Insurance Commission Proposes New Rules for Health Navigators

To address privacy concerns raised by state leaders, the Texas Department of Insurance on Tuesday proposed additional rules for the so-called navigators directed to help Texans find health insurance under the federal Affordable Care Act.

“In Texas, we are being vigilant about safeguarding privacy and keeping personal information out of the wrong hands,” Insurance Commissioner Julia Rathgeber said in a statement. “These proposed rules address insufficiencies in federal regulations and make the training and qualifications of navigators in our state more readily apparent to consumers and service providers.”

Gov. Rick Perry requested in September that the state insurance department establish additional regulations for federal navigators. Attorney General Greg Abbott, who is running for governor, reiterated Perry’s request in November, and also sent a letter signed by 12 other state attorneys general to U.S. Health and Human Services Secretary Kathleen Sebelius voicing concerns about the privacy protections in the federal navigator program.

President Obama’s signature health reform law requires most Texans to carry health insurance in 2014. Texas' Republican majority, which vehemently opposes the federal health law, declined to establish a state-based insurance marketplace to help consumers find coverage, so the federal government is doing it instead. The federal health insurance marketplace, which launched on Oct. 1, has experienced myriad technical problems and requires individuals to plug in sensitive tax information, including their Social Security numbers and estimated annual income, to determine whether they qualify for tax credits to purchase coverage. 

To help uninsured Texans use the complicated new system, the federal government awarded nearly $11 million in August to local organizations charged with hiring and training navigators. At least two organizations that received navigator grants in Texas have backed out of the program in response to the state's political pressure.

The navigators must undergo 20 to 30 hours of training, pass a certification test and renew their certification annually, according to the U.S. Department of Health and Human Services. Although federal program rules already require navigators to provide information on health plans in the marketplace that is “fair, accurate and impartial,” and prohibit conflicts of interest, such as financial relationships with health insurers, the rules proposed by TDI would require navigators to undergo criminal background checks, comply with additional privacy training, and provide proof of identity and documentation that they complied with education requirements. The rules also explicitly prohibit navigators from charging consumers, selling or soliciting health insurance coverage, recommending a specific health plan, providing advice on how to compare benefits of specific plans, and engaging in certain political activities, such as campaigning or promoting a political party or candidate.

"As they attempt to recruit enrollment in Obamacare, this cadre of 'navigators' cannot get unregulated access to people's personal information the way they might in other states," Lt. Gov. David Dewhurst said in a statement on TDI's proposed rules. "Considering the litany of failures and excuses that accompanied the launch of the healthcare.gov website, we must be on guard against the continuing missteps of the Obama Administration."

Some medical professionals and advocates have objected to the privacy concerns raised by conservatives, suggesting they are politically motivated. For example, navigators must already comply with state and federal laws governing the privacy of sensitive medical information. If they do not adhere to strict security and privacy standards, including how to handle and safeguard consumers’ Social Security numbers and identifiable information, they are subject to criminal and civil penalties at both the federal and state level. The federal government imposes up to a $25,000 civil penalty for violating its privacy and security standards.

At an informal hearing held by TDI in September to obtain public input on Perry’s proposal, state Sen. Kirk Watson, D-Austin, said he feared legislation he authored to ensure navigators could effectively help Texans find coverage in the federal marketplace had been wrongly co-opted by Perry in an effort to derail implementation of the Affordable Care Act.

“These provisions were put in place to prevent precisely what I fear may be in motion here today,” Watson said at the informal hearing. “And that is a politically motivated effort to circumvent federal and state law concerning navigators and an even larger coordinated nationwide effort to shut down implementation of the Affordable Care Act.”

Watson told the agency that Senate Bill 1795, which he authored in the last legislative session, requires TDI to make a “good faith effort” to work with the U.S. Department of Health and Human Services to improve the federal navigator rules before implementing additional state rules. Only after “a reasonable interval” does the law allow the insurance commissioner to begin a rule-making process.

This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.