Ruling alters TN guidelines for Affordable Care Act

Churches, unions and social service organizations can now set up computer stations to help the uninsured sign up for coverage under the Affordable Care Act without fear of being fined by the state of Tennessee.

U.S. District Judge Todd Campbell issued a temporary restraining order today blocking Tennessee from enforcing a portion of the state's controversial emergency rules for health law navigators. Campbell said the state rules defining a navigator contain language that is too broad.

Within an hour after the judge's ruling, an agreement was struck on a similar lawsuit that had been filed in Davidson County Chancery Court. Bill Young, Tennessee's solicitor general who also represented the state in federal court, signed an agreed final order that narrowed the entire scope of the emergency rules.

The state agreed that the rules would apply only to people and entities that are required by federal law to be registered as navigators or certified application counselors.

The federal ruling was a first victory for Service Employees International Union Local 205 and two of its members. Jerry Martin of Barrett Johnston LLC argued on behalf of the union that the rules would prevent his clients from helping people sign up for coverage on the Internet.

Judge Campbell said he issued the two-week injunction because the language represented a prior restraint violation of the First Amendment. Martin argued that the rules had a "chilling effect" on his clients.

Young said the state had no intention of stopping the union from helping people sign up for coverage, saying the rules were intended only for navigators and certified application counselors or those who purported to be those officials.

"It is a cold comfort," Martin countered. "Mind sets can change."

Young asked the federal judge to let the Davidson County Chancery Court decide the issue and said negotiations were under way to resolve the dispute.

Judge Campbell said he did not think it was appropriate for the federal court to be absent on an issue that involved First Amendment rights and a federal health-care program. The union's suit remains active in federal court, where the case has been assigned to another judge, Chief District Judge William J. Haynes Jr.

Two Nashville government employees are also plaintiffs in the federal suit, which was filed Friday afternoon. Exie Mai Harrington, a circulation assistant at the library, and Trumeko Foxx, a home health care provider, contend that the rules violate the First Amendment right to free speech and conflict with federal laws, including the Affordable Care Act and the Americans with Disabilities Act.

Tennessee's emergency rules stated health law counselors and navigators may not "discuss the benefits, terms and features of a particular plan over any other health plans and offer advice about which health plan is better or worse or suitable for a particular individual or employer."

The rules set a penalty of up to $1,000 per violation.

Martin argued in the complaint he filed that Tennessee "mushroomed" the definition for navigators beyond the specification of the federal law, which authorized contract workers to perform community outreach to inform people about opportunities for health coverage.

The defendants in the federal suit included Gov. Bill Haslam, Commissioner of Commerce and Insurance Julie McPeak and Attorney General Robert Cooper.

Haslam and McPeak have defended the rules as a measure to protect consumers from fraud — an action that was authorized by bipartisan legislation passed in the Tennessee General Assembly earlier this year.

Harrington contends that the rules prevent her from assisting library patrons and that she cannot afford to pay a $1,000 penalty.

Foxx, an employee of the Metro Nashville Department of Social Services, contends that she has helped the people she serves apply for programs such as TennCare and the Supplemental Nutrition Assistance Program, but the emergency rules would prevent her from helping them apply for insurance on the federally run exchange.

The suit in state court was filed on behalf of 11 plaintiffs, including a doctor, the mother of a disabled child and church pastors. Representatives of organizations seeking to help the uninsured sign up for health coverage under the Affordable Care Act reacted with dismay, anger and disappointment after Tennessee issued emergency rules last month restricting their activities.

The rules require their employees and volunteers to be fingerprinted, undergo background checks and limit the advice they can give to people. Religious and social service leaders questioned the motive.

So did Martin in federal court, noting efforts across the country to "thwart the implementation of the Affordable Care Act."


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