By Emily Curran, Georgetown University Center on Health Insurance Reforms 

Health reform advocates experienced a win last month, when a federal court in Missouri struck down three sections of a recently enacted state law that interfered with the ability of consumer assistance personnel to help Missourians understand their health insurance options and enroll in coverage.

Under the Affordable Care Act (ACA), all marketplaces are required to establish a Navigator Program and are also encouraged to create a Certified Application Counselor (CAC) Program. Both are designed to help with consumer outreach and education, as well as to provide in-person assistance with eligibility determinations and enrollment into coverage. Though their specific duties vary, CACs and Navigators have proven to be an essential resource for millions of consumers needing help with marketplace enrollment. Their role is likely to become even more critical, as the remaining uninsured require more targeted and intensive outreach and assistance.

Following passage of the ACA, a number of states promulgated regulations to oversee the administration of these assistance programs. While some laws and regulations aimed to bolster training and certification components, others went a step further and appear to undermine the work of consumer assisters. Our research shows that several states attempted to dampen assistance efforts leading up to the first open enrollment period, for example, by limiting the advice assisters can provide and by requiring assisters to maintain in-state residency where they provide services. In St. Louis Effort For AIDS vs. John Huff, the CAC plaintiffs alleged that a Missouri law contained similarly restrictive provisions, including:

• Prohibiting Navigators from providing advice concerning the benefits and terms of a particular plan and from advising consumers on which exchange plan is better or worse for them;
• Prohibiting Navigators from providing information or services related to health benefits plans or products offered off the exchange; and
• Requiring that Navigators advise consumers to consult with a licensed insurance producer regarding their marketplace coverage

Plaintiffs in the case argued that these provisions significantly restricted their core activities and put them in direct conflict with federal law that invests in them a duty to provide fair, accurate, and impartial information and to “act in the best interest of applicants assisted.” The CACs sought relief under the ACA’s express preemption clause, which supersedes state laws that hinder or impede implementation of the Act.

On March 16, the U.S. District Court agreed with the plaintiffs and entered summary judgment, preventing the state from enforcing these sections. The Court ruled that the provisions impede assisters’ ability to fulfill their duty to consumers and to carry out their federal mandate of distinguishing among insurance options—noting that there was no way for plaintiffs to comply with both state and federal law without suffering “irreparable harm.” The decision ultimately lifts what many referred to as the “gag rule” and comes as a victory to advocates who are working to create sustainable programs that will aid and educate consumers. The decision also provides other assisters with support for challenging similarly restrictive state laws, and is a nod to policymakers to ensure that their regulatory framework does not conflict with federal law.