assisters.  The ACA made provision for assistance by requiring each exchange to establish a “navigator” program modeled after the successful Medicare SHIP program.  The ACA requires navigators to educate the public; provide fair and impartial information concerning qualified health plans, premium tax credits, and cost-sharing reduction payments; and facilitate enrollment in qualified health plans (QHPs).  The statute, however, prohibits the states from using the generous establishment grants that they have been receiving from the federal government to fund navigator programs.  Federal funding for the navigator program in states with federally facilitated exchanges has also been severely limited — $54 million for the 33 states, 13 of which will only get the minimum $600,000 grant.

To fill the gaps, HHS has recognized two other categories of consumer assister programs.  First, there are non-navigator assistance programs, which will not be available in pure federal exchange states, but must be established by state consumer-assistance partnership states, and may be funded by state exchanges and partnership states using establishment grants.

Second is the certified application counselor (CAC) program, which will exist in all states.  Modeled after the Medicaid application counselors program, which has operated successfully in many states, this program uses community-based organizations, including community health centers and hospitals, to help enroll eligible consumers in qualified health plans and insurance affordability programs.  Application counselors cannot be funded through state establishment grants, although state exchanges can use establishment grants to train them.  HHS has, however, independently provided $150 million to community health centers to fund application counselors.

The ACA outreach effort is also being aided by private initiatives like Enroll America.  State insurance departments, consumer assistance programs, and insurance ombudspersons will assist with consumer grievances, complaints, or questions.  And insurance agents and brokers, including web-based brokers, will actively assist consumers, in particular small businesses, while insurers themselves will market their products directly to consumers

The original 2012 exchange rule included a section on navigators.  The earlier rule set out the duties of navigators; defined and prohibited conflicts of interest; recognized navigator licensure, certification, and training standards; required exchanges to contract with at least two types of navigators, at least one of which was a consumer-focused non-profit; and required navigator programs to meet accessibility standards.   The final rule modifies and expands some of these provisions.

The final rule amends the earlier exchange rule to require all navigators and non-navigator assistance personnel to be trained regarding QHP options and all insurance affordability programs operated by the state, including eligibility and benefits information.  More lengthy and specific training requirements are provided later in a new part of the rule for federal navigator and non-navigator assisters, but state exchanges can develop their own training programs and need not follow the federal exchange standards.  The amended rule also requires exchanges to provide referrals to state consumer assistance or insurance ombudsperson programs for consumer grievances, complaints, or questions regarding health plan coverage or determinations.

What state laws will be pre-empted?  The final rule clarifies that states and exchanges may impose licensure or certification requirements, but only if those requirements do not prevent the application of the Affordable Care Act.  States also may not impose requirements on non-navigator assistance personnel or application counselors that would prevent the operation of these programs.

A number of states that have otherwise shown little interest in cooperating with the implementation of the ACA have adopted laws or regulations requiring navigators to meet strict licensure standards and restricting the operation of navigator programs.  Although these laws have been motivated in part by traditional concerns of insurance regulators that persons involved in insurance transactions be reputable and properly trained, they have also been encouraged by agent and broker organizations that appear worried about navigators cutting into their business.  It is also hard to avoid the impression that some of these laws are motivated simply by continuing political opposition to the ACA.

The preface and final rule are disappointingly nonspecific as to what kinds of state regulation might be preempted.  The preface repeats earlier statements that state laws that require navigators to be agents and brokers or obtain errors and omissions insurance would be preempted.  HHS refuses to state, however, whether other requirements, like surety bond requirements, would prevent the application of the ACA without further analysis of specific requirements.  Later the preface says specifically that states may require additional minimum eligibility requirements, background checks, and training and certification requirements, as long as those provisions do not prevent the application of the ACA.

A major question that will need to be addressed is to what degree states can restrict the ability of navigators to fulfill their statutory responsibilities.  The ACA requires navigators to “facilitate enrollment” in QHPs, but some states laws would limit the ability of navigators to advise consumes on or make recommendations regarding QHPs.  The preface to the final rule states, “Helping to facilitate enrollment involves assisting the consumer with submitting the eligibility application, helping clarify distinctions among QHPs, and helping a qualified individual make an informed decision during the plan selection process.”  The preface goes on to state that it does not include selecting QHPs for consumers.  Presumably a state law that prohibited navigators from performing these functions would be preempted by the ACA.

Conflicts of interest.  The final rule next clarifies conflict of interest rules.  These rules apply to navigators in federal exchanges, including partnership exchanges.  Navigators may not be health or stop-loss insurers, their subsidiaries or associations, or receive any consideration (including grants, gifts, or free travel) from health insurers in connection with the enrollment of individuals or employees in a health plan.  This does not bar providers or other entities that perform navigator functions from receiving payment for medical services or grants for unrelated purposes, but these payments would need to be disclosed to the exchange and to consumers receiving application assistance.  It is also not necessary that the employees of large organizations such as hospitals who are in no way connected with the navigator program be free from conflicts of interest if those organizations are navigators, as long as employees directly involved in the program are conflict-free.  The same rules apply to non-navigator assistance programs in the federal exchanges and in state exchanges that receive establishment grants.

The final rule imposes a number of requirements to ensure that navigators and non-navigator assisters do not have a private or personal interest that might influence or appear to influence the objective exercise of their official duties.  Navigator entities in federal exchanges must submit a written attestation that they have no conflicts of interest and a written plan to remain free from conflicts of interest, and must attest that they will provide information to consumers on the full range of QHP options and insurance affordability programs for which they are eligible.

The rule recognizes that some potential conflicts of interest are not disqualifying but must be disclosed to exchanges and in plain language to each consumer who receives application assistance by navigators in a federal exchange. These would include the sale of lines of insurance other than health or stop loss (for agents who are navigators); employment relationships with insurers, stop-loss insurers, or their subsidiaries within the previous five years; or employment relationships between an insurer, stop-loss insurer, or subsidiary, and the navigator or staff member’s spouse or domestic partner.  The same rules apply to non-navigator assistance personnel with federally facilitated or partnership exchanges or state exchanges that receive establishment grants.  Certified application counselors are subject to different rules, as explained below.

Certification and training.  The final rule requires all navigators in a federal exchange, including partnerships, to fulfill training requirements, pass a certification exam, and receive continuing education, and be certified or recertified on at least an annual basis.  Navigators must be prepared to meet the needs of enrollees in both the individual and SHOP exchange, although not all navigators are required to actively seek out small employers to assist, and navigators can assist employers through referrals.  (In states like Utah with a bifurcated exchange, SHOP navigators could meet their obligations to small employers by referring them to agents and brokers for certain kinds of assistance.)   The rule specifies fifteen topics that must be covered in the federal training module and provides for up to 30 hours of training.  The same certification and training standards apply to non-navigator assistance personnel in the federally exchanges and in states that use establishment grants to fund training and certification.

The training module includes a section on privacy and security standards.  Navigators and non-navigator assisters must meet privacy and security standards, but are not expected to have access to personally identifiable consumer information without the consumer present and will not retain any personally identifiable information.  Federal navigator grantees will be screened and subject to rigorous monitoring to ensure compliance, but states may provide oversight as well, as long as they do not prevent the application of federal standards.

The federal exchanges will not provide a dedicated portal for the use of navigators and non-navigator assisters, although it will continue to consider this option.  It will provide them with technical assistance.

Culturally and linguistically appropriate services and service to people with disabilities.  The final rule clarifies requirements for navigators in federal exchanges (including partnerships), and non-navigator assisters in federal exchanges and in state exchanges receiving establishment grants, for providing culturally and linguistically appropriate services and ensuring access for persons with disabilities.  These entities and individuals must develop and maintain general knowledge about the racial, ethic, and cultural groups in their service areas — including health beliefs and practices, preferred languages, and health literacy– and must collect and maintain updated information on the linguistic and ethnic composition of their communities.  They must provide a consumer without cost information and assistance in the consumer’s preferred language, including oral interpretation or written translation of documents when necessary or requested by the consumer.  In some instances, these services may be provided through an appropriate referral.

A consumer’s friends and family can only be used for interpretation when requested by the consumer as a preferred alternative to other interpretation services.  Consumers with limited English proficiency must be informed in their preferred language of their right to language-access services.  Navigator and non-navigator assister entities must implement strategies to recruit, support, and promote staff representative of the demographic characteristics, including primary languages, of their communities.

Navigator and non-navigator assistance entities and personnel bound by the final rule must also ensure that their education materials, websites, and other consumer assistance tools are accessible to people with disabilities, including those with sensory impairments and with mental illness, addiction, or physical, intellectual, or developmental disabilities.  Auxiliary aids and services must be provided without cost when necessary or requested by consumers to ensure effective communication.

Again, family members or friends can only be used for interpretation if requested by the consumer.  Assistance must be provided in a location and manner that is physically and otherwise accessible, and authorized representatives must be allowed to assist consumers with disabilities to make informed decisions.  Navigators and assisters must have sufficient knowledge to make appropriate referrals to local, state, and federal long-term services and supports and be able to work with all individuals regardless of age, disability, or culture, and seek expert advice when needed.  Federal exchanges must monitor compliance with these standards

Finally, the rule provides that federal exchanges, including partnership exchanges, must monitor compliance with these standards.   This could include review of documents, audits, or site-visits.  The exchanges will work together with state officials, consumer groups, and insurers in ensuring compliance with the requirements.

Costs.  The Collection of Information section of the preface notes that difficulty of estimating the costs of the navigator program before it gets underway, but provides some information.  To do this, it uses standard wage estimates used for projecting paperwork costs.  It clarifies that these are not, however, as some people ignorant of the federal regulatory process had assumed when the proposed rule was published, mandatory wages, and that nothing in the regulation required that navigator personnel be paid specific amounts.

Certified application counselors.  The final rule also finalizes rules governing CACs.  Each exchange (including state, federal, and partnership) must offer CAC services.  Exchanges may certify individual employees or volunteers of designated organizations to serve as CACs or certify organizations to in turn certify their own employees or volunteers to serve as CACs.  Certified individuals or organizations must agree to comply with the standards and requirements of the regulation, and certified organizations must oversee compliance by their employees or volunteers.

Federal exchanges will certify CAC organizations, but state exchanges may certify individuals, organizations, or both.  Individuals or entities are not required to be CACs to assist exchange consumers, but persons who are not CACs may not present themselves to the public as being certified to help consumers.  HHS will maintain a public registry of consumer assistance options in each federally facilitated exchange.

The preface lists organizations that may serve as CACs:  Federally Qualified Health Centers; hospitals; other health care providers (including Indian health providers, behavioral and mental health providers, and Ryan White HIV/AIDS providers); non-profit social service agencies; and local governmental agencies, such as health departments or libraries.  Medicaid certified application counselor organizations are explicitly listed as organizations that may serve as exchange CACs.  Their employees and volunteers will be deemed to have completed any necessary training on Medicaid and CHIP.

CAC duties are more limited than those of navigator and non-navigator assisters.  They will inform individuals and employees about the full range of QHPs available to them, assist individuals and employees in applying for QHP coverage, and assist individuals in enrolling in QHPs and insurance affordability programs.

Organizations with conflicted interests, like insurers or their agents and brokers, are explicitly not prohibited from serving as CACs.  CACs must, however, disclose any conflicts of interest to consumers they serve.  CACs must also disclose conflicts to the exchanges that certify them, or, if they are individuals certified by an organization, to the organization.

Conflict of interest requirements are not the only way in which CACs differ from navigators and non-navigator assisters.  CACs must comply with exchange nondiscrimination requirements, must disclose to consumers the full range of available QHPs, must act in the best interests of the consumers they serve, and may not steer consumers to particular insurers or plans based on their own self interest.  Again, however, CACs are not prohibited from having conflicts of interest.  They need not conduct community outreach activities, and may serve people with disabilities or who require non-English language services through the use of an appropriate and geographically accessible referral rather than directly (unless federal or state laws that apply to the specific CAC require more).

Employees or volunteers must complete approved training programs covering QHP options, insurance affordability programs, and eligibility rules and regulations governing state insurance affordability programs, and must pass a certification exam.  The training programs need not cover all of the topics covered by navigator and non-navigator assisters, but states may develop a single training program for all assisters.  The federal government will share its program with the states for their use or modification.  Indeed the federal government will make its training program available to the public at no cost, but only individuals who take the training and then are certified can represent themselves as CACs.

CAC organizations and individuals must comply with exchange privacy and security standards.  Future guidance will be issued on continuing education and recertification.

States may apparently impose additional requirements on CACs that do not prevent the application of federal requirements, but HHS did not finalize a rule explicitly requiring compliance with state laws because of a concern that state laws might limit eligible organizations and individuals.

Exchanges must have in place procedures to withdraw certification from organizations or individuals who are certified as CACs, and from individual employees or volunteers certified by organizations, for noncompliance with program requirements.  Organizations must ensure that individuals they serve are informed of the functions and responsibilities of CACs and provide authorization for access to personally identifiable information, which can be revoked at any time.  Certified organizations must be able to revoke the certification of individuals whom they certify.

Neither CACs nor any other assisters may impose any charge on consumers for their assistance.

On July 12, 2013, CMS also published a guidance on the certified application counselor program and a sample of the application form that will be used by CMS for certified application counselor organizations (although the online application form is not yet available).  The guidance describes how the federal exchange (including partnership states) will determine which organizations qualify as certified application counselors and will grant and withdraw the designation from these organizations.

Other News

In other news, CMS published an FAQ on July 10, 2013, clarifying that state exchanges must be self-sustaining by 2015, but may collect user fees in 2014 for use in 2015, as long as they clearly account for establishment grant funds and properly disclose their cost.