Some Fear Impact of State Rules on Health Navigators

The day before the launch of the federal health insurance marketplace, Democratic lawmakers alleged that Gov. Rick Perry ordered restrictive new rules on so-called navigators trained to help Texans find coverage to intentionally impede implementation of Obamacare. Health care stakeholders have also raised concerns about Perry's request for additional rules, and at least two organizations have already backed out of the federal navigator program since Perry directed the Texas Department of Insurance (TDI) to enact the tougher regulations. 

At an informal hearing held by TDI on Monday to take input on Perry’s directive, state Sen. Kirk Watson, D-Austin, said he feared legislation he authored to ensure navigators could effectively help Texans find coverage in the federal marketplace had been wrongly co-opted by Perry in an effort to derail implementation of the Affordable Care Act.

“These provisions were put in place to prevent precisely what I fear may be in motion here today,” said Watson. “And that is a politically motivated effort to circumvent federal and state law concerning navigators and an even larger coordinated nationwide effort to shut down implementation of the Affordable Care Act.”

Watson told the agency that Senate Bill 1795, which he authored in the last legislative session, requires TDI to make a “good faith effort” to work with the U.S. Department of Health and Human Services to improve the federal navigator rules before implementing additional state rules. Only after “a reasonable interval” does the law allow the insurance commissioner to begin a rule-making process.

Watson alleged that the agency's decision to schedule a stakeholder meeting to begin the rule-making process shortly after receiving the governor's directive and to hold the stakeholder meeting on the day before the launch of the federal marketplace — “a critical day for navigators” — indicated that the agency’s rule-making process could be intentionally impeding implementation of the navigator program.

“The very experts that we should be relying on for public input — those on the front lines of implementing a critical aspect of what is already federal law — had to make the decision to either participate in today’s meeting or forgo this discussion to continue preparing," he said. 

But TDI said the stakeholder meeting had been scheduled to begin addressing concerns raised by state leaders regarding the inadequacy of consumer privacy protections in the federal navigator program. Although TDI indicated at the meeting that the agency had sent a letter to U.S. Health and Human Services Secretary Kathleen Sebelius stating that concerns had been raised about the consumer privacy protections in the navigator program, Watson said he had not seen the letter to Sebelius — or heard of its existence — prior to the meeting. The letter, obtained by The Texas Tribune, does not specifically outline the state's concerns regarding the federal navigator rules, but invites the federal government to participate in TDI's stakeholder meeting.

Along with many other provisions in President Obama’s signature health reform law, the individual mandate to purchase health insurance is set to take effect on Jan. 1. Texas' Republican majority, which vehemently opposes the federal health law, declined to establish a state-based insurance marketplace. So the federal government is doing it instead, launching an Orbitz-like online insurance exchange starting Oct. 1. That exchange will require individuals to input sensitive tax information, including their Social Security numbers and estimated annual income, to determine whether they qualify for tax credits to purchase coverage. 

To help uninsured Texans use the complicated new system, the federal government awarded nearly $11 million in August to local organizations charged with hiring and training navigators, who will help consumers input their financial information and pick a health plan through the federal marketplace. The navigators must undergo 20 to 30 hours of training, pass a certification test and renew their certification annually, according to the U.S. Department of Health and Human Services.

“Because of the nature of navigators' work and because they will be collecting confidential information, including birth dates, social security numbers and financial information, it is imperative that Texas train navigators on the collection and security of such data,” Perry wrote in a letter to TDI on Sept. 17. He directed the agency to establish rules that require navigators to complete at minimum of 40 hours of state training in addition to the federal training requirements. He also asked that navigators pass a rigorous exam based on that training, submit to periodic background and regulatory checks, and report to TDI the names of consumers they help find coverage through the marketplace.

Some of the rules Perry requested are forbidden under federal law. For example, navigators are not allowed to collect or retain consumers’ personal identification information or tax documents.

“If the state wants to be this heavily involved in the implementation of the Affordable Care Act all of a sudden, we should have set up our own state-run exchange,” state Rep. Chris Turner, D-Grand Prairie, said at the meeting. “The state should not arbitrarily impede the success or progress of that exchange,” he added, because more than 6 million people in Texas lack health insurance.

The state rules under consideration for the federal navigator program have already caused a couple of organizations to back out.

“We have one area of the state in the upper northeast portion that will not be able to supply navigators as originally planned,” Gary Bramlett, executive director of the East Texas Behavioral Health Network, wrote in an email to the Tribune. The East Texas Behavioral Health Network received the second-largest navigator grant in Texas, at $1.3 million. At the stakeholder meeting, another staff member with the ETBHN said the organization had pulled out in response to Perry’s directive for additional program rules.

The Rio Grande Guardian also reported on Thursday that the Lower Rio Grande Valley Development Council had pulled out of its agreement with United Way of Tarrant County — the recipient of the largest navigator grant in the country, at $5.8 million — to hire and train four navigators to serve consumers in Hidalgo, Cameron and Willacy counties. 

“Since the rules are changing and the governor’s office is still negotiating changes it is not prudent for us to be signing on,” Steve Brewer, the immediate past president of the LRGVDC and a member of its executive committee, told the Guardian. He added: “We do not want to be obligated to something that will change. It could mean more expense for us. It could mean we have greater liability. We need to be prudent. We need to wait until things are settled.”

Tim McKinney, president and CEO of United Way of Tarrant County, testified at the stakeholder meeting that there are sufficient safeguards in place to ensure navigators do not mishandle or abuse consumers’ sensitive information. In addition to the 20 hours of navigator training required under federal law, he said, United Way and its 16 consortium members are also requiring Level 1 background checks and additional consumer protection training for all of its navigators.  

Although the federal grant calls for 75 navigators, as of Thursday, 185 individuals had either received a certification number that enabled navigator training or had completed navigator training, McKinney said. He added that most of the organizations in the consortium already have additional staff certified as health plan counselors with TDI.

“I think our training and our background is more than sufficient to train our navigators,” he said.

Edgar Walters contributed to this report.

This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.