Health Care NewsTracker

Court Puts Hold on Obamacare ‘Navigator’ Rules

State-based rules enacted to regulate who can help the uninsured sign up for health plans under the Affordable Care Act in Tennessee could have a chilling effect on free speech, a U.S. District Court judge in Nashville has ruled.

Judge Todd Campbell issued a 14-day restraining order Monday on regulations governing Obamacare activists, or “navigators,” trying to enroll Tennesseans in federally run health care exchanges.

The rules define who a navigator is, require them to submit to criminal background checks before they are allowed to offer any assistance and clarify navigators are not allowed to sell health insurance.

The legislation giving rise to the regulations passed last spring, with only one member of the Tennessee General Assembly, Senate Minority Leader Jim Kyle, D-Memphis, voting in opposition.

Judge Campbell, a Clinton administration nominee who worked for Al Gore’s presidential campaign committee in the 1980s, declared that the language defining a navigator is too broad and could inadvertently snare and inappropriately penalize librarians, union organizers, churches and others just seeking to help people sign up for government-subsidized health insurance.

Under the state regulations, navigator rule-breakers face a $1,000 fine per violation.

The federal lawsuit was filed by Service Employees International Union Local 205, which feared members could be targeted for helping others sign up over the Internet.

“These ‘emergency rules’ were never about protecting people from fraud, this was a political game by the governor and his allies,” Doug Collier, the union’s president, said following Judge Campbell’s ruling. “We believe it is every American’s right to have access to affordable health care and we are not going to let him play political games with people’s lives.”

The issue was also challenged last week in Davidson County Chancery Court by the Tennessee Justice Center, League of Women Voters and others. That suit also asked that a temporary restraining order be issued because the rules may limit navigators rights to free speech and because a navigator is broadly defined as “individuals and entities that facilitate enrollment in exchanges.”

But, unlike in the federal court, Chancellor Russell T. Perkins said the rules will probably not affect the exchanges or violate anyone’s First Amendment rights, as argued by the plaintiffs. Even so, the state afterward agreed to narrow the definition of “navigator” to only include those formally registered as such or certified application counselors.

In response to the TJC suit, state Commerce and Insurance Commissioner Julie Mix McPeak said the intent of the emergency rules are meant to protect the state’s citizens.

“Our focus is on protecting Tennesseans and taking reasonable and responsible steps to provide consumer safeguards,” she said, adding navigators will have access to individual’s personal financial and medical information.

“These rules are those reasonable and responsible steps,” she said.

Gov. Bill Haslam, a Republican, also defended the law, citing the strong bipartisan support it garnered in the General Assembly.

Noting that support for the legislation giving rise to the new rules was overwhelming, Haslam said the proposed regulations “are not intended to be a stumbling block.”

Press Releases

Bell Supports Strong Rules for PPACA Navigators

Press release from the Tennessee Senate Republican Caucus; Sept. 24, 2013:

(NASHVILLE, Tenn.), September 24, 2013 – Senate Government Operations Committee Chairman Mike Bell (R-Riceville) said today that Navigators operating in Tennessee under the Federal Patient Protection and Affordable Care Act (PPACA) should be registered with the state as proposed in rules recently filed by the Department of Commerce and Insurance. Bell also said he favors providing strong consumer protections, including those to safeguard privacy of medical and financial information.

Navigators, or Application Counselors, are individuals or entities who facilitate enrollment in insurance exchanges pursuant to the PPACA, which is also known as Obamacare. The General Assembly passed legislation earlier this year directing the Department of Commerce and Insurance promulgate rules to oversee them. Those rules, which are already in effect on an emergency basis, are scheduled to be heard by the General Assembly’s Joint Government Operations Rule Review Committee on November 13.

“I want to see strong consumer protections in place as these Navigators will have access to private consumer health and financial information,” said Chairman Bell. “Although this is a federal mandate that the state opted not to participate in, we are still responsible to ensure Tennessee consumers are protected. We continue to see monumental implementation problems with this massive program which was rushed through Congress without due diligence. Our Committee will look very carefully at the emergency rules that have been filed by our state’s Commerce and Insurance Department to ensure that they provide adequate protections.”

Among other provisions, Tennessee’s proposed rules call for applicants to be at least 18 years old, be of good character and integrity, maintain a principal place of business in the state, pass a background check, and complete the federal training program for Navigators or Certified Application Counselors. The proposed rules also provide parameters in which the Navigators can operate and prescribe consequences for violation of the registration including fraudulent, coercive or dishonest practices.

“We need appropriate training requirements, criminal records checks, conflict of interest disclosures, and a code of professional conduct to protect consumers,” added Bell. “For example, it is important that we keep convicted felons from gaining access to a consumer’s financial information.”

“There are a wide variety of professions in Tennessee where similar rules apply,” said Bell. “This helps to ensure, to the best of our ability, that Tennessee consumers are working with knowledgeable and trustworthy professionals.”

PPACA marketplace enrollment begins on October 1.