(Editor’s Note:  As was reported in today’s Washington Post by Nurith Aizenman, signing up an estimated 30 million uninsured Americans for coverage will be a daunting task and some state legislatures are making it more difficult.  Tricia Brooks, CCF’s expert on navigators and in-person assisters,  finds that some state legislative proposals that restrict consumers access to assistance conflict with federal law.)

I’m all for the legislative process; it’s at the core of our democracy. In fact, I made my first oral presentation in a public speaking course in graduate school on how a bill gets passed. And I appreciate that there are ideas for laws that create controversy because an issue has ideologically-opposed viewpoints. What I don’t understand, given the limited time that many state legislatures have, is why industry interests are pushing navigator legislative initiatives that cannot ever go into effect because they are in direct conflict with federal law and regulations.

The fact that state legislative agendas are being clogged with these bills illustrates continuing attempts to restrict consumer access to much needed assistance as we move toward open enrollment and expanded coverage options in less than eight months. As we think about these issues, it is imperative that we focus on the needs of consumers and how to best meet those needs as millions of consumers begin to access coverage in October 2013. States can elect to use insurance brokers/agents in the exchange, even in federally-facilitated exchanges (FFEs) or state partnership exchanges (SPEs) where states share responsibility for consumer assistance with the federal government. There’s a role for brokers and agents but also a critical role for community-based and other types of organizations that have long helped low-income and vulnerable individuals access means-tested benefits. Attempts to prevent these trusted and effective community partners from assisting consumers all the way through plan selection and enrollment, as they are legally authorized to do, are misguided and a waste of valuable time that can be used to debate the real issues facing states.

There’s also a practical reason for not setting up a scenario that effectively or explicitly requires a navigator to handoff a consumer to an insurance broker or agent to complete plan selection and enrollment (as some state legislative proposals have suggested) – it adds extra cost to operating an exchange. For some time, consumers have been purchasing individual health insurance policies online without the aid of a broker. A clear goal in establishing consumer-friendly, web-based health insurance marketplaces using high-performing eligibility and enrollment systems is to empower consumer self-service, with help available via online chat or through the call center. Why create an environment where people must enroll through a process that requires the payment of a commission?

Let me be more specific about why these bills conflict with federal law. First, we continue to see proposed legislation that would require navigators to be licensed as insurance brokers or agents and mandate that they carry errors and omissions insurance (the equivalent of medical malpractice insurance for insurance brokers and agents). These bills or legislative concepts establish requirements on navigators that are prohibited in federal regulations and reiterated in a letter from Secretary Sebelius to certain members of Congress.

Secondly, the most recent proposals cropping up around the country explicitly prohibit a navigator from doing the important work of educating and assisting consumers in connecting to coverage that is legally required by the health reform law. For example, I’ve seen legislation that says a navigator cannot provide “advice on benefits, terms or features of a particular plan features.” So if a consumer who has never had private insurance asks a navigator “what should I be looking for in a plan,” the navigator wouldn’t be able to say, “let’s start by talking about the doctor or hospital you prefer to use”.

As I wrote in this brief, there are specific required duties of navigators and we could debate how these state legislative proposals directly conflict with these legal duties. But in reality, since most of these bills are being filed in states where there will be a federally-facilitated exchange (FFE) or a state consumer partnership exchange (SPE), these bills are pointless as the federal government will fund navigators through federal grants and, thus, will establish the applicable standards and training (although navigator training may be supplemented by the state) as noted in the January 3, 2012 Guidance on the State Partnership Exchange. This guidance goes on to state: “It is legally required that HHS retain ultimate authority over the Navigator grant process, including selecting Navigator grantees and awarding Navigator grants, and the approval of grantee activities and budgets.”

Let me reiterate, I am not suggesting there is not a role for insurance brokers and agents. Recent research by Enroll America shows that a majority of people likely to be eligible for coverage would like to be able to get assistance. Some consumers may prefer to work with a local broker and small business owners are even more likely to maintain relationships with brokers. But we should embrace consumer choice by providing paths to self-service and assistance through local community organizations, and not restrict how people get help. Granted, we must be diligent in assuring the quality of consumer assistance through effective training, strong privacy protection, security and conflict of interest standards, and monitoring all types of consumer assisters. These are all required by federal regulations.

Continuing to debate who gets to help consumers or limiting who provides the full range of services through plan selection and enrollment is not a productive use of our time. Let’s get on with finalizing the standards and training navigators and other assisters so that we are ready to serve consumers when enrollment opens in less than eight (8) months.