By Katie Keith, Georgetown University Center on Health Insurance Reforms

In addition to our efforts to track state legislation on the Affordable Care Act’s market reforms (check out our most recent blog on the 2014 market reforms here), our team is also tracking legislation that relates to exchange establishment and development. In this blog—brought to you as part of our Implementing the ACA: Monitoring and Analysis of Insurance Reforms project—we identify and briefly summarize bills in 18 states related to navigator requirements.

What is a navigator? All exchanges are required to establish a navigator program. Under the Affordable Care Act, navigators must conduct public education activities; distribute fair and impartial information on enrolling in coverage through the exchange, the availability of tax credits, and cost-sharing reductions; facilitate enrollment in qualified health plans; provide referrals to other consumer assistance organizations or state agencies to address health insurance issues; and provide information in a culturally and linguistically appropriate manner.

The entities that can serve as navigators are defined broadly and include organizations as diverse as trade, industry, and professional associations, ranching and farming organizations, community and consumer-focused nonprofit groups, and chambers of commerce, among others. States will play a different role in establishing navigator programs based on the exchange model—state-based, state-partnership, or federally facilitated—that a state chooses.

HHS addressed navigator requirements in its rules on exchanges (here and here) and additional guidance (here, here, and here). And, as my colleague Tricia Brooks explains, there is a new proposed rule on navigators at the Office of Management and Budget that is expected to provide additional information about navigator training requirements, conflict of interest standards, and privacy standards. For additional information on navigator programs and other options for consumer outreach and education, check out these resources from Enroll America and this issue brief from the Robert Wood Johnson Foundation’s State Health Reform Assistance Network.

What are states doing on navigator requirements? To date, state approaches to navigator requirements have varied. Some states addressed navigator requirements in the context of exchange establishment legislation. Maryland’s exchange legislation, for example, included detailed requirements for navigators and agents and brokers that wish to assist consumers with purchasing coverage through the exchange. These requirements include the role of a navigator, reasons why a navigator certification may be suspended or revoked, and an insurance producer authorization process. Other states—such as Vermont and the District of Columbia—were less prescriptive in their language and, instead, require the exchange to develop the design and operation of navigator programs.

Navigator requirements have been discussed in state legislatures across the country and among state regulators at the National Association of Insurance Commissioners (NAIC). For example, the NAIC’s Producer Licensing (EX) Task Force recently distributed a draft discussion framework for navigator certification, and the NAIC released a document on the comparative roles of navigators and producers in the exchange as well as a white paper on marketing and consumer information to assist state regulators in making policy decisions related to navigators.

The debate over navigator requirements has generated controversy, particularly with respect to the distinction between navigators and producers and the types of restrictions that states can place on navigators as they develop certification or licensing schemes. Some states, for example, are considering navigator requirements that may mimic producer licensing requirements. Bills in other states appear to directly conflict with the requirements specified in federal regulations and guidance, suggesting that these state requirements would be preempted by federal law. And one bill would hold navigators personally liable for acts or omissions made when assisting consumers.

As you can see from our summary of navigator legislation, many of the bills are strikingly similar in the requirements they lay out. Some common requirements include:

  • Prohibiting navigators from:
    • Engaging in activities that require a producer license;
    • Providing advice concerning benefits, terms, and features of a particular health plan;
    • Recommending a particular plan or advising about which health pan to choose; or
    • Providing information related to non-exchange plans.
  • Requiring navigators to:
    • Pass a written exam;
    • Complete training and certification requirements; and
    • Obtain and maintain a surety bond for protection against wrongful acts, misrepresentation, or negligence of navigators; among other requirements.
  • Establishing license renewal requirements, standards for navigator referrals, and grounds for probation.
  • Applying the state’s Unfair Insurance Trade Practices Act to navigators.

As more bills come online and proceed through the legislature, let CHIRblog help keep you up to date in our “State of the State” series.