Health Care Navigator Drama Continues

Battles, delays and controversy regarding the Patient Protection and Affordable Care Act (PPACA) continue to splash the front pages of newspapers and frustrate small businesses across the country struggling to comply with the deluge of new rules and regulations.

For health agencies in particular, one of the most vexing issues stemming from the health care law has been the Obama Administration’s handling of navigator programs. Many experts believe the Administration seems to be bent on essentially “reinventing the wheel” where agents are concerned with a series of new government programs, starting with navigators.

On a late summer Friday afternoon, and without much fanfare, the Administration published its final regulations on navigators, non-navigator assisters and certified application counselors (CACs). The story may have gotten by some news desks, but not the Big “I” Capitol Hill team which immediately plunged in to dissect the rules for the association’s members who are struggling to figure out all the new regulations and how they will impact their own agencies and the thousands of small businesses across the country they represent.

Many of the specifics in the final rule confirm conflict of interest standards and training requirements outlined in the earlier proposals. The final rule requires a prospective navigator to complete a federally-approved training program of up to 30 hours, pass a federal examination and complete continuing education. Navigators will be required to receive training in at least 15 specific subjects, including basic concepts of health insurance, health plans offered by the exchanges, eligibility and enrollment rules, tax implications of enrollment decisions, and privacy and security standards.

The regulation confirms previous guidance from the Administration allowing states broad authority (no matter if its exchange is state-based or federal) to require further licensing and training in addition to federal requirements. The regulations stipulate that states retain this authority so long as they do not conflict with the PPACA.

The Administration also established new programs for non-navigator assistance personnel and CACs. These roles are similar in function to navigators, except they can be funded by state or federal grants. This move was largely in reaction to the anticipated lack of navigator funding, since the law specifies that navigators must be funded through exchange operations.

CACs will likely include organizations such as community health centers, hospitals and/or social service agencies. Additionally, CACs are required “to act in the best interest of the applicants and enrollees assisted” but unlike navigators and non-navigator assisters, they are not required to provide information in a culturally and linguistically appropriate manner. All exchanges are required to have a CAC program.

The regulations also codify previously proposed language that specifically barred health agents and brokers from being navigators. The new regulations allow producers to become navigators only if they sell non-health products such as auto, life and homeowners policies. However, many believe it could be more beneficial for many agencies to establish a business relationship of receiving referrals from navigators and navigator-like entities, as opposed to attempting to become navigators themselves.

On a broader level, the Big “I” and many insurance industry observers seriously question the Administration’s efforts to ensuring government-funded individuals and entities are “facilitating enrollment” through exchanges, while agents and brokers are ready, willing and experienced marketplace participants suited for precisely this role.

Much more political theater is expected to come from the Administration, Congress and the small business community as Jan. 1, 2014 approaches.

Margarita Tapia is Big “I” director of public affairs.

Big “I” Fights Patent Trolls

The Big “I” is actively engaged in pushing Congress to move towards a legislative fix for the abuses of the legal and patent system by what are commonly known as patent trolls. The association has heard from a number of Big “I” members who have been contacted by patent trolls and the association is working to protect them.

In general, patent trolls, also called patent assertion entities (PAE), obtain patents of questionable quality and relevance (with no intention of manufacturing the product or providing the patented service themselves) and use them to sue or threaten to sue companies for infringement. Then they typically attempt to receive compensation through a settlement or licensing fees.

Initially, patent trolls targeted technology companies that created software or equipment by claiming they held the patent. Lately, they’ve grown more aggressive and are going after end-user small businesses for using items as common as a scanner or copier.

A number of bipartisan pieces of legislation have been introduced in both chambers of Congress and the Obama Administration has also highlighted this abuse. In the House, Reps. Darrell Issa (R-Calif.) and Judy Chu (D-Calif.) recently introduced H.R. 2766, the “Stopping the Offensive Use of Patents Act” (STOP). In the Senate, Sen. John Cornyn (R-Texas) has introduced S. 1013, the “Patent Abuse Reduction Act.” Both the Senate and House Judiciary Committees are currently working to draft legislation as well, and the Big “I” has provided input to help shape the solutions they are likely to put forth.

—M.T.