Annals of Health Law - Vol 23 Issue 2

help them enroll in a QHP. 93 The ACA establishes different types of consumer assisters, including Navigators and Certified Application Counselors. Navigators are federally qualified and funded to provide assistance. 94 Certified Application Counselors (CACs) are federally created and regulated to provide assistance to individuals who live in states where the federal government is operating the Exchange. 95 The ACA preempts state laws that prevent the application of the ACA consumer assistance provisions. 96

As of July 2013, nineteen states had enacted laws that restrict the activities of federally approved consumer assisters, 97 which prompted litigation to enforce the ACA provisions. In one such case, a federal court temporarily enjoined a Tennessee law regulating consumer assisters, finding that the law was an unconstitutional restraint on speech in violation of the First Amendment. 98

In January 2014, a federal court in Missouri enjoined a state law restricting consumer assisters. 99 In St. Louis Effort for Aids v. Huff, a federally certified CAC, along with other entities and individuals who wanted to help uninsured Missourians enroll in health coverage, argued that the state navigator law violated the Supremacy Clause, the First Amendment, and the Due Process Clause. 100

The court granted the plaintiffs’ request for a preliminary injunction based on the Supremacy Clause, which provides that the laws of the United States “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 101 The court enjoined state provisions that required individuals to be licensed as insurance agents in Missouri to engage in certain enrollment activities. 102 According to the court, “[S]tate laws that make operation of the FFE [federally facili-

93. See 42 U.S. C. § 18031(b)( 1) (West, WestlawNext through Pub. L. No. 113-93 ( excluding Pub. L. No. 113-79) approved Apr. 1, 2014); 45 C.F.R. § 155.225 (West, WestlawNext through May 22, 2014; 79 Fed. Reg. 29,379).

94. 42 U.S. C. A. § 18031( i)( 3); See Exchange Establishment Standards and Other Related Standards Under the Affordable Care Act, 45 C.F.R. § 155.210, 155.215.

95. See 45 C.F.R. § 155.225(d)( 4).

96. See 42 U.S. C. A. § 18041(d).

97. See Peter Shin et al., Assessing the Potential Impact of State Policies on Community Health Centers’ Outreach and Enrollment Activities, GEORGE WASHINGTON UNIV. OF PUB. HEALTH 7 (Jan. 14, 2014), available at https://sphhs.gwu.edu/pdf/eIR/GGRCHN _PolicyResearchBrief_ 35.pdf (finding greater outreach and enrollment challenges in states with restrictive consumer assister laws).

98. Temporary Restraining Order at 1-2, No. 3:13-1090 ( D. Tenn. Oct. 7, 2013); See Plaintiffs’ Suggestions in Support of Motion for Preliminary Injunction at 9, 11, 13, No. 2:13-cv-4246 (W. D. Mo. Nov. 26, 2013).