The Affordable Care Act establishes the creation of exchanges and outlines various requirements and standards that exchanges must satisfy. Each state has the opportunity to establish an exchange, and each exchange, under §§ 1311(d)( 4)( K) and 1311(1) of the Act and 45 C.F.R. § 155.210, is directed to establish a program under which it awards grants to navigators that will perform the following duties:

  1. conduct public education activities to raise awareness of the availability of qualified health plans;
  2. distribute fair and impartial information concerning enrollment in qualified health plans and the availability of premium tax credits and cost-sharing reductions in accordance with federal tax laws;
  3. facilitate enrollment in qualified health plans;
  4. provide referrals to any applicable office of health insurance consumer assistant or health insurance ombudsman, or any other appropriate state agency or agencies, for any enrollee with a grievance, complaint, or question regarding his or her health plan, coverage, or a determination under such plan or coverage; and
  5. provide information in a culturally and linguistically appropriate manner.

The Act also authorizes the adoption of standards for navigators, including provisions to ensure that any entity selected as a navigator is qualified, and licensed if appropriate, to engage in the navigator activities required by the law and to avoid conflicts of interest.

The Centers for Medicare and Medicaid Services of the Department of Health and Human Services has proposed regulations under 45 CFR Part 155 that would establish conflict of interest, training and certification, and meaningful access standards applicable to navigator programs in federally-facilitated exchanges. Exchanges affected include state partnership exchanges, non-navigator assistance programs in state partnership exchanges, and non-navigator assistance programs in state-based exchanges that are funded through federal exchange establishment grants. The proposed regulations require navigators and non-navigator assistance personnel to register with and be certified by the exchange. The proposed regulations establish standards for navigators and non-navigator assistance personnel to ensure meaningful access to their services by individuals with limited English proficiency and individuals with disabilities.

The proposed regulations would amend existing regulations to clarify that navigators must meet any applicable licensing, certification, or other standards prescribed by the state or exchange, as long as the standards do not prevent the application of the provisions of the Act. Navigators would be required to add entities with relationships with issuers of stop loss insurance, including those compensated directly or indirectly by issuers of stop loss insurance in connection with enrollment in qualified or non-qualified health plans. The amended regulations would clarify that the same ineligibility criteria that apply to navigators providing services in any federally-facilitated exchange, including state partnership exchanges, also apply to non-navigator assistance personnel who provide assistance in state partnership exchanges and federally-funded non-navigator assistance personnel who work in state-based exchanges.