CMS moves to neutralize state limits on navigators

The CMS wants to tighten the rules for navigators—those who assist people in signing up for insurance on various state and federal exchanges.

Its proposal would pre-empt recent state efforts to regulate, and some would say hobble, navigators. Some stakeholders, however, have raised concerns about whether the CMS is overstepping its authority.

Throughout 2013, mostly GOP-led states passed laws limiting navigator activities. The CMS' push to take more control over navigator activities is “a way of making sure that navigators and other assisters can do their jobs,” said Judith Solomon, vice president for health policy at the Center on Budget and Policy Priorities. It also, she said, “protects the consumer to make sure they are providing accurate information.”

The CMS proposal suggests imposing civil monetary penalties on navigators in states with federally facilitated exchanges, and on others who provide similar services, if they don't comply with federal law. Infractions that could trigger penalties would include providing false or fraudulent information to a consumer, encouraging a consumer to provide false information on his or her application, or disclosing or misusing personally identifiable information.

The stronger standards for navigators and other consumer-assistance entities were outlined in a proposed rule the CMS released on March 14. State laws, or portions of them, would be pre-empted by it. Comments closed last Monday.

The agency should have taken this step much sooner, Tim Jost, a Washington & Lee University School of Law professor, said in an analysis of the rule. “Had CMS laid out the rules on this issue clearly when it promulgated the original navigator, assister and CAC (certified application counselors) regulations, it is possible that far more Americans could have been signed up for coverage during the 2014 open-enrollment period,” he said.

But some stakeholders say the CMS may be going too far.

“The problem with several of the proposals, and the accompanying discussion of these items in the notice, is that they ignore the limitations on federal power contained in the act and improperly restrict the ability of state officials to oversee and regulate the insurance marketplace,” according to the Independent Insurance Agents and Brokers of America, a national trade group.

Follow Virgil Dickson on Twitter: @MHVDickson