Opponents of the Affordable Care Act have lost in Congress, even after 41 votes to repeal it. They lost in the Supreme Court. And they lost again at the ballot box in 2012. Most reasonable individuals at this stage would resign themselves to the fact that the law is here to stay, and use their remaining time and energy to help get it implemented in a way that benefits the most people.
Instead, like schoolyard bullies, the law’s opponents are effectively saying: if we can’t play on our terms, we’re going to make sure no one gets to play. As a result, Americans are on the receiving end of the insane attempt to tank the economy and the nation’s credit if they don’t get their way on an effort to “defund Obamacare.” But as crazy as that is, it’s not as craven as the latest attempts to intimidate and scare local community groups, health centers, food banks, and social services agencies away from providing consumers with the help they’ll need to understand their new coverage options when the ACA’s exchanges launch October 1.
As my colleague Tricia Brooks documented last week, about half of the 104 organizations awarded federal navigator grants received an official demand from majority members of the House Energy and Commerce Committee to produce reams of paper documents associated with their grants, as well as all related communication with state and federal officials, and even Enroll America. The Ranking Member of the Committee, Congressman Waxman, called the request “groundless,” and an obvious attempt to “divert the resources of small, local community groups just as they are needed to help with the new health care law.”
At CHIR, we’ve been tracking state-based navigator rules. Many state-based ACA opponents have taken the harassment and intimidation to a whole new level. In Florida, state officials ordered their public health agencies to ban navigators from their property. In Ohio, the legislature passed a law prohibiting the state from certifying as a navigator any organization receiving compensation from an insurance company, even if it’s unrelated to their consumer assistance work. The language in the law is so sweeping, it required the Children’s Hospital Medical Center, which had been awarded $124,419 in federal navigator grants, to withdraw from the program. The Medical Center provides health care services to children and gets reimbursement from insurance companies for its services.
Last week, Tennessee’s insurance department issued an emergency regulation that will make it more difficult for navigators and other consumer assisters to help people in time for the launch of the exchanges on October 1st. The new rules – which aren’t even public yet – require navigators to register with the state, undergo a criminal background check, and go through an additional training (on top of the federal requirements) for which no curriculum has yet been developed. Next door, in Georgia, the insurance commissioner has publicly pledged to obstruct implementation of the ACA in his state, primarily by making life miserable for navigators and other consumer assisters.
Is it any wonder that navigator grantees are starting to drop out of the program? No matter how much they want to help the uninsured gain access to new coverage options, the threats of litigation and harassment are just not worth it. One navigator, in dropping out of the program, said in an email: “The emerging state and federal regulatory scrutiny surrounding the Navigator program requires us to allocate resources which we cannot spare and will distract us from fulfilling our obligations to our clients.”
So what can these community groups, food banks, health clinics, and social service agencies do? The good news is that there is an adult chaperone on this playground. The U.S. Department of Health and Human Services (HHS) has the authority to step in and protect navigators and other consumer helpers from efforts to prevent them from doing their jobs. The agency has already responded on behalf of navigators to the Energy and Commerce Committee’s onerous questions. As for the harassment at the state level, if a state law “prevents the application” of federal law – i.e., prevents a federal program from being implemented – it can be preempted. In other words, where states have passed onerous requirements that make it difficult or impossible for consumers to get the in-person assistance they need, it is within HHS’ authority to find the state law invalid. They haven’t yet done so, but if they want to have a sufficient number of assisters in place on October 1, they need to act soon.