September 5, 2013
This is #9 in a series of Access to Care Reports. (See also postings by Mitchell Law Office)
Outreach activities under the Affordable Care Act (ACA) continue to expand.
A wide range of educational and outreach activities are being mounted by the Department of Health and Human Services (HHS) in order to encourage individuals to seek health insurance through the new Exchange marketplaces and to sign up for expanded Medicaid (in states where available).
HHS regulations have been adopted to govern navigators, non-navigator assistance personnel, and certified application counselors (CACs). These consumer assistance personnel will raise a variety of legal issues and administrative issues.
Attorneys may become involved in representing organizations and individuals that have become qualified for recognition in these categories. And further legal issues may arise when there is conflict between an attorney and these assistants that are recognized under federal law.
Many other groups are also active in providing informal advice to individuals regarding the ACA. Legal issues may also develop when informal advice leads to a negative experience for individuals.
The alternatives for participation in ACA educational and outreach activities have now been expanded—to include the “Champions for Coverage (CforC)” program. All organizations (potentially including legal practices) may sign up for the program,and become recognized by being added to an online list maintained by HHS.
Participation in the CforC program does not require a contractual relationship, and thus may be of more interest to many attorneys and some of the organizations that they represent than the more formal federally-regulated categories of assistants.
The CforC program “falls between” the formal navigator and related programs at one extreme, and the “completely informal” activities by groups with no formal ties to the ACA at the other extreme.
Major educational and outreach efforts are to focus on young adults, who are the hardest to reach and may be more reluctant to purchase subsidized insurance or sign up for expanded Medicaid.
Surveys by the Commonwealth Fund have found that the principal reason that young adults do not have health insurance is the cost. Participation rates in health insurance opportunities through employment tend to be high, supporting the conclusion that young adults would like to have insurance, if feasible.
A legal question is whether organizations reaching out to young adults and others to improve access to care may incur any new areas of potential liability.
It is not clear whether liability by outreach personnel may result if an individual sustains some type of injury after receiving advice.
If incorrect advice prevents an individual from signing up, and this person later incurs medical expenses that would have been covered, potential liability is unresolved.
And this same incorrect advice may lead to a penalty being owed by the individual under ACA rules.
Attorneys may find it challenging to help organizations reach this demographic group with the desired message, while dealing with potential areas of concern.
Previous installments of “Access to Care Reports” address the various ways in which access to care issues are affecting legal practices: