Consumer Groups, Producers Clash at NIAC Over Navigators’ Role in Exchange

Consumer Advocates, Brokers At Odds Over Navigators’ Role, Licensure Issues

Posted: March 28, 2011

Consumer advocates and insurance agents are at odds over the role that newly created “navigators” should play in insurance exchanges, particularly whether navigators should be required to obtain licenses. Advocates believe the distinction between brokers and navigators is clear and that navigators should not need to be licensed. But brokers and agents say existing consumer protections would be undermined if navigators don’t have to obtain a license to enroll people in plans.

The health reform law established the navigators and tasked them with carrying out certain function aimed at helping consumers better understand the policies available through the exchanges. Tasks include disseminating culturally and linguistically appropriate, unbiased information, fielding enrollee complaints and grievances, and facilitating enrollment. HHS is required to set standards pertaining to the navigators, but without formal regulations, many questions surround their exact role. The National Association of Insurance Commissioners produced a white paper earlier this month that aimed to identify and discuss the role of traditional brokers and agents compared with the expected role of navigators.

Questions explored include: Will the standards promulgated by HHS be floor or a ceiling? Should states have to license navigators? How will navigators be held accountable for errors?

In the section discussing licensing, the NAIC notes that the reform law does not preempt states requirements but that HHS can set standards — including licensure, if appropriate. Because states have licensing and certification processes that depend on local characteristic, flexibility is essential, the NAIC says.

All of the functions of a navigator are functions that agents would say they already perform, says Jessica Waltman of the National Association of Heath Underwriters. Waltman notes that the intent of the navigator program is to reach out to specific populations, and she says brokers fully support encouraging church, community and other groups to disseminate unbiased information about health plans. But only people who hold licenses should be able to actually enroll people in health plans, she says. She says only the individuals who conduct enrollment should require a license, rather than everyone who works for an entity that gets a grant to function as a navigator. Most state regulators agree, she says.

Waltman says HHS held a meeting last month to discuss these and other issues and believes the event helped both groups better understand each other’s position. Ultimately, she says, maintaining strong consumer protections is the key issue and one that both groups strive to achieve.

The Council of Insurance Agents and Brokers makes similar assertions in its comments on the NAIC while paper. If an individual or entity is providing general information or assistance regarding the availability of health plans, how to file a complaint or obtain an answer to a question about coverage, a license would not be necessary, the group says.. “However, once an individual or entity begins to offer more specific advice regarding the selection of coverage, provides claims advocacy services or becomes involved in the enrollment process, we would suggest that their activities mirror those performed by insurance producers and licensure is necessary,” the council’s comments state.

The council says its position is not influenced by concerns about competition, but rather is an “overarching public policy concern.” Absent a strong form of oversight, consumers may not have recourse if they are harmed as a result of navigators’ actions, the council writes.

Michael Miller of Community Catalyst, a consumer advocacy group, has a clear vision of what a navigator should be doing, such as helping people sort through their plans choices and figure out how to get questions answered. Miller said Community Catalyst would like to see the navigator program integrated with consumer assistance programs in the reform law, so that consumers would be able to get help with questions ranging from eligibility to care delivery.

Miller says brokers’ concerns are overblown. He says the overwhelming majority of people coming to an exchange will be eligible for Medicaid or subsidies — a group that brokers have not often dealt with. Therefore, they’re not likely to lose their place in the market, he says. Miller doesn’t think licensing is necessary.

A group of health care advocates, including representatives of from Families USA, the National Women’s Law Center and the Center for Budget and Policy Priorities, also say there is a clear distinction between navigators and producers. Agents and brokers solicit, negotiate and sell insurance, but these are not the duties of a navigator, they say. In many ways, the navigators’ role is analogous to the role that state assistance programs play with respect to Medicare, the group adds.

The advocates agree that the standards set by HHS should be a floor, not a ceiling, for certification and oversight of navigators — but with the caveat that states should be discouraged from creating standards so stringent that they could deter participation.

The advocates further say that they believe HHS should provide a template training program that states can adapt. “This would save time, but allow states to tailor information relevant to their Medicaid and CHIP programs and exchange. HHS can be helpful by supplying information that all navigators will need to understand regarding premium and cost-sharing assistance,” they write.

The advocates also say that rather than requiring each person acting as a navigator to receive a state license, standards could be set in grant agreements and it could be the responsibility of navigator entities to certify their employees or subcontractors, using training and testing materials provided by HHS and adapted by states.

The advocates agree that entities selected as navigators should be encouraged to carry liability insurance that would protect them, as well as consumers, in the event of errors. And they say there should be a complaint process for consumers who are dissatisfied with the performance of a navigator. Further, to guard against fraudulent operators that may try to move from state to state, the advocates suggest setting up a national registry.

The group also says compensation should be transparent. The advocates do not believe that funding navigators out of an exchange’s funding, collected mostly from fees on insurers, is an inherent conflict of interest. It would be a conflict, however, if a particular insurer were funding particular navigators, they say. — Amy Lotven

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