Texas Cities Find Loophole in Health Insurance Exchange Training Rule

By Ramit Plushnick-Masti and Christopher Sherman | February 19, 2014

The Houston Health Department likely won’t have to pay for additional training for most of the “navigators” who are helping city residents enroll in the new federal health insurance marketplace. All it needs to do is tweak their title.

Texas, along with more than a dozen other states, recently required navigators to undergo an additional 20 hours of training and meet a slew of additional requirements to go about their business helping people get health care under the Affordable Care Act.

But Texas has not imposed these requirements on so-called certified application counselors – people hired to perform almost the same duties as navigators but are paid for by local entities. And so, since Houston paid to train most of its navigators, it can avoid the extra cost and time associated with complying with these new rules simply by calling them certified application counselors instead.

Texas’ reasoning for the new requirements is to protect consumers. But this apparent loophole that will allow hundreds – in fact, the majority – of those helping with enrollment across Texas continue to operate without the additional training has raised questions about the true intentions of the cumbersome rules. Similar requirements have faced successful legal challenges in two other states.

“My conclusion is that they just wanted to stick it to the feds,” said Ben Hernandez, Houston’s deputy assistant health director. “Because when you look at it, they (navigators and certified application counselors) do basically the same thing.”

Gov. Rick Perry, a staunch opponent of President Barack Obama’s signature health care overhaul, had asked the Texas Department of Insurance to impose 40 hours of training beyond the 20 to 30 hours required by the federal government. In the end, the agency ordered half the hours and chose to selectively target navigators for the extra training.

Insurance spokesman John Greeley said the state had the authority to mandate extra requirements for all assisters. But asked repeatedly why certain groups were excluded he declined to elaborate and would only say that they decided to start with navigators.

Missouri, Tennessee and other states that imposed additional requirements on navigators and certified application counselors have had implementation of the rules temporarily blocked in court. Some speculated Texas officials thought they would be less likely to draw a legal challenge if they only went after navigators, but others thought a legal challenge would still be possible the way the regulations were written.

State and federal agencies could not say how many navigators and counselors had been hired in Texas or elsewhere. The extra training for navigators will largely involve ethics, privacy requirements and Texas-specific Medicaid provisions.

The additional 20 hours of state training will require more time and money for agencies and nonprofits facing the state’s March 1 registration deadline for navigators. But the training does not need to be completed until May 1, partly avoiding a time crunch of trying to comply before open enrollment ends at the end of March.

Rachel Udow, a grant writer and spokeswoman for Weslaco-based MHP, estimates they will have to use about $15,000 of their nearly $590,000 federal grant to ensure eight of their navigators working in South Texas meet the state’s additional requirements. Time, though, may be the bigger issue with navigators swamped with appointments ahead of the end of open enrollment.

“All of our navigators are booked through the end of February,” Udow said. “We’re either going to have to cancel existing appointments or pay overtime.”

Hernandez has about 100 employees involved with navigator training at the Houston Health Department but will only have to get the extra hours for the 13 workers who were funded through federal grants. Houston used its own money to get navigator training for about 90 other employees.

Yet while Texas explicitly exempted counselors and family from the new requirements, it didn’t exclude friends, said Jay Angoff, the attorney who convinced a Missouri judge to preliminarily halt the implementation of that state’s rules.

“So if you go to church with somebody who’s not related and you want to help him fill out an application, the Texas rule says you can’t do that unless you first register with the state and go through all of these state-imposed requirements,” Angoff said.

Perry and other Texas Republicans have pushed for the extra requirements citing a greater need to protect consumers who entrust their personal information with navigators. State Sen. Donna Campbell of New Braunfels wrote in public comments to the insurance agency that “Texas must act immediately to enforce regulations that protect consumers and address the many insufficiencies of the federal rules.”

But among the hundreds of pages of public comment were also warnings that the rules could be a violation of free speech.

“The irony is, this is the strictest, the most intrusive regulation of individuals I believe in the country,” Angoff said. “It’s surprising, particularly coming from a state like Texas, which is known as a deregulatory state.”

In the two states where the rules were challenged, judges raised constitutional questions with the additional regulations. In Missouri, a judge determined the state law interfered with the implementation of the federal law and should have been pre-empted by the Affordable Care Act. In Tennessee, a judge saw the restrictions on who could assist in enrollment as impinging on the First Amendment right to free speech.

“The general concern with all these state rules are that they are an obstacle,” said Karen Pollitz, a senior fellow at the Kaiser Family Foundation, a Washington, D.C.-based nonprofit that studies health care issues. “They are designed to slow things down … or create a chilling effect.”

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