Wisconsin Legislature: Text

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.

OCI Small Business Regulatory Coordinator

The OCI small business coordinator is Louie Cornelius and may be reached at phone number (608) 264-8113 or at email address louie.cornelius@wisconsin.gov.

Agency Contact Person

A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the Web site at: http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, OCI Services Section, at:

Phone: (608) 264-8110

Email: inger.williams@wisconsin.gov

Address: 125 South Webster St – 2nd Floor, Madison WI 53703-3474

Mail: PO Box 7873, Madison, WI 53707-7873

Proposed Rule Changes

SECTION 1. Subchapter II and title are created to read:

Subchapter II — Navigators, Nonnavigator Assisters and Related Entities.

SECTION 2. Ins 6.91 to 6.99 is created to read:

Ins 6.91 Definitions. In addition to the definitions in s. 628.90, Stats., which apply to this subchapter, in this subchapter:

(1) “Agent" means an agent as defined in s. 628.02, Stats.

(2) “Business checking account" means any account utilized by a navigator, navigator entity, nonnavigator assister or nonnavigator assister entity for insurance-related transactions.

(3) “Cash disbursed record" means a record showing all monies paid out by the navigator, navigator entity, nonnavigator assister or nonnavigator assister entity in transacting the business of insurance.

(4) “Cash receipts record" means a record showing all monies received by the navigator, navigator entity, nonnavigator assister or nonnavigator assister entity in transacting the business of insurance.

(5) “Certified application counselors" means a nonnavigator assister who is employed, supervised or affiliated with a registered nonnavigator assister entity as established by 45 CFR § 155.225, as amended, and who works for a nonnavigator assister entity that has been designated by and entered into an agreement with the exchange.

(6) “Commissioner" means the commissioner of insurance.

(7) “Formal administrative action" means consent decrees, cease and desist orders, stipulations, suspensions, revocations, license denials, fines, forfeitures, settlement agreements, navigator license restrictions or other actions limiting the navigator's method of transacting the business of insurance.

(8) “Navigator entity" means an entity or organization that employs, supervises or is affiliated with, one or more licensed navigators; is designated by the exchange as a navigator, works on behalf of the exchange and enters into an federal navigator grant funding agreement in accordance with 45 CFR § §155.210 (c), as amended; and is registered with the commissioner.

(9) “Nonnavigator assister entity" means entity or organization that employs, supervises or is affiliated with one or more nonnavigator assisters including certified application counselors; is designated by and works on behalf of the exchange and enters into an agreement with the exchange in accordance with 45 CFR § 155.225 (b) (1), as amended; and is registered with the commissioner.

(10) “Personnel records" means those records pertaining to anyone who is employed by, supervised by or affiliated with a navigator entity or nonnavigator assister entity including independent contractors.

(11) “Policyholder records" means all records, applications, request for changes, and complaints associated with a policy generated by or through the navigator, navigator entity, certified application counselor or nonnavigator assister entity.

Ins 6.92 Individual navigators. (1) Purpose. This section protects insurance consumers by establishing procedures for the licensing of navigators when transacting the business of insurance, prescribing minimum standards and requirements to ensure timely and reliable information will exist and be available to the commissioner. This section implements and interprets ss. 628.095, 628.097, 628.10, 628.90 to 628.93, Stats., as applicable.

(2) Procedure. (a) Application for navigator license. An individual applying for a navigator license shall submit an application to the office in the form prescribed by the commissioner. A completed application consists of the navigator's name, the navigator's residence, mailing and business addresses, confirmation of successful completion of prelicensing training, fingerprints provided in a format specified by the commissioner to complete, an electronic confirmation of criminal history from the Wisconsin department of justice, crime information bureau, and the federal bureau of investigation completed not more than 180 days prior to the test date, payment of the nonrefundable fees to the testing vendor, an electronic photograph of the applicant taken by the test service at the time of testing, confirmation of previous navigator licensure in another state, if applicable, and any documentation required in answer to questions on the application.

Note: A copy of the navigator license application form OCI 11-090, required in par. (a), may be obtained at no cost from the Office of the Commissioner of Insurance at 125 S. Webster Street, Madison WI 53703, or at the Office's web address: oci.wi.gov.

(b) Prelicensing Training. An individual seeking a navigator license, in addition to any training requirements of the federal government, shall complete at least 16 hours of commissioner-approved navigator prelicensing training and pass with a satisfactory grade a commissioner-approved written navigator examination. Training required under this subsection must be approved by the commissioner and provided by an education provider that is approved by the commissioner.

(c) Scheduling the navigator licensing examination. An applicant shall notify the testing vendor, at least twenty-four hours prior to the desired navigator licensing examination date. The written examination will test the applicant's knowledge of the duties and responsibilities of a navigator; the insurance laws and regulations of this state; and the state's public assistance programs and eligibility. The written examination shall be commissioner approved offered through a commissioner-approved testing vendor.

(d) Exception. 1. An agent who holds an active resident license with the accident and health line of authority and is in compliance with continuing education requirements may apply to be licensed as a navigator if the currently licensed agent can meet all of the following:

a. Demonstrate compliance as set forth in s. 628.92 (1), Stats., including competence and trustworthiness.

b. Demonstrate satisfactory completion of 4 hours of navigator training specific to public assistance programs, including Medicaid, in addition to the completion of any federally required navigator training and compliance with federal restrictions and requirements including those set forth in 45 CFR §§ 155.205 (d), 155.210, 155.215 (b) and (c), and 155.260 (b), as amended. The state training required under this subsection must be approved by the commissioner and provided by an education provider that is approved by the commissioner.

2. A currently licensed agent that is in compliance with subd. 1. is exempt from passing the navigator examination and photograph requirements described in sub. (2) (a). The currently licensed agent will be required to obtain new fingerprints unless the office has received current, valid fingerprint results provided in a format specified by the commissioner and an electronic confirmation of criminal history from the Wisconsin department of justice, crime information bureau, and the federal bureau of investigation that were completed not more than 180 days from the date of the application. The currently licensed agent shall submit a completed application and pay the licensing fee in accordance with s. 601.31 (1) (nm), Stats., to the commissioner.

(e) Issuance of license. An applicant for an original navigator license who completes and satisfies the requirements in pars. (a) and (b), in addition to any federal training or requirements including the requirements set forth in 45 CFR §§ 155.205 (d), 155.210, 155.215 (b) and (c), and 155.260 (b), as amended, and meets the standards of competence and trustworthiness as described in sub. (3), shall be issued a navigator license. Examination scores are valid for 180 days. Failure to apply for a license within 180 days will require the applicant to re-take the examination. Determination of the acceptance or rejection of a completed application shall be made within 90 days of receipt by the commissioner of the completed application including any documentation required.

(3) Competence and Trustworthiness. The following criteria may be used in assessing trustworthiness and competence:

(a) Criminal record. The conviction for crimes which are substantially related to the circumstances of holding an insurance or navigator license, including a felony or misdemeanor conviction that is significantly related to the circumstances of holding a navigator or insurance license.

(b) Accuracy of information. Any material misrepresentation in the information submitted on the application form.

(c) Regulatory action. Any formal regulatory action taken in any jurisdiction with regard to any occupational license held, such as insurance licenses in other states, real estate licenses and security licenses.

(d) Other criteria. Other criteria which the commissioner considers evidence of untrustworthiness or incompetence, including but not limited to:

1. Providing incorrect, misleading, incomplete or materially untrue information in the licensing application.

2. Violating any insurance laws, or violating any regulation, subpoena or order of the insurance commissioner or of another state's insurance commissioner, or of the federal government.

3. Obtaining or attempting to obtain a license through misrepresentation or fraud;

4. Improperly withholding, misappropriating or converting any monies or properties received in the course of acting as a navigator or insurance agent.

5. Intentionally misrepresenting the terms of an actual or proposed insurance contract or application for insurance.

6. Having admitted or been found to have committed any insurance unfair trade practice or fraud.

7. Using fraudulent, coercive, or dishonest practices in the conduct of business in this state or elsewhere.

8. Demonstrating incompetence, untrustworthiness or financial irresponsibility in the conduct of personal financial transactions or professional business in this state or elsewhere.

9. Having an insurance producer license, or its equivalent, denied, suspended or revoked in any other state, province, district or territory.

10. Forging another's name to an application for insurance or to any document related to an insurance transaction.

11. Improperly using notes or any other reference material to complete an examination for an insurance or navigator license.

12. Failing to comply with an administrative or court order imposing a child support obligation.

13. Failing to pay state income tax or comply with any administrative or court order directing payment of state income tax.

(e) Minimum Age and Residency. An applicant for navigator licensure shall have attained at least eighteen (18) years of age and shall be a resident of this state or maintain his or her principal place of business in this state.

(f) Proof of Financial Responsibility. An applicant who is not affiliated with a navigator entity shall comply with the requirements of s. 628.92 (5) (b), Stats., or provide evidence of an equivalent coverage alternative subject to the commissioner's prior approval.

(4) Change of name or address. (a) Each navigator shall, within 30 days, notify the commissioner in writing of any change in the navigator's name, residence address, principal place of business, and mailing address.

(b) A navigator who is not employed or supervised by or affiliated with a navigator entity and changes residency to a location outside of this state or changes his or her principal place of business to an address outside this state and is not a resident of this state shall have his or her navigator license terminated effective 60 days after the change of address.

1. Jurisdiction for payment of state taxes.