Additional Navigator regulations are unwarranted, unnecessary

Photo by Ian Kelsall used under a Creative Commons license.
Photo by Ian Kelsall used under a Creative Commons license.

The central tenet of the 2010 Affordable Care Act (aka Obamacare) is to bring access to quality, affordable health care to as many Americans as possible, primarily by enrolling them in private health insurance or Medicaid. Central to the Affordable Care Act’s health insurance enrollment effort was the creation of Navigators – trained community workers who help guide applicants through the online exchange to purchase a health plan. In the first year of enrollment, the Navigator program appears to be working well – but new state regulations may make it harder for Navigators to do their jobs.

Federal regulations determine Navigator conduct and eligibility, including 20 hours of training on health plans, security and privacy standards. Further rules have been proposed that while not yet set in stone, aren’t expected to differ substantially from the proposed).

However, the Navigator program has come under fire, with critics contending that federal regulations don’t do enough to protect the privacy and identities of enrollees. To date, 17 states have passed additional laws regulating Navigators, sometimes adding to the required training time, as well as imposing licensing fees, fingerprints and background checks, and restricting the information that Navigators can provide to potential enrollees. Particularly harsh regulations in Missouri and in Tennessee were struck down or modified by federal lawsuits, and Texas’s regulations have been the subject of widespread debate.

Oklahoma’s HB 3286, which has passed in different versions in the House and the Senate, is largely in line with what federal regulations already require; for example, it prohibits Navigators from receiving commissions or compensation from insurance companies. It does go beyond federal regulations by requiring a background check and imposing licensing fees, but the requirements and costs are not overly burdensome. 

However, HB 3286 may in fact endanger enrollee privacy. HB 3286 requires Navigators to “[r]ecord the name and contact information for each individual or group whom the navigator assists in enrolling in the exchange and the date of contact and provide such information to the navigator entity immediately,” and to retain that information for up to three years. But Navigator groups in the state say that to do so would directly contradict their training. The federal Navigator training requires that Navigators never retain personally-identifying information – including names and contact information – after their session with the enrollee has ended, in order to protect enrollee privacy.

Another problem is that the bill could foster unwarranted public distrust of Navigators. Despite the fact that Navigators work with potentially sensitive personal information, no credible incidents of significant fraud on their part have yet been found. Indeed, the ACA’s Navigators were closely modeled off the State Health Insurance Assistance Program (SHIP), which was enacted in 1990 to provide free assistance to Medicare recipients. Like Navigators, SHIP counselors have access to enrollees’ health and income information, and they work with senior citizens, arguably a more vulnerable group than the working-age adults that Navigators encounter.  There seem to be no reported incidents of SHIP counselor misconduct. There is no reason to expect otherwise from Navigators.

Furthermore, additional state regulation could hobble outreach and enrollment efforts.  A recent study found that states that had imposed additional regulations on Navigators saw far less Navigator activity – and concurrently lower enrollment and lower awareness about opportunities to get health insurance. Federal regulations appear to be sufficient to ensure information security while still allowing Navigators to be effective.

In Oklahoma, the Latino Community Development Agency (LCDA) was one of the primary recipients of federal grants to build a Navigator program. LCDA provides assistance in Spanish, Vietnamese and English, and a spokesperson estimated that LCDA helped 1,800 people enroll on the Marketplace. Complying with the new guidelines in HB 3286 would require substantially more administrative work, as well as additional training, and the spokesperson wondered why the legislature would make it harder for people in need of health insurance to get assistance in enrolling – especially when Oklahoma’s uninsured rate is so high to begin with. If passed, HB 3286 could apply to anyone who enrolls any Oklahoman in insurance, including SCHIP and Medicaid. Placing additional roadblocks between uninsured Oklahomans and needed health care will only exacerbate health problems in the state.

Navigators are recruited and trained based on a demonstrated ability to reach people who have typically been uninsured previously and who are largely unfamiliar with the health insurance system. States that over-regulate Navigators are therefore preventing information from reaching those who need it most. Navigators are key to helping Oklahomans access affordable health care, and obstructing them would harm the citizens who lawmakers were elected to serve.

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Carly Putnam joined OK Policy in 2013. As Policy Director, she supervises policy research and strategy. She previously worked as an OK Policy intern, and she was OK Policy's health care policy analyst through July 2020. She graduated from the University of Tulsa in 2013. As a student, she was a participant in the National Education for Women (N.E.W.) Leadership Institute and interned with Planned Parenthood. Carly is a graduate of the Oklahoma Center for Nonprofits Nonprofit Management Certification; the Oklahoma Developmental Disabilities Council’s Partners in Policymaking; The Mine, a social entrepreneurship fellowship in Tulsa; and Leadership Tulsa Class 62. She currently serves on the boards of Restore Hope Ministries and The Arc of Oklahoma. In her free time, she enjoys reading, cooking, and doing battle with her hundred year-old house.

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