by Jim McLean, KHI News Service and Dave Ranney, KHI News Service
Opponents of a bill creating new restrictions for Obamacare navigators showed up in force March 19 for a hearing on the bill in a House committee.
They said Senate Bill 362 would needlessly impede the navigators’ work while ostensibly addressing consumer protection problems that don’t exist.
“If this bill passes as it’s written, navigators and certified application counselors will no longer have the ability to perform their jobs,” said Cathy Harding, director of the Kansas Association for the Medically Underserved, which is overseeing 168 navigators working in Kansas. “There are (consumer protections) that make sense. This bill does not. It goes way too far.”
The bill, which passed the Senate last week, 30-10, would require criminal background checks that Harding says are already being done. It also would require that navigators be fingerprinted, disclose their credit histories and pay an annual $100 registration fee. In addition, it would prohibit them from providing specific advice about competing plans in the Obamacare marketplace and from engaging in certain outreach activities.
Filling the gaps
Sen. Mary Pilcher-Cook, a Shawnee Republican and the bill’s main sponsor, said it was needed to provide consumers additional protection against fraud and identity theft.
“What this bill does is it fills the gaps,” Pilcher-Cook said in testimony to the House Health and Human Services Committee.
In written testimony, Pilcher-Cook referred to an “undercover video” that she said showed navigators encouraging people to lie about their income and smoking habits to obtain lower premiums. She didn’t identify the source of the video.
But Jordan Rickabaugh, a navigator from Pittsburg, said there are strict rules against such behavior.
She said she would never consider encouraging someone to be anything but truthful. In fact, she said, while helping her uncle enroll in a health plan she insisted that he tell the truth about his smoking.
“When we got to that part of the application he kind of grinned and goes, ‘do I have to tell them?” I said, ‘yes absolutely’ and we reported that he smokes and his premiums went up,” Rickabaugh said.
Rep. Kathy Wolfe Moore, D-36th Dist., said she was concerned about language in the bill that would require navigators to pay the cost of any investigations, which could be triggered by a consumer complaint.
“I think that would keep most people from ever becoming a navigator,” Wolfe Moore said. “How can we protect the public without having such a chilling effect on navigators?”
Rep. David Crum, the Augusta Republican who chairs the committee, said he would probably have the panel “work” the bill on Thursday.
Several members polled after the hearing said they would be reluctant to send it to the House floor as currently written.
Struck down in Missouri
In January, a federal judge in Missouri blocked a similar bill passed by that state’s General Assembly.
“Missouri has opted not to be in the health insurance exchange business,” U.S. District Judge Ortrie Smith wrote in his opinion. “Having made the choice to leave the operation of the exchange to the federal government, Missouri cannot choose to impose additional requirement or limitations on the exchange.”
Kansas officials also opted to let the federal government run the insurance exchange here.
” Smith wrote, was unsubstantiated.
He said the Missouri law was instead designed to undermine implementation of the Affordable Care Act. He called the additional licensing requirements in the Missouri law “an impermissible obstacle.”
Missouri Attorney General Chris Koster has appealed the judge’s ruling.
Sidney D. Watson, a law professor with the Center for Health Law Studies at St. Louis University, said much of the debate over the Missouri law was driven by “a lot of misinformation about who the navigators are and what it is they do.”
She encouraged Kansas legislators to talk with the navigators in their districts and with people who have been assisted by a navigator.
“What the federal judge made clear in his ruling here is that while states have the authority to regulate navigators, they may not unduly burden navigators,” Watson said. “And that’s because navigators play an important role in helping inform consumers about new options in the marketplace. We have a lot of people who’ve not been insured before or who don’t have experience purchasing insurance, and who need help in understanding what a deductible is, or what a co-pay is, or what a network is.”
Watson noted that CMS last week proposed more than 250 pages of new rules and regulations.
The proposed rules, she said, are intended to clarify how states may regulate navigators.
Why not sooner?
Timothy Jost, a nationally recognized expert on the workings of the Affordable Care Act, critiqued the proposed rules on his Health Affairs blog. States, he said, may require fingerprinting and background checks, but they cannot prohibit navigators from conferring with anyone who is interested in exploring the marketplace.
Jost, a law professor at Washington and Lee University, criticized HHS for not releasing the proposed rules earlier rather than near the March 31 end of this year’s open enrollment period.
“While the proposals for CMS may go far toward allowing consumer assistance programs to fulfill the role they were meant to play under the ACA, it is very unfortunate that CMS has waited until now to move on this issue,” he wrote. “Restrictive state laws have already seriously limited the ability of consumer assisters to do their job. Had CMS laid out the rules on this issue clearly when it promulgated the original navigator, assister, and CAC regulations, it is possible that far more Americans could have been signed up for coverage during the 2014 open enrollment period.”
The proposed rules, which are subject to a lengthy hearing process, are not expected to take effect for several months.
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