HHS Final Rule Addresses Navigators and Certified Application Counselors under Health Insurance Exchanges | Practical Law

HHS Final Rule Addresses Navigators and Certified Application Counselors under Health Insurance Exchanges | Practical Law

The Department of Health and Human Services (HHS) has issued final regulations providing training, certification and conflict of interest standards for insurance exchange navigators. The regulations also finalize rules addressing standards for certified application counselors under the Affordable Care Act (ACA).

HHS Final Rule Addresses Navigators and Certified Application Counselors under Health Insurance Exchanges

by Practical Law Employee Benefits & Executive Compensation
Published on 16 Jul 2013 • USA (National/Federal)
The Department of Health and Human Services (HHS) has issued final regulations providing training, certification and conflict of interest standards for insurance exchange navigators. The regulations also finalize rules addressing standards for certified application counselors under the Affordable Care Act (ACA).
On July 15, 2013, HHS issued final regulations addressing standards for "navigators," who will help individuals and small employers participate in the Affordable Care Act's (ACA's) insurance exchanges. The regulations finalize:
  • HHS proposed rules (April 2013) that provided training, operating and conflict of interest standards for navigators (see Legal Update, Proposed Rules Address Navigators under Health Insurance Exchanges), including:
    • navigators and non-navigator assistance personnel (that is, support provided outside a navigator program) in federally-facilitated exchanges and state partnership exchanges; and
    • non-navigator assistance personnel in state-based exchanges funded through federal exchange establishment grants under the ACA.
  • HHS proposed rules (January 2013) addressing the availability, training requirements and other rules for certified application counselors (CACs), who will help individuals in exchanges apply for enrollment in qualified health plans (QHPs) and related affordability programs, including premium tax credits and cost-sharing reductions (see Practice Note, Health Insurance Exchange and Related Requirements under the ACA).
The final regulations are intended to ensure that navigators:
  • Are appropriately trained.
  • Are fair, impartial and act in the best interests of applicants.
  • Provide services and information that are accessible to persons with disabilities and who have limited English proficiency.

Navigator Eligibility Rules

Although a broad range of entities can be navigators and non-navigator assistance personnel under the final regulations, the following entities are not permitted to perform these roles:
  • Health insurers and their subsidiaries.
  • Stop loss insurers and their subsidiaries.
  • Associations that include members of, or that lobby on behalf of, the insurance industry.
  • Entities that receive any consideration directly or indirectly from a health or stop loss insurer in connection with enrolling individuals or employees in QHPs or non-QHP insurance products.
In general, according to HHS, a navigator should not have a personal interest in whether an employer:
  • Chooses to self-insure its employee health plan.
  • Decides to enroll in fully-insured coverage inside or outside an exchange.
Also, CACs must disclose potential conflicts of interest to individuals they assist.

General Duties and Standards

The final regulations:
  • Require that all navigators and non-navigator consumer assistance personnel meet certification and recertification requirements (see Legal Update, Proposed Rules Address Navigators under Health Insurance Exchanges).
  • Provide training module content standards, which were unchanged from standards included in the proposed regulations.
  • Contain conflict of interest rules for navigators and non-navigator assistance personnel. In response to comments on the proposed regulations, HHS added rules that:
    • require disclosures to individuals of non-prohibited conflicts of interest to be in plain language; and
    • expressly provide that non-navigator assistance personnel, like navigators, have a duty to provide information in a fair, accurate and impartial manner.
  • Establish accessibility standards for individuals with disabilities. Unlike the proposed regulations, the final regulations:
    • require navigators and non-navigator assistance personnel to provide auxiliary aids and services to individuals with disabilities when requested by them to ensure effective communication, and not only "when necessary;" and
    • allow an authorized representative (rather than a legally authorized representative) to help individuals with disabilities make informed decisions.
  • Clarify that navigators, non-navigator assistance programs and CACs can refer individuals to consumer assistance programs established under Section 2793 of the Public Health Service Act for additional assistance.
  • Include standards for providing services in a culturally and linguistically appropriate manner. Under the final regulations, a notice to limited English proficiency individuals regarding the availability of language access services must be in the individual's preferred language.
The regulations also finalize a proposal that any navigator licensing, certification or other standards required by a state or exchange not prevent application of Title I of the ACA. For example, a state or exchange requirement that navigators be agents or brokers would prevent application of a requirement under the regulations that at least two types of entities serve as navigators, because it would mean that only agents or brokers could be navigators (see Agents and Brokers).
HHS is monitoring relevant state legislation and plans to coordinate with states to make sure that legislation does not prevent application of Title I of the ACA or its implementing regulations.

Certified Application Counselors

In addition to rules for navigators, the final regulations include rules addressing the more limited role, relative to navigators, of CACs. In contrast to navigators, CACs are involved primarily with providing enrollment assistance for individuals. Under the final regulations, some (but not all) of the requirements for navigators apply to CACs. Under the final regulations:
  • All CACs must provide individuals information about the full range of QHP and affordability program options for which they are eligible.
  • A training examination requirement, similar to that for navigators, applies to CACs.
The final regulations distinguish between the roles of navigators and CACs in the contexts of conflict of interest standards, eligibility requirements and standards for culturally and linguistically appropriate services (CLAS) and disability access, among others. For example, while navigators are required to satisfy CLAS standards, CACs generally need not do so (apart from existing requirements to which they are subject).

Agents and Brokers

In the preamble to the final regulations, HHS notes that licensed agents and brokers:
  • Are eligible to serve as navigators or non-navigator assistance personnel, provided they satisfy applicable requirements.
  • Can help individuals with enrollment both inside and outside the exchanges, subject to state law.
Unlike navigators and non-navigator assistance personnel, agents and brokers can sell health insurance coverage to individuals. However, agents and brokers cannot receive any direct or indirect compensation from a health insurer or stop loss issuer in connection with enrolling individuals in QHPs or non-QHPs during their term as navigators or non-navigator assistance personnel.