As Americans head with increasing frequency to the Affordable Care Act’s new health insurance marketplaces, it is critical that those who want help enrolling in coverage can receive it. To address this need, the law requires each marketplace to conduct consumer outreach and enrollment assistance through a "navigator" program. Though modeled after a longstanding and uncontroversial program used to connect older Americans with Medicare coverage, the Affordable Care Act’s navigators have attracted intense scrutiny.
In earlier posts, we reported that many states that decided not to develop their own marketplaces have acted to restrict the work of navigators and other consumer assisters. To date, 17 states with federally facilitated marketplaces have imposed regulations on navigators that are more extensive than federal law, and nine more states are considering similar legislation. Whether these rules help safeguard consumers, or inhibit their ability to learn about the health law and find coverage, has been hotly contested.
Do state navigator rules undermine the Affordable Care Act? A key part of this debate concerns states’ legal authority to adopt navigator restrictions. Navigators must satisfy federal eligibility requirements, pass a federal training regimen, and comply with federal standards governing their conduct and operations. States have flexibility to supplement these rules, provided they do not interfere with navigators’ duties under federal law.
In states that ceded responsibility for operating a marketplace to the federal government, it has been an open question whether regulations that place additional burdens or limitations on assisters undermine the navigator program—and in turn, the federal marketplace. If a state requirement were found to conflict with the Affordable Care Act, federal law requires that it be set aside.
Fresh doubts about the legality of state restrictions. On January 23, 2014, a federal court in Missouri became the first to weigh in on this issue, in a case challenging the constitutionality of that state’s navigator law. Concluding that Missouri’s restrictions on consumer assisters likely violate federal law, the court blocked the state from enforcing the statute.
Missouri’s navigator law is in many ways typical of other state navigator restrictions. It requires navigators and other consumer assisters to meet licensing and training requirements in excess of federal obligations and to pay fees to the state. The law also limits the kind of advice navigators can provide—though, in this respect, Missouri goes further than most, prohibiting assisters from giving any “advice concerning the benefits, terms, and features of a particular health plan.”
Last November, two nonprofit groups that had satisfied federal navigator requirements sued, arguing that the state’s restrictions would make it harder—perhaps impossible—to provide the outreach and enrollment help required of them under federal law.
The court agreed and halted enforcement of the law. Missouri’s licensing requirements, it said, were an “impermissible obstacle” in the path of navigators already trained and certified by the federal government. By imposing additional burdens on approved assisters before they can work in Missouri, the state obstructed the operation of the federal marketplace.
More troubling were Missouri’s limitations on navigators’ speech and conduct. In the court’s view, the state’s broad prohibition on advice-giving directly conflicted with the responsibility navigators have to provide information about consumers’ coverage options and facilitate health plan selection. Accordingly, these provisions, and all other attempts by Missouri to regulate the conduct of assisters working on behalf of the federal marketplace, were invalid.
Looking forward. The Missouri decision is an important first word on the legality of state navigator restrictions, though almost certainly not the last. The case itself continues; the court may reverse its ruling at a later stage (this seems unlikely) and Missouri may appeal. And as it stands, the decision is not binding elsewhere; similar restrictions in states like Georgia, Texas, and Wisconsin remain in place.
Nevertheless, the ruling seems likely to influence by example. Navigators in other states may see a greater opportunity to push back against state restrictions and initiate their own legal challenges. While the result of any future lawsuit is speculative, it is clear that the reasoning adopted by the Missouri court—that the state’s choice not to operate a marketplace prevents it from imposing additional requirements or limitations on the federally run substitute—directly applies in other states.
Given this, the decision may be an opportunity for states, as well. States with, or that are considering adopting, navigator restrictions may choose to weigh alternative approaches that fulfill the goal of protecting consumers but do not burden the outreach and enrollment assistance efforts the health law requires.