Nonprofits Challenge Missouri Limitations on Affordable Care Act Navigators

Several Missouri nonprofit organizations and residents filed a complaint in a Missouri District Court claiming that a recently enacted Missouri statute violates the Supremacy Clause as well as the First and Fourteenth Amendments to the United States Constitution. The Health Insurance Marketplace Innovation Act of 2013 (HIMIA) (Mo. Rev. Stat. Sections 376.2006 —376.2014), defines the functions and limits the actions of individuals and entities employed as navigators under the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148) in Missouri. The  plaintiffs are nonprofit organizations certified as account counselors and Missouri residents; they allege that HIMIA prevents the certified counselors from fulfilling their roles under the PPACA and restrains the Missouri resident plaintiffs who wish to speak freely about the PPACA without repercussion.

PPACA Navigators

PPACA mandates the recruitment of certain entities and individuals, called navigators, to guide the public in learning about options and enrolling in plans offered by the health insurance exchange, or marketplace. PPACA also provides for certified application counselors who are to assist consumers with filling out and filing applications for enrollment in health care plans. Although the institution of these navigator and certified application counselor positions were not initially controversial or even new, recently, questions have arisen as to the functions of these roles and, more importantly, what limits the states can put on these functions.

Missouri HIMIA

The HIMIA, which was signed into law by the governor on July 12, 2013, requires navigators in Missouri to  be licensed by the state and bars any individual or entity from acting as a navigator without that license. Specifically, HIMIA also prohibits navigators from providing “advice concerning the benefits, terms, and features of a particular health plan or offer[ing] advice about which exchange health plan is better or worse for a particular individual or employer… or… provid[ing] any information or services related to health benefit plans or other products not offered in the exchange.” The statute also requires that navigators must refer individuals who have existing health insurance coverage purchased from an insurance agent to a licensed insurance producer. To receive a license under the statute, the navigator is required to disclose the identities of affiliates and supervisors. Additionally, the statute allows the Missouri director of the department of insurance to suspend, revoke, or refuse to issue a navigator’s license for a number of enumerated reasons as well as for “good cause.”

Complaint

The complaint requests that the court: (1) rule that the HIMIA is preempted by PPACA and that it violates the First and Fourteenth Amendments;  and (2) issue an injunction barring  state officials from enforcing the statute. The plaintiffs who are certified account consultants claim that HIMIA conflicts with and prevents the implementation of  PPACA because it places them in an “untenable situation: if they comply with HIMIA they cannot perform the duties the [PP]ACA requires them to perform, but if they comply with the [PP]ACA and do perform those duties, they violate the Missouri law and are subject to thousands of dollars in penalties for doing so.” They also allege that HIMIA violates the Fourteenth Amendment’s guarantee of due process with respect to the power given to the director of insurance to refuse or revoke a license for unspecified reasons and that the disclosure requirement violates the First Amendment right of free association. Finally, all plaintiffs claim that the law is an impermissible restraint and a content-based restriction on free speech, which are barred under the First Amendment.

Other State Limitations on Navigators

It has been reported that as many as 17 states have passed laws that place a variety of limitations on the role of the navigator under PPACA, from including  restrictions on advice on particular plans and enrollment, state examinations, fingerprinting, and residency requirements. Will these state laws also be alleged to infringe on the duties outlined for navigators under the PPACA? Until resolution of issues raised by this litigation, the role of the navigator may remain unclear.