Rule-Making Notices
Notice of Hearing
Insurance
Notice is hereby given that pursuant to the authority granted under s.
601.41 (3), Stats., and the procedures set forth in under s.
227.24 (3), Stats., the Office of the Commissioner of Insurance (OCI) will hold a public hearing to consider the adoption of the attached proposed rulemaking order affecting sections
Ins 6.91 to
6.99, Wis. Adm. Code, relating to navigators, nonnavigator assisters, and related entities and affecting small business.
Hearing Information
Date: Wednesday, January 29, 2014
Time: 9:30 a.m., or as soon thereafter as
the matter may be reached
Location: Office of the Commissioner of Insurance
Room 227
125 South Webster Street, 2nd Floor
Madison, Wisconsin
Submittal of Written Comments
Written comments can be mailed to:
Julie E. Walsh
Legal Unit — OCI Rule Comment for Rule Ins 691
Office of the Commissioner of Insurance
PO Box 7873
Madison WI 53707-7873
Written comments can be hand delivered to:
Julie E. Walsh
Legal Unit — OCI Rule Comment for Rule Ins 691
Office of the Commissioner of Insurance
125 South Webster St – 2nd Floor
Madison WI 53703-3474
Comments can be emailed to:
Julie E. Walsh
Comments submitted through the Wisconsin Administrative Rule Web site at: http://adminrules. wisconsin.gov on the proposed rule will be considered.
The deadline for submitting comments is 4:00 p.m. on February 7, 2014.
Analysis Prepared by the Office of the Commissioner of Insurance (OCI)
Statutes interpreted
Statutory authority
Explanation of OCI's authority to promulgate the proposed rule under these statutes
The office has authority to promulgate rules interpreting ch.
628, Stats., as amended, relating to the oversight and licensing of navigators and registering navigator entities and nonnavigator assisters through the registration of nonnavigator assister entities. The commissioner has general authority to promulgate rules necessary to administer and enforce chs.
600 to
655, Stats., in accordance with ss.
227.11 (2) (a) and
601.41 (3), Stats. Further under s.
628.98, Stats., the commissioner is permitted to promulgate any rules necessary to carry out the purposes of subch.
V of ch. 628, Stats. Additionally, the commissioner may promulgate rules under authority granted in ss.
601.42, and
628.34 (12), Stats.
Related statutes or rules
Chapters
Ins 6,
26, and
28, Wis. Admin. Code.
The plain language analysis and summary of the proposed rule
The proposed rule establishes training and licensing requirements for navigators in accordance with state law and consistent with federal law. Navigators must have contracts with and grants from the federal government to assist consumers in enrolling in the federally facilitated health insurance exchange. When navigators facilitate enrollment of consumers into the federal exchange they are by law transacting an insurance business. As such, the office through this proposed rule sets forth basic requirements of licensure including fingerprinting, criminal background checks, and consideration of prior personal and financial transactions that may provide insight to the individual's character. Since as navigators will have access to personal and financial information of the consumers they assist the proposed regulations includes requirements for record keeping in the case where a navigator retains personal or financial information in addition to the federally established privacy and security requirements. Further to ensure if a consumer were harmed by the acts of a navigator, the proposed rule implements the statutory requirement of financial responsibility for wrongful acts of a navigator.
Under the proposed rule nonnavigator assisters, navigators, and nonnavigator assister entities are required to be registered with the Office. The nonnavigator assisters are registered with the commissioner through the nonnavigator assister entity with whom the nonnavigator assister is employed, supervised or affiliated with. Navigators, navigator entities, and nonnavigator assister entities are designated by the federally facilitated exchange and navigators and navigator entities are under contract with the federally facilitated exchange to assist consumers enrolling in the exchange.
The state registration process will allow the office to ensure those persons and entities having direct contact with consumers have developed and implemented policies and procedures to ensure accurate guidance is given to consumers by properly trained persons. Through registration, the office will have current information for consumers of navigators and nonnavigator assisters who are compliant with training and knowledgeable of the exchange. The entities are legally responsible for the acts of the navigators or nonnavigator assisters that are employed, supervised or affiliated with the entities and are required to ensure the navigators and nonnavigator assisters are current in their training and of good character, competent and trustworthy.
Both navigators and nonnavigator assisters will be trained to understand not only the federal exchange health insurance products, but will also be familiar with public assistance programs and premium tax credits. The proposed rule requires initial and on-going training to ensure that the navigators and nonnavigator assisters who are providing assistance to Wisconsin consumers are providing the most recent and accurate information.
The proposed rule contains provisions intended to protect consumers from deceptive practices by restricting the use of terms, including navigator, nonnavigator assister, and certified application counselors, for use by only those persons who possess the proper training, licensure or registration status. The rule also delineates prohibited acts by navigators and nonnavigator assisters including making false or misleading statements, performing acts for which an insurance agent license is required, and receiving compensation from an insurer. Finally, the rule exempts governmental entities or persons acting on behalf of governmental entities from the regulations.
Summary of and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule
The proposed law dovetails with federal law and extends consumer protections through licensure, training and financial responsibility requirements. The federal law set forth in 45 CFR ch.
155, as amended, outlines federal training, grants, privacy and security and contracting requirements. The proposed rule ensures that persons assisting Wisconsin consumers are also trained in Wisconsin insurance laws and public assistance programs available in this state. The proposed rules include financial responsibility for wrongful acts as a measure to provide greater protection to Wisconsin consumers. By requiring licensing or registration the proposed rule provides ready, verifiable information so consumers can be confident that the information and assistance they are provided by navigators and nonnavigator assisters are from persons of good character and who have successfully completed training.
Comparison of similar rules in adjacent states as found by OCI
Illinois: Public Act 098-0541, was signed into law on August 23, 2013. The law requires navigators to be licensed by the Insurance Department and comply with state and federal training, clarifies the roles of navigators from licensed insurance agents, establish requirements including licensing, training, and financial responsibility. The law is similar to the law passed in Wisconsin.
Iowa: Iowa Code § 522D (2013). The law establishes licensing requirements for navigators and navigator entities similar to the law passed in Wisconsin. The Insurance Division is in the process of promulgating administrative rules establishing training, licensing, fees and evidence of financial responsibility similar to this proposed rule.
Michigan: No similar laws or rules.
Minnesota: Minn. Stat. § 62V.05 (2013). Law was effective March 21, 2013 and requires the Minnesota exchange board to establish policies and procedures for the ongoing operation of a navigator program including in-person assisters. The law requires navigators and in-person assisters to have training and certified prior to selling for the exchange.
A summary of the factual data and analytical methodologies that OCI used in support of the proposed rule and how any related findings support the regulatory approach chosen for the proposed rule
The Office considered federal law and laws of surrounding states to ensure the consumer safety and balance state oversight of navigators, nonnavigator assisters and related entities. The proposed regulations provide similar oversight for navigators, nonnavigator assisters, and related entities to that existing for insurance agents, brokers, and managing agencies. The approach minimizes potential consumer harm by ensuring those serving the public meet basic qualifications and establish state regulation and control over the navigator and nonnavigator activities in the transaction of an insurance business.
Any analysis and supporting documentation that OCI used in support of OCI's determination of the rule's effect on small businesses under s.
227.114
The proposed rule may affect small businesses; however, the office has taken steps to minimize the impact of the rule by limiting the effect of the regulation to those navigators or nonnavigator assisters who are working on behalf of the federal government. For perspective, the federal government only awarded six navigator grants for the entire state of Wisconsin. The proposed rules and law impose no restrictions or regulations for governmental entities. There are many such entities already providing assistance to consumers with health insurance and public assistance concerns. By keeping the scope of the proposed rule very narrow, the impact on small businesses is significantly lessened.
The proposed rule fee amounts are consistent or lesser than similarly situated agents and managing broker agencies. Further, there is no imposition of fees for nonnavigator assisters or nonnavigator assister entities other than the cost of prelicensing training and examination costs. To further minimize the impact to navigators and nonnavigator assisters, the office provided extensive free prelicensing training to interested parties and in locations throughout the state in advance of the first open enrollment period.
See the Attached Private Sector Fiscal Analysis
A Description of the Effect on Small Business
This rule may have an effect on small businesses by requiring licensure or registration for navigators, nonnavigator assisters and related entities. However, the office minimized the impact by establishing less stringent requirements than those imposed on licensed insurance agents and agencies. Further, the office provided extensive free prelicensing training to interested parties and in locations throughout the state in advance of the first open enrollment period. Additionally, the office approved licensed vendors to provide prelicensing training both in-person and on-line to reduce imposition on organizations. Finally the office imposed slightly lower fees than is required for licensed agents.
Initial Regulatory Flexibility Analysis
Notice is hereby further given that pursuant to s.
227.114, Stats., the proposed rule may have an effect on small businesses. The initial regulatory flexibility analysis is as follows:
a. Types of small businesses affected:
Insurance agents, community outreach organizations, consumer support organizations who are designated and under contract with the federally facilitated exchange as navigators, nonnavigator assisters, or related entities. Governmental agencies are exempt from this rule.
b. Description of reporting and bookkeeping procedures required:
Navigator and nonnavigator assister entities, in addition to any federal requirements, will be required to maintain training records as well as current names and addresses of those who they employ, supervise or are affiliated with. Additionally, for entities handling consumer's money, and for navigators not affiliated with a navigator entity, proper financial accounts must be maintained.
c. Description of professional skills required:
Basic consumer, employee and business financial record keeping in addition to any requirements of the federal government.
