August 13, 2013
The Department of Health and Human Services (HHS) has adopted regulations formally defining Health Exchange navigators, non-navigator assistance personnel, and certified application counselors (in the Federal Register of July 17, 2013).
These organizations and individuals are to provide assistance to consumers in understanding their health insurance options under the Affordable Care Act (ACA), also known as Obamacare, and in completing enrollment for insurance through the new Exchanges.
The new consumer assistance activities for the Health Exchanges are extensive and complex. As a result, many individuals may feel the need for personalized legal assistance. Attorneys will likely be asked to help clients understand the available choices, and to help them proceed through the application processes being set up by the Exchanges.
Attorneys also may encounter issues over the legal relationships between individuals and the new certified application counselors (CACs), which by regulation are to “represent” the individuals that they help. It is yet to be determined what the nature of the legal relationship is to be between a CAC and a “client”.
All Exchanges must arrange for consumer support to be provided by “navigators”, which are basically teaching, outreach, and facilitating organizations that must be free of conflicts of interest or bias. (Individuals may also be navigators). Exchanges are to provide grants, training and supervision for control over wide-ranging activities. The navigators are to have demonstrated expertise to provide consumer assistance; conduct public education campaigns; provide impartial information and facilitate enrollment; and provide referrals for complaints.
Federal Exchanges must also provide consumer assistance through non-navigator assistance (NNA) programs; state Exchanges may choose to offer such assistance. NNA programs include “in-person assistance personnel” and provide more organizational flexibility than is present for navigators. Other types of groups that want to help with ACA education and enrollment may function as NNA programs. Each Exchange is to decide how to implement its NNA activities; NNA personnel must be registered with and certified by an Exchange.
In addition, all Exchanges must make provision for the training of CACs who act as “helpers” to assist and represent individuals during the application and enrollment process. Exchanges must—either directly or indirectly through other organizations—arrange for training and certification of CACs. These counselors may be present in a variety of settings, including community health centers, health care service facilities, and local governmental facilities.
In addition to the above, there will be many types of educational and outreach groups, and consumer helpers, that operate outside of the formal Exchange-based arrangements. Numerous interested groups will continue to advocate for their points of view. The Exchange-based activities will thus become a formal addition to the many voices seeking to shape the ACA “brand” and influence public reactions.
There are several problems associated with the new ACA consumer assistance activities, all yet to be addressed or resolved. There is little time for recruitment and training of personnel by October 1, when the Exchanges are to become operational. It will be difficult to have appropriate and complete training materials available in time to conduct training programs on this tight schedule.
And the legal status of the new assistance personnel, particularly the CACs, may quickly develop into an ACA issue. There may possibly be a need for state bar associations to set up committees to evaluate the roles of the CACs within the legal community.
More on these and related topics may be found in a recent book by the authors that describes implementation of the ACA and its impact on legal practices.
Previous installments of “Obamacare Reports” address the various ways in which implementation of the ACA is affecting legal practices: