One of the thorniest issues arising early on in states at the forefront of planning and implementing their Exchanges has been the role of brokers and navigators. In a number of states, brokers have contended that only “licensed brokers” should serve as navigators. On the other hand, consumer groups have maintained that brokers lack not only the knowledge of public coverage programs to effectively serve as navigators but also the specialized competencies to help those with literacy, cultural and accessibility barriers. Others have raised concerns about potential financial conflicts of interest, as well as privacy and security standards, for both brokers and navigators.

Hopefully the final Exchange rules put an end to this tug of war by providing a role for both brokers and other types to entities to assist consumers with eligibility and enrollment. So how do the final rules deal with these issues?

1) States and Exchanges cannot require navigators to be licensed brokers or to carry errors and omissions insurance coverage. Community and consumer-focused nonprofit groups must be one of at least two types of entities that are utilized as navigators.

2) States must develop and disseminate standards to avoid conflicts of interest in selecting navigators. Additionally, while the proposed rules disallowed navigators from receiving consideration directly or indirectly from any health insurance issuer in connection with the enrollment in plans inside the Exchange, the final rules also extend this provision to plans outside the Exchange. This effectively means that brokers would have to give up compensation from selling commercial insurance products to serve as a navigator. While this seems unlikely, there is a clear option for states to allow brokers and agents to function in their traditional role in enrolling consumers in Exchange plans.

3) If a state elects to work with brokers, there must be an agreement in place that requires brokers to register with the Exchange in advance and receive training in the range of Qualified Health Plan (QHP) options and insurance affordability programs (i.e. advance premium tax credits, cost-sharing reductions, Medicaid, CHIP and the Basic Health Plan (if applicable)). Brokers, as well as navigators, also must comply with the privacy and security standards, which were strengthened in the final version of the regulations (§155.260).

4) As to the role of agents and brokers, the final rules were modified to ensure that brokers work through the Exchange to enroll qualified individuals in QHP’s. It opens the doors for e-brokers (internet-based brokers) to participate but requires that consumers be provided information on all QHP’s and be allowed to withdraw from the process at any time and enroll directly through the Exchange. Furthermore, it disallows offering financial incentives like rebates and giveaways that can be used to potentially steer consumers toward a specific plan or insurer.

5) In addition to enrolling individuals or employees in a QHP, a new provision in the rules would allow brokers to assist individuals in applying for advance premium tax credits and cost-sharing reductions. This provision (§155.220(a)(3)) is published as an interim final rule, which allows for comments to be submitted and considered by CMS before the provision becomes final. 

Now that rules are final (at least most of them), we can get started on the nitty-gritty of planning and implementing our navigator programs. The rules provide the following answers to key questions but states have lots of flexibility in determining the specifics about their navigator programs.

Who can serve as navigators? Beyond the requirement that states use community or consumer-focused nonprofit groups as navigators, they may also select trade, industry and professional associations; commercial fishing industry organizations, ranching and farming organizations; chambers of commerce; unions; resource partners of the Small Business Administration; licensed agents and brokers; and other public or private entities including but not limited to state and local human service agencies and Indian tribes. Insurers and their subsidiaries, as well as associations that represent or lobby on behalf of the insurance industry, are prohibited from serving as navigators. Navigators must demonstrate to the Exchange that they have existing relationships, or could readily establish relationships, with consumers, employers, employees and the self-employed who are likely to be eligible for enrollment in a QHP.

What are the duties of navigators? Navigators must maintain expertise in eligibility, enrollment and program specifications and conduct public education activities. They must provide information that is fair, accurate and impartial, and in a manner that is culturally and linguistically appropriate and accessible for persons with disabilities or limited English proficiency. They also must facilitate selection of QHP’s and provide referrals to ombudsman or consumer assistance programs designed to help enrollees with grievances and complaints. Last but not least, they must comply with state privacy and security standards.

How will navigators be trained? States must develop and disseminate a set of training standards to ensure that navigators have expertise in the needs of underserved and vulnerable populations; rules and procedures regarding eligibility and enrollment; the range of QHP’s and insurance affordability programs; and the privacy and security standards.

How will navigators be funded? The Exchange must award grants to eligible entities or individuals to serve as navigators. Unfortunately, the law prohibits the use of exchange establishment grants (which provide 100% federal funding for exchange operations through 2015) for navigator grants. This could impact the level of resources that states provide for their navigators programs.

As I noted in my last blog on navigators, millions of people are expected to enroll coverage in 2014, many of whom have never had health insurance. There is a high need for outreach and public education. And with even with the sweetest smelling, easiest to use online eligibility and enrollment systems, people will need help enrolling in coverage and understanding the implications of advance premium tax credits. In designing our navigator programs, we should figure out who those people are and select navigators that can best serve them.