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HHS Looks at Regulation of Navigators

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Just when you think the feds can’t possibly issue any more regulations surrounding the Affordable Care Act, along comes the Department of Health and Human Services handing down 436 pages of final rules last week.

I won’t delve into all 436 pages in the space we have available. Instead, I want to concentrate on the 30 or so pages that deal with the regulation of navigators, those who are charged with educating the public about the health care plans available and helping them to enroll in coverage.

Navigators have been a point of contention within much of InsuranceNewsNet’s audience, as we reported in our September 2013 issue. Although health insurance advisors and brokers are eligible to serve as navigators, some say that the exchange regulations leave the advisor no room to provide advice. In addition, many feared that obtaining limited information from a person who received a few weeks of government training about ACA was no substitute for the counsel to be given from someone who has had many years of training and has been licensed to provide health insurance advice.

Since 2012, 25 states have enacted restrictions or regulations on navigators, according to the National Conference of State Legislatures. These state regulations include everything from requiring licensing of navigators to having them undergo criminal background checks.

HHS is OK with allowing states to undergo licensing, fingerprinting and background checks as long as those state regulations don’t keep navigators from carrying out their responsibilities. But the HHS rules also spell out new federal restrictions for navigators and authorizes financial penalties for any navigators or assistors who breach enrollee confidentiality or assist in enrollment fraud.

But one big change in the HHS rules is that the federal agency has prohibited state restrictions on who may serve as a navigator. States may not require that navigators or assisters maintain the principal place of business in the same state in which their exchange is operating. This is because some navigator groups are national organizations. States may require that navigators and assisters maintain a physical presence in the same state in which their exchange operates. States also may not prohibit providers from operating assistance programs because they receive consideration from health insurers for services that they provide.

One rule that pertains to agents and brokers is that the final rule preempts state laws that require navigators to refer consumers “to other entities not required to provide fair, accurate and impartial information.” This seemed to be aimed at some state laws that require navigators to refer consumers to agents and brokers. However, the rule does not prohibit referrals to agents and brokers when a situation occurs where the advice of an agent would be helpful to the consumer.

This final rule attempts to specify the difference between a navigator providing advice on the features and benefits of different health plans and advising consumers to choose a particular plan (which is prohibited). Although navigators must provide fair and accurate advice, and facilitate enrollment, they are not permitted to advice consumers which plan to choose or which plan is best for them.

Agents, brokers, navigators and assisters just finished the enrollment of more than 8 million Americans into health care plans. They won’t have much time to take a vacation. The next open enrollment period begins Nov. 15. And, by the looks of things, HHS won’t be taking a vacation either.

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Susan Rupe is assistant editor for InsuranceNewsNet. She formerly served as communications director for an insurance agents' association and was an award-winning newspaper reporter and editor. Connect with Susan →

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