December 20, 2013 Sara Waitt General Counsel Mail Code 1 13-2A Texas Department of Insurance PO Box 149104 Austin, Texas 78714-9104. Dear Ms. Waitt: As members of the Senate Democratic Caucus, we write you today to submit formal comments on the Texas Department of Insurance's (TDI's) proposed new 28 TAC Chapter 19, Subchapter W, ??19.400l - 19.4018, concerning Regulation of Navigators for Health Benefit Exchanges. Senate Bill 1795 of the Regular Session of the 83rd Legislature is intended, by its own words, "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." However, the proposed rules created pursuant to SB 1795 seem to go well beyond the agreed-to goal of consumer protection. Rather, given the current political environment, the proposed rules appear to have the intended effect of creating obstacles to accessing affordable insurance coverage, which directly contradicts the stated purpose of SB 1795. Accordingly, it is incumbent upon TDI to justify fully how it arrived at the elements of the proposed rule described in this letter. Texas has the unfortunate and embarrassing distinction of leading the nation in the rate of uninsured, with 25 percent or 6.4 million individuals without health insurance. Despite this, those in control of the Capitol have repeatedly passed on opportunities to improve access to more affordable health insurance, either through creation of a health insurance exchange or expansion of Medicaid. To the contrary, TDI has rejected opportunities to add meaningful health insurance consumer protections. In 2011, TDI sought to delay a federal requirement that insurance companies spend 80-to-85 percent of premium dollars on medical care and healthcare quality improvement, rather than on overhead costs. This requirement would have ensured that consumers would get real value for their premium dollars. And in 2012, when new Consumer Assistance Program funding became available, TDI chose not to apply, even though Texans would have continued to benefit from assistance in enrolling for health coverage and in filing complaints and appeals against health plans. Hence, we are left to examine the proposed navigator rules with a very high degree of skepticism that is the direct result of the state's continuous refusal to enforce any aspect of the Affordable Care Act. As such, we request that TDI provide a written explanation of how it arrived at the following provisions within the proposed rule: Training Requirements: Please explain how TDI determined 40 hours as the length of additional training time for navigators, bringing total preregistration training requirements under the proposed rule to 60-70 hours. In communication with legislative staff, TDI has tried to explain this figure by saying that an adjuster prelicensing course requires 40 hours of training and that, like navigators, adjusters do not sell policies. First, TDI is not holding navigators to the same 40-hour standard as adjusters because the proposed rule also requires federal navigator training. And second, the role of adjuster and navigator seem to have little, if anything, in common. TDI licenses several individuals, other than adjusters, who, like navigators, do not sell insurance and are subject to no precertification training requirements. Why were these professions not also treated as precedents? So TDI's response still does not sufficiently justify the requirement of 40 hours of training in addition to the federally required 20-30 hours of training. Nor does it explain how TDI arrived at the 13-13-14 hour training blocks in the areas of Texas Medicaid, privacy, and ethics respectively. While the general subject areas of Texas Medicaid, privacy training and ethics instruction are useful and important for Texas navigators, the actual hour requirement for training seems very high. This is especially true compared to training for state programs that assist individuals in applying for affordable health coverage like the Community Partner Program or Health Insurance Counseling and Advocacy Program. Cost of Compliance: Please explain why navigators will have to pay registration fees and significant costs associated with the training in light of the fact that these are people who cannot, by law, collect a fee for the . services they provide. The proposed rules estimate the various costs imposed for compliance could add up to $900 per individual navigator. A navigator organization that oversees 30 navigators could incur about $30,000 in costs in the first year--possibly approximating enough to support a full--time navigator. Every dollar diverted from enrollment assistance leaves fewer resources to serve Texas' 6.4 million uninsured. Other similar community--based application assistance programs have managed to train and update their community partners at no charge to the participating community groups. Please explain why TDI did not adopt, wherever possible, the training that has already been produced, at state expense, by the state agency experts on Medicaid and medical privacy as a means both to get accurate, appropriate and continually updated training content and to make wise use of our federal tax dollars that support the navigator program. Proof of Financial Responsibility: Please explain how TDI arrived at the proposed options for proving evidence of financial responsibility. It appears that the options obtaining a surety bond, obtaining a professional liability policy, or making a deposit in securities -- are all options sealed for an insurance agency where profits can be generated, not for the not-for-profit and community-based organizations that are legally prevented from charging a fee for the service they provide. 2 Timeline: We have serious concerns with the proposed timeline. The proposed rule could have the result of shutting down navigator services as of March 1, 2014, when demand will spike in the final month of open enrollment. As proposed, navigators must comply with the rule by March 1, 2014, leaving navigators approximately one month to comply once the rule is finalized. This timeline is too short for navigators to accomplish at least two time--consuming, bureaucratic necessities that are completely outside of navigators' control: 1. Obtaining advance federal permission to deviate from navigator grant budgets that were finalized back in August in order to pay for the additional costs of complying with these state rules (processing of such requests typically takes 30-60 days), and 2. Getting through TDl's registration system (which, by TDI's admission, could take two-to-three weeks). When you combine these steps with the other hurdles navigators would have to clear to come into compliance with these rules, it's apparent that the full process could take three months. The rules should ensure that navigators can continue to provide their vital services while they work in good faith toward compliance. Please provide a detailed timeline that reflects each of the steps that a navigator organization and their associated navigator individuals would have to accomplish to come into compliance with the proposed rule and a timeframe for which each step can reasonably be completed. We recognize that several, but not all, steps can be completed concurrently. We ask that, when setting the registration effective date, TDI use a reasonable and complete timeline designed to foster, not prevent, compliance. Navigator Definition: We have two primary concerns with the proposed rules as they relate to the navigator definition. First, the proposed rule appears to extend well beyond the navigator grantees under the Affordable Care Act. As currently drafted, the rule would prevent a mother from helping her young adult son with an application for insurance unless she first completed an expensive and time--consuming registration process with the state. The same would be true for local church volunteers, neighbors, or even legislative staff who choose to help an uninsured Texan with enrollment through the federally operated health benefit exchange. SB 1795 does not authorize such far-reaching regulation. Please explain how extending the registration requirements to almost anyone providing enrollment assistance serves to promote the protection of Texas consumers. Second, the proposed rule also would prevent organizations and individuals who provide basic information on health coverage programs (including Medicaid and CHIP) from using the term "navigator" as a job title if they do not go through the state registration process. Many healthcare-related organizations use the term "navigator" today (like patient navigators and cancer navigators) to describe the individuals who help patients understand and connect with healthcare and health coverage. Please explain how restricting the use of the term navigator outside of the federally--operated health benefit exchange serves to promote the protection of Texas consumers. Lastly, We can all agree on the need to protect Texas consumers. But there is a_ need for balance between consumer protection and assuring as much assistance as possible for those who need health insurance. It is deeply troubling to see the lofty goal of consumer protection used as a blanket justification for regulations that, if passed as proposed, will undoubtedly result in fewer navigators being able to perform their work and in turn, fewer Texans accessing needed health insurance. Thank you for the opportunity to submit comments. We respectfully request that you provide a written response to the questions we've raised in this letter prior to the Jan. 6 public hearing on navigators. Sincerely, Kirk Watson, Chair John Whitmire Judith Zaffirini Rodney Ellis Royce West Leticia in 3; i rear 2' 33/ 2: Juan Hinojosa mi' Sylvia G?refa CC: Julia Rathgeber, Commissioner, Texas Department of Insurance Jamie Walker, Associate Commissioner, Licensing Services Section, Texas Department of Insurance