Organizations interested in applying for navigator grants and other stakeholders will want to take a close look at the proposed rules on navigator conflict of interest, training and meaningful access standards. While subject to a 30-day comment period and final rulemaking, the proposed rules add some clarity regarding expectations for federally-funded navigators and in-person assisters (which the proposed rule refers to as non-navigator assisters).

Who does this rule apply to? The rule applies to navigators in states with federally-facilitated exchanges (FFE) and state partnership exchanges (SPE). It also applies to any in-person assisters that are funded by ACA §1311/exchange establishment grants in states with state-based exchanges (SBE) and SPEs. It does not apply to navigators in SBE states, although these states are welcome to adopt and adapt the standards to the extent they find them useful. CMS requests public comment on whether the standards should apply to certified application counselors, a new category of assisters proposed in ACA related rules issued in January 2013.

Do the rules address state licensing issues? The rule affirms that navigators must meet any licensing, certification or other standards set by the state, so long as such standards do NOT prevent the application of the provisions of the ACA. This addresses concerns I raised in my blog on misguided state legislation that explicitly prohibits 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, a number of state legislative proposals say a navigator cannot provide “advice on benefits, terms or features of a particular plan.” Certainly, the proposed regulations reinforce that navigators must provide fair and impartial information and must not have a personal interest in the coverage choices made by individuals or small businesses. But navigators simply cannot help facilitate enrollment in a QHP without discussing benefits, terms and plan features. While I would have liked more explicit guidance on this issue, I do think the proposed rule is clear that state licensing or certification requirements cannot prevent navigators from doing any of their required duties.

What are the proposed conflict of interest standards? The standards add additional detail to the regulations, including prohibiting issuers of stop loss insurance (in addition to health issuers) or their affiliates from serving as navigators. The proposed rule reinforces that navigators may not receive consideration directly or indirectly from insurers, including stop loss insurers. It reaffirms that navigators cannot receive consideration directly or indirectly from an insurer for enrollment in a QHP or non-QHP, including receiving “trailer commissions’ (commissions received for renewals of coverage even after an agent or broker is no longer actively selling the product).

The rule requires navigator entities to submit a plan to the exchange that confirms it will remain free of conflicts of interest during the term as navigator. It requires that navigators provide information about all insurance affordability programs, including the full range of qualified health plans. Navigators must also disclose to the exchange and to each consumer that receives application assistance: 1) any lines of non-health related insurance products it sells; 2) any existing or former employment relationships with the health insurance industry including those involving a spouse or domestic partner; and 3) any financial, business or contractual relationship with a health or stop loss insurance carrier.

What training standards are required?  The proposed rule outlines 15 major categories of training that is expected to take 30 hours. The curriculum covers a broad array of topics including the full range of insurance affordability programs and QHP options; eligibility and enrollment rules and procedures; tax implications of enrollment decisions; customer service standards; and applicable rules, processes and systems. The curriculum topics are listed at §155.215(b). All navigators and non-navigator assistance personnel must complete the training and achieve a passing score on all segments of the certification exams. An annual recertification will be required.

How do the rules deal with cultural and linguistic competency and accessibility? Separate sections address culturally and linguistically appropriate services (§155.215(c)) and standards ensuring access by persons with disabilities (§155.215(d)). Culturally and linguistically appropriate services (CLAS standards) outline that navigators, among other requirements, must maintain knowledge about racial, ethnic and cultural groups; collect and maintain information to help understand the composition and languages of the communities served; provide interpretation services at no cost to the consumer; and receive ongoing education and training in culturally and linguistically-appropriate service delivery.

In regard to accessibility, navigators must ensure that materials, websites and tools are accessible to people with disabilities, including those with sensory impairments, mental illness, addiction and physical, intellectual, and development disabilities. Assistance must be provided in a location and manner that is physically accessible. Navigators must acquire sufficient knowledge to refer people with disabilities to other services and supports and be able to work with individuals regardless of age, disability, or culture, and seek advice or experts when needed.

Are there other tidbits in the rule? The rule clarifies that if an entity or organization is awarded a grant to be a navigator, the entity as a whole is considered to be a navigator. Therefore, the prohibition on receiving compensation from health or stop loss insurance issuers in connection with enrollment or having conflicts of interest would apply all staff members. So for example, this means that insurance agencies cannot receive navigator grants to hire navigators who don’t sell insurance if there are agents in the organization commissioned for selling health or stop-loss insurance. Federal navigators are also expected to provide assistance to both individuals and small businesses.

We are pleased to see these rules, particularly in advance of the long-anticipated announcement of federal navigator grants. Over the next couple weeks, we will be drafting comments and comparing notes with our national partners. As always, we will share our draft comments for those who may find them helpful in commenting on their own.