Health Exchanges: Navigators

The Affordable Care Act (ACA) requires States to establish Navigator programs to help enroll individuals in health plans on state health benefits exchanges.  The role of Navigators includes outreach and education efforts, providing unbiased and accurate information, and helping individuals apply for coverage.  The ACA also requires Navigators to operate in those States that declined to establish their own exchange and instead deferred to the federal exchange. 
In early 2014, NAIFA Staff learned that some States had enacted laws to regulate the activity of Navigators.  Many of these new laws require that Navigators obtain a license from the State prior to assisting consumers shopping for health insurance policies through a state or federal exchange.   Other States have enacted laws requiring Navigators to register with the Department of Insurance, pass a background check, and which limit or state permissible Navigator duties. 
To date, 16 States have enacted licensure/registration laws for Navigators:  AZ, AR, GA, IL, IN, ME, MO, MT, NE, NM, OH, PA, TX, UT, VA, and WA
18 other States have similar legislation and/or regulation pending:  AK, CA, CO, HI, IA, KS, LA, MD, MI, MN, MS, NH, NY, NC, OK, SC, SD, and WV,
However, some of these new laws have been subject to legal challenge.  In January 2014, the U.S. District Court in Missouri placed a preliminary injunction on the implementation of Missouri’s Navigator law.  The Court determined that the statute’s requirements would hinder Navigator’s compliance with federal law and violate the Constitution’s Supremacy Clause.  The court added that federal Navigators are already subject to federal regulations, and the additional requirements in the State law would prevent Navigators from carrying out the Congressional intent of the ACA.  The court’s decision did not totally preclude States from regulating Navigators, but it held there is a limit to State authority on regulating Navigator activity.  The case is currently being appealed to the U.S. Court of Appeals.    
In early 2014, after evaluating the legislative, legal, and political dynamics on Navigator regulation, the NAIFA Board of Trustees approved the following policy statement on Navigators developed by the Government Relations Committee:   
“NAIFA believes that states should require any Navigator that recommends a policy, or sells, solicits or negotiates insurance to be licensed on the same basis as insurance producers.  NAIFA also believes that all Navigators should be instructed as to what constitutes selling, soliciting, and negotiating insurance, and informed that if they engage in such activities, they must be licensed as insurance producers.”
NAIFA Government Relations staff has communicated this policy statement in comment letters to both State regulators at the National Association of Insurance Commissioners (NAIC) and federal officials at the Department of Health and Human Services (HHS).