By John Reichard, CQ HealthBeat Editor
March 18, 2014 -- A proposed rule on health plan application assistance from the Centers for Medicare and Medicaid Services is a response to the torrent of criticism Republicans have rained down on efforts to help people sign up for coverage in insurance marketplaces.
One the one hand, the administration plan targets overly restrictive state laws that hamstring enrollments. On the other, it makes clear states can add additional requirements to insulate marketplace operators against criticism efforts they’re not doing enough to protect people against hucksters and con artists.
At issue are navigators and other “assisters,” who help consumers through the coverage application process in the insurance marketplaces without actually steering them to a particular plan.
For Washington and Lee Law School Professor Timothy Jost, a supporter of the law, the proposals to head off restrictive state laws were too slow in coming.
“It is very unfortunate that CMS has waited until now to move on this issue,” Jost wrote in a blog post on the proposed rule. “Had CMS laid out the rules on this issue clearly when it promulgated the original navigator, assister, and certified application counselor regulations, it is possible that far more Americans could have been signed up for coverage during the 2014 open enrollment period,” he said.
Jost blogged last Monday on the site of the policy journal Health Affairs.
The proposed rule lays out examples of state laws it said would be illegal because they would prevent assistance personnel from carrying out their required duties under the health law (PL 111-148, PL 111-152).
“This proposal does not purport to capture the complete universe of state requirements that might be preempted in this context,” CMS notes in the regulation offered.
State or local regulations requiring assistance personnel to refer consumers to agents or brokers “or to any other sources not required to provide them with impartial advice” would be preempted.
The proposed rule would also trump any requirement barring assisters from helping employers or employees with plans sold in the small employer “SHOP” marketplaces unless they are licensed insurance agents or brokers.
And it would override any state or local law that required assistance personnel to stop helping consumers who disclose they were previously insured and had received the help of an agent or broker—or state or local laws that discouraged assistance under the same circumstances.
The proposed rule would not keep a state from requiring marketplace-approved assistance personnel from having to undergo fingerprinting or background checks. CMS officials came under fire in congressional hearings last year for not explicitly including such safeguards. They noted in response that those requirements do not exist for counselors that assist Medicare beneficiaries with their coverage decisions, without any apparent abuses occurring. But now the agency is making it clear that states are free to go ahead as long as they don’t violate other federal requirements.
In his analysis, Jost noted that state laws also can’t require assistance personnel to carry insurance covering errors or omissions. But he noted that the proposed rule does not address whether states may require them to be bonded or carry liability insurance.
States couldn’t bar an entity from serving as a navigator if it does not have its principal place of business in the state he added.
Jost also noted a lengthy list of added federal requirements that would be placed on assistance personnel, however.
For example, navigators or assisters could not be compensated on a per application basis, or on a per person, or per enrollment basis. Only promotional items of nominal value, defined as $15 or less, could be provided as inducements to get people to ask for application assistance or enrollment help.
Assisters also couldn’t go door to door to offer enrollment help but they could do so to distribute outreach or educational materials. They couldn’t make robocalls. And they’d have to maintain a physical presence in their service area so they could provide face to face assistance, Jost noted.
John Reichard can be reached at [email protected].