Proposed ACA changes could offer navigators 'unfair advantage' over brokers

The Department of Health and Human Services is proposing to change a host of the rules governing the Affordable Care Act in 2016 and beyond, including several alterations to the Small Business Health Options Program and some controversial new requirements for brokers and agents.

The Centers for Medicare & Medicaid Services Nov. 21 issued a massive 324-page notice of proposed rulemaking aimed at improving the consumer experience in the health insurance marketplace by increasing pricing and plan transparency and making information more accessible to consumers, among other changes.

See related story: Obama administration to alter ACA enrollment in 2016

Included in the proposed rulemaking are new requirements that some benefit insiders feel create unfair hurdles for brokers and agents, while clearing the road for navigators and assisters to enroll individuals and small businesses in the marketplaces.

Key among the controversial proposals is the requirement that all exchanges, qualified health plan insurers, and Web-based brokers and agents provide telephonic interpreter services in at least 150 languages. That requirement does not extend to navigators and assisters, although HHS is asking for public comment on whether it should.

“Requiring insurance agents and brokers to provide interpretation services for 150 languages would be an enormous financial burden and compromise our ability to serve our consumers,” says Health Agents for America Inc. President and CEO Ronnell Nolan, noting that agents and brokers already have extensive experience serving diverse communities.

“Forcing this mandate on agents and brokers, and not on navigators or assisters, would put us at a huge disadvantage at the very time that the administration is trying to meet ambitious enrollment goals,” she says.

In comments to a story running yesterday announcing the HHS proposed rulemaking, an EBA reader agrees, saying "It's very clear that the Obama Administration is set on driving brokers out of the business. How many web-based brokers are going to be able to provide translation services for 150 languages? Why on earth should we need that in the first place?"

HHS has indicated its willingness to consider delaying this requirement beyond 2016 and Nolan says she “would encourage them to do so in order to further study the need for, and potential unintended consequences of, such a mandate.”

The proposed rule also clarifies that all non-navigator assisters are required to maintain a physical presence in their service areas, but can provide assistance by telephone, Internet, or by other remote means.

Nolan questions the relevance of such a rule, saying, “Agents and brokers are state licensed and routinely serve the needs of clients who may be hundreds of miles from their home office. This is a solution in search of a problem, and like other provisions in the rule, would hamper the ability of agents and brokers to be a part of the solution to enrolling more Americans, which should be the goal of the administration, HHS and all stakeholders.”

“The continued unfair advantages given to federally funded navigators and assisters over agents and brokers needs to be called into question,” she adds.  

SHOP amendments

The HHS proposed rule would also make significant changes to the SHOP, which the agency hopes will “streamline” its administration.

First, the proposed rule would permit SHOPs to assist employers in the administration of continuation coverage (COBRA) enrolled in through a SHOP.

Also, similar to the re-enrollment of individuals in the marketplaces, HHS is proposing to permit a SHOP be able to elect to renew an employer’s offer of coverage when the employer remains eligible for SHOP coverage and has taken no action to modify its coverage or withdraw from the SHOP during its annual election period.

HHS also proposes to allow for rolling enrollment in the SHOP, allowing employers to start an annual health care plan through the SHOP at the beginning of any month.

The proposed rule also clarifies that termination of SHOP coverage for an employer’s failure to pay its premium in a timely manner would become effective on the last day of the last fully paid month of coverage. Employers who are terminated from the SHOP would only be allowed to be reinstated for coverage once in a calendar year, according to the proposed rulemaking. Terminated employers would be allowed to reapply, however, although that would require filing a new application. The employer’s credit of expenses toward deductibles and out-of-pocket expenses would also start over under a new plan.

The proposed rule also specifies that certain notices will be provided by the SHOP, including notifying enrollees and qualified employers in an enrollee is terminated for failing to pay the premium or for loss of SHOP eligibility.