Last week, CMS finalized rules that were proposed in March with a few modifications, some good and some not so good. The rules impact navigators, in-person assisters and certified application counselors (CACs) (collectively known as assisters) as summarized below.

1) Pre-empting certain aspects of state laws that restrict navigator and assisters. States are not precluded from establishing or implementing state laws to protect consumers. However, the final regulations are the first attempt to define provisions of state laws that have overstepped their bounds and interfered with the operation of navigator and assister programs by marketplaces or inhibited assisters from doing what is required of them. While the proposed rule was not perfect and could have been strengthened, CMS is clear that it doesn’t include all of the circumstances that later could be viewed as too restrictive or overruled by the courts. Here’s the list of the state standards, which apply to all types of assisters, unless noted, that are not allowable. States cannot:

• Compel assisters to refer consumers to other entities that are not required to provide fair, accurate and impartial information.
• Prevent assisters from giving advice regarding substantive benefits or comparative benefits of different health plans.
• Require navigators to hold an agent or broker license (not applicable to in-person assisters and CACs). A proposed prohibition on requiring navigators to carry errors and omissions insurance was deleted from the final rule.
• Deem a health care provider to be ineligible to serve as an assister solely because it receives consideration from a health insurance issuer for health care services provided.
• Impose standards that would prevent the application of federal requirements applicable to assisters.
• Require assisters to maintain their principal place of business in the marketplace service area, although a physical presence is required.

2) Compensation

• Assisters cannot charge any applicant or enrollee, or receive remuneration in any form from or on behalf of an applicant or enrollee, for application or other assistance.
• In federal marketplace states, no type of individual assister can be compensated on a per-application, per-individual-assisted, or per-enrollment basis effective November 15, 2014.
• To align requirements across assister types, CACs are not allowed to receive consideration directly from a health insurance or stop-loss issuer in connection with enrollment.

3) New standards prohibiting certain conduct. The proposed standards regarding providing gifts or promotional items, conducting “cold calling” type solicitation and using “robo” calling (automatic dialers) were finalized with some helpful clarifications.

• Gifts or promotional items, unless they are of nominal value, cannot be used as an “inducement for enrollment.” However, the final rule clarifies that gifts, gift cards or cash exceeding a nominal value may be used to reimburse consumers for legitimate expenses incurred in their efforts to receive application assistance, such as, but not limited to, travel or postage expenses.
• Assisters are not allowed to solicit consumers for application or enrollment assistance by going door-to-door or through other unsolicited direct contact “unless the entity or individual has a pre-existing relationship with the consumer.” The rule also clarifies that such outreach and education activities are allowed.
• Unless an assister organization has a relationship with the consumer, they are not allowed to initiate any telephone call to a consumer using an automated telephone dialing system, or artificial or recorded voice.

4) Consumer authorization. All assisters must inform consumers about their functions and responsibilities. Additionally, assisters must secure an applicant’s authorization, in a form and manner determined by the marketplace, before obtaining access to an applicant’s personally identifiable information (PII). Such authorization does not expire but it can be revoked at any time. Assisters must minimally retain authorizations for a period of six years (not three years as proposed). The current model form provided in federal and partnership marketplace states includes information about how a consumers PII can be used, as well as an option for consumers to authorize follow-up contact. A similar form will be developed by CMS for in-person assisters.

5) Civil Monetary Penalties (CMP). The new rules subject assisters in federal or partnership marketplace states to two different sets of civil monetary penalties. The first is exclusive to assisters and assister entities who do not comply with applicable federal requirements. This rule allows HHS to permit an entity or individual issued a notice of CMP to enter into a corrective action plan instead of paying the CMP. The second rule more generically applies to the misuse or impermissible disclosure of PII.

All of these provisions warrant further discussion and explanation based on additional detail provided by CMS in response to comments received on the proposed rule. Stay tuned to future blogs that take a deeper dive into these provisions.