With more than 6 million uninsured, navigators are crucial to connecting Texans to coverage

Texas has a long, successful history of partnering with informed community-based groups to help people enroll in health coverage like Medicaid, CHIP and Medicare.  Navigators authorized under the Affordable Care Act (ACA) are based on Texas and other states’ longstanding, successful enrollment partnerships.  But unlike other community-based enrollment assistance (which has been around for at least two decades in Texas), ACA navigators have come under attack.
Navigators are organizations and individuals who are trained, certified, and funded by the federal government to help people enroll in coverage options through the Marketplace, including private insurance, Medicaid and CHIP.  Insurance is difficult to understand, especially for people who haven’t had it before.  Navigators provide in-person help—answering questions, deciphering plan options, and helping people enroll.   Their help is crucial in a place like Texas, with more than 6 million uninsured individuals.
Texas is one of 17 states that have passed laws to place additional state restrictions or standards on top of uniform federal standards.   The Governor instructed the Texas Department of Insurance (TDI) to write rules to place potentially onerous (and possibly illegal) restrictions on navigators in Texas.  TDI responded by reviewing, as required by the Texas law, the federal navigator program.  On Friday, November 15, TDI released a summary of potential insufficiencies in the navigator program that could be addressed in state rule.  TDI asked for comments on the summary by 5 p.m. Friday, November 22.  TDI has not yet initiated a formal rulemaking process.
At CPPP, we are still digesting TDI’s summary, but want to highlight a few items:

  • TDI seeks to regulate entities and people who help individuals complete the single, streamlined application for coverage used by the Marketplace, Medicaid and CHIP, whether or not they are associated with a federal navigator grant recipient; however, TDI exempts entities or individuals regulated under separate state or federal law.  Certified Application Counselors will not be subject to TDI oversight.  Organizations participating in the Community Partner Program and HICAP programs also appear to be exempt.
  • Individuals who are just helping their children, parent, neighbor, or friend apply for coverage (but who are not soliciting enrollment assistance to the public) do NOT appear to be exempt.  It would be unreasonable to expect people who help a family member or neighbor fill out an application at their kitchen table to register with the state.  It is possible that people who help their family and friends apply and take the additional step to become an “authorized representative,” as provided for in federal regulation for the Marketplace, Medicaid, and CHIP, would be exempt.
  • Individuals subject to TDI oversight will have to register with the department , pay fees, and possibly incur expenses related to: registration, fingerprinting, a background check, a state-issued ID, additional training in Medicaid and HIPAA, and examinations.
  • Navigator entities will have to buy a surety bond to protect individuals against errors.  Reports from other states indicate that no one is selling surety bonds to navigators.  If they simply aren’t for sale, this requirement could pose an impossible hurdle.  Furthermore, federal regulations clearly pre-empt state requirements that navigators hold errors and omissions insurance.  While the federal rules do not specifically address mandatory surety bonds, such a requirement certainly violates the spirit, if not the letter, of federal law.
  • Part 5 of the summary appears to prevent certain individuals who perform some navigator services from using the term “navigator” in their titles or as part of an entity’s name or website, which could prove problematic because the term navigator is used widely and was in use before ACA passage.

CPPP hopes to work with TDI to advance appropriate standards to protect consumers without limiting access to critical navigator services.

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