Last week, CMS issued a proposed rule that describes some of the circumstances in which state laws have overstepped their bounds and interfere with the important work of navigators, non-navigator assisters and certified application counselors (collectively known as assisters). The proposed rule, coupled with the recent court ruling in Missouri that federal law preempts state authority when state laws impose unnecessary and burdensome navigator requirements, is welcomed news to assisters and consumers alike.

The rule maintains that states may still impose certain standards and requirements such as background checks but explicitly stipulates specific standards that are NOT ALLOWABLE:

•  Assisters cannot be required to refer a consumer to an insurance agent or broker. Unlike navigators and other assisters, agents and brokers are not required to provide impartial or complete information on plan options in the marketplace. Thus, requiring assisters to refer consumers to an agent or broker violates the federal standard that assisters provide consumers with fair and impartial information about the full range of qualified health plans available to them.
•  Assisters must be able to serve all consumers. States cannot prevent assisters from helping people who, for example, previously purchased health coverage through an insurance broker or agent. Additionally, unless a state has elected to run only its own SHOP (small business marketplace), states cannot restrict assisters from helping small businesses or their employees access coverage through the SHOP.
•  Assisters must be allowed to discuss terms of coverage or provide advice regarding substantive features such as cost-sharing or comparative benefits of different health plans.  Assisters have a responsibility to “facilitate selection of a QHP,” and that duty includes providing information to consumers about the substantive benefits or particular features of a plan in comparison to other plans.
•  Assisters cannot be required to become brokers or agents, or carry errors or omissions insurance. This was already addressed in the preamble to previously adopted regulations but, if approved, will become carved into regulation text. The proposed rule, however, does not address requirements for other types of professional liability insurance or surety bonds.
•  Any individual or organization that is deemed eligible to serve as an assister by federal standards is allowed to participate. Some states have not allowed health care providers, for example, to serve as assisters because they receive consideration directly from a health insurance issuer, even if such compensation is NOT connected to enrollment. The new rules would no longer allow such state restrictions.

The proposed rules are clear that the circumstances identified above are not an exhaustive list. The rule effectively blocks any state standard that prevents navigators and assisters from serving and fully executing their federal responsibilities. For example, although a state may require additional training or background checks (which CMS considers as generally permissible), it cannot set a deadline for compliance that makes it impossible for the individual or entity to comply on a timely basis despite good faith efforts.

Seventeen states have enacted navigator and/or assister standards, although not all of them conflict with federal standards. Nine additional states have been considering bills during the 2014 legislative sessions. Hopefully, there is still time for stakeholders to prevent more misguided laws from going into effect now that the federal government has drawn a line in the sand.

Because navigator and assister programs were modeled on the very effective and non-controversial SHIP programs that assist seniors with Medicare, it has been surprising the extent to which industry interests have pushed for laws that interfere with assister duties. They are likely to push back on these proposed rules, so it’s important for stakeholders to submit comments if they support these new rules.