Light on weekend reading material? HHS Secretary Kathleen Sebelius wants to help. (AP photo)

The Obama administration has come up with a new batch of rules for the people who are supposed to help consumers and employers use the Patient Protection and Affordable Care Act (PPACA) health insurance exchange program.

The rules would let licensed insurance agents and brokers sell exchange coverage to consumers, as long as states let agents and brokers sell health insurance.

Because of a PPACA ban on “navigators,” or independent ombudsmen, getting compensation from health insurers, the rules would not let  producers who were working as navigators get paid by carriers. 

But, in the new final rule, “Patient Protection and Affordable Care Act; Exchange Functions: Standards for  Navigators and Non-Navigator Assistance Personnel; Consumer Assistance Tools and  Programs of an Exchange and Certified Application Counselors” (CMS-9955-F), the U.S. Department of Health and Human Services (HHS) leaves open the possibility that some producers in some states might be able to work as exchange-paid navigators while collecting commissions for other types of insurance products, such as critical illness insurance or hospital indemnity insurance.

The final rule also includes sections on certified application counselors, in-person assistance personnel and non-navigator assistance personnel. All kinds of official exchange helpers would have to get 30 hours of training.

The rule, which is set to appear in the Federal Register July 17, is based on drafts released in January and April.

The regulations will apply directly to the “federal facilitated exchanges” (FFEs) run by HHS. States that are setting up their own, state-based exchanges can either use the HHS rules or develop their own guidelines.

In the past, HHS officials have said that they expect agents and brokers to continue to play an important role in the health insurance market in most states. Officials have included a similar statement in the preamble to the new regulations.

In a discussion of comments on the earlier regulation drafts, HHS talked about an apparent navigator program quirk that could give sellers of supplemental health products, such as a critical illness insurance, and edge over sellers of major medical insurance.

Navigators are not supposed to be able to sell exchange coverage or make official recommendations about the coverage, because they are not licensed agents or brokers.

But PPACA calls for the navigators to provide general advice to consumers about how to use the exchange system. To make the navigators as independent as possible, PPACA prohibits navigators from getting paid by any of the companies selling “qualified health plans” (QHPs) through the exchanges, or by “health insurance insurance issuers” sell plans other than QHPs.

So, what exactly is a “health insurance issuer”? Does that include sellers of Medicare supplement insurance, critical illness insurance, hospital indemnity insurance or long-term care insurance?

“A few commenters requested guidance on whether selling other insurance products, such as Medicare health plans, accident plans, cancer-only or other dread disease plans, hospital expense, or critical illness plans, would be a prohibited conflict of interest making someone ineligible to be a navigator or non-navigator assistance personnel,” officials said.

Officials suggested that whether active sellers of supplemental health products can be navigators will depend on specific state laws and how specific companies operate.

“If an entity or one of its corporate affiliates is required to be licensed to engage in the business of insurance in a state and is subject to state law that regulates insurance, it might be a health insurance issuer or a stop-loss issuer or have a relationship with a health insurance issuer or stop-loss issuer,” officials said.

In states in which HHS is running the exchange program, officials look at specific supplement health products companies’ corporate structure on a case-by-case basis, officials said.

In another comment response, HHS officials considered whether exchange helpers can make consumers apply for coverage through electronic systems.

HHS came down on the side of offering a consumers a choice about whether to use electronic systems.

“While we strongly encourage all types of assistance personnel to help consumers apply for and enroll in coverage electronically, we also expect all types of assistance personnel to help consumers who wish to apply on paper,” officials said. 

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