Health Reform WK-EDGE Missouri hits the end of the road with limitations on ACA navigators
Thursday, March 24, 2016

Missouri hits the end of the road with limitations on ACA navigators

By Bryant Storm, J.D.

A permanent injunction barring Missouri from enforcing the “No Advice,” “Off-Exchange,” and “Referral” provisions of the state’s Health Insurance Marketplace Innovation Act (HIMIA) was granted in favor of St. Louis Effort for AIDS and Planned Parenthood of the St. Louis Region and Southwest Missouri (Planned Parenthood) on the grounds that those provisions were preempted by the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). A district court held that the state law provisions, as applied to Certified Applications Counselors (CACs) and Federal Navigators, require those entities to violate their federally mandated obligations to inform consumers regarding coverage options (St. Louis Effort For Aids v. Huff, March 16, 2016, Smith, O.).

Application assistance. Under the ACA, all health insurance exchanges—meaning those run by states and federally facilitated exchanges—are obligated to create a Certified Application Assistance Program which includes CACs and Federal Navigators. CACs and Federal Navigators assist consumers with purchasing insurance on the exchange.

Missouri. Missouri opted not to create its own exchange under the ACA. As a result, HHS operates the federal facilitated exchange (FFE) in Missouri. Subsequently, Missouri passed HIMIA, which regulates the conduct of “State Navigators.” Under HIMIA, State Navigators perform duties on behalf of the FFE. Additionally, both CACs and Federal Navigators are considered State Navigators under the state’s law.

No advice.  Section 376.2002.3(3) of HIMIA mandates that State Navigators “shall not…provide advice concerning the benefits, terms and features of a particular health plan or offer advice about which exchange health plan is better or worse for a particular individual or employer.” The state law limits the ability of navigators to advise consumers, despite the fact that federal law and regulations require CACs and Federal Navigators to clarify distinctions among health coverage options.

Off-exchange. HIMIA Section 376.2002.3(5) also forbids CACs from giving “any information or services related to health benefit plans or other products not offered in the exchange.” However, ACA-mandated federal regulations require CACs to do the opposite and clarify the distinction among health coverage options so that consumers are able to make informed decisions during plan selection.

Referral. Under Section 376.2008 of HIMIA, State Navigators are required advise individuals to consult with a licensed insurance producer about private market coverage if an individual acknowledges having existing health coverage through an insurance producer. However federal regulations at 45 C.F.R. sec. 155.225(c)(1) require CAC’s to provide “fair, impartial, and accurate information.”

Preliminary injunction. Several health care organizations, including St. Louis Effort for AIDS and Planned Parenthood filed suit asserting that some of HIMIA’s State Navigator provisions were preempted by the ACA and conflicted with requirements set out for CACs and Federal Navigators in federal regulations. The organizations sought a preliminary injunction to prevent the enforcement of HIMIA as it applied to federally approved Navigators, CACs and Counselor Designated Organizations. The district court granted a preliminary injunction in favor of St. Louis Effort for Aids and Planned Parenthood, reasoning that they were likely to succeed on the merits of their claims (see Missouri temporarily enjoined from enforcing its law creating requirements for FFE counselors, January 29, 2014). Subsequently, the Eighth Circuit upheld the grant of preliminary injunction as it pertained to three specific provisions of HIMIA—the “No Advice,” “Off-Exchange,” and “Referral” provisions. The Eighth Circuit panel ruled that Missouri could not limit health insurance navigators’ ability to assist consumers obtaining insurance through health insurance exchanges (see Missouri’s navigation on limiting ACA health plans help hits road bump, April 15, 2015).

Permanent injunction. In district court, St. Louis Effort for AIDS and Planned Parenthood then moved for summary judgment and a permanent injunction to bar the statement from enforcing the three HIMIA provisions. The district court reiterated its findings from the earlier grant of preliminary injunction and concluded that without a grant of permanent injunction, St. Louis Effort for AIDS and Planned Parenthood would suffer irreparable harm. The court explained that by complying with HIMIA, St. Louis Effort for AIDS and Planned Parenthood would violate their obligations as CACs and Federal Navigators, and, by performing their federally-mandated functions as CACs and Federal Navigators, they risked violating HIMIA. As a result, the court held that the HIMIA provisions are preempted by the ACA, as they related to CACs and Federal Navigators, and permanently enjoined enforcement of those provisions.

The case is No. 2:13-cv-04246-ODS.

Attorneys: Abigail Coursolle, National Health Law Program, and Ingrid Babri (Mehri & Skalet PLLC) for St. Louis Effort for AIDS, Planned Parenthood of the St. Louis Region and Southwest Missouri, and Consumers Council of Missouri. Jeremiah J. Morgan, Missouri Attorney General's Office, for John M. Huff, Director, Missouri Department of Insurance, Financial Institutions, and Professional Registration.

Companies: St. Louis Effort for AIDS; Planned Parenthood of the St. Louis Region and Southwest Missouri; Consumers Council of Missouri; Missouri Department of Insurance, Financial Institutions, and Professional Registration

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