HHS: Brokers, exchanges can coexist

Administration releases final navigator rules

HHS published final regulations on navigators. (Associated Press photo) HHS published final regulations on navigators. (Associated Press photo)

The Obama administration has come up with a new batch of rules for navigators, the people tasked with helping consumers and employers make sense of the exchanges under the Patient Protection and Affordable Care Act.

In the new final rule released Friday by the Department of Health and Human Services, the agency finalized rules for the navigators, as well as set rules for agents, brokers, certified application counselors, in-person assistance personnel and non-navigator assistance personnel.

The rule, which is set to appear in the Federal Register on July 17, is based on drafts released in January and April.

In the final rule, HHS explains how agents, brokers and others should interpret the PPACA rules forbidding navigators from accepting compensation from health insurers; requires exchanges to have a certified application program; creates conflict-of-interest training and certification standards; and requires each exchange to a pick a certification organization to certify its own staff members and volunteers.

In the preamble to the regulations, HHS repeats earlier assurances that they believe agents and brokers will continue to play an important role in the health insurance market in states that let agents and brokers continue to operate.

Department officials also responded to commenter questions and suggestions.

One commenter, for example, asked that exchanges make consumer assistance available to people who want to apply through paper applications rather than electronically. 

"While we strongly encourage all types of assistance personnel to help consumers apply for and enroll in coverage electronically, we also expect all types of assistance personnel to help consumers who wish to apply on paper," officials said.

Officials also talked about an apparent navigator program quirk.

In states that let agents and brokers continue to operate, only agents and brokers can actually sell insurance coverage and make specific coverage recommendations.

The navigators, who are supposed to offer only general advice about how to use the exchange system, cannot receive any compensation directly from the issuers of the "qualified health plans" sold through the exchange or from issuers of non-QHP products while acting as navigators.

"A few commenters requested guidance on whether selling other insurance products, such as Medicare health plans, accident plans, cancer-only or other dread disease plans, hospital expense, or critical illness plans, would be a prohibited conflict of interest making someone ineligible to be a navigator or non-navigator assistance personnel," officials said.

Neither navigators nor "non-navigator assistance personnel" can have relationships with "health insurance issuers or stop-loss issuers" while serving as navigators," officials said.

Federal regulations use a definition of "health insurance issuer" that includes "an insurance company, insurance service or insurance organization (including an HMO) that is required to be licensed to engage in the business of insurance in a state and that is subject to state law that regulates insurance."

"Cosistent with this definition, in this context, whether an entity is a health insurance issuer is generally determined according to state law," officials said.

"If an entity or one of its corporate affiliates is required to be licensed to engage in the business of insurance in a state and is subject to state law that regulates insurance, it might be a health insurance issuer or a stop-loss issuer or have a relationship with a health insurance issuer or stop-loss issuer," officials said.

In states in which the Centers for Medicare & Medicaid Servces, an arm of HHS, is running the state exchanges, "CMS will evaluate specific corporate structures on a case-by-case basis," officials said.

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