Democrats Argue Proposed Navigator Rules Politically Motivated

Saying that proposed state rules for the federal navigator program are politically motivated and would create unnecessary training requirements and registration fees, Democratic legislators on Monday pushed Texas Department of Insurance officials to justify their plan. 

"There is little question that anything related to the Affordable Care Act in the state of Texas has political implications," said state Sen. Kirk Watson, D-Austin. "The problem with that is that we live in a state that has the highest rate of uninsured in the country. We shouldn't make it political." He and other Democrats said that the proposed state rules would impede navigators’ ability to help consumers gain health insurance coverage.

Organizations in the state were awarded $11 million through the Affordable Care Act to hire and train navigators to help people purchase health plans on the federal health insurance marketplace. The federal program requires navigators to undergo 20 to 30 hours of training. The state's proposed rules require an additional 40 hours of training and a fee to register with the Department of Insurance. The department estimates the cost of training and registration could range from $200 to $800 per navigator.

"The proposed rules address insufficiencies in federal regulations and make the training and qualifications of navigators in our state more uniform and readily apparent to consumers and service providers," John Greeley, a spokesman for the department, said in an email. "TDI has received numerous comments about the proposed rule and the administrative procedures act requires us to respond to those comments in the final rule."

Gov. Rick Perry, who staunchly opposes the federal health reform law, first requested the additional rules in September, citing consumer privacy concerns. Republican lawmakers increased scrutiny of the navigator program in Texas after Project Veritas, a group led by conservative activist James O’Keefe, released a series of videos showing navigators in Dallas encouraging applicants to lie on their applications.

“To expect a noninsurance person to get up to speed on the complications of not only insurance, but of the ACA, in the 20-30 hours required by the federal law is just insufficient,” state Rep. Paul Workman, R-Austin, said in defense of the new rules. “We also know that in Texas, the navigators have been caught encouraging people to lie about their income levels and medical histories," he added.

In public comments submitted to the state, state Rep. Lon Burnam, D-Fort Worth, said that he had obtained documents from TDI indicating the department chose a 40-hour requirement because of political influence. The department has claimed that the documents are confidential under attorney-client privilege, said Burnam’s staff, and wouldn’t allow him to release the documents to the public.

Greeley confirmed that TDI released confidential documents to Burnam at his request under special legislative privilege. The responsive documents contained protected attorney work associated with rule development, and personally identifiable information. 

“The lack of any rational basis for the determination of the hour requirements, combined with the apparent political influence from officials who have publicly dedicated themselves to obstruct the implementation of the Affordable Care Act, makes these training requirements the very definition of arbitrary,” Burnam said in his comments.

The state’s proposed rules also prohibit navigators from charging individuals for their services, selling or soliciting health insurance, recommending specific health plans, providing guidance on comparing the benefits of specific plans, and engaging in certain political activities, such as campaigning or promoting a political party or candidate.

The department held an earlier hearing on the proposed rules in December. Insurance Commissioner Julia Rathgeber said the department would consider public comments submitted before 5 p.m. Monday before finalizing the rules.

Jamie Walker, associate commissioner for the licensing services section of TDI, said the department met with members of the U.S. Department of Health and Human Services to discuss the proposed regulations, and the federal government could not identify anything in the proposed rules that would be immediately pre-empted by federal law. “TDI staff will continue to work with HHS,” she said.

Texans must apply before March 31 to receive federal tax credits to help pay for private coverage on the federal marketplace. The proposed rules requiring additional training would take effect on March 1.

Given the tight deadline, Democrats and representatives from various health care organizations and nonprofits testified at Monday’s hearing that the additional training requirements would impede navigators’ ability to help Texans find coverage. They also argued that the rules would strip the navigators of their primary responsibility, as they would not be able to offer sufficient guidance to help people choose health care coverage.

Watson also hinted that the specific training requirements in the proposed rules seem to indicate that the state plans to contract a private company — likely a company that the state already has contracts with — to offer the training program.

“This would put public money that should be going to help people find coverage into a private enterprise’s hands,” he said.

More than one in four Texans does not have health insurance. Of the 6.2 million Texans without health insurance, 28 percent would qualify for tax credits to help them purchase private health plans on the federal marketplace, and 14 percent would qualify for Medicaid coverage, according to the Kaiser Family Foundation.

“Given the strong feelings related to Obamacare, it is difficult — impossible even — to discuss the matter without the interjection of politics,” said state Rep. Donna Howard, D-Austin. “We’re talking about the health and well-being of Texans here, and I don’t want that to get lost in this discussion."

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.