Legislation & Regulation

Restrictions on Health Navigators May be Easing Up in Some States

Anti-ACA states moved to limit what navigators could do, but court orders and CMS rulings have invalidated some of those restrictions.

Richard Mark Kirkner

As the ACA enters its third open enrollment period, community organizer Tiffany Hogue expects the people who help insurance shoppers navigate the state and federal exchanges—aptly enough called navigators—will be busier than ever.

“In the first enrollment period, you had the low-hanging fruit, people who wanted health insurance,” says Hogue, policy director for the Texas Organizing Project, an advocacy group for low-income people that connects marketplace shoppers with navigators in the state’s three largest cities. “In the second and now third enrollment periods, you’re talking to Texans who probably never had health insurance before, so there’s going to be a lot more education and a lot more time spent with each individual,” she says.

For people like Hogue, working on the front lines of open enrollment, state regulations for navigators they must deal with are easing somewhat—but with reluctance in states that have resisted the ACA. Legislatures and governors in those anti-ACA states have found the limits of the regulatory authority by pushing them.

Court rulings, including a federal appeals court decision this year, and rules on navigator limits that CMS imposed have defined what those boundaries are and have made the lives of navigators somewhat easier, even as some states keep rolling out new regulations. According to the National Conference of State Legislatures, 27 states and the District of Columbia have adopted some kind of regulations on navigators. Typically, those rules require a license or certification of some kind, background checks, or passing a test.

State-level rules for navigators

The ACA identifies navigators, non-navigator assistant personnel, and other certified application counselors (CACs) as people who can advise consumers who shop for health insurance on the ACA exchanges. Typically these navigators and “assisters” are affiliated with a community organization, like the Texas Organizing Project, or a health clinic. The ACA itself, as well as regulations CMS has promulgated, spell out what these navigators may and may not do. For example, their advice has to be impartial, and they are not supposed to recommend one plan over another. CMS requires navigators and assisters to undergo 30 hours of training and gain certification through a website. Any state regulation that has attempted to restrict the navigators’ tasks or create unreasonable training requirements has either been thrown out by courts or deemed overreaching by CMS.

More recent attempts to regulate navigators have focused on licensure and background checks, regulatory areas the ACA cedes to the states. This year in Pennsylvania, Gov. Tom Wolf, a pro-ACA Democrat, signed a law the Republican-dominated legislature sent him that requires health insurance navigators to register with the state insurance department and pass criminal background checks. In an article on its website, WITF, a public television station in Harrisburg, Pa., notes that the Pennsylvania bill appears to be modeled on a template circulated by the American Legislative Exchange Council, a conservative think tank.

In April, Oklahoma enacted a law that allows on-site inspection of individual health insurance navigators and navigator entities by the state insurance department. According to the statute, when the state insurance department asks, an organization or individual that provides navigator services must verify the name, contact information, and date of contact anyone the navigator helped enroll through the federal exchange.

Navigator regulations were once more far-reaching. Tennessee enacted regulations in 2013 that forbade navigators from discussing the “benefits, terms and features of a particular plan over any other health plans and offer advice about which health plan is better or worse or suitable for a particular individual or employer.” Jerry Martin, an attorney with the Service Employees International Union local in Nashville, told the Paraprofessional Healthcare Institute’s website that the rule would have a “chilling effect” on navigators’ free speech. He got a federal court order to strike it down.

State discretion

Missouri passed a law in 2013 that imposed licensure regulations on navigators and other so-called assisters beyond what the ACA set and, again, limited what navigators could say to people shopping for health insurance. Earlier this year, the federal appeals court in St. Louis upheld a lower court ruling that struck down those provisions of Missouri’s law.

Benjamin Sommers, MD, an assistant professor at the Harvard T.H. Chan School of Public Health, reported study results in the June 2015 issue of Health Affairs showing that the stricter the laws on navigators and other assisters, the harder it is for people to sign up for health insurance. Sommers and his coauthors compared three states: Kentucky, which expanded Medicaid, created its own state marketplace and supported outreach efforts; Arkansas, which enacted a private Medicaid option and used the federal marketplace with some limits on outreach; and Texas, which did not expand Medicaid and adopted strict navigator restrictions. They found, not surprisingly, that application rates for either Medicaid or exchange plans among individuals surveyed was highest in Kentucky and Arkansas and lowest in Texas.

Sommers does not expect that states hostile to the ACA will give up on regulating navigators, but will attempt to do so within the boundaries set by court rulings and CMS regulations.

“Essentially what a lot of this hinges on is whether these requirements are a legitimate use of state discretion to regulate the insurance markets, because they are allowed to regulate their insurance markets to some degree and they’re allowed to make sure that consumers are being protected,” he says. “But on other hand, it’s clear some of these laws went far beyond that and get simply to the point that make it costly, onerous, or criminal for certain organizations to provide assistance.”

Making it harder for people to sign up for health insurance is the precise intent of Texas’ laws, says Hogue, the community organizer. “Before the Affordable Care Act, we were 1 of 14 states with more than 20% of its people uninsured, and now we’re the only state close to that,” Hogue says. “It’s true that our state is being run by people who oppose the Affordable Care Act and relish in the fact that we continue to be the best at being the worst.” Kaiser Family Foundation statistics show the uninsured rate in Texas is 18.8%, the highest in the country.

Justin Giovannelli

State laws cannot keep navigators from educating people about insurance, but the navigators must steer clear of recommending particular health plans, says Justin Giovannelli, a lawyer at Georgetown University’s Center on Health Insurance Reforms.

Justin Giovannelli, a lawyer at Georgetown University’s Center on Health Insurance Reforms, explains that state laws cannot hinder navigators when trying to help people understand their options when shopping for health insurance. “It’s clear that under federal law and federal guidance, navigators are not agents and brokers. They can’t recommend and steer you to a particular plan; the idea is to provide impartial advice and make sure the folks they’re helping have a full sense of their options,” Giovannelli says. “Frankly, it’s educating people about how insurance works.”

Sabrina Corlette

Insurance agents and brokers were worried about being shut out in the early days of the ACA, but many now have more business than they can handle, says Sabrina Corlette of Georgetown University.

Some of the motivation for these restrictive laws may have come from insurance agents and brokers who, at the outset of the ACA, may have felt “shut out” from the process, says Sabrina Corlette, a senior research fellow and colleague of Giovannelli’s at Georgetown. “They were concerned that navigators would be trying to horn in on their business,” Corlette says.

Brokers, agents lighten up

However, after a couple of open enrollment periods, agents and brokers became more accommodating. “My sense is that on the ground and with the sort of a pure pragmatic thinking that goes on when you have to get a job done, many of the brokers that were ginning up interest in these laws realized they weren’t going to lose business,” Corlette says. “There was actually more business than they knew what to do with.”

That stream of business could keep agents, brokers, navigators, and assisters busy through this, the third open enrollment period, although after the big push during the first two years, projections for enrollment increases in 2016 are modest.

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