On March 21, 2014, the Centers for Medicare and Medicaid Services (“CMS”) released a proposed rule addressing a multitude of requirements applicable to health insurance issuers and the Affordable Insurance Exchanges under the Patient Protection and Affordable Care Act (“ACA”). NACHC submitted comments on April 21 that focused on the provisions of the proposed rule relating to Navigators, non-Navigator assistance personnel, and certified application counselors (which we refer to here collectively as “in-person assisters”).
New In-Person Assister Conduct Requirements
The proposed rule added a number of new standards restricting the conduct of in-person assisters, including:
• Prohibiting in-person assisters from charging consumers for application assistance or other assistance related to in-person assister activities;
• Prohibiting in-person assisters from going door-to-door or using other unsolicited means of direct contact, such as cold calls, to solicit consumers for application or enrollment assistance; and
• Prohibiting in-person assisters from using automated telephone or dialing systems.
The provisions limiting direct consumer marketing were of serious concern to many health centers and primary care associations. NACHC argued in its comments that health centers functioning as assisters should be exempted from those requirements, because they are in tension, if not open conflict, with long-standing health center outreach and enrollment practices. For example, health centers contact patients through mailings, emails, text messaging, phone calls, and referrals from medical staff. Often these “in-reach” contacts are unsolicited by patients, and may be made through automated communications. The prohibition in the proposed rule are in tension, NACHC argued, with requirements under the HRSA Health Center Outreach and Enrollment Assistance program and with the referral and linkage activities that health centers perform as a core service under Section 330 of the Public Health Service Act.
“Preemption” of State Regulation of In-Person Assisters
The proposed rule provides that in-person assisters will not be required by CMS to comply with certain types of non-Federal laws that in CMS’s judgment would undermine the application of Title I of the ACA. The proposed rule describes some of the non-Federal laws that may be preempted by Title I of the ACA. Examples include, but are not limited to, laws that require in-person assisters to refer consumers to agents or brokers or to any other sources not required to provide them with impartial advice; and laws that require Navigators to be agents or brokers or carry errors and omissions coverage.
In its comments, NACHC on the whole applauded these new provisions for providing more clarity for assisters struggling to comply with State and Federal legal requirements that may be in tension, if not in open conflict. However, NACHC recommended several changes. Specifically, NACHC suggested that CMS broaden the preemption of non-Federal laws requiring Navigators to be licensed agents or brokers or to carry errors and omissions coverage. This provision was based on CMS’s concern that these types of restrictions effectively exclude community and consumer-focused nonprofit groups from performing outreach and enrollment. NACHC agreed strongly with this logic but noted that other types of “financial responsibility” requirements (for example, a requirement that assisters post a bond) were equally stifling and should be included in the preemption.
NACHC also urged CMS to add a new category of laws to the proposed preemption rule: laws that bar in-person assisters from participating in voter registration activities. NACHC believes that such laws are inconsistent with Title I of the ACA and with the National Voter Registration Act of 1993 (NVRA). Under that law, states can designate health centers as voter registration sites.
Civil Money Penalties
The proposed rule imposes civil money penalties (“CMPs”) on in-person assisters for failing to comply with various Federal requirements. NACHC made several recommendations to CMS. First, NACHC suggested that solely CMS (and not the HHS Office of Inspector General) be solely authorized to impose CMPs on in-person assisters. NACHC also urged CMS to put in place a maximum allowable penalty under the CMPs to protect in-person assister entities. Finally, NACHC requested that CMS clarify what constitutes inappropriate use and disclosure of protected individual information under the CMPs.
Special Enrollment Periods
The proposed rule also sets forth provisions for special enrollment periods. NACHC and the Community HealthCorps program, in a separate set of comments [link here], suggested changes that would alleviate inadvertent penalization of AmeriCorps members exiting service. Specifically, NACHC supported designating an exit from an AmeriCorps program as a qualifying event triggering a special enrollment period.