Insurance Agents Fault CMS Proposal On ‘Navigators’ for Lack of Clarity

Health Insurance Report™ helps you track and analyze legal, legislative, and regulatory developments affecting the health-insurance industry throughout implementation of the Affordable Care Act...

By Sara Hansard  


It is not clear how to tell whether people hired to help applicants enroll in health plans under the Affordable Care Act are selecting plans or merely helping consumers through the process, a group representing health insurance brokers and agents said in a May 6 comment letter.

The National Association of Health Underwriters (NAHU), which represents more than 100,000 health insurance agents and brokers, also asked for clarification about whether “navigators” and other assistance personnel will provide consumers with information about private health insurance options that exist beyond the online marketplaces, or exchanges, being set up in accordance with ACA.


“Consumers who utilize the new exchange marketplaces and services of navigators and other related assisters deserve the assurance that the people being paid to help them are accountable for providing them accurate information and for keeping their private health and financial information secure.”  




--National Association of Health Underwriters

Comments were due May 6 on a proposed rule released April 3 by the Centers for Medicare & Medicaid Services, Exchange Functions: Standards for Navigators and Non-Navigator Assistance Personnel. The proposed rule would create conflict-of-interest and training standards for navigators and “in-person assistance personnel” (IPAs) in federally facilitated exchanges (FFEs), including state partnership exchanges (SPEs), and for “non-navigator” IPAs in state-based marketplaces funded through federal establishment grants (see previous article).

In its comment letter, signed by Jessica Waltman, senior vice president of government affairs, NAHU questioned why an example in the preamble of the proposed rule indicated a navigator could be advising a small business about self-funding arrangements. “Navigators and assisters should present standardized information about exchange-based QHP options only,” the letter said, referring to the qualified health plans that will be sold through the marketplaces.

In 2012, the Department of Health and Human Services, the Department of Labor, and the Internal Revenue Service issued a request for information on small employers' use of stop-loss insurance to cover self-funded health plans, citing concerns that the practice could lead to higher costs in small group health insurance marketplaces (see previous article).

ACA created the navigator program to educate the public about the law and give impartial information about QHPs and premium tax credits for moderate- and low-income people, as well as help people get enrolled in plans. On April 9, CMS announced the availability of $54 million in grants to fund the navigator program in the 33 states that will have FFEs and SPEs (see previous article). Applications are due June 7.

NAHU in its comment letter also called for “adequate training and exam-based certification and recertification for all individuals who may be interacting with marketplace consumers in a professional capacity.” It said, “NAHU believes that the consumers who utilize the new exchange marketplaces and services of navigators and other related assisters deserve the assurance that the people being paid to help them are accountable for providing them accurate information and for keeping their private health and financial information secure.”

Insurers' Comments

America's Health Insurance Plans, in its May 6 comment letter, recommended “extensive consultation with issuers,” regarding QHPs offered through the marketplaces in developing training programs for navigators and non-navigators. AHIP represents insurers that cover more than 200 million people.

“Issuers have a long history of providing information and education about their product offerings and will be able to offer unique and valuable expertise as the training content is developed,” AHIP said in its letter, signed by Colleen Gallaher, senior vice president, state policy.

The Blue Cross and Blue Shield Association (BCBSA), in its May 6 comment letter, said “there is a lack of clarity on the various enrollment channels and how consumers will learn about exchanges from each of these entities.” BCBSA plans cover more than 100 million members.

CMS should clearly define the types of organizations that can be designated “certified application counselors” (CACs), and the agency should differentiate the role of CACs, navigators, IPAs, authorized representatives, and agents and brokers more clearly, BCBSA said in its letter, signed by Justine Handelman, vice president, legislative and regulatory policy. It referred to types of assistance personnel that have been proposed by CMS.

Assistance personnel should be prohibited from directing high-risk individuals to specific QHPs to minimize adverse selection, BCBSA said. “For example, provider-based application counselors or counselors affiliated with disease advocacy organizations should be prohibited from 'steering' prospective patients to specific health plans (i.e., those with the most generous benefits or reimbursement rates),” it said.

Hospitals' Comments

The American Hospital Association (AHA) said in its May 3 letter, signed by Executive Vice President Richard Pollack, that there is a need for clarification about the responsibilities and requirements for those who provide assistance to consumers on a voluntary basis without federal financial assistance. AHA represents all types of hospitals and health care systems, including nearly 5,000 hospitals.

“We do not wish to see any disincentives for hospitals or others to lend their hands to the task of enrolling individuals in health coverage,” AHA said.

It also recommended that consumer assistance programs and standards be consolidated into one set of rules to provide greater clarity on what entities can perform particular functions and which standards apply to each type of assistance personnel.

CMS proposed that navigators and IPAs receive 30 hours of training, AHA said. AHA recommended not applying the requirement to unfunded certified application counselors, and it urged that CMS not duplicate training that hospital employees already have for applications for Medicaid and the Children's Health Insurance Program.

“The proposed rule does not specifically state that hospitals can serve as a navigator, non-navigator or CAC,” the Federation of American Hospitals (FAH) said in its May 6 letter. “We strongly urge CMS to clarify in the final rule its overall vision that hospitals can apply to serve in any of these capacities,” said FAH, which represents more than 1,000 investor-owned or managed hospitals.

FAH also urged that the final rule clarify that payments to hospitals from health insurers would not violate conflict-of-interest standards for assistance personnel. “Hospitals have a special vantage point in this process because they are often the hub in the health care marketplace in local communities,” with long-standing relationships with health insurers, public health programs, consumers, companies, and providers, it said.

Enroll America's Comments

Enroll America (EA), a group set up to help people get enrolled, recommended in its May 6 letter that Section 1311(a) grants to establish the marketplaces be used as a transitional policy for state-based marketplaces and for non-navigator assistance programs in FFEs. State-based marketplaces should be required to outline future funding to support a fully funded navigator program, EA said.

The 1311(a) grants have been made available to several FFE states to conduct marketplace plan management functions, and recently HHS announced that the funds can be used for marketing and outreach under specific conditions, EA said.

In a blog posted on the Health Affairs website, Timothy Jost, a law professor at Washington and Lee University in Lexington, Va., and a consumer representative to the National Association of Insurance Commissioners, said that Section 1311 of ACA, which establishes the marketplaces, “appropriates an unspecified amount of funding to be determined by the secretary of HHS to make awards to the states as necessary to establish the exchanges.” HHS has issued more than $3.6 billion in establishment grants, according to the Kaiser Family Foundation.


Ways and Means Letter

Late May 15, House Ways and Means Health Subcommittee Chairman Kevin Brady (R-Texas) and Oversight Subcommittee Chairman Charles W. Boustany Jr. (R-La.) sent a letter to HHS Secretary Kathleen Sebelius asking questions about the navigator program.

Navigators and non-navigator assisters “will have access to sensitive taxpayer information,” the letter said. It asked what specific information the assistance personnel will have access to, such as Social Security numbers or income information, and whether the assistance personnel could be paid by labor unions, political parties, politically active tax-exempt organizations, or convicted felons. The letter asked for a reply by May 21.

The letter also asked to what extent HHS has planned to use nongovernment sources of funding to support navigator organizations. On May 13 and 14, congressional Republicans sent letters to HHS asking for information about published reports that Sebelius had solicited funding to promote ACA from insurers and other organizations (see related article).