Benefits and Compensation

Tennessee Rule Restricting ACA Navigators Blocked

A federal judge issued a temporary restraining order blocking the Tennessee Department of Commerce and Insurance from enforcing part of emergency rules designed to block health law navigators who had not been vetted by the state.

As a result, churches, unions and social service organizations can set up computer stations to help the uninsured sign up for coverage under the health care reform law.

The lawsuit challenging the state regulations was brought by Service Employees International Union Local 205 and two of its members. Other plaintiffs included a librarian who wanted to help library patrons sign up and an employee with Nashville social services who said she could help people sign up for food stamps and state Medicaid, but she could not do essentially the same thing for the exchange.  

The plaintiffs said that the rules violate the First Amendment right to free speech and conflict with federal laws, including the health care reform law and the Americans with Disabilities Act. The attorney representing the local SEIU contended that the rules would prevent his clients from helping people sign up for coverage on the Internet, according to articles in The Tennessean.

U.S. District Judge Todd Campbell said he issued the two-week injunction because the language represented a prior restraint violation of the First Amendment.

Tennessee Compromise

Bill Young, Tennessee’s solicitor general who also represented the state in federal court, signed an order that narrowed the entire scope of the emergency rules. The state agreed that the rules would only apply to people and entities that are required by federal law to be registered as navigators or certified application counselors.

Young asked the federal judge to let the Davidson County Chancery Court decide the issue and said negotiations were under way to resolve the dispute.

Campbell said he did not think it was appropriate for the federal court to be absent on an issue that involved First Amendment rights and a federal health-care program.

The Original Rule

The rule proposed prohibiting anyone from acting as a navigator in the state unless they had passed a criminal background check, including being fingerprinted. The proposal also stated that  said health law counselors and navigators may not discuss “benefits, terms and features of a particular plan over any other health plans” or “offer advice about which health plan is better or worse or suitable for a particular individual or employer.”

The rule’s preamble stated: “These rules are necessary for the Commissioner of Commerce and Insurance to establish criteria for registering navigators to ensure that individuals who are not of good moral character cannot act as navigators in this State, … and to ensure that navigators are not acting as insurance producers.” The rules set a penalty of up to $1,000 per violation.

Tennessee in May 2013 promulgated Chapter 377 of the Public Acts of 2013 prohibiting navigators from selling, soliciting or negotiating any insurance policy, giving the insurance commissioner the ability to shut down errant navigators and directing the commissioner to write rules restricting them.

On Oct. 1, 2013, individuals began enrolling for health coverage in the health insurance marketplaces, also known as exchanges. In Tennessee, the marketplace is run by the federal government.

The state commissioner, Julie Mix McPeak, said the rules would ensure that people representing themselves as exchange experts “have completed federal training courses and related examinations, where appropriate, and that they have passed a criminal background check.”