January 6, 2014
December 20th, 2013
Good morning, Commissioner Rathgeber and Assistant General Counsel, Rob Carter. Thank you for this opportunity to comment on the proposed rules to implement SB 1795, a bill I authored in the last regular legislative session allowing for the regulation of healthcare navigators.
The vast majority of navigators are hard-working, honorable folks committed to helping their fellow Texans find health insurance. In places like Austin and Fort Worth, some of them work through the United Way.
My bill had a very clear and expressly stated purpose: “to ensure that Texans are able to find and apply for affordable health coverage under any federally run health benefit exchange, while helping consumers in this state.”
All of us can agree that helping consumers must be a priority as we approach these rules. There are things in this proposal that I think we all want as part of any set of state regulations to help and protect those looking for health insurance. I strongly support privacy protections, and Texas-specific laws related to privacy. Furthermore, my bill specifically forbids convicted felons from being navigators, so it’s clear – and clearly appropriate – that background checks be conducted on potential navigators. It also prohibits electioneering.
These measures strike a balance between protecting consumers and increasing access to health insurance. The justification for them is self-evident.
In other cases, though, the Department owes the people of Texas an explanation. In instances where rules place a clear burden on navigators or represent an obvious obstacle or reduction in people being able to help Texans find health insurance, so that we inhibit or prevent people from getting health insurance, the Department needs to demonstrate that it’s following the intent of the law and acting in the best interests of hard-working Texans who need health insurance for themselves, their children, and their loved ones. Absent such an explanation, there’s no assurance – there’s a presumption – that the intent is not being met.
We love Texas. Every one of us in here loves Texas. We also know Texas can do better ensuring that our people have health insurance.
At least, I hope we all know that. I hope we’re all aware of Texas’s shameful status as the state with the highest percentage of uninsured in the country. Even after the years of inaction in the face of literally life-threatening problems facing Texas’ massive population of uninsured, I hope those in control of this state know that Texas, this great state with so many resources, can do better when it comes to keeping Texans healthy.
We’re proud of Texas. And we should be. But, really, how can we be proud of this sad distinction?
That’s what SB 1795 is meant to do. It makes Texas better when it comes to the issue of our uninsured. If it’s implemented correctly and not distorted, the rules it allows should help make the lives of the uninsured better.
Perhaps most importantly, any time the proposed rules create an obstacle or make it harder to ensure “that Texans are able to find and apply for affordable health coverage under any federally run health benefit exchange,” you need to demonstrate that the obstacle you’ve created is truly and meaningfully about consumer protection. These rules must not be seen as products of raw political pressure to impose needless, expensive, burdensome, bureaucratic regulations that would deny reliable healthcare to Texans who need it.
It’s enormously regrettable that this issue has been so badly politicized. But it’s not unique in that way. In Texas, health insurance in general has become an awful and inappropriate theater for political battles and grandstanding. Tens of billions of dollars have been rejected, despite the impact that money that could have for Texans who lack health insurance. The very leaders who attack the federal health insurance exchange refuse to create a state exchange that might constructively address their criticism.
Now, even the hard-working people who are trying to help their fellow Texans navigate the health exchange have come under fire. Is it because there’s a real problem that needs to be addressed? Or because so-called leaders feel the need to fight a cynical, heartless political battle designed to make it harder for Texans to find health insurance?
You cannot forget the context in which these rules are being drafted. And you must not forget who ultimately will suffer from any unfairness that’s incorporated into these rules. It’s not navigators or any other new version of this old political football. It’s the many, many Texans who just want to sleep at night without fear that illness or injury might bankrupt their families.
There’s a reason people are skeptical about your process. The best way – the only way – to put that skepticism to rest will be for you to plainly and transparently justify provisions that the Department ultimately adopts.
We’re asking you to justify the additional training requirements in these rules.
I’ll bet that everyone here supports training. But we need to understand why you think existing training requirements need to be as much as tripled. Current federal rules require 20 to 30 hours of training; your rules would add another 40.
Increasing these requirements by this much – as much as 200 percent – will decrease the amount of help that’s available to Texans who need health insurance. By your Department’s own estimates, this training could cost anywhere between $200 and $800 per navigator. That would be a significant – in some cases decisive – burden on individuals and organizations that are legally forbidden from recouping those costs from the people they’re trying to help.
Where, precisely, did the target of 40 additional hours come from? What do navigators need to know that the federal requirements aren’t allowing them to learn? If you’re going to impose these burdens and create those barriers, you owe Texans a clear, specific reason. What is it?
How do you justify the cost of complying with these requirements?
Navigators cannot, by law, collect a fee for the services they provide. And other similar assistance programs have managed to train and update their community partners at no charge to the participating groups. So why are these navigators being assessed fees when they can’t collect them themselves? It’s a remarkable barrier.
How does TDI justify deviations from the fiscal note to SB 1795?
The fiscal note, which was produced just seven months ago with TDI’s input, clearly states the assumption that that any costs associated with the implementation of this bill would be absorbed within existing staff and resources. What’s changed?
How does TDI justify these cumbersome financial reporting requirements?
Again, I think every person here believes navigators need to be accountable. I passed this bill to ensure that the state could protect Texans from bad or negligent actors. But as you’ll hear today, some of these reporting requirements make little sense in the context of the non-profit agencies that will be providing these services. Some of these requirements seem scaled for insurance companies, not community-based organizations.
The Department needs to justify why it included language in the regulations that was intentionally kept out of the bill authorizing these regulations.
During the session, we intentionally rejected proposals to prohibit navigators from providing “advice regarding substantive benefits or comparative benefits of different health benefit plans.” And yet this language was added to the draft rules? Why?
It should be obvious that Texans – whether they’re technically navigators or not – can help their friends and neighbors understand and compare features of different health plans without recommending that this consumer buy a specific plan. People should have the ability to walk into, for instance, their State Senator’s office and get help from a staff member comparing and understanding their options. And navigators need to be able to help consumers compare and understand insurance options without recommending which plan to purchase.
I simply cannot imagine an explanation that would justify keeping this bad language in these regulations. It should be removed.
And the Department needs to justify its timetable.
In three days, many Texans will face a another critical federal deadline for signing up for health insurance. Furthermore, if the Department maintains its stated intent of requiring compliance with these still tentative rules by March 1, you’ll leave navigators with about one month – that’s it – to comply. That timeline could well force these folks – the vast majority of whom are working in good faith to help their fellow Texans – to shut down their services just as open enrollment is closing and their help is most needed. It’s only fair that you push back the implementation of the rule until after the enrollment period closes.
Today and throughout this public input process, you’re going to hear these and other concerns. They all deserve answers.
More than that, they deserve your serious consideration. You owe it to Texans to follow the intent of this legislation and strike an appropriate balance between protecting consumers and keeping Texans healthy. You have a responsibility – and, I think, an opportunity – to take the politics out of this issue by re-working these rules and keeping uninsured Texans from suffering under them.