By Sara Rosenbaum

Background

One of the great challenges of our health care system for individuals and small employers is figuring out health insurance. Multiple products are available in the market, and they can differ enormously with respect to benefits and cost-sharing, coverage standards, who – and what – is in or out of provider networks, and how to make the best use of insurance coverage. Insurance agents and brokers – sometimes referred to as “producers” – provide an important service by helping people and small businesses make purchasing choices. But brokers and agents perform a specific task: their primary job is to sell insurance products. Thus, while their role is key to a functioning insurance market, brokers and agents may not be sources of impartial advice on how to select among competing plans, and they may not provide post-enrollment assistance in understanding and using coverage once purchased.

This problem has been around for a long time. In the case of Medicare beneficiaries, the State Health Insurance Assistance Program (SHIP), administered by CMS, is designed to offer “one-on-one” assistance to Medicare beneficiaries and their families. Rather than being paid by private insurers who sell Medicare Advantage products, Medicare Part D prescription drug plans, or supplemental insurance products, SHIP counselors receive their financial support from federal grants. These individuals are not licensed as sellers of insurance products; instead, they provide an outreach and support role to program beneficiaries. Through face-to-face meetings, over the telephone, or through interactive electronic communication, their job is to provide impartial guidance and counseling on a broad range of topics.^[1] Each state has a SHIP program, thereby permitting each program to tailor its services and supports to residents of that state. SHIP programs may be organized in various ways, often with services furnished through state Departments of Aging.^[2]

Changes Made by the Affordable Care Act (P.L. 111-148)

In a number of ways the Affordable Care Act (ACA) seeks to make the process of buying health insurance easier. All states are expected to operate health insurance exchanges as of January 1, 2014.^[3] Acting as organized health insurance “marts,” Exchanges are intended to better enable health insurance purchasing and enrollment by the individuals and small employer groups who are eligible to participate.^[4] Through exchanges, consumers and employers will be able to view and compare health insurance products, known as “qualified health plans.”^[5] Under the ACA, qualified health plans, in turn, will be required to cover certain “essential health benefits” defined by the U.S. Secretary of Health and Human Services (HHS) in regulations. These rules will not only spell out the types of benefits,^[6] items and services that will be covered, but also will provide coverage at certain pre-defined actuarial value levels (e.g., platinum, gold, silver, and bronze). While states have the flexibility to require coverage of additional benefits, the essential health benefit requirements should bring far greater standardization to health insurance and ease the challenge of buying coverage.

In addition, Exchanges will be required to offer health plan options in an Internet-based, standardized format that will allow buyers to compare quality and price,^[7] and will be expected to present quality rating information for the qualified health plans that are sold.^[8] Exchanges also will have to offer a toll-free telephone hotline to manage requests for assistance,^[9] and provide an electronic calculator that will allow purchasers to see their actual out-of-pocket costs after premium tax credits are applied.^[10]

In addition to these general consumer support tools, the ACA requires that Exchanges establish a “Navigator program.”^[11] The ACA specifies certain minimum elements for a Navigator program:

• Exchanges must award grants out of non-federal general Exchange operating funds to Navigator entities to support their activities;^[12]
• In order to be qualified as a Navigator, an entity must “demonstrate” that it has “existing relationships” or could “readily establish” relationships, with employers and employees, consumers (including those who are uninsured or under-insured) and self-employed persons.^[13] Entities that may qualify as Navigators “may” include trade, industry, and professional associations, organizations involved in fishing, farming, and ranching industries, nonprofit entities that are “consumer-focused,” chambers of commerce, unions, Small Business Administration resource partners, “other licensed insurance agencies and brokers,” and other entities that are capable of carrying out the federally prescribed duties, meet federal standards, and provide required information;^[14]
• Navigators must “conduct public education activities” to raise awareness about qualified health plans, distribute “fair and impartial information” regarding premium tax credits and enrollment, facilitate plan enrollment, provide referrals for enrollees who have grievances, complaints, or questions regarding enrollment or coverage, and provide information in a “culturally and linguistically appropriate manner”;^[15]
• Navigators must comply with standards established by the Secretary of HHS, including provisions to ensure that any private or public entity that is selected as a Navigator is “qualified, and licensed as appropriate” to engage in navigation activities and avoids conflicts of interest.”^[16] Under federal standards a Navigator “shall not” be a health insurance issuer or receive “any consideration directly or indirectly from any health insurance issuer” for enrolling individuals or employers in any particular plan;^[17] and
• Navigators must give “fair, accurate, and impartial” information.^[18]

Implementation

Agency and Key Dates

The Navigator provisions will be implemented by HHS as part of its overall implementation of state health insurance Exchanges. The Departments of Labor and Treasury presumably also will play roles as part of their Exchange implementation duties.

A Request for Information (RFI) was issued by HHS in August, 2010.^[19] In the RFI, the HHS Office of Consumer Information and Insurance Oversight (OCIIO) (now renamed as a Center (CCIIO) and part of CMS) noted that the Navigator standards would be developed by the HHS Secretary in collaboration with states. OCIIO specifically sought comments on the types of consumer education and outreach states expected to conduct, what types of federal supports would be useful, and to what extent existing state programs could be adapted to perform Navigator functions. OCIIO also sought input on how to coordinate Exchange outreach with outreach for other forms of public assistance. The RFI did not seek input on key terms and provisions of the ACA’s Navigator provisions themselves.

Key Issues

• Will states be given flexibility to develop navigator criteria and select classes of potentially qualified entities? The ACA contains a list of possible Navigators (i.e., nonprofit organizations, unions, agents and brokers, associations). Will certain classes of entities be required of all Exchanges, or will states be free to designate potential categories of Navigator entities? Will states be able to exclude certain categories entirely from potentially qualifying as Navigators?
• Demonstrating existing relationships and capabilities. What minimum relationships (or ready potential for relationships) and outreach and educational capabilities will Navigators be expected to demonstrate under federal standards? What evidence might be required to satisfy this “demonstrate” requirement (e.g., a prior history of reaching certain populations or employers, experience in preparing accessible outreach materials and in conducting outreach, the ability to provide fair, accurate and impartial information)?
• Licensure and fair and accurate information. The ACA refers to the Secretary’s obligation to assure that a navigator is “qualified, and licensed if appropriate.” Under what circumstances would licensure requirements be “appropriate”? If entities offer the types of outreach and support services that are similar to those offered by SHIPS, would a licensure requirement be appropriate since under these circumstances, no insurance sale is taking place? Under what circumstances might a state be permitted to require licensure, and what permissible standards could a state apply as part of a licensure arrangement? Would prior experience in the sale of insurance be a permissible licensure requirement? Presumably many of the potential qualified entities listed in the ACA previously have not sold insurance and therefore would be disqualified outright. Moreover, the ACA bars insurer payment of either direct or indirect consideration and requires that Navigators be only informational and supportive of consumer and purchaser choice. Will states be permitted to impose licensure requirements if the only activity is the provision of fair, impartial, and accurate information and consumer support services?
• Direct or indirect consideration. The ACA bars Navigators from receiving “any consideration directly or indirectly from any health insurance issuer in connection with enrollment” of qualified individuals or employees into a health plan. What is “indirect” consideration? What types of compensation other than salary might be prohibited under this bar? For example, would Navigators be barred from attending insurer meetings and sponsored events such as training sessions? From taking other types of benefits such as gifts? Would they be barred from participating if a close family member was connected to the insurance industry?
• Conflict of interest. How will HHS define a “conflict of interest”? At what point will a conflict be deemed to exist? Solely if direct or indirect consideration is received? Will other types of conduct trigger a conflict of interest?
• Ability to assist all individuals. Qualified individuals may be identified as Medicaid- or CHIP-eligible once their incomes are evaluated. Will Navigators be required to assist such individuals with enrollment in Medicaid and CHIP health plans? Will Navigators be required to assist such individuals when changes in income or family arrangements that affect income necessitate movement from a qualified health plan into a Medicaid managed care organization or vice versa?
• Linguistically and culturally appropriate. Will Navigators be expected to be able to assist all qualified individuals, employees, and employers, or will they be permitted to focus on certain populations?

Recent Agency Action

Exchange regulations are expected in the spring of 2011.

Authorized Funding Levels

Navigators will be funded out of state exchange operations rather than federal funds.

[1] http://www.shiptalk.org/shiptalk/shiptalkinfolib/WeeklyDigest/WD002072011.html (accessed February 24, 2011).
[2] See, e.g., Virginia SHIP site. https://www.shiptalk.org/About/SHIProfileForm.aspx?mf=V (accessed February 24, 2011).
[3] PPACA §1311.
[4] PPACA §§1311 and 1401.
[5] PPACA §1301.
[6] PPACA §1311(d)(3).
[7] PPACA §1311(d)(4)(E).
[8] PPACA §§1311(c)(4) and (d)(4)(C) and (D).
[9] PPACA §1311(d)(4)(B).
[10] PPACA §1311(d)(4)(G).
[11] PPACA §1311(d)(4)(K).
[12] PPACA §1311(i)(1) and (6).
[13] PPACA §1311(i)(20).
[14] PPACA §1311(i)(2)(A) and (B).
[15] PPACA §1311(i)(3).
[16] PPACA §1311 (i)(4).
[17] Id.
[18] PPACA §1311(i)(5).
[19] 75 Fed. Reg. 45584 (August 3, 2010).