Final regulations issued by the U.S. Centers for Medicare and Medicaid Services last week reflect input from health plan brokers with regard to the amount of leeway accorded to states to regulate health exchange navigators.

In April, the Independent Insurance Agents and Brokers of America, known as the Big “I,” issued a statement that previously proposed CMS rules would have interfered with states’ ability to legislate regulations for navigators to assure basic consumer protection standards are met. “The association sees the draft regulations as chipping away at state authority to enforce consumer protection laws, and at the same time expanding the duties of navigators and similar entities,” Big “I” wrote.

See related: Broker associations contest HHS navigator regulations

Similarly, Health Agents for America Inc. president and CEO Ronnell Nolan responded to the original CMS proposed regulations by urging the agency to “afford states the widest possible latitude in determining the appropriate level of regulation for insurance navigators and other assistance personnel.”

Now Nolan says that under the final CMS regulations, states will have that latitude.

For example, legislation proposed by Nolan’s organization in the state of Louisiana would subject navigators to state licensing and background checks. She says the state is within its rights to enact such legislation and remain in compliance with the final CMS rules.

Basic principle intact

Provisions addressing this topic cover dozens of pages within a 435-page final CMS document detailing a host of rules governing the operation of exchanges. The basic principle of the original proposed regulations — that states cannot enact laws that prevent navigators from performing their function — remains intact.

The proposed regulations featured a non-exhaustive list of examples of hypothetical laws that would have the effect of violating that principle. One example was a requirement that navigators hold an insurance agent or broker’s license.

Should CMS create a definitive list of examples? The agency decided it would not do so, to keep its options open. The CMS’ parent agency, the U.S. Department of Health and Human Services, “will continue to monitor new and existing [state] requirements as they are issued and implemented, and… assess whether such laws prevent the application of the provisions of … the Affordable Care Act,” the final rules state.

In a brief summary of the final rules, CMS states that the final regulations formalize and strengthen “many of the standards already in practice that are applicable to the different consumer assistance entities and individuals.” That includes a rule prohibiting navigators “from specified solicitation activities such as offering cash or gifts other than those that are nominal as an inducement to enroll in coverage,” according to the summary.

“The rule would also formalize that assisters cannot charge for services they are certified by the marketplace to provide, and must be recertified annually,” CMS states.

Stolz is a freelance writer based in Rockville, Md.

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