The Department of Health and Human Services has proposed conflict of interest and certification rules for navigators and other consumer assisters in federal and state partnership insurance exchanges -- and also proposed a rule that would likely prohibit state attempts to restrict navigators to only licensed brokers and agents.
Under the proposal, navigators cannot be employed by health insurers, issuers of stop-loss insurance for self-funded plans, or their subsidiaries, although they would be permitted to sell other forms of insurance, such as life and disability plans.
Navigators, as individuals or organizations, would have to make several conflict of interest disclosures to the exchanges and consumers, listing any lines of non-health or stop-loss insurance business and any employment with health or stop-loss insurers during the last five years.
The rules would allow insurance agents and brokers to serve as navigators, absent financial ties to health insurers, in federal, partnership and state exchanges -- but states apparently could not require navigators to be regulated as licensed brokers or to carry professional liability insurance.
Although the language could be clearer, Washington and Lee University health law professor Timothy Jost blogged on Health Affairs, "it presumably has implications for states that are considering background check, fingerprinting, surety bond, or other requirements that could cumulatively make attaining navigator status so burdensome that the program will not be viable."
While HHS in earlier guidances has said that navigators receiving federal grants must "meet any licensing, certification or other standards prescribed by the state or exchange, if applicable," the agency wrote in the proposed rules that "a requirement by a state or an exchange that navigators be agents and brokers or obtain errors and omissions coverage would violate [the requirement] that at least two types of entities must serve as navigators, because it would mean that only agents or brokers could be navigators."
Additionally, HHS said, "holding an agent or broker license is neither necessary, nor by itself sufficient, to perform the duties of a navigator, as these licenses generally do not address areas in which navigators need expertise."
With insurance exchanges possibly threatening some business for insurance brokers, some states have considered legislation that would regulate navigators as if they were licensed brokers. In Ohio, which is not creating its own HIX but will have either a federal or partnership exchange, the House of Representatives recently passed a bill, by a vote of 90-5, that would largely have the state insurance department regulate navigators with the same standards as agents and brokers.
Beyond navigators, the proposed rules also outlined certification, disclosure and certain funding limitations for in-person assistors -- an optional program the states will be running and likely not the federal exchanges -- and certified application counselors.