Proposed Standards for Navigators and Consumer Assistance Counselors: Preemption of Certain State Navigator Regulatory Laws
Posted on March 19, 2014 | Comment (1)
By Sara Rosenbaum, Mark Dorley, Partow Zomorrodian, Aimee Grace
On March 17, 2014, HHS released a proposed rule in public view form that addresses a variety of issues including Exchanges, Navigators and Non-Navigator consumer assistance personnel, and other matters. The rule will appear in the Federal Register on March 21, 2014, and has a very brief 30-day publication period. We will follow this special Navigator update with additional analysis of the proposed rule.
The proposed rule addresses a range of issues, one of which is the relationship between federal and state Navigator laws.
The Navigator program is part of the Exchange provisions of the Affordable Care Act. All Exchanges must establish and maintain Navigator programs to assist applicants qualify for premium subsidies and cost-sharing reduction assistance and “facilitate enrollment in qualified health plans.” The ACA directs the Secretary to establish Navigator standards but also permits states to license Navigators. Federal regulations governing Navigators and consumer assistance counselors (also authorized at state option) establish extensive personnel standards but also clarify that states have the authority to impose licensing and certification standards for Navigators as long as those standards do not “prevent the application of” the ACA.
At least 13 states have enacted Navigator laws, and such laws are pending in many other states. A federal court in Missouri has issued an injunction against the application of that state’s Navigator law as directly contravening federal Navigator performance standards, such as barring enrollment assistance into qualified health plans. A study released by GW’s Geiger Gibson Program in 2013 found that health centers located in states that both opted out of the Medicaid expansion and imposed strict Navigator limits were significantly less likely to maintain comprehensive outreach programs, including facilitating assistance into plans.
The Proposed Rule
The proposed rule would amend existing Navigator regulations to provide more detail on which types of state laws HHS will consider laws that “prevent the application” of federal Navigator and consumer assistance laws and thus preempted (i.e., unenforceable). The HHS rule permitting state licensure laws would be revised to read as follows:
§155.210 Navigator program standards.
(c) * * *
(iii) Meet any licensing, certification or other standards prescribed by the State or Exchange, if applicable, so long as such standards do not prevent the application of the provisions of title I of the Affordable Care Act. Standards that would prevent the application of the provisions of title I of the Affordable Care Act include but are not limited to the following:
(A) Except as otherwise provided under §155.705(d), requirements that Navigators refer consumers to other entities not required to provide fair, accurate, and impartial information.
(B) Except as otherwise provided under §155.705(d), requirements that would prevent Navigators from providing services to all persons to whom they are required to provide assistance.
(C) Requirements that would prevent Navigators from providing advice regarding substantive benefits or comparative benefits of different health plans.
(D) Requiring that a Navigator hold an agent or broker license or carry errors or omissions insurance.
(E) In a Federally-facilitated Exchange, imposing standards that would prohibit individuals or entities from acting as Navigators that would be eligible to participate as Navigators under standards applicable to the Federally-facilitated Exchange.
(F) In a Federally-facilitated Exchange, imposing standards that would, as applied or as implemented in a State, prevent the application of requirements applicable to the Federally-facilitated Exchange. (emphasis added)
The same preemption standard would also be added to the consumer assistance counseling regulation (155.225).
In addition, the proposed rules would simultaneously increase federal standards and oversight of Navigator entities and activities, including barring Navigators from charging for their services, engage in “cold calls” through door-to-door, telephone or other contacts to prospective enrollees, and increase record-keeping standards. Re-certification also will be required under the proposed rule.
How do these standards get enforced? Should the proposed rules be expanded to spell out a more detailed method of federal oversight? Will HHS undertake an independent review of state Navigator and consumer assistance counseling requirements to determine whether state laws directly conflict with federal requirements? Will HHS establish a system by which individuals can seek HHS review of state laws that potentially may conflict with federal law? The ambiguity regarding enforcement is magnified by the fact that HHS notes that its list is non-exhaustive, meaning that there may be other state requirements that are considered to prevent the application of federal law.
In the Preamble to the rule, HHS is unclear regarding the enforcement mechanism, apparently relying on voluntary state compliance:
We believe these proposals will provide additional clarity regarding HHS’s position with respect to whether a non-exhaustive list of specific non-Federal requirements would prevent the application of Federal requirements applicable to Navigators, non-Navigator assistance personnel, and certified application counselors and Exchanges’ operation of such programs, within the meaning of section 1321(d) of the Affordable Care Act. In advancing these proposals, HHS’s intent is to accord all States the comity that they are due under section 1321(d) of the Affordable Care Act, while preserving the ability of Exchanges, and the individuals and entities approved by Exchanges, to carry out such programs. HHS proposes these provisions to ensure that it can establish and operate the consumer assistance functions of an FFE consistent with the Federal requirements set forth in section 1311(i) of the Affordable Care Act and 45 CFR 155.205, 155.210, 155.215, and 155.225. We solicit comments on all aspects of these proposals.
 PPACA §1311(i)(4).
 78 Fed. Reg. 42824 (July 17, 2013).
 45 C.F.R. §155.210(c)(1)(iii).
 See e.g., St. Louis Effort for AIDS v Huff (W.D. Mo., 2013) No. 13-4246-CV-C-ODS. See tim Jost, Court Blocks Missouri Restriction on ACA Navigators, Health Affairs Blog http://healthaffairs.org/blog/2014/01/23/implementing-health-reform-court-blocks-missouri-restrictions-on-aca-navigators/.
 Shin, P., et al., “Assessing the Potential Impact of State Policies on Community Health Centers’ Outreach and Enrollment Activities,” Geiger Gibson/RCHN Community Health Foundation Research Collaborative Policy Research Brief #35, January 14, 2014, at: https://sphhs.gwu.edu/pdf/eIR/GGRCHN_PolicyResearchBrief_35.pdf.
- outreach and education;
- impartial selection, completion and submission of a qualified health plan (QHP); and
- communication and customer service strategies to meet the needs of the Navigator's target enrollment population.
- Exchanges must designate certain organizations to train and certify staff and volunteers as application counselors. Application counselors are individuals that assist consumers in completing their Exchange enrollment applications for either public or private insurance.
- An individual or group with ties to stop loss insurance issuers may not become a Navigator. The rule further states that some of the eligibility criteria utilized to determine whether or not one can be a Navigator may also be applied to individuals aspiring to become other forms of non-Navigator assisters.
- The rule solidifies Navigator training standards on the following issues: conflicts-of-interest, training and certification, and meaningful access.
- Any licensing or certification requirements issued by states may not conflict with the provisions laid forth in title I of the Affordable Care Act (ACA).