Final Exchange Rules Provide Roles for Both Brokers and Navigators – Say Ahhh! A Children’s Health Policy Blog

One of the thorniest issues arising early on in states at
the forefront of planning and implementing their Exchanges has been the role of
brokers and navigators. In a number of states, brokers have contended that only
“licensed brokers” should serve as navigators. On the other hand, consumer
groups have maintained that brokers lack not only the knowledge of public
coverage programs to effectively serve as navigators but also the specialized
competencies to help those with literacy, cultural and accessibility barriers.
Others have raised concerns about potential financial conflicts of interest, as
well as privacy and security standards, for both brokers and navigators.

Hopefully the final Exchange rules put an end to this tug
of war by providing a role for both brokers and other types to entities to
assist consumers with eligibility and enrollment. So how do the final rules
deal with these issues?

1) States and Exchanges cannot require navigators to be
licensed brokers or to carry errors and omissions insurance coverage. Community
and consumer-focused nonprofit groups must be one of at least two types of
entities that are utilized as navigators.

2) States must develop and disseminate standards to avoid
conflicts of interest in selecting navigators. Additionally, while the proposed
rules disallowed navigators from receiving consideration directly or indirectly
from any health insurance issuer in connection with the enrollment in plans inside
the Exchange, the final rules also extend this provision to plans outside the
Exchange. This effectively means that brokers would have to give up
compensation from selling commercial insurance products to serve as a
navigator. While this seems unlikely, there is a clear option for states to
allow brokers and agents to function in their traditional role in enrolling
consumers in Exchange plans.

3) If a state elects to work with brokers, there must be
an agreement in place that requires brokers to register with the Exchange in
advance and receive training in the range of Qualified Health Plan (QHP)
options and insurance affordability programs (i.e. advance premium tax credits,
cost-sharing reductions, Medicaid, CHIP and the Basic Health Plan (if applicable)).
Brokers, as well as navigators, also must comply with the privacy and security
standards, which were strengthened in the final version of the regulations

4) As to the role of agents and brokers, the final rules
were modified to ensure that brokers work through the Exchange to enroll
qualified individuals in QHP’s. It opens the doors for e-brokers
(internet-based brokers) to participate but requires that consumers be provided
information on all QHP’s and be allowed to withdraw from the process at any
time and enroll directly through the Exchange. Furthermore, it disallows
offering financial incentives like rebates and giveaways that can be used to
potentially steer consumers toward a specific plan or insurer.

5) In addition to enrolling individuals or employees in a
QHP, a new provision in the rules would allow brokers to assist individuals in
applying for advance premium tax credits and cost-sharing reductions. This
provision (§155.220(a)(3)) is published as an interim final rule, which allows
for comments to be submitted and considered by CMS before the provision becomes

Now that rules are final (at least most of them), we can
get started on the nitty-gritty of planning and implementing our navigator
programs. The rules provide the following answers to key questions but states
have lots of flexibility in determining the specifics about their navigator

Who can serve as navigators? Beyond the requirement that
states use community or consumer-focused nonprofit groups as navigators, they
may also select trade, industry and professional associations; commercial
fishing industry organizations, ranching and farming organizations; chambers of
commerce; unions; resource partners of the Small Business Administration;
licensed agents and brokers; and other public or private entities including but
not limited to state and local human service agencies and Indian tribes.
Insurers and their subsidiaries, as well as associations that represent or
lobby on behalf of the insurance industry, are prohibited from serving as
navigators. Navigators must demonstrate to the Exchange that they have existing
relationships, or could readily establish relationships, with consumers,
employers, employees and the self-employed who are likely to be eligible for
enrollment in a QHP.

What are the duties of navigators? Navigators must
maintain expertise in eligibility, enrollment and program specifications and
conduct public education activities. They must provide information that is
fair, accurate and impartial, and in a manner that is culturally and
linguistically appropriate and accessible for persons with disabilities or
limited English proficiency. They also must facilitate selection of QHP’s and
provide referrals to ombudsman or consumer assistance programs designed to help
enrollees with grievances and complaints. Last but not least, they must comply
with state privacy and security standards.

How will navigators be trained? States must develop and
disseminate a set of training standards to ensure that navigators have
expertise in the needs of underserved and vulnerable populations; rules and
procedures regarding eligibility and enrollment; the range of QHP’s and
insurance affordability programs; and the privacy and security standards.

How will navigators be funded? The Exchange must award
grants to eligible entities or individuals to serve as navigators.
Unfortunately, the law prohibits the use of exchange establishment grants
(which provide 100% federal funding for exchange operations through 2015) for
navigator grants. This could impact the level of resources that states provide
for their navigators programs.

As I noted in my last blog on navigators, millions
of people are expected to enroll coverage in 2014, many of whom have never had
health insurance. There is a high need for outreach and public education. And
with even with the sweetest smelling, easiest to use online eligibility and
enrollment systems, people will need help enrolling in coverage and
understanding the implications of advance premium tax credits. In designing our
navigator programs, we should figure out who those people are and select
navigators that can best serve them.

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