On top of refusing to expand Medicaid, Pennsylvania lawmakers have proposed legislation that experts say would sabotage the Affordable Care Act (ACA) by hindering the enrollment process, and which would be illegal under new federal regulations that are likely to pass in the near future.
Last week, President Obama announced that his administration reached its goal of enrolling more than 7 million citizens into private insurance plans through the ACA—a triumph for the administration, since high enrollment is key to the health-care law’s success.
Given the confusion among the general public about health-care reform, and the glitch-filled Healthcare.gov website, enrollment goals were reached in large part due to the work of navigators—individuals hired to help citizens figure out whether they qualify for a tax subsidy and assist them in signing up for a plan.
In states that let the federal government run their exchange, Department of Health and Human Services awarded $67 million in grants to 105 organizations. In Pennsylvania, five organizations were granted a total of $2.7 million to hire navigators. Navigators undergo 20 hours of training, and must be certified by the Centers for Medicare & Medicaid Services before working with the public.
The initial enrollment success may be why Republican lawmakers in Pennsylvania are proposing legislation that experts—and the federal government—say will hinder navigators’ ability to enroll citizens in the future.
In a sponsorship memo circulated in December, Sen. John Eichelberger Jr. (R-Blair) and his 14 Republican co-sponsors of the “Navigator Accessibility and Regulation Act” stated they were concerned that navigators were going to give consumers erroneous information about plans, incorrectly tabulate their income while trying to figure out if the consumer qualifies for a subsidy, and violate consumers’ privacy.
The bill would require that navigators be certified by the state, pass a criminal background check, get fingerprinted, and pay unspecified fees. Since the federal government runs Pennsylvania’s exchange, the federal government already trains and certifies navigators; the proposed state-run regulations would be in addition to that.
According to the memo, the new regulations are necessary to “address consumer protection concerns resulting from the implementation of the Affordable Care Act.”
This reasonable-sounding explanation obscures the fact that the legislation is a pet project of special interests. What’s more, the phrase “consumer protection” is misleading in this context: Policy experts say that the legislation, especially when implemented in a state like Pennsylvania that rejected Medicaid expansion, actually harms the consumer.
The navigator program has been wildly successful, and experts say there’s no evidence of mass fraud perpetrated by navigators.
Pennsylvania Insurance Commissioner Michael Consedine recently admitted that “he has not seen abuses in the navigator position.”
U.S. Rep. Joe Pitts (R-PA), who supports the bill, has pointed to California, where more than 40 navigators were discovered to be convicted criminals. Some of the navigator organizations already run background checks for navigators, and generally speaking that’s not the part of the bill they oppose.
As ever when examining legislation that appears to be an answer in search of a problem, there are several “regulations” that would actually serve as restrictions. In this case, a “conflict of interest” clause would effectively disqualify Pennsylvania’s most effective navigator organization from continuing to help people sign up for health insurance.
From the bill:
It is a conflict of interest for any entity which provides health care services, or affiliate thereof, to serve as a navigator in this Commonwealth.
However, the Pennsylvania Association of Community Health Centers (PACHC), the lead navigator organization in the state, was chosen in large part because as the operator of 200 health centers situated in medically underserved areas, it is uniquely positioned to reach Pennsylvanians who stand to benefit the most from the Affordable Care Act.
PACHC did exactly that by hosting lectures in libraries and rural VFW halls,
as well as sit-down sessions where navigators spent an average of one to two hours with citizens looking for help.
All in all, PACHC oversees 201 “enrollment assisters” that provide enrollment assistance in 170 sites across 43 counties, meet with nearly 20,000 consumers, and assist with enrollment of up to 10,000 individuals. (“Enrollment assister” is an umbrella term that includes navigators and certified application counselors who perform essentially the same function, but navigators are federally funded, while certified application counselors are not.)
Jim Willshier, director of public policy and partnership for PACHC, recently testified about the proposed regulations in front of the Pennsylvania Senate. He argued that the conflict of interest clause would mean his organization would have to stop providing enrollment assistance. Further, he pointed out that navigators who still qualified would be forbidden from providing “information or services related to health benefit plans or other products not offered in the exchange.”
A significant segment of the individuals who seek out navigators for assistance don’t earn enough money to qualify for a tax subsidy to purchase a private plan. Although formal data is not yet in, two of Pennsylvania’s five navigator organizations told RH Reality Check that some 40 percent of the people who met with their navigators fell into the Medicaid funding gap that was created when Gov. Corbett refused to expand Medicaid. In other words, the people the navigators are meeting with are the very people who would most benefit from learning if they qualify for any other programs.
What that means is that if a navigator sat down with a citizen who didn’t make enough money to qualify for a tax subsidy to offset the cost of purchasing a private insurance plan on the exchange, but qualified for another program such as Medical Assistance or had children who qualified for the Children’s Health Insurance Program (CHIP), the navigator would be forbidden by law from telling the consumer about those options.
In other words, the proposed legislation is a gag order.
The navigator aspect of the Affordable Care Act unnerved some insurance professionals and lobbyists from the beginning of discussions about the health-care law.
According to the Center for Public Integrity, special-interest business groups “worked to kill or amend the navigator provision.” When the navigator program stayed in the ACA, those groups
fought for and won a provision that enabled insurance salespeople to become navigators. Then they “turned their attention to the states,” urging business-friendly state legislators to “enact a licensing framework and regulatory regime for navigators.”
Many of them did just that.
Today, Pennsylvania is one of at least nine states that chooses to let the federal government run their online health insurance marketplace but now wants to be able to create and enact regulations of the navigators.
It’s becoming clear, however, that these state regulations conflict with federal regulations, with lawsuits filed in two states. In January, a federal judge enjoined Missouri’s navigator regulation law, ruling that the state couldn’t create additional regulation for navigators since the state opted out of running the exchange.
USA Today reported that “the court said imposing those restrictions was pre-emptive because it created an obstacle to implementing the Affordable Care Act.”
The same article also notes that the Missouri ruling could be used as a foundation for other lawsuits.
Those lawsuits may not even be necessary, though. In response to state
laws, the federal government has proposed a new set of regulations striking down provisions that create obstacles to implementing the Affordable Care Act. The proposed federal regulations are currently in public comment period, which ends later this month, and experts are confident they will pass.
Pennsylvania’s “Navigator Accessibility and Regulation Act” contains at least eight provisions that would be struck down by the new regulations, according to Tricia Brooks, senior fellow at the Center for Children and Families and a research assistant professor at the Georgetown University Health Policy Institute.
“We, stakeholders, people who follow [these policies], know that some of these laws have interfered with what navigators are doing, what they need to do for consumers,” Brooks told RH Reality Check. “It’s been highly politicized.”
Brooks notes that the concept of hiring people in the community to help citizens navigate complex systems is not new, and has never required state-based regulations. This model has been used, for example, to help people enroll children in CHIP programs.
“This is just an industry protecting their own interest, and unfortunately I think what they’re doing is a disservice to consumers,” said Brooks.
If Pennsylvania’s navigator bill is
not knocked down by the forthcoming federal regulations, evidence shows the result of the provisions for consumers would be disastrous.
In January, the George Washington University School of Public Health and Health Services published a report exploring the effect such regulations have had on enrollment in states that, like Pennsylvania, rejected Medicaid expansion.
From the report:
In states with restrictive policies toward ACA implementation (defined as both opting out of the Medicaid adult expansion and adopting Navigator laws), health centers are confronting a significantly greater outreach and enrollment challenges.
The success of the Affordable Care Act has always hinged in enrollment goals. In short, the study concluded that navigator laws “did exactly the opposite of what they were purported to do” by hindering enrollment.
Sara Rosenbaum, the senior author for the study, summarized the conclusion for USA Today. “If anyone has any doubt, this should put it to rest,” she said. “The navigator laws combined with opting out of Medicaid really stopped outreach in its tracks.”
CORRECTION: A quote by Tricia Brooks has been updated slightly for clarity, at Brooks’ request.