While proposed regulations for the navigator program would preempt any licensing or certification programs that are too restrictive, how that would trump state laws is unclear and might have to be decided in court, one expert said. If nothing else, proposed state regulations might have a “chilling effect” on groups that might otherwise help educate consumers, and in particular hard-to-reach groups, about how to enroll and how to qualify for tax credit subsidies that take effect next year, experts said.
The navigators were intended to be community groups or nonprofits that would undergo training to help educate consumers about the enrollment process and if they would qualify for the subsidies, which are available for those up to 400 percent of the federal poverty level – more than $94,000 a year for a family of four. Navigators could be groups that already work with the uninsured, such as community health centers, or even churches, said Cindy Zeldin, the executive director of Georgians for a Healthy Future, which is trying to help educate groups about the program.
“That church might be the trusted source in the community that could work with their population and they may be able to make more inroads than a call center somewhere,” she said.
Navigators are a key component of outreach in the new law.
Reaching as many people as possible “will require a range of groups serving as navigators,” Zeldin said. In Georgia and many other states, however, they might be asked to get licensed.
The Georgia General Assembly passed House Bill 198 earlier this year and it is still awaiting Gov. Nathan Deal’s signature. Deal spokesman Brian Robinson said the governor would not comment on pending legislation before he signs it. The bill would require those who want to serve as navigators or provide advice about enrolling in the health insurance exchanges to be licensed and to have “not less than 35 hours of instruction in health benefit insurance,” in how the exchanges work and knowledge of Georgia Medicaid and PeachCare. They would also have to pass an exam and take continuing education.
Georgia is one of the states that has legislation – proposed or passed – that would place further state regulations on the navigators, said Katie Keith of the Georgetown University Health Policy Institute, who has been tracking the legislation.
“I will say they are strikingly similar across the states, which does suggest that somebody is pushing them,” she said. At least two insurance agent groups – the Independent Insurance Agents and Brokers of America and the National Association of Health Insurance Underwriters – have testified in support of the laws at the state level, Keith said.
“The argument there is that basically you’re giving a lot of control to these navigator organizations so you want the states to be regulating them,” she said. “They’re sort of arguing it protects consumers.”
What it also does, however, is force the navigators into “dual regulation” where they will have to satisfy federal and state requirements. Many of the states proposing navigator regulations also refused to set up their own state-level health insurance exchanges “that you just ask, ‘They haven’t done anything else so what is going on now?’ ” Keith said.
Whether the laws can be enforced is another question. Proposed federal regulations on implementing the navigator program published earlier this month note that while navigators must meet state licensing or certification requirements, those requirements “should not prevent the application of the provisions” of the Affordable Care Act. Specifically requiring navigators to be “agents or brokers” or requiring them to carry “errors and omissions coverage would violate” the act, the proposed federal regulations note.
To Zeldin, that means more restrictive laws such as Georgia’s might not apply.
“My understanding is that states can place additional requirements on navigators for additional training and some sort of licensing as long as it doesn’t preclude them from doing their duties,” she said. “So if the state wants to say that you have to do this extra training and it is not overly burdensome, then that is probably fine. But anything that restricts what navigators can do that conflicts with federal law will apparently be preempted.”
But that might not be so clear-cut, Keith said.
“States do have a lot of authority to regulate and license different entities,” she said. “I think the real determination is, at what point does it frustrate the purpose of the navigator program?”
It might come down to a court deciding that, Keith said.
“I think there is some serious potential for litigation,” she said.
The navigator program was modeled after the State Health Insurance Assistance Program, or SHIP. The program, which operates in every state and in Georgia is called GeorgiaCares, helps people navigate Medicare options.
“It’s actually worked well and you don’t have any of these stringent license requirements in any state on SHIP but it’s being pushed on navigators,” Keith said. “It does make you wonder what the motivation is here.”
Whether the regulations can be enforced in Georgia or elsewhere might not matter as much as the perception of the more stringent requirements and potential expense that could provide a “chilling effect,” Zeldin said.
“I think some of the language in the (Georgia) bill could potentially scare away organizations that really would be good fits for the navigator program and who we’ll need if we want to get all of the people enrolled who need to get enrolled,” she said.
Then there is the timeline. Enrollment in the exchanges, also called marketplaces, would begin Oct. 1 and navigators would need to be trained and certified before that even without any additional state regulations. In many states, that legislation is pending, which further adds to the time crunch, Keith said.
“I don’t even know how you get out those standards and then have people comply with them,” she said. “It’s a short turnaround for states and the navigators themselves to even comply with the new state law.”
Nor are the programs being funded well – Georgia is getting $2.8 million to implement the program for potentially 1.9 million uninsured, in addition to those buying insurance on their own and others who will qualify.
“There’s limited funds and a compressed timeline,” Zeldin said. “I don’t know that I would say there is concern but I think there is an awareness for sure that the task is big and that the number of people who would need to be enrolled per day to reach critical mass is a very high number. It will take all hands on deck and it will take more than the navigator program to do that.”