CMS published a
proposed rule on April 5, 2013 detailing regulations that aim to prevent biases and conflicts of interest for Navigators and non-Navigator
Assistance Personnel in connection with the soon-to-be implemented health insurance Exchanges (the “Proposed Rule”). The Navigators will assist consumers
in a fair, informative and impartial manner to select a health insurance plan through the Exchanges. Comments on the proposed regulation are due May 6,
2013. Last year, CMS published a final rule implementing a program that awards grants to Navigators who carry out a list of required duties for assisting
customers in choosing the correct health plan.
The Proposed Rule amends the final regulations in last year’s rule and adds additional regulations on: (i) conflict-of-interest and training standards for
Navigators and non-Navigator Assistance Personnel carrying out consumer assistance functions; and (ii) ensuring that the information delivered to consumers
is culturally and linguistically appropriate and accessible by people with disabilities. Below are six key points regarding the Proposed Rule.
- The Exchanges: The Proposed Rule applies to federally-facilitated Exchanges, including State Partnership Exchanges and State-based Exchanges
receiving federal grant funds for establishing Exchanges.
- Who Will Be Affected: The Proposed Rule applies to Navigators and non-Navigator Assistance Personnel. Navigators will provide “fair and impartial
information to consumers about health insurance, the Exchange, QHPs [Qualified Health Plans], and insurance affordability programs [and] provide referrals
to consumer assistance programs (CAP) and health insurance ombudsmen for enrollees with grievances, complaints or questions about their health coverage.”
Navigators will not make eligibility determinations or select a QHP for a consumer. Non-Navigator Assistance Personnel perform similar functions to
Navigators but are provided by the Exchange as part of the Exchange’s requirement to conduct consumer assistance, outreach and education activities. CMS
requested comments on whether the standards should also apply to certified application counselors.
- Complying with Conflicts-of-Interest Standards: Navigators and non-Navigator Assistance Personnel will be required to submit a written plan and
attestation that the Navigator or non-Navigator Assistance Personnel do not have certain relationships with health insurance issuers and the health
insurance industry, including stop-loss insurers. Relationships with the health insurance industry include: (i) employment relationships within the past
five years; (ii) association with either insurance industry members or an association who lobbies on behalf of the insurance industry; and (iii) any
existing or anticipated financial, business or contractual relationships with one or more issuers of health insurance or stop-loss insurance. Additionally,
Navigators and non-Navigator Assistance Personnel will be required to disclose the above-listed conflicts-of-interest and other particular types of
indirect financial conflicts-of-interest to the Exchange and consumers receiving application assistance.
- Training and Certification Standards: All Navigators and non-Navigator Assistance Personnel will be required to register with the Exchange, be
certified by the Exchange and complete an HHS-approved training program before carrying out any consumer assistance functions with the Exchange. Navigators
and non-Navigator Assistance Personnel will also have annual recertification and continuing education requirements.
- Training Module Content: A HHS-approved training program must train Navigators and non-Navigator Assistance Personnel on a wide range of
subjects, including, but not limited to: (i) QHPs, including “precious metal” levels; (ii) the range of insurance affordability programs; (iii) tax
implications of enrollment decisions; (iv) eligibility and enrollment rules; (v) privacy and security standards for handling and safeguarding consumers’
personally identifiable information; (vi) providing culturally and linguistically appropriate services; and (vii) ensuring accessibility for people with a
full range of disabilities.
- Accessibility: The Proposed Rule requires Navigators and non-Navigator Assistance Personnel to be capable of providing culturally and
linguistically appropriate services (CLAS Standards). CLAS Standards include developing and maintaining a general knowledge about the racial, ethnic, and
cultural groups in the service area and the ability to provide consumers with information and assistance in the consumer’s preferred language.
Additionally, entities providing Navigators and non-Navigator Assistance Personnel must ensure that their services are accessible by persons with
disabilities. Accessibility requirements for individuals with disabilities include, but are not limited to: (i) ensuring that consumer education materials
are accessible to those with sensory impairments; (ii) ensuring that legally authorized representatives are permitted to assist an individual with a
disability in making an informed decision; and (iii) being able to work with all individuals regardless of age, disability or culture.
If you have any questions with regards to the Proposed Rule or the Navigator program, please contact one of the authors.