No. 14-1520 __________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________________________________________

ST. LOUIS EFFORT FOR AIDS, et al.,

Appellees,

v.

JOHN HUFF, in his official capacity as Director of the Missouri Department

of Insurance, Financial Institutions and Professional Registration,

Appellant,

______________________________

Appeal from the United States District Court, Western District

Of Missouri, THE HONORABLE ORTRIE D. SMITH

__________________________________________________________________

BRIEF AMICI CURIAE OF AARP AND SARGENT SHRIVER NATIONAL

CENTER ON POVERTY LAW IN SUPPORT OF APPELLEES

MARGARET STAPLETON JAY E. SUSHELSKY*

SARGENT SHRIVER NATIONAL CENTER ANDREW STRICKLAND

ON POVERTY LAW AARP FOUNDATION LITIGATION

50 East Washington, Suite 500

Chicago, IL 60602 MELVIN R. RADOWITZ

Tel. (312) 368-3327 AARP

Fax (312) 263-3846

stapleton@povertylaw.org 601 E Street, NW

Washington, DC 20049

Tel.: (202) 434-2060

Fax: (202) 434-6424

jsushelsky@aarp.org

*Counsel of Record for AARP and Shriver Center

i

CORPORATE DISCLOSURE STATEMENT OF AARP

The Internal Revenue Service has determined that AARP is organized and

operated exclusively for the promotion of social welfare pursuant to Section

501(c)(4) (1993) of the Internal Revenue Code and is exempt from income tax.

AARP is also organized and operated as a non-profit corporation pursuant to Title

29 of Chapter 6 of the District of Columbia Code 1951.

Other legal entities related to AARP include AARP Foundation, AARP

Services, Inc., Legal Counsel for The Elderly, Experience Corps, d/b/a AARP

Experience Corps, AARP Insurance Plan, also known as the AARP Health Trust,

and AARP Financial. Amicus Curiae AARP has no parent corporation, nor has it

issued shares or securities.

CORPORATE DISCLOSURE STATEMENT OF THE SARGENT

SHRIVER NATIONAL CENTER ON POVERTY LAW

The Internal Revenue Service of the United States has determined that the

Sargent Shriver National Center on Poverty Law is organized and operated

exclusively for charitable purposes pursuant to Section 501(c)(3) of the Internal

Revenue Code and is exempt from income tax. The Shriver Center is organized

and operated as a not for profit corporation pursuant to the Illinois General Not for

Profit Corporation Act, 805 ILCS 105/ et seq.

/s/Jay E. Sushelsky

Jay E. Sushelsky

ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT OF AARP ........................................ i

CORPORATE DISCLOSURE STATEMENT OF THE SARGENT

SHRIVER NATIONAL CENTER ON POVERTY LAW ....................................... i

TABLE OF AUTHORITIES .................................................................................... iv

STATEMENTS OF INTEREST OF AMICI CURIAE ............................................. 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT ............................... 3

ARGUMENT ............................................................................................................. 7

I. OLDER ADULTS RELY ON FACE-TO-FACE COMMUNICATION

FOR INFORMATION AND ASSISTANCE WITH INSURANCE

ENROLLMENT .............................................................................................. 7

II. HIMIA OBSTRUCTS ACCESS TO IMPARTIAL IN-PERSON

INFORMATION AND ASSISTANCE .......................................................... 8

A. HIMIA Limits the Effectiveness of Information and Assistance

by Restricting Advice Provided by Navigators and

Non-Navigators ..................................................................................... 9

B. HIMIA Limits the Impartiality of Information and Assistance

to Enrollees by Mandating Referrals to Insurance Agents ................. 12

III. THE DISTRICT COURT’S INJUNCTION REMOVES BARRIERS

CREATED BY HIMIA AND FACILITATES INFORMED

DECISION-MAKING BY HEALTH INSURANCE

CONSUMERS ............................................................................................... 15

iii

CONCLUSION ........................................................................................................ 19

CERTIFICATE OF COMPLIANCE ....................................................................... 21

CERTIFICATE OF SERVICE ................................................................................ 22

iv

TABLE OF AUTHORITIES

Cases

Citizens United v. FEC, 558 U.S. 310 (2010).......................................................... 11

St. Louis Effort for AIDS, et. al. v. Huff, No. 13-4246

(W.D. Mo. Feb. 2, 2014) .................................................................................. 13

St. Louis Effort for AIDS, et. al. v. Huff, No. 13-4246

(W.D. Mo. Apr. 24, 2014) ................................................................................ 13

St. Louis Effort for AIDS, et. al. v. Huff, No. 14-1520 (8th Cir. May 7, 2014)…...11

Statutes, Rules, and Regulations

42 U.S.C. § 18031(i) (2012) ...................................................................................... 4

42 U.S.C. § 18041(d) (2012) ..................................................................................... 5

42 U.S.C. § 18091(2)(D) (2012) ................................................................................ 3

45 C.F.R. § 155.210(c)(1)(iii) (2014) ........................................................................ 6

45 C.F.R. § 155.210(c)(1)(iii)(A) (2014) ................................................................... 6

45 C.F.R. § 155.210(c)(1)(iii)(C) (2014) ................................................................... 6

45 C.F.R. § 155.210(e) (2014) ................................................................................... 5

45 C.F.R. § 155.215 (2014) ....................................................................................... 5

45 C.F.R. § 155.215(a)(1)(ii) (2014) ....................................................................... 14

45 C.F.R. § 155.215(a)(1)(iii) (2014) ...................................................................... 13

45 C.F.R. § 155.260 (2014) ....................................................................................... 5

Ind. Code § 27-19-4 ................................................................................................... 5

I.R.C. § 5000A ........................................................................................................... 4

Mo. Rev. Stat. § 376.2000(2)(4) (2013) .................................................................... 9

Mo. Rev. Stat. § 376.2002(2)(1) (2013) .................................................................. 10

Mo. Rev. Stat. § 376.2002(3)(3) (2013) .......................................................... 5, 6, 10

Mo. Rev. Stat. § 376.2004 (2) (2013) ........................................................................ 9

Mo. Rev. Stat. § 376.2008 (2013) .......................................................................... 5, 6

v

Mo. Rev. Stat. § 376.2011(2013) ............................................................................. 11

Mo. Rev. Stat. § 374.048(2013) ............................................................................... 11

Other Authorities

20 C.S.R. 400-11(2014) ........................................................................................... 10

Miscellaneous

American Institute of CPAs, Half of U.S. Adults Fail ‘Health

Insurance 101,’ Misidentify Common Financial Terms in Plans,

Aug. 28, 2013, available at: http://www.aicpa.org/press/

pressreleases/2013/pages/us-adults-fail-health-insurance-101-aicpa-

survey.aspx ...................................................................................................... 4

Bloomington Herald-Times, Local Navigators Helped More Than 3,000

Enroll in Health Plans, May 11, 2014, available at:

http://www.heraldtimesonline.com/news/local/local-navigators-

helped-more-than-enroll-in-health-plans/article_3cc5a2d7-f57b-

515d-aa15-20adbb81a8e8.html ..................................................................... 16

Centers for Medicare and Medicaid Services, Medicaid & CHIP:

March 2014 Monthly Applications, Eligibility Determinations, and

Enrollment Report, May 1, 2014, available at:

http://www.medicaid.gov/AffordableCareAct/Medicaid-

Moving-Forward-2014/ Downloads/March-2014-

Enrollment-Report.pdf ................................................................................... 18

Enroll America, Post-Enrollment Survey Among Newly-Enrolled and

Uninsured Adults 18 to 64, May 12, 2014, available at:

https://s3.amazonaws.com/assets.enrollamerica.org/wp-

content/uploads/2014/05/EA-PerryUndem-Survey-Toplines.pdf ................. 15

Kaiser Family Found., Health Insurance Coverage of the Total Population,

available at: http://kff.org/other/state-indicator/total-population/#map ....... 18

Kaiser Family Found., How Are Seniors Choosing and

Changing Health Insurance Plans? ............................................................ 7, 8

vi

Kaiser Family Found., How Will the Uninsured Fare Under the

Affordable Care Act?, April 7, 2014, available at:

http://kff.org/health-reform/fact-sheet/how-will-the-

uninsured-fare-under-the-affordable-care-act/ .............................................. 16

Kaiser Family Found., Kaiser Health Tracking Poll: April 2013,

available at: http://kff.org/health-reform/poll-finding/kaiser-

health-tracking-poll-april-2013/ .................................................................. 3, 7

Kaiser Family Found., Marketplace Enrollment as a Share of the Potential

Marketplace Population, available at: http://kff.org/health-reform/state-

indicator/marketplace-enrollment-as-a-share-of-the-potential-

marketplace-population/#map ....................................................................... 19

Kaiser Family Found., State Decisions on Health Insurance Marketplaces

and the Medicaid Expansion, 2014, available at:

http://kff.org/health-reform/state-indicator/state-decisions-for-

creating-health-insurance-exchanges-and-expanding-

medicaid/#map ............................................................................................... 18

Kaiser Family Found., The Uninsured at the Starting Line, February 2014,

available at: http://kaiserfamilyfoundation.files.wordpress.com/

2014/02/8552-the-uninsured-at-the-starting-line6.pdf .................................... 4

Missouri Found. for Health, 152,335 Missourians Have Enrolled in Health

Insurance Marketplace Plans, May 1, 2014, available at

https://www.mffh.org/mm/files/Cover%20Missouri%20-

%20Enrollment%20Numbers%20Release%20FINAL.pdf .........................17

Brianne Pfannenstiel, Missouri ACA Enrollment Exceeds Expectations,

Kansas City Business Journal (May 9, 2014) ................................................ 16

Pittsburgh Post-Gazette, Health Care ‘Navigators’ in Race with

Affordable Care Act Deadline, Mar. 23, 2014, available at:

http://www.post-gazette.com/news/state/2014/03/24/Health-care-

navigators-in-race-with-Affordable-Care-Act-

deadline/stories/20140324010614 ................................................................. 16

vii

Peter Shin, et. al., Assessing the Potential Impact of State Policies on

Community Health Centers’ Outreach and Enrollment Activities,

available at, https://sphhs.gww.edu/pdf/eir/ggrchn_PolicyResearchBrief_

35.pdf (January 14, 2014) ........................................................................ 14, 15

Urban Institute Health Policy Center, Obtaining Information on

Marketplace Health Plans: Websites Dominate but Key

Groups Also Use Other Sources, June 9, 2014, available at:

http://hrms.urban.org/briefs/obtaining-information-on-marketplace.html ...... 7

U.S. Department of Health and Human Services, Addendum to the Health

Insurance Marketplace Summary Enrollment Report

for the Initial Annual Open Enrollment Period, available at:

http://www.nationaldisabilitynavigator.org/wp-

content/uploads/news-items/ASPE_2014april_enrollment

_report_Addendum.pdf ............................................................................ 16, 17

1

STATEMENTS OF INTERESTS OF AMICI CURIAE1

AARP is a nonprofit, nonpartisan organization with a membership that helps

people turn their goals and dreams into real possibilities, strengthens communities

and fights for the issues that matter most to families such as healthcare,

employment and income security, retirement planning, affordable utilities and

protection from financial abuse.

Since its founding in 1958, AARP has advocated for affordable, accessible

health care. In response to the growing number of older adults who forgo health

care services and face financial ruin due to the unaffordability and unavailability of

insurance and other health care costs, AARP sought legislative solutions that

would, among other objectives, reduce the increasing rate of health care costs and

make health coverage affordable for low-income older people. While Congress

debated health reform legislation, AARP’s advocacy focused on guaranteeing

access to affordable coverage for Americans ages 50 to 64 who faced unaffordable

insurance costs in the individual market prior to their eligibility for Medicare.

Following the passage of the Patient Protection and Affordable Care Act

(ACA) in 2010, AARP engaged in numerous national and statewide efforts to

1 No motion is needed under FRAP 29, as all parties have consented to filing this

brief. Under Rule 29(c)(5) of the Federal Rules of Appellate Procedure, amicus

curiae AARP certifies that (1) no party to this action, nor their counsel, authored

this brief in whole or in part, (2) no party or party’s counsel contributed money to

fund preparing or submitting this brief; and (3) no person other than amicus curiae

contributed money that was intended to fund preparing or submitting this brief.

2

promote the ACA’s features and benefits. Over the past several years, the AARP

Missouri office engaged in numerous efforts to promote and educate the public

about the ACA, including hosting a tele-town hall event in Springfield, presenting

to community groups such as the NAACP and faith-based organizations across the

state, and holding a day-long telethon to answer questions from callers in the

Kansas City metropolitan area.

The Sargent Shriver National Center on Poverty Law (Shriver Center)

advocates on behalf of low-income families and individuals, representing them in

a wide range of policy and legal matters including housing, employment, public

benefits, community and criminal justice, education, and health care. The

Affordable Care Act’s private insurance reforms, premium subsidies, cost-sharing

reductions, and Medicaid expansion are offering many of the constituents served

by the Shriver Center access to comprehensive, affordable, quality health care for

the first time in their adult lives. Such care will improve their physical and mental

health and decrease their unnecessary pain, suffering, and premature deaths. Such

better health will allow them to participate more fully in family and community life

and to increase their opportunities for escaping poverty through increased earnings

from employment.

To know about and take advantage of the private or public coverage

available under the ACA many low income individuals and families, including

3

older adults and especially vulnerable populations (such as people who are

homeless, people with limited literacy, people suffering with mental illness, people

with unpaid medical debts, people with limited English proficiency, and people

afraid of any dealing with the government due to being in mixed

immigration/citizenship status families or having unpaid fines or unpaid child

support) need in-person, culturally competent help and encouragement. That is,

they need the kind of in-person impartial and effective education and enrollment

assistance envisioned by the ACA’s navigator and non-navigator programs,

unfettered by obstructing state laws such as the Missouri Health Insurance

Marketplace Innovation Act of 2013 challenged in this case.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

Congress passed the Patient Protection and Affordable Care Act (ACA) in

2010 with the goal of ensuring “near-universal” access to health insurance

coverage. 42 U.S.C. § 18091(2)(D) (2012). Four years after its passage, many

remain unfamiliar with the ACA and its benefits. As of April 2013, an estimated

42% of Americans were unaware that the ACA was even in effect. Kaiser Family

Foundation, Kaiser Health Tracking Poll: April 2013, available at:

http://kff.org/health-reform/poll-finding/kaiser-health-tracking-poll-april-2013/.

Although the ACA requires most adults to obtain health coverage or pay an

additional tax, many Americans lack basic information needed to make informed

4

choices about their insurance options. See I.R.C. § 5000A. In a recent survey of

U.S. adults, more than half could not accurately identify at least one of three

common health insurance terms—“premium,” “deductible,” and “copay.” See

American Institute of CPAs, Half of U.S. Adults Fail ‘Health Insurance 101,’

Misidentify Common Financial Terms in Plans, Aug. 28, 2013, available at:

http://www.aicpa.org/press/pressreleases/2013/pages/us-adults-fail-health-

insurance-101-aicpa-survey.aspx. This lack of information is especially notable

amongst uninsured adults; in a recent survey of low-to-moderate individuals, eight

in ten reported knowing “nothing at all” or “only a little” about the health

insurance exchanges created by the ACA. Kaiser Family Found., The Uninsured

at the Starting Line, February 2014, available at: http://

kaiserfamilyfoundation.files.wordpress.com/2014/02/8552-the-uninsured-at-the-

starting-line6.pdf.

In recognition of this knowledge gap, as part of the ACA, Congress

authorized grants to enable organizations with existing connections to local

communities to conduct public outreach and to assist individuals with enrollment

in affordable public and private insurance plans. 42 U.S.C. § 18031(i) (2012).

Although the specifics of individual grant programs vary slightly, collectively they

are often referred to as “navigator” programs.

5

Generally, navigators must “maintain expertise in eligibility, enrollment, and

[health] program specifications,” provide “fair, accurate, and impartial”

information concerning qualified health plans, and “facilitate [the individual’s]

selection of a [qualified health plan].” 45 C.F.R. § 155.210(e) (2014). Navigator

grantees are required to ensure the competency of navigators, maintain the security

of personally identifiable information collected by them, and assure that the advice

they render is free from conflicts of interest. See 45 C.F.R. § 155.215 and 45

C.F.R. § 155.260 (2014).

Under the ACA, states are permitted to regulate navigator programs, so long

as state law does not “prevent the application of the provisions of [the ACA].” 42

U.S.C. § 18041(d) (2012). In recent years, many state legislatures enacted their

own standards for navigator organizations. Some of these standards closely

resemble the federal standards. See, e.g., Ind. Code § 27-19-4 (2013). Other

states, like Missouri, impose heightened burdens on organizations that receive

navigator grants and the employees who conduct navigator activities.

Missouri’s statute, known as the Health Insurance Marketplace Innovation

Act of 2013 (HIMIA), seeks to restrict the activities of navigator organizations by:

(1) forbidding navigators from providing “advice concerning the benefits, terms,

and features of a particular health plan” and (2) compelling navigators to advise a

presently-insured individual “to consult with a licensed insurance producer.” Mo.

6

Rev. Stat. § 376.2002(3)(3) and § 376.2008 (2013). The district court enjoined

Missouri from enforcing HIMIA on federal preemption grounds on January 23,

2014, two months before the end of open enrollment for private insurance coverage

through the federal health exchange.

On May 12, 2014, the Department of Health and Human Services and the

Centers for Medicare and Medicaid Services issued final rules that clarify which

state navigator laws would “prevent the application of the provisions of [the

ACA].” See 45 C.F.R. § 155.210(c)(1)(iii) (2014). Under these rules, navigators

need not comply with state laws that “prevent navigators from providing advice

regarding substantive benefits or comparative benefits of different health plans” or

that require navigators to “refer consumers to other entities [that are] not required

to provide fair, accurate, and impartial information.” 45 C.F.R. §

155.210(c)(1)(iii)(A) and (C) (2014). These federal rules confirm the district

court’s finding that HIMIA’s restrictions are pre-empted by federal law.

As a practical matter, HIMIA’s restrictions disproportionally affect older

adults, as they obstruct access to the kind of impartial, in-person information and

assistance that older adults need to make informed choices about their health

insurance options.

7

ARGUMENT

I. OLDER ADULTS RELY ON FACE-TO-FACE COMMUNICATION

FOR INFORMATION AND ASSISTANCE WITH INSURANCE

ENROLLMENT.

When seeking general information about the ACA and health insurance

options, older adults rely on personal, face-to-face conversations more than any

other age group. According to a recent poll, most individuals rely on personal

conversations and news media as their primary sources of information about the

ACA. Kaiser Family Found., Kaiser Health Tracking Poll: April 2013. Adults

age 50-64 are twice as likely as adults age 18-34 to rely on direct, in-person

conversations to obtain information about health plans. Urban Institute Health

Policy Center, Obtaining Information on Marketplace Health Plans: Websites

Dominate but Key Groups Also Use Other Sources, June 9, 2014, available at:

http://hrms.urban.org/briefs/obtaining-information-on-marketplace.html.

When comparing and selecting amongst health plans, older adults have a

clear preference for in-person assistance, as opposed to online resources or mass

media. In a recent series of focus groups conducted by the Kaiser Family

Foundation, many adults age 65+ selecting Medicare Advantage or Prescription

Drug Plans found the process of selecting plans “frustrating and difficult” due to

“the volume of information they receive in the mail and through media.” Kaiser

Family Found., How Are Seniors Choosing and Changing Health Insurance

8

Plans? (May 2014), available at http://kaiserfamilyfoundation.files.wordpress.

com/2014/05/8589-how-are-seniors-choosing-and-changing-health-insurance-

plans.pdf. Many participants did not use online resources, such as the “Medicare

Compare” tool, at all. Id. Those who went online often found these resources

“confusing, lacking information, and poorly constructed for comparisons [between

plans].” Id.

Instead of online or mass media resources, the focus groups conducted by

the Kaiser Foundation consistently expressed a desire to “sit down with someone

face-to-face to discuss their options and have their questions answered.” Id. at 20.

To ensure that consumers receive useful information about their insurance options

without any bias favoring one plan over the other, the ACA envisioned that

navigators and other community groups would provide imparted information about

health plans and in-person assistance with enrollment. Currently, insurance agents

and plan representatives fill this role. Id. However, as discussed in greater detail

below, they cannot provide “conflict-free” advice on health plans as required by

the ACA.

II. HIMIA OBSTRUCTS ACCESS TO IMPARTIAL IN-PERSON

INFORMATION AND ASSISTANCE.

As a result of its vague and overbroad statutory limits on navigator practices,

Missouri consumers have been deprived of effective in-person assistance from

navigators and non-navigators alike. HIMIA imposes two unique restrictions that

9

impermissibly curtail the ability of navigators and non-navigators to provide

impartial enrollment information and assistance to individuals:

A. HIMIA Limits the Effectiveness of Information and Assistance

by Restricting Advice Provided by Navigators and

Non-Navigators.

HIMIA defines “navigator” as “a person that, for compensation, provides

information or services in connection with eligibility, enrollment, or program

specifications of any health benefit exchange.” Mo. Rev. Stat. § 376.2000(2)(4)

(2013). While Appellants insist that only entities receiving compensation for

enrollment outreach and assistance activities are governed by HIMIA’s provisions,

other provisions in HIMIA would suggest a much broader scope. For example,

HIMIA also requires “[a]n entity that acts as a navigator, supervises the activities

of individual navigators, or receives funding to perform such activities” to obtain a

special license to act as a navigator. Mo. Rev. Stat. § 376.2004(2) (2013)

(emphasis added). The statute does not specify whether it applies to entities that

receive funding from the federal Department of Health and Human Services, or

whether it applies to entities that receive funding from other sources. Read

together, this statute could mean either that (1) only paid navigators are subject to

HIMIA’s restrictions, or (2) paid navigators are simply one type of entity subject to

HIMIA’s restrictions. Neither HIMIA’s text nor appellant’s brief clarifies this

issue. Because the statute’s provisions may encompass a broad range of

10

individuals and organizations, HIMIA curtails a broad range of enrollment

information and assistance provided by navigators and non-navigators.

HIMIA forbids “navigators” (as defined by the statute) from providing

“advice” about the “benefits, terms, and features of a particular health plan,” but

allows navigators to provide “fair and impartial information and services” about

“eligibility, enrollment, and program specifications of any health benefit

exchange.” Compare Mo. Rev. Stat. § 376.2002(3)(3) (2013) with Mo. Rev. Stat.

§ 376.2002(2)(1) (2013). The statute and its accompanying regulations do not

state what activity constitutes “advice,” nor do they clarify what details of health

plans or the exchange navigators can and cannot discuss with individuals. See 20

C.S.R. 400-11 (2014). Under a broad reading of the statute, any form of public

education or counseling efforts about a particular health plan—including

identification of what services a plan covers and any cost-sharing requirements it

imposes—could be considered “advice” and prohibited by the statute.

HIMIA’s permission for navigators to provide “information” about “any

health benefit exchange” does not impart any clarity. The statute could be

interpreted to mean that navigators can only provide information about how to

access the exchange, but not about plans identified in the exchange. If, for

example, a navigator points out differing monthly premium costs or deductible

amounts between plans, the statute and its accompanying regulations do not

11

specify whether Missouri would consider that to be forbidden “advice” or

permitted “impartial information.” Appellants do not provide any clear guidance

on this point, only restating that the references to “advice” and “information” are

“wholly separate” without any illustration of what conduct it considers mere

“information” and when such conduct becomes “advice.” Appellant’s Opening

Br., St. Louis Effort for AIDS, et. al. v. Huff, No. 14-1520 (8th Cir. May 7, 2014),

at 36.

HIMIA also imposes a broad range of penalties for noncompliance with this

provision, including injunctions, fines, and a freeze on a navigator organization’s

assets. See Mo. Rev. Stat. § 376.2011 and 374.048 (2013). Because HIMIA does

not articulate a clear standard on what conduct it prohibits, but imposes potentially

steep penalties for noncompliance, the statute has a high likelihood of chilling the

work of navigators. See Citizens United v. FEC, 558 U.S. 310, 324 (2010)

(describing the Court’s rationale that “vague laws chill speech” because “people of

common intelligence must necessarily guess at [the law’s] meaning and differ as to

its application”) (internal citations omitted).

When navigator organizations, many of them not-for-profit entities, are

faced with unclear standards and potentially severe consequences, those

organizations would likely err on the side of caution and avoid any conduct that

12

might run afoul of HIMIA’s provisions. Under HIMIA’s restrictions, navigators

are less able to provide impartial information and enrollment assistance.

B. HIMIA Limits the Impartiality of Information and Assistance

to Enrollees by Mandating Referrals to Insurance Agents.

As discussed above, many health insurance consumers, particularly first-

time health insurance purchasers, have little familiarity with insurance terminology

and are usually ill-equipped to make informed choices among health plan options.

Without conflict-free enrollment assistance, a new enrollee may unwittingly be

steered into a health plan with coverage that does not meet the individual’s needs

or imposes higher costs than the individual can afford because the agent would

receive a higher commission from a particular plan. Because insurance agents are

under no duty to disclose any potential conflicts of interest, they cannot represent

themselves as providing “impartial” advice to enrollees in the same manner that

navigators can.

If a navigator encounters a person with existing health insurance, HIMIA

also requires that navigator to “advise the person to consult with a licensed

insurance producer regarding coverage in the private market.” In effect, HIMIA

requires navigator organizations, which are required to “provide information to

consumers about the full range of [health plan] options,” to advise enrollees to

consult with insurance agents who may have a strictly financial incentive in

enrolling individuals exclusively in particular plans.

13

45 C.F.R. §§ 155.215 (a)(1)(iii) (2014).

Some insurance agents are employees of insurance plans, and therefore must

direct enrollees to one of their employer’s plans. But even insurance agents who

are not employed by a particular insurance plan have little incentive to direct

individuals to more affordable plans. As amicus MAIA, an association of

independent insurance agents, admitted to the district court, “[i]ndependent

agents…are paid a commission which is usually a percentage of the premium paid

for the coverage placed,” yet MAIA categorically denies that the commission acts

as a “reward or fee” for directing enrollees into particular plans. Sugg. in Supp. of

Mot. to Intervene, St. Louis Effort for AIDS, et. al. v. Huff, No. 13-4246 (W.D. Mo.

Feb. 2, 2014), ECF No. 39, at 3 (internal quotations omitted). Regardless of how

individual agents advise enrollees, all of them at least have a financial incentive to

direct enrollees into higher-priced plans because they receive a higher commission

for doing so.

The ACA certainly does not identify navigators as the only source of

information about health plans or compel enrollees to speak to navigators. As the

district court indicated, “it is entirely possible for consumers to obtain insurance

from the Federal Exchange without even talking to a [n]avigator.” Order on Mot.

to Intervene, St. Louis Effort for AIDS, et. al. v. Huff, No. 13-4246 (W.D. Mo. Apr.

24, 2014), ECF No. 48, at 6. Insurance agents, including those who are and are not

14

employed by a health insurance company, can continue to provide information

about insurance plans, as well as enrollment assistance, to prospective enrollees.

However, if an enrollee wants impartial information about health plans or

in-person assistance with enrollment, it is imperative that navigator organizations

be available as one of many community resources approved to provide information

about health plans and enrollment assistance without any financial stake in the

outcome of that information and assistance. HIMIA’s requirement that navigators

advise presently-insured individuals to contact an insurance agent defeats the

purpose of ensuring that navigators themselves are “free of conflicts of interest.”

45 C.F.R. § 155.215(a)(1)(ii) (2014).

Even community outreach efforts that are not conducted by navigators are

affected by HIMIA’s restrictions. Recent studies show that statutes like HIMIA

limit the effectiveness of conflict-free enrollment assistance and objective

education provided by navigators and by the general public alike. In a recent

nationwide study of enrollment assistance provided in community health centers,

only 2% of them receiving ACA navigator grants, the centers located in states with

restrictions like Missouri’s were “significantly less likely to assist with plan

enrollment.” The study concluded that the “regulatory burdens created by

Navigator laws are affecting…community outreach and enrollment efforts more

generally.” Peter Shin, et. al., Assessing the Potential Impact of State Policies on

15

Community Health Centers’ Outreach and Enrollment Activities, available at,

https://sphhs.gww.edu/pdf/eir/ggrchn_PolicyResearchBrief_35.pdf, January 14,

2014, at 3. As demonstrated by this study, statutes like HIMIA have a far broader

impact on enrollment assistance, suppressing the effectiveness of assistance

provided by navigators and non-navigators alike.

III. THE DISTRICT COURT’S INJUNCTION REMOVES BARRIERS

CREATED BY HIMIA AND FACILITATES INFORMED DECISION-

MAKING BY HEALTH INSURANCE CONSUMERS.

Navigators played a critical role in this year’s open enrollment cycle, leading

to enrollments of millions of individuals who, without assistance, might have been

unable to enroll before the close of open enrollment on March 31. According to a

recent survey, one in ten newly-enrolled adults reported that they were assisted by

“someone from a local organization who was trained to help people enroll” at some

point in the enrollment process. Enroll America, Post-Enrollment Survey Among

Newly-Enrolled and Uninsured Adults 18 to 64, May 12, 2014, at 12, available at:

https://s3.amazonaws.com/assets.enrollamerica.org/wp-content/uploads/2014

/05/EA-PerryUndem-Survey-Toplines.pdf.

Following the close of open enrollment, reports around the country

demonstrated the local effectiveness of navigator programs. For example, a

navigator organization in the Pittsburgh area reported that they helped

approximately 18,500 people in western Pennsylvania enroll in insurance plans or

16

learn more about the ACA. Pittsburgh Post-Gazette, Health Care ‘Navigators’ in

Race with Affordable Care Act Deadline, Mar. 23, 2014, available at:

http://www.post-gazette.com/news/state/2014/03/24/Health-care-navigators-in-

race-with-Affordable-Care-Act-deadline/stories/201403240106. Other navigator

organizations in Bloomington, Indiana reported that they helped 3,084 individuals

apply for health insurance. Bloomington Herald-Times, Local Navigators Helped

More Than 3,000 Enroll in Health Plans, May 11, 2014, available at:

http://www.heraldtimesonline.com/news/local/local-navigators-helped-more-than-

enroll-in-health-plans/article_3cc5a2d7-f57b-515d-aa15-20adbb81a8e8.html.

The timing of the district court’s injunction left only two months for

Missouri’s navigator organizations to provide assistance without HIMIA’s

burdensome restrictions. Despite the initial obstacles posed by the October 2013

rollout of the ACA and by HIMIA, Missouri exceeded enrollment projections.

Brianne Pfannenstiel, Missouri ACA Enrollment Exceeds Expectations, Kansas

City Business Journal (May 9, 2014). Prior to the Affordable Care Act, an

estimated 834,000 Missourians lacked health insurance coverage. Kaiser Family

Found., How Will the Uninsured Fare Under the Affordable Care Act?, April 7,

2014, at Table 1, available at: http://kff.org/health-reform/fact-sheet/how-will-the-

uninsured-fare-under-the-affordable-care-act/. By the close of the annual open

enrollment period, over 150,000 Missourians enrolled in private insurance plans

17

through the federal health benefits exchange. U.S. Department of Health and

Human Services, Addendum to the Health Insurance Marketplace Summary

Enrollment Report for the Initial Annual Open Enrollment Period, Appendix Table

A3, available at: http://www.nationaldisabilitynavigator.org/wp-content/ uploads/

news-items/ASPE_2014april_enrollment_report_Addendum.pdf. Twenty-six

percent of these enrollees were adults age 55+. Id.

The work of navigators to provide direct enrollment assistance, as well as to

educate the public about the benefits of the ACA, had a positive impact on

Missouri’s numbers of new enrollees during the open enrollment period. A

navigator organization in Missouri anecdotally reports that they assisted

approximately 8,000 Missourians with enrollment and educated 12,000 individuals

about the ACA through its outreach efforts. In the last month of open enrollment,

a coalition of navigators and other organizations hosted nearly 200 events to assist

with enrollment, contributing to the total number of enrollees in Missouri doubling

in March 2014. Missouri Found. For Health, 152,335 Missourians Have Enrolled

in Health Insurance Marketplace Plans, May 1, 2014, available at

https://www.mffh.org/mm/files/Cover%20Missouri%20-%20Enrollment%20

Numbers%20Release%20FINAL.pdf.

Applications for public health coverage likewise increased during open

enrollment. Although Missouri chose not to expand eligibility for its Medicaid

18

program under the ACA, Missouri saw a 9.1% increase in applications for

Medicaid following the close of open enrollment. Centers for Medicare and

Medicaid Services, Medicaid & CHIP: March 2014 Monthly Applications,

Eligibility Determinations, and Enrollment Report, May 1, 2014, at 16, available

at: http://www.medicaid.gov/AffordableCareAct/Medicaid-Moving-Forward-2014/

Downloads/March-2014-Enrollment-Report.pdf.

Despite these early successes, state-level enrollment data suggests that

Missouri would have been successful in enrolling even more individuals without

HIMIA. Before the ACA, North Carolina and Missouri faced comparable rates of

uninsured individuals—14% in Missouri and 17% in North Carolina. Kaiser

Family Found., Health Insurance Coverage of the Total Population, available at:

http://kff.org/other/state-indicator/total-population/#map. Both Missouri and North

Carolina refused expansion of Medicaid eligibility and operated within the federal

health insurance exchange, as opposed to creating a state-based exchange. Kaiser

Family Found., State Decisions on Health Insurance Marketplaces and the

Medicaid Expansion, 2014, available at: http://kff.org/health-reform/state-

indicator/state-decisions-for-creating-health-insurance-exchanges-and-expanding-

medicaid/#map.

Unlike Missouri, however, North Carolina did not enact any statutes

restricting the activities of navigators. At the end of open enrollment, North

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Carolina’s rate of enrolling eligible individuals in exchange plans was

approximately ten percent higher than Missouri’s. Kaiser Family Found.,

Marketplace Enrollment as a Share of the Potential Marketplace Population,

available at: http://kff.org/health-reform/state-indicator/marketplace-enrollment-

as-a-share-of-the-potential-marketplace-population/#map. Without the initial

obstructions posed by HIMIA, Missouri would have experienced even higher rates

of private insurance enrollment and greater declines in the state’s uninsured rate.

CONCLUSION

HIMIA obstructs access to impartial face-to-face assistance that older adults

rely upon for enrollment in public or private health insurance. The district court’s

injunction must be upheld to ensure that older adults can receive impartial and

effective in-person assistance with enrollment. If this Court overturns the district

court’s injunction, many more states are likely to engage in heightened efforts to

impair consumers’ access to in-person, impartial information about and assistance

with enrollment in public and private insurance programs under the ACA. For

these reasons, AARP respectfully urges this Court to affirm the district court’s

injunction.

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Dated: June 26, 2014 Respectfully Submitted,

/s/Jay E. Sushelsky

Margaret Stapleton Jay E. Sushelsky*

Sargent Shriver National Center Andrew Strickland

On Poverty Law AARP Foundation Litigation

50 East Washington, Suite 500

Chicago, IL 60602 Melvin R. Radowitz

Tel. (312) 368-3327 AARP

Fax (312) 263-3846

mstapleton@povertylaw.org 601 E Street, NW

Washington, DC 20049

Tel.: (202) 434-2060

Fax: (202) 434-6424

jsushelsky@aarp.org

*Counsel of Record for AARP and Shriver Center

21

CERTIFICATE OF COMPLIANCE

This brief complies with the type volume limitation of Fed. R. App. P. 32

because this brief contains 3868 words, excluding the parts of the brief exempted

by Fed. R. App. P. 32.

This brief complies with the typeface requirements and the type style

requirements and has been prepared proportionally spaced typeface using

Microsoft Word 2010, Times New Roman 14-point.

June 26, 2014 /s/Jay E. Sushelsky

Jay E. Sushelsky

AARP Foundation Litigation

22

CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of June, 2014, I filed the foregoing

Brief Amici Curiae of AARP and Sargent Shriver National Center on Poverty Law

In Support of Appellees with the Clerk for the United States Court of Appeals for

the Eighth Circuit.

/s/ Jay E. Sushelsky

Margaret Stapleton Jay E. Sushelsky*

Sargent Shriver National Center Andrew Strickland

On Poverty Law AARP Foundation Litigation

50 East Washington, Suite 500

Chicago, IL 60602 Melvin R. Radowitz

Tel. (312) 368-3327 AARP

Fax (312) 263-3846

mstapleton@povertylaw.org 601 E Street, NW

Washington, DC 20049

Tel.: (202) 434-2060

Fax: (202) 434-6424

jsushelsky@aarp.org

*Counsel of Record for AARP and Shriver Center