Adopted by the NAIC Health Insurance and Managed Care (B) Committee on June 27, 2012 Intended for Use by the States as Guidance Only

Transcription

1 Marketing and Cnsumer Infrmatin White Paper: Navigatrs, Agents and Brkers, Marketing and Summary f Benefits and Cverage Intrductin The federal Patient Prtectin and Affrdable Care Act (Affrdable Care Act r ACA) prvides fr the establishment f American Health Benefit Exchanges t facilitate the purchase f health insurance by individuals and emplyers. Under the ACA 1, states electing t establish a state-based Exchange (SBE) must d s and meet certain minimum requirements by Jan. 1, Fr states that d nt establish a state-based Exchange, the ACA requires the Secretary f the U.S. Department f Health and Human Services (HHS) t establish and perate an Exchange, knwn as a federally facilitated Exchange (FFE), fr the residents f that state. 3 In the prpsed rules n Affrdable Care Act; Establishment f Exchanges and Qualified Health Plans published in the Federal Register July 15, 2011, HHS annunced the state Partnership federally-facilitated Exchange (PFFE) mdel. Under this mdel bth HHS and the states will perate functins f the Exchange. HHS, hwever, will remain respnsible fr ensuring that the Exchange meets all f the standards and requirements under the ACA. As stated by HHS, the PFFE mdel is intended t give the states anther ptin t tailr their Exchange t accmmdate lcal needs and market cnditins. In additin, the PFFE mdel is a way fr states t transitin int fully perating their wn SBE. On Sept. 19, 2011, at a State Exchange Grantee meeting, HHS Center fr Cnsumer Infrmatin and Insurance Oversight (CCIIO) prvided additinal infrmatin t the states n PFFEs. 4 As prvided at this meeting, states entering int a PFFE must agree under the terms f their grants t ensure state insurance department, Medicaid and Children s Health Insurance Prgram (CHIP) cperatin t crdinate business prcesses, systems, data/infrmatin and enfrcement. Als, as part f a PFFE agreement, a state may chse t perate plan management functins and/r sme cnsumer services such as cnsumer assistance prgrams using Exchange grant funding t establish framewrk, thereby maintaining existing relatinships and allwing fr easier transitins t SBEs in future years. Specifically, CCIIO indicated that, under a PFFE, a state may chse t perate the fllwing Exchange functins: Optin 1) plan management functins, such as cllectin and analysis f plan infrmatin and plan mnitring and versight; Optin 2) selected cnsumer assistance functins, such as Navigatr prgram management r ther in-persn cnsumer functin; r Optin 3) bth selected cnsumer assistance and plan management functins. HHS has indicated that, in a PFFE, states must, in general, take an all-r-nthing apprach t the plan management and cnsumer assistance functins. That is, a state must agree t take n all duties utlined under plan management and/r cnsumer assistance (with a few exceptins), r nne f them. Exchange functins ther than selected cnsumer assistance r plan management functins will be perfrmed by HHS under these ptins. In an FFE, cnsumer assistance and plan management functins will be perfrmed by HHS. The plan management and cnsumer assistance functins that may be perfrmed by the state in a PFFE were further defined in the May 16, 2012, guidance as including: 1) licensure and slvency; 2) netwrk adequacy; 3) rate review; 4) benefit design standards; 5) marketing and cnsumer infrmatin, which includes versight f Navigatrs, review f marketing materials and the summary f benefits and cverage; 6) accreditatin; and 7) quality ratings, quality imprvement strategies and enrllee satisfactin surveys. Scpe This paper is intended t explre the issues and ptins fr implementatin f certain prvisins f the law and regulatins issued t date. These prvisins include the management f marketing; the summary f benefits and cverage required t accmpany each plicy beginning in September 2012; and hw agents, brkers and Navigatrs will be regulated and managed in regard t the ACA. This paper will nt address issues cncerning cnsumer utreach in general, nr will it address the many facets f issues surrunding agents, brkers and Navigatrs that d nt directly invlve hw state 1 Pub. L (ACA). 2 ACA Sec. 1311(b). 3 ACA Sec. 1321(c) Natinal Assciatin f Insurance Cmmissiners 1

2 Departments f Insurance (DOIs) will manage these individuals. Thse issues may be addressed at a later date when mre infrmatin has been released by HHS. This paper expands n the white paper develped by the NAIC in April 2011 cncerning agents and brkers and their invlvement in the ACA, and includes final regulatins n SBEs and the mst recent guidelines released by HHS n May 16, Where this paper uses the term regulatin, it is referring t the final regulatins regarding SBEs. The issues and ptins identified in this paper will be useful t all states, but hw the state addresses the issue will depend n whether the state decides t implement an SBE, an FFE r a PFFE. Whenever pssible, this paper will highlight the pssible differences in apprach a state may take depending n what type f Exchange is established, including all issues that implicate the invlvement f the DOIs. This paper is nt intended t be used as a best practices guide, but rather a paper that utlines issues and ptins that states may face when establishing an Exchange. States shuld evaluate the needs and requirements f their lcal ppulatin and market cnditin when deciding hw best t establish an Exchange. This paper includes fur tpical sectins: Navigatrs, agents and brkers, marketing, and Summary f Benefits and Cverage. Each sectin will first summarize the requirements and respnsibilities fund in the ACA and final regulatins, then will discuss issues and ptins fr states t cnsider when planning an Exchange. When applicable, the paper will utline the differences between states cnsidering an SBE, an FFE r a PFFE. Navigatrs Backgrund infrmatin The ACA requires Exchanges t establish Navigatr prgrams thrugh which entities that receive financial grants will cnduct public educatin activities, distribute fair and impartial infrmatin, and perfrm related duties set frth in the law. The federal law and regulatins prvide sme basic details abut the respnsibilities and rles f Navigatrs, but state plicymakers have cnsiderable flexibility and discretin t structure these prgrams in the manner they deem mst apprpriate. The law and regulatins d nt specify the type r cntents f the cntractual agreements between Exchanges and Navigatrs. Hwever, at a minimum, Navigatrs must carry ut the fllwing duties: Maintain expertise in eligibility, enrllment and prgram specificatins fr the Exchange as well as public cverage ptins, and cnduct educatin activities t raise public awareness f the Exchange. Prvide infrmatin and services in a fair and impartial manner (including infrmatin abut the csts f cverage and advance payments f premium tax credits and cst-sharing reductins), acknwledging ther health prgrams. Facilitate selectin f a qualified health plan (QHP), initiating the enrllment prcess. Prvide referrals t any applicable ffice f health insurance cnsumer assistance, mbudsman r ther apprpriate state agency fr any enrllee with a grievance, cmplaint r questin regarding their health plan, cverage r a determinatin under that plan. Prvide infrmatin in a manner that is culturally and linguistically apprpriate, and ensure accessibility and usability f Navigatr tls and functins in accrdance with the American Disabilities Act (ADA). The Exchange is free t require that Navigatrs meet additinal standards and carry ut additinal duties cnsistent with the listed minimum duties. Wh can be a Navigatr? The law and regulatins list the types f entities that may be Navigatrs. The regulatins clarify that the Exchange must select entities frm at least tw f the fllwing categries t serve as Navigatrs: A cmmunity- and cnsumer-fcused nnprfit grup A trade, industry r prfessinal assciatin A cmmercial fishing industry, ranching and farming rganizatin Chambers f cmmerce Unins Resurce partners f the Small Business Administratin Licensed agents and brkers 2012 Natinal Assciatin f Insurance Cmmissiners 2

3 Other public r private entities r individuals that meet the requirements, such as Indian tribes, tribal rganizatins, urban Indian rganizatins, and state r lcal human service rganizatins One f the tw entities selected frm the abve list must be a cmmunity- and cnsumer-fcused nnprfit grup. In rder t be eligible t receive a grant frm the Exchange, an entity must: Be capable f carrying ut the minimum duties required by federal law and regulatin. Demnstrate t the Exchange invlved that the entity has existing relatinships, r culd readily establish relatinships, with emplyers and emplyees, cnsumers (including uninsured and underinsured cnsumers), r selfemplyed individuals likely t be qualified t enrll in a QHP. Meet any licensing, certificatin r ther standards that are prescribed by the state and/r the Exchange. Nt have a cnflict f interest that bars the persn frm carrying ut the duties f a Navigatr. Cmply with the privacy and security standards established by the regulatin. Individuals and entities wh d nt receive grant funding might nt be cnsidered qualified t be a Navigatr, as per HHS guidance. Funding the Navigatr prgram Federal law requires that all funds fr Navigatr grants must cme frm the Exchange s peratin funds generated thrugh nn-federal surces. The preamble f the final regulatin dealing with SBEs ntes that peratinal funds f the Exchange may be revenue received by the Exchange thrugh user fees r ther revenue surces, s lng as the Exchange is selfsustaining. HHS als bserves that public r private grants may be available t supprt certain Exchange functins, such as educatin and utreach, and indicates that such grants will be cnsidered t be peratinal funds f the Exchange nce they are received. The preamble als indicates that, t the extent that Navigatrs assist with Medicaid and Children s Health Insurance Prgram (CHIP) administrative functins, such as assisting eligible individuals with enrllment in cverage, the Medicaid r CHIP agencies are permitted t claim federal funding fr their share f expenditures incurred fr such activities. Prir t the establishment f Exchanges, states may use Exchange planning and establishment grants t fund activities related t the develpment f the Navigatr prgram, such as: Cnducting a needs assessment t identify ppulatins that are likely t use Navigatrs. Identifying ptential Navigatr entities. Engaging stakehlders in the develpment f Navigatr standards, grant guidelines and plans fr public educatin and utreach. Designing Navigatr training and certificatin prgrams. The preamble t the final regulatins encurages states with SBEs that are apprved r cnditinally apprved by January 1, 2013, t have Navigatr prgrams peratinal with services available t cnsumers by Octber 1, 2013, and guidance frm HHS indicates that Navigatrs in the FFE will als be peratinal by that date. Licensing, Certificatin and Training The federal regulatins require an individual r entity t satisfy any licensing, certificatin and training standards established by the state r the Exchange in rder t perate as a Navigatr and receive Navigatr funding. It is the respnsibility f the states and the Exchanges t develp training standards t ensure the cmpetency f Navigatrs, but the regulatins d impse certain minimum requirements. Specifically, training standards must ensure that Navigatrs understand the fllwing: The needs f the underserved and vulnerable ppulatins. The rules and prcedures fr eligibility and enrllment. The range f public prgrams and QHP ptins available thrugh the Exchange. Hw t apprpriately handle tax data and ther persnal infrmatin and cmply with the regulatins privacy and security standards. Althugh it is nt required, the preamble t the final regulatins strngly encurages Exchanges t implement nging and recurring training, as well as regular reviews and assessments f their Navigatrs. In additin, HHS has indicated that it may prvide further guidance in the future. The preamble als states that an Exchange may NOT require that any Navigatrs hld an agent r brker license, r maintain errrs and missins (E&O) cverage Natinal Assciatin f Insurance Cmmissiners 3

4 Prhibitins n Navigatr Cnduct and Cnflicts f Interest The federal law includes prhibitins n Navigatrs that are intended t prevent, minimize and mitigate pssible surces f cnflicts f interest, and the regulatin further prvides that a Navigatr must nt: Be a health insurance issuer, a subsidiary f a health insurance issuer r an assciatin that includes members f, r lbbies n behalf f, the insurance industry. Receive any cnsideratin directly r indirectly frm any health insurance issuer in cnnectin with the enrllment f any individuals r emplyees in a QHP r a nn-qhp. The preamble t the regulatins ntes that HHS intends fr these prhibitins t apply bradly, including t any staff f an entity serving as a Navigatr r entities that serve as Navigatrs fr ne Exchange while simultaneusly serving in anther capacity fr anther Exchange. The preamble als expresses cncern that grants and ther cnsideratins prvided by health insurance issuers t Navigatrs fr activities unrelated t enrllment in health plans may present a significant cnflict f interest fr Navigatrs, althugh such grants are nt inherently prhibited. Finally, HHS indicates in the preamble that cnsideratin, as used in cnnectin with these prhibitins, shuld be interpreted t mean bth (1) financial cmpensatin, including mnetary and in-kind cmpensatin and grants, and (2) any ther type f influence that a health insurance issuer culd use, including gifts, free travel and ther items that may result in steering cnsumers t particular plans. Exchanges must develp and publicly disseminate cnflict f interest standards t ensure the apprpriate integrity f all entities and individuals carrying ut Navigatr functins. The preamble t the regulatins urges states t craft cnflict f interest standards that address areas such as: Financial cnsideratins. Nn-financial cnsideratins. The impact f a family member s emplyment r activities with ther ptentially cnflicted entities. Navigatr disclsures regarding existing financial and nn-financial relatinships with ther entities. Exchange mnitring f Navigatr-based enrllment patterns. Legal and financial recurses fr cnsumers wh have been adversely affected by a Navigatr with a cnflict f interest. Applicable civil and criminal penalties fr Navigatrs that act in a manner incnsistent with the cnflict f interest standards set frth by the Exchange. The preamble als clarifies HHS view that cnflicts f interest arise when a Navigatr has a private r persnal interest sufficient t influence, r appear t influence, the bjective exercise f his r her fficial duties. HHS plans t release mdel cnflict f interest standards in future guidance. Cnsideratins and Optins fr State Officials Wh are the best candidates t becme Navigatrs? As stated in the regulatins, each Exchange must fund at least ne Navigatr entity that is a cmmunity- and cnsumerfcused nnprfit grup. States might cnsider a range f cmmunity-based rganizatins, such as Kiwanis, parent-teacher assciatins, cmmunity health rganizatins, faith-based rganizatins, churches, earned incme tax credit (EITC) assisters, peer-run nnprfit rganizatins (such as addictin and mental health help grups), and state Senir Health Insurance Infrmatin Prgrams (SHIIPs) which culd include institutins with cnsistent interactin with the public, prvided that such entities als meet the eligibility criteria necessary t receive a grant frm the Exchange, as set ut earlier in this paper. Infrmatin gathered as part f the Navigatr applicatin prcess can help states determine which entities and individuals wuld be mst instrumental in reaching all ppulatins f the state. This infrmatin might include what types f services the entity currently prvides, what ppulatins they interact with mst ften, what methds they use t reach cnsumers (e.g., telephne, hme visits, in-persn appintments and which gegraphic areas f the state they will serve. Sme states are cnsidering allwing safety net prviders, including federally qualified health clinics and health departments, t be part f the Navigatr prgram. States that chse t include these rganizatins may wish t define what cnstitutes a safety net clinic and shuld ensure that Navigatrs will prvide unbiased infrmatin and d nt act in a way that vilates the rules set ut by HHS regarding cnflict f interest fr Navigatrs Natinal Assciatin f Insurance Cmmissiners 4

5 The relatinship between the Navigatr entity and Navigatr individual States will need t determine the relatinship that will exist between a Navigatr entity and a Navigatr individual, and what the state s invlvement in that relatinship will be. Sme states are planning t require the Navigatr entity t apply fr and receive the grant. The entity then may be respnsible fr the training and cnduct f each individual Navigatr, and will decide whether/hw that grant mney will be distributed. Wh will be respnsible fr training Navigatr individuals? States will need t decide what methds fr training Navigatr individuals are mst feasible fr the ppulatin and gegraphy f their state, taking cnsistency f that training int cnsideratin. Sme states are using their state SHIIP prgram as a mdel t address these issues. Fr example, Kansas is planning t centralize the training prcess, ensuring that all Navigatr entities and individuals receive the same training frm the same Exchange-apprved individual r grup. This will eliminate prblems f incnsistency that can smetimes be fund in a train the trainer prcess. Hwever, states with a larger number f Navigatrs r a larger gegraphical area may need t cnsider ther ways t ensure cnsistency while still being accessible in all areas f the state perhaps via vides r nline training prgrams. Nrth Carlina plans t prvide unifrm training at designated sites acrss the state, similar t SHIIP training sites, and will als develp an nline curse t ensure that Navigatr entities and individuals get the same training regardless f where they are lcated in the state. What shuld be included in Navigatr training? States may need t evaluate the Navigatr individuals in their state, including the specialized knwledge they already have, and identify the gaps in knwledge that exist. Navigatr individuals shuld be trained n hw t help cnsumers thrugh the entire prcess f finding, evaluating and chsing a QHP in the Exchange marketplace (bth electrnically and n paper), including issues that may arise with the Web prtal and electrnic enrllment prcess. Sme issues that states have identified as pssible training tpics include: Cntent knwledge Basic health insurance cncepts QHP details Nn-Exchange plans Specialty health plans 5 Exemptins frm the individual mandate Premium tax credits and ther tax cnsideratins Subsidies Other affrdability prgrams Eligibility issues Assessing infrmatin abut eligibility and enrllment status Eligibility fr public assistance prgrams Emplyment eligibility issues Changes in eligibility (transitin risk) 6 Hw t help cnsumers with cmplex r mixed eligibility Enrlling cnsumers Cmparing plan ptins Applying nline (hw t use the Exchange nline prtal) Hw t apply via paper applicatins Renewing cverage and re-enrlling cnsumers with lapsed plicies Changing plans when apprpriate Cunseling skills Ethics Cultural cmpetency 5 Specialty health plans include cverage such as visin, dental, hearing, chirpractic, behaviral, alternative medicine and cancer. As sme specialty pediatric essential benefits differ frm adult benefits under the ACA, sme cverage crdinatin will be necessary. 6 Transitin risk is the tendency fr sme segments f the ppulatin t switch eligibility between Medicaid, premium tax credits and subsidies within the plicy year. Navigatrs shuld be trained n hw t prvide enrllment and infrmatin t individuals that fall int this categry, including: access t care; cntinuity f care; cntinued eligibility r ineligibility fr Medicaid, premium subsidies and tax credits; expsure t tax liability fr sme prtin f previus subsidy payments; expsure t higher csts f premiums, deductibles and ut-f-pcket expenses; and expsure t changes in cverage Natinal Assciatin f Insurance Cmmissiners 5

6 Privacy and security fr handling persnal infrmatin Cmmunicatin skills Evaluating the level and type f assistance the cnsumer needs Assisting individuals with disabilities, including addictin r mental health issues Making referrals and finding cmmunity resurces Cnflict f Interest requirements States may wish t cnsider setting up a resurce center with a number fr Navigatrs t call fr assistance, especially at the beginning f implementatin f the Navigatr prgram. Licensing and Certificatin States cannt require Navigatrs t be licensed insurance agents r brkers. Hwever, HHS regulatins permit states t develp Navigatr-specific licensing r certificatin requirements. This certificatin r licensure shuld ccur after fulfilling Navigatr training requirements, and after demnstrating a cmmand f the infrmatin and skills required t perfrm Navigatr duties. States may wish t evaluate the prcess t ensure that ptential Navigatrs d nt face verly burdensme requirements. Sme states may wish t allw Navigatrs t be certified based n cmpetency alne, nt based n hurs f training. If a state chses t have Navigatr individuals cmplete different types f duties (e.g., distinguishing Navigatrs n an individual Exchange and Navigatrs n the Small Business Health Optins Prgram (SHOP) Exchange), that state may wish t vary the requirements based n the functins that particular Navigatr will be respnsible fr. States may wish t evaluate what cntinuing educatin requirements they will prvide fr Navigatrs, including specialized tpics, plicy updates and strategies fr cnducting Navigatr duties. Kansas plans t certify Navigatr individuals wh successfully cmplete training. Navigatr entities will apply fr grant funds frm the Exchange, and Navigatr individuals will be trained and certified. They will require an initial 24 hurs f face-t-face training and an additinal fur hurs f nline training, including pre- and pst-testing. After the initial training and first year f wrk, Navigatr individuals will be required t cmplete eight hurs f face-t-face training and fur hurs f nline training annually t maintain their certificatin. Mnitring Navigatr Behavir and Perfrmance States will need t determine wh will be respnsible fr mnitring Navigatr behavir and perfrmance. In sme states Navigatrs may reprt directly t the Exchange, t the DOI, r t anther rganizatin altgether. Sme states may wish t require Navigatrs t sign a cde f cnduct r ethics statement regarding the apprpriate and fair delivery f service. States may als wish t mnitr Navigatr cnduct by requiring Navigatrs t reprt data n a defined set f measures, which might include: the number f individuals assisted; hw many f thse individuals were eligible fr public prgrams r subsidies; which prgrams r plans cnsumers were enrlled in; demgraphic infrmatin; insurance histry; and what level r type f assistance was required, including whether and where they were transferred fr additinal assistance. Keeping a recrd f this infrmatin may help the Exchange keep track f the wrk each Navigatr is ding and ensure prper versight f duties. The Cmmunity Service Sciety f New Yrk is an example f an rganizatin that currently practices this versight prcess; the primary cntractr in the cnsumer assistance prgram reviews a case sample frm each cntracting entity t mnitr behavir and perfrmance. In Kansas, the Navigatr entity will be respnsible fr ensuring that all individuals are trained prperly. Any Navigatr miscnduct culd result in the individual lsing certificatin status and the entity lsing its grant mney. Cmplaints cncerning Navigatrs wuld be mnitred by the DOI thrugh cnsumer cmplaints filed electrnically, by telephne, by mail r in persn. States with SBEs culd cnsider prviding Navigatrs with a prtal that is separate frm the prtal used directly by cnsumers, and assigning each Navigatr an individual unique number which wuld be recrded when signing int that prtal. The Navigatr can use that identifying number t submit enrllment applicatins n behalf f the cnsumers and/r small businesses they assist and track eligibility and enrllment infrmatin. If a cnsumer reprts miscnduct, that individual culd be traced thrugh the Exchange thrugh that identifying number. There may be entities in the marketplace that will use Navigatr names r create cpycat Exchange websites t defraud and mislead cnsumers. States need t remain vigilant in identifying and disabling these entities in rder t prtect cnsumers. Cnflict f Interest Standards HHS will prvide states with a cnflict f interest statement template that can be used when certifying r licensing Navigatrs. States may als wish t cnsider whether they shuld incrprate additinal r existing state laws r standards 2012 Natinal Assciatin f Insurance Cmmissiners 6

7 that gvern Navigatr cnflicts f interest. States shuld cnsider establishing a standard prcedure t prevent and mitigate cnflicts f interest, such as an annual disclsure requirement and/r nging bligatins t disclse new r actual cnflicts. States may als wish t adpt measures t prevent the appearance f imprpriety, and utline prcedures fr the review f pssible cnflicts f interest. Massachusetts has decided t incrprate its cnflict f interest law and financial disclsure law int the peratin f their Exchange, The Cnnectr. Recurse fr Cnsumers States shuld cnsider what recurse a cnsumer might have if he r she is harmed by a Navigatr s actins. While states are prhibited frm requiring Navigatrs t purchase Errrs and Omissins (E&O) insurance, states may wish t determine ways in which cnsumers harmed by Navigatr entities may seek redress. Navigatr entities may wish t vluntarily purchase an verarching liability insurance plicy that wuld prtect them and the cnsumer in the event f an errr. States may need t develp a prcess fr handling Navigatr-related cmplaints frm cnsumers, with the ability t take apprpriate actin against Navigatrs when fraud r ther imprper cnduct ccurs. States may als wish t establish a prcess fr reviewing awarded Navigatr grants t detect and prtect against malfeasance, waste, fraud and abuse. Navigatr Cmpensatin States will need t decide hw Navigatr entities will be awarded grant mney, and whether that prcess will include a perfrmance-based system. States shuld cnsider establishing Navigatr cmpensatin that ensures prper linkage f perfrmance and results. Sme factrs that states may want t cnsider when evaluating Navigatr perfrmance include: The number f cnsumers assisted. The actual services prvided t cnsumers. The time intensity f the service prvided. The gegraphical lcatin in which the Navigatr is lcated. Whether the Navigatr serves a specific ppulatin (including ppulatins f cnsumers with limited English prficiency, mental illnesses r disabilities). In Kansas, cmpensatin f Navigatr individuals will be left up t the discretin f the Navigatr entity. Individual Exchange vs. SHOP Exchange States may chse t fund different Navigatrs that specialize in prviding services t the SHOP and individual Exchanges, r may chse t have Navigatrs with different rles in the individual and SHOP Exchanges. States shuld cnsider the necessity f having sme Navigatrs familiar with bth markets t serve ppulatins that may be intercnnected (fr example, if members f ne family have varying cverage needs and eligibility statuses that are divided between the SHOP and individual Exchange). States shuld als decide if they plan t include Navigatrs in bth markets. Maryland, fr example, is planning t fcus Navigatrs n the individual market and utilize agents and brkers t assist in the SHOP Exchange. Cnsideratins fr SBEs, FFEs and PFFEs States that chse t run an SBE will have full cntrl ver Navigatrs within the parameters f the law and regulatins. These states will determine training standards, hand ut Navigatr grants, and versee the entire Navigatr prgram, including what financing mechanisms will be used fr funding Navigatr grants. States with an FFE must await further guidance frm the federal gvernment n many aspects f the Navigatr prgram. Currently there is nt a clear answer as t what will happen t Navigatr prgrams in a PFFE. A state that chses t run the Cnsumer Assistance ptin may determine sme aspects f the prgram, including training standards and wh will cnduct the training. HHS has indicated that they may retain cntrl f Navigatr grants in a PFFE since the mney wuld be cming frm the federal gvernment. States shuld cnsult directly with HHS abut this issue and cme t an agreement that will wrk fr the individual state. Agents and Brkers Backgrund 2012 Natinal Assciatin f Insurance Cmmissiners 7

8 Under federal law, Exchanges have a great deal f flexibility t determine the rle f agents, brkers and Web-based entities in the marketplace. The federal regulatins make it clear that, with prper training, agents and brkers can enrll individuals, emplyers and emplyees in QHPs thrugh the Exchange, as well as utside the Exchange. The Exchange may als prvide infrmatin regarding agents and brkers n its website. The regulatins permit states with SBEs t allw agents and brkers t assist individuals in applying fr advance payment f the premium tax credits and cstsharing reductins fr plans ffered thrugh the Exchange (cmments have been requested n this aspect f the regulatins). The regulatins make it clear that agents r brkers that enrll individuals in a QHP r assist individuals in applying fr subsidies must cmply with applicable state law related t agents and brkers, including state law related t cnfidentiality and cnflicts f interest, in additin t the federal standards. Agents and brkers wh assist individuals in enrlling in QHPs r applying fr subsidies must have entered int an agreement with the Exchange, the terms f which require agents r brkers t, at least. Register with the Exchange in advance f assisting qualified individuals enrlling in QHPs thrugh the Exchange. Receive training in the range f QHP ptins and insurance affrdability prgrams. Cmply with the Exchange s privacy and security standards adpted cnsistent with the regulatins. The regulatins allw agents r brkers t use their wn website t cmplete the selectin f a QHP, as lng as the website, at a minimum: Meets all the standards fr disclsure and display f QHP infrmatin set ut in law and regulatins. Prvides cnsumers the ability t view all QHPs ffered thrugh the Exchange. Des nt prvide financial incentives, such as rebates r giveaways. Displays all the QHP data prvided by the Exchange. Maintains audit trails and recrds in an electrnic frmat fr a minimum f 10 years. Prvides cnsumers with the ability t withdraw frm the prcess and use the Exchange website instead at any time. In additin, the regulatins prvide that a cnsumer may be enrlled in a QHP thrugh the Exchange with the assistance f an agent r brker if the agent r brker ensures that the cnsumer is eligible fr cverage and cmpletes an applicatin. The applicatin must then be prperly transmitted t the insurer thrugh the Exchange website. In rder t receive a subsidy, cnsumers must enrll in cverage thrugh the Exchange. As lng as the agent r brker is certified t sell prducts thrugh the Exchange, the cnsumer may receive that subsidy when enrlling with an agent r brker. Cnsideratins and Optins fr State Officials Agents and Brkers as Navigatrs Agents and brkers may be Navigatrs if they are nt cmpensated directly r indirectly frm health insurance issuers fr their wrk. States may wish t evaluate hw this will affect their unique insurance envirnment and agent requirements. Agents Selling n the Exchange States shuld evaluate what training shuld be required f agents and brkers wh wish t sell QHPs thrugh the Exchange, including training n public affrdability prgrams, subsidy eligibility, and use f the Web prtal. Additinally, states will need t cnsider hw agents and brkers serving Exchange cnsumers will be cmpensated, and hw the pricing f QHPs will remain the same bth inside and utside the Exchange, whether r nt an agent r brker was invlved. Bth the individual Exchange and the SHOP Exchange shuld be taken int cnsideratin when making these decisins. Hw Cnsumers will find Exchange-Apprved Agents and Brkers State Exchanges and DOIs will need t decide whether t prvide cnsumers with a list r database f agents and brkers apprved t sell n the Exchange. Maryland is planning t make a list f agents and brkers apprved t sell Exchange prducts n the Exchange website, thugh cnsumers will nt be referred t a specific prducer r cmpany. Navigatrs in Maryland will be limited in what they can tell cnsumers abut prducts ffered utside the Exchange. Maryland has determined that nly Navigatrs will be allwed t enrll cnsumers in public affrdability prgrams, and any 2012 Natinal Assciatin f Insurance Cmmissiners 8

9 agent r brker wh encunters a cnsumer eligible fr a public affrdability prgram will be required t refer that cnsumer t a Navigatr. Agent Appintments and Selling n the Exchange States may need t recncile their prducer licensing laws and rules with any Exchange Navigatr certificatin r licensing requirements. States will need t cnsider captive agent status under their licensing laws. In additin, states may need t address state and carrier appintment requirements and review the ability f all agents and brkers t enrll cnsumers in all QHPs within an Exchange. States will need t evaluate what is best fr their market and determine what requirements, if any, will need t be met t allw agents and brkers t sell n the Exchange. Agent Training States will need t decide what kind f training will be required f agents and brkers befre allwing them t sell plans n the Exchange and t what extent training will need t be incrprated int the cntinuing educatin requirements fr agents t remain eligible t sell n the Exchange. Fr example, agents and brkers may need t be trained n: Eligibility and tax subsidy calculatin. Changes in eligibility (transitin risk). 7 Basic Medicaid and CHIP eligibility, and issues fr mixed eligibility status families. Scpe f what Navigatrs are allwed t d. Sensitivity t cultural differences and nrms f minrity ppulatins. Hw t reprt exemptins frm individual mandate. Eligibility issues fr cnsumers with emplyer-based cverage. Hw t use the Exchange website. Tax subsidies available fr small businesses. Training fr agents in Kansas will be similar t the training required f Navigatrs, but with the ptin t test ut f training that cvers basic insurance cncepts. Kansas is als planning t add Exchange-specific training t agent- and brker-required CE hurs in rder t stay eligible t sell n the Exchange. Cnflict f Interest Standards States shuld cnsider what cnflict f interest standards will apply t agents and brkers. States culd gather infrmatin n the enrllment patterns f cnsumers wh utilize an agent r brker versus thse wh d nt t ensure that cnsumers are nt being steered tward plans that ffer agents and brkers the highest cmmissin rate. States might als cnsider what recurse cnsumers wuld have if they are adversely affected by an agent r brker wh vilates this cnflict f interest standard. HHS will prvide a cnflict f interest standard template fr Navigatrs, and states may be able t adapt this language t suit agents and brkers as well. Cmmissin Structure fr Agents and Brkers States will need t cnsider hw cmmissin structures may change fr agents and brkers wh sell QHPs n the Exchange. Maryland and Utah have determined that traditinal cmmissin structures may remain in place, and Utah is planning t require agents and brkers t disclse their cmmissins t cnsumers. Web-based Brkers in the Exchange States may need t determine if Web-based brkers require different regulatins frm traditinal agents and brkers and, if s, what thse differences wuld be, including cnflict f interest standards. Since Web-based brkers may use a website ther than the Exchange prtal, states shuld strive t ensure that all websites selling QHPs are built in a way that will nt cnfuse cnsumers, perhaps including a disclaimer that the Web-based brker website is nt the fficial Exchange website. States shuld ensure that subsidy availability and regulatins are clearly available n these websites. Cnsideratins fr SBEs, FFEs, and PFFEs 7 See Ftnte Natinal Assciatin f Insurance Cmmissiners 9

10 In the general guidance issued May 16, 2012, CCIIO stated that HHS expects that licensed agents and brkers will cntinue t assist cnsumers in accessing health insurance in states with an FFE r PFFE. The agency indicates it will wrk with agents and brkers t prmte enrllment thrugh the Exchange. T the extent permitted by a state, an FFE will permit agents and brkers t enrll individuals in a QHP thrugh an Exchange if the agent r brker ensures that an individual cmpletes the eligibility verificatin and enrllment applicatin using the Exchange website r anther Exchange-apprved website. HHS will prvide licensed agents and brkers with a prtal t the FFE website if applicable standards are met. HHS intends t wrk with Web-based brkers that meet all applicable requirements. In additin, HHS indicated that agents and brkers will be a primary channel that small businesses can use t access cverage thrugh an FFE-SHOP Exchange. HHS als anticipates that agents and brkers will cntinue t be a primary pint f cntact fr a variety f administrative, billing and claims-related issues. In an SBE, the rle f agents and brkers will be determined by the state. Hwever, state standards and requirements cannt cnflict with the federal regulatins and standards, including the requirement that a Navigatr s rle is t facilitate enrllment. Marketing Backgrund The ACA requires the Secretary f HHS t establish criteria fr the certificatin f QHPs that require that plans, at a minimum, meet marketing requirements, and nt emply marketing practices r benefit designs that discurage enrllment by peple with significant health needs. The federal law and regulatins require QHPs t fllw state marketing laws. Cnsideratins and Optins fr State Officials In this paper, marketing is cnsidered t be the way that insurers and/r prducers try t get cnsumers t buy a particular plan. Marketing shuld be cnsidered separately frm general cnsumer utreach intended t educate cnsumers abut insurance r the Exchange in general. Currently states, in general, d nt have specific marketing rules fr traditinal health insurance plans, beynd state unfair trade practices laws. States d reserve the right t review advertising materials at any time, but typically d nt pre-apprve advertising fr traditinal health insurance plans. Sme states, including Flrida, d make a distinctin between invitatins t inquire and invitatins t cntract. States may want t re-evaluate the current laws that gvern insurance marketing t decide if additinal regulatin is necessary fr plans sld inside and utside the Exchange. Currently Utah des nt have any additinal regulatin fr marketing plans thrugh their Exchange. Hwever, they have fund the need t specify that prducers may nt create an nline website that lks like the fficial Exchange website, and must explicitly state that their website is nt affiliated with the fficial Exchange prtal. Cnsideratins fr SBEs, FFEs, and PFFEs States with an SBE will have the ability t cntrl advertising inside and utside f the Exchange. Plans will cntinue t have t fllw the Health Insurance Prtability and Affrdability Act (HIPAA) fair market rules and ther marketing requirements. DOIs may want t put guidelines in place t ensure that prducts and rates are nt cnstructed r marketed in such a way as t discurage peple away frm the Exchange. In an FFE, HHS will maintain cntrl f marketing plans inside the Exchange. States will retain cntrl f plans marketed utside the Exchange. HHS may wish t have a Memrandum f Understanding (MOU) r cntract with the state t share infrmatin t d this. In a PFFE, states may be willing t take n sme plan management functins, including marketing. If a state pts fr a plan management PFFE, it will retain marketing versight like an SBE. If a state selects nly a cnsumer assistance PFFE, HHS will have authrity ver the marketing f Exchange plans. Summary f Benefits and Cverage Backgrund The ACA requires all grup health plans and individual insurers t prvide, under certain circumstances, a unifrm Summary f Benefits and Cverage (SBC) disclsure t cnsumers fr private health insurance plans. Fr the grup market, the 2012 Natinal Assciatin f Insurance Cmmissiners 10

11 disclsures must be prvided fr plan years beginning after September 23, Insurers must prvide the disclsures fr the individual market as f September 23, 2012, regardless f plan year. The unifrm template requires insurers t include a descriptin f the cverage, including: Cst-sharing fr each categry f benefits identified by HHS. Exceptins, reductins and limitatins n cverage. The cst-sharing prvisins f the cverage, including the deductible, cinsurance and cpayment bligatins. The renewability and cntinuatin f cverage. Cverage examples that illustrate the csts fr cmmn benefit scenaris defined by HHS. A statement that the Summary f Benefits is nly a summary. A cntact number t call with questins and a website where a cpy f the full plicy fr the plan can be btained. A website where cnsumers can access the standard glssary f insurance and medical terms prvided fr in the final SBC rule. In 2013, the SBC standard template will be updated t require insurers t include a statement abut whether the plan prvides minimum essential cverage and meets the affrdability requirements fr Exchanges. HHS will als prvide up t fur additinal cverage examples in 2013, and insurers will need t include these additinal examples in all SBCs beginning Jan. 1, Cnsideratins and Optins fr State Officials Purpse The purpse f the SBC is t prvide a unifrm basis fr cmparing cverage ptins and t help cnsumers understand the benefits and csts under their cverage. States may nt alter the SBC frms, but may require insurers t prvide additinal infrmatin t cnsumers. If states find that additinal disclsures are necessary, they may cnsider explring ne f the fllwing: Cntinue t require cmplete disclsure dcuments t be distributed with duplicative infrmatin. Require the inclusin f an addendum with the SBC that cntains additinal nn-duplicative infrmatin required by state law. States will als need t include a required disclsure pursuant t Sectin 2709 f the PHSA (previusly cdified at Sectin 2713 and was part f the HIPAA disclsure requirements) that requires issuers t disclse the pssibility that rates can g up. State DOIs may als wish t establish mechanisms t mnitr the accuracy f the SBC disclsures submitted by insurers. Cnclusin As nted in this white paper, the Exchange final rules and regulatins prvide states with sme flexibility cncerning Navigatrs, agents and brkers, and marketing within the Exchange. Hwever, states are fairly limited in flexibility cncerning the SBC. Many f the decisins that states will have t make cncerning the areas discussed in this paper will depend n whether the state establishes an SBE, an FFE r a PFFE. States shuld use this paper t begin discussins with stakehlders and state agencies t best determine hw Navigatrs and agents and brkers will be transitined int the Exchange system, and t decide hw best t regulate marketing and SBC requirements in their current insurance regulatry envirnment Natinal Assciatin f Insurance Cmmissiners 11