This past week Rep. Barbara Sears was accused of supporting the Affordable Care Act (also known as Obamacare) and opposing Ohio's Healthcare Freedom Act.
An article appearing at RedState.com and FreedomWorks.org also called into question her motivations, stating:
"Not only has she received a substantial amount of financial contributions from the health care industry, she currently works at a health insurance provider and recently passed her own bill which helps implement Obamacare."
I noted that the article did not quote her, nor did it say that she failed to respond to a request for comment. So I contacted her and asked her to respond.
Below is her response, as sent to me, though I have modified the formatting to make it easier to read.
It is always important to get both sides before making a decision and this response allows you to do just that. I understand Rep. Sears is also scheduled to be a guest with Fred LeFebvre on 1370 WSPD tomorrow morning.
From Rep. Sears:
The following are my thoughts regarding several issues discussed in Breeanne Howe’s article. First, it’s always disappointing when someone chooses to make inferences both personal and professional without taking the time to look at facts or do even the minimum amount of research.
I appreciate that you reached out to me for some background. I have tried to summarize my comments in order of the article not to infer that the article is remotely creditable but to simply to review and comment process.
HB 91(Young – Thompson)
I am supportive of our constitutional Healthcare Freedom Amendment as passed by Ohioans. In fact, Representative Maag and I sponsored HJR2 in the 129th General Assembly which was the Healthcare Freedom resolution; the Senate companion resolution SJR 5 which was the vehicle that passed the Senate and failed in the House by 1 vote (it received 59 and needed 60) prior to the Citizens initiated Healthcare Freedom Amendment reaching the ballot.
The same provisions that were added to protect our private marketplace and passed overwhelmingly by Ohioans make HB 91 unworkable in my opinion.
Below is a summary of my thoughts regarding the interaction of HB 91 and our Constitutional amendment – Healthcare Freedom Act. It seems illogical to push legislation that would work towards the destruction of our private healthcare marketplace. I have yet to hear a workable argument that suggests that HB 91 doesn’t violate our Constitution.
From HB 91
Sec. 3964.02. (A) A health insurance issuer operating in this state shall not accept any remuneration, credit, or subsidy, as described in 42 U.S.C. 18082, that may result in the imposition of penalties against any employer or individual in this state.
(B) If a health insurance issuer violates division (A) of this section, the issuer's license to issue new business in the state shall be suspended immediately and until such time as the issuer represents it has returned that remuneration, credit, or subsidy to its source and will decline any such future remuneration, credit, or subsidy. Such suspensions shall not be construed as impairing the right of contract or the right to continue or renew existing business in the state.
I believe that if we pass HB 91, we violate Section 21(b) and Section 21(c) of the Healthcare Freedom Amendment.
To put this into practical terms, if a carrier were to accept funding under the terms outlined in the PPACA, it is possible that an employer could be penalized. How could this happen?
The PPACA requires that:
1. If an employer with more than 50 fulltime equivalent employees, who does not offers health insurance coverage and has at least one employee who receives a premium tax credit or cost sharing subsidy in the exchange, the employer would then be subject to a penalty for not offering coverage. The penalty is $2,000 annually times the number of full-time employees minus 30 in the first year, and grows annually.
2. If an employer with more than 50 fulltime equivalent employees offers health insurance that does not cover at least 60% of typical health care expenses and an employee chooses to buy on the Exchange and receive a premium tax credit, the employer would then be subject to a penalty for not offering affordable coverage. The penalty is $3,000 for each fulltime employee receiving a tax credit up to $2,000 annually times the number of full-time employees minus 30 in the first year, and grows annually.
3. If an employer with more than 50 fulltime equivalent employees offers health insurance with any employee paying more than 9.5% of family income for the employer coverage and an employee chooses to buy on the Exchange and receive a premium tax credit, the employer would then be subject to a penalty for not offering affordable coverage. The penalty is $3,000 for each fulltime employee receiving a tax credit up to $2,000 annually times the number of full-time employees minus 30 in the first year, and grows annually.
If any employer is put in a position “that may result in the imposition of penalties against any employer or individual in this state.” “[T]he issuer’s license to issue new business in the state shall be suspended immediately” (HB 91-130).
The issuer can renew policies but shall be prohibited from the sale of health insurance and Ohioans will be prohibited to purchase health insurance through the carrier. (HB 91-130)
The Healthcare Freedom Constitutional Amendment passed by 66% of Ohio and in all 88 counties in Ohio states:
• Section 21 (A) No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.
• Section 21 (B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.
• Section 21 (C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.
Section 21 (E) (3) “Penalty or fine” means any civil or criminal penalty or fine, tax, salary or wage withholding or surcharge or any named fee established by law or rule by a government established, created, or controlled agency that is used to punish or discourage the exercise of rights protected under this section.”
I could suggest that if we pass HB 91, then we violate Section 21(b) and Section 21(c) in that we will be prohibiting both the sale of health insurance and an individual’s right to purchase health insurance by imposing law and rules that would be specifically used to punish a carrier should they accept any remuneration, credit, or subsidy as provided in the PPACA.
I appreciate the effort to find an appropriate way to protect our healthcare freedom and our private marketplace. However I believe that HB 91 does not get that accomplished no matter how some would like to characterize the interaction of HB 91 with the Healthcare Freedom Constitutional Amendment.
This is what the PPACA says about the role of a Navigator:
(1) IN GENERAL.—An Exchange shall establish a program under which it awards grants to entities described in paragraph (2) to carry out the duties described in paragraph (3).
(A) IN GENERAL.—To be eligible to receive a grant under paragraph (1), an entity shall demonstrate to the Exchange involved that the entity has existing relationships, or could readily establish relationships, with employers and employees, consumers (including uninsured and underinsured consumers), or self-employed individuals likely to be qualified to enroll in a qualified health plan.
(B) TYPES.—Entities described in subparagraph (A) may include trade, industry, and professional associations, commercial fishing industry organizations, ranching and farming organizations, community and consumer-focused nonprofit groups, chambers of commerce, unions, small business development centers, other licensed insurance agents and brokers, and other entities that—
(i) are capable of carrying out the duties described in paragraph (3);
(ii) meet the standards described in paragraph (4); and
(iii) provide information consistent with the standards developed under paragraph (5).
(3) DUTIES.—An entity that serves as a navigator under a grant under this subsection shall—
(A) conduct public education activities to raise awareness of the availability of qualified health plans;
(B) distribute fair and impartial information concerning enrollment in qualified health plans, and the availability of premium tax credits under section 36B of the Internal Revenue Code of 1986 and cost-sharing reductions under section 1402;
(C) facilitate enrollment in qualified health plans;
(D) provide referrals to any applicable office of health insurance consumer assistance or health insurance ombudsman established under section 2793 of the Public Health Service Act, or any other appropriate State agency or agencies, for any enrollee with a grievance, complaint, or question regarding their health plan, coverage, or a determination under such plan or coverage; and
(E) provide information in a manner that is culturally and linguistically appropriate to the needs of the population being served by the Exchange or Exchanges.
(A) IN GENERAL.—The Secretary shall establish standards for navigators under this subsection, including provisions to ensure that any private or public entity that is selected as a navigator is qualified, and licensed if appropriate, to engage in the navigator activities described in this subsection and to avoid conflicts of interest. Under such standards, a navigator shall not—
(i) be a health insurance issuer; or
(ii) receive any consideration directly or indirectly from any health insurance issuer in connection with the enrollment of any qualified individuals or employees of a qualified employer in a qualified health plan.
(5) FAIR AND IMPARTIAL INFORMATION AND SERVICES.—The Secretary, in collaboration with States, shall develop standards to ensure that information made available by navigators is fair, accurate, and impartial.
(6) FUNDING.—Grants under this subsection shall be made from the operational funds of the Exchange and not Federal funds received by the State to establish the Exchange.
(j) APPLICABILITY OF MENTAL HEALTH PARITY.—Section 2726 of the Public Health Service Act shall apply to qualified health plans in the same manner and to the same extent as such section applies to health insurance issuers and group health plans.
(k) CONFLICT.—An Exchange may not establish rules that conflict with or prevent the application of regulations promulgated by the Secretary under this subtitle.
I have attached my Sponsor Testimony. The House passed HB 3. SB 9 is the Senate companion bill which has also passed the on Senate floor.
Ms. Howe states in her article “So why would a Republican propose a bill that seeks to further regulate a government created job that will cost the state untold amount of money? It would appear that insurance brokers across the country are getting nervous about the prospect of competition from navigators and have been lobbying for stricter standards on them.”
First I would like to point out to Ms. Howe, and would have if she would have contacted me, that the State of Ohio is not offering a State Exchange. The State of Ohio is not hiring nor are we paying Navigators. A quick read of the law clearly states that: “(6) FUNDING.—Grants under this subsection shall be made from the operational funds of the Exchange and not Federal funds received by the State to establish the Exchange”. We are expecting hundreds of additional pages of Federal regulation soon regarding the role of the Navigator.
In Ohio, the Federal Government will be managing the Exchange and funding will come from the Exchange. Carriers that choose to sell on the Exchange will be charged a tax that will create the funding. Ms. Howe’s statement that “California is slated to spend hundreds of millions of dollars to hire 21,000 navigators” is consistent with the fact California is opting for a State run Exchange; Ohio is not!
Second, are brokers concerned about the impacts of the PPACA on their jobs? Of course; it would be illogical to suggest otherwise. They are joined by almost every other healthcare provider who has concerns regarding how this law will impact them and their ability to provide services.
Most importantly, the PPACA does not allow carriers to require that Navigators have E&O (Errors and Omission) coverage or liability insurance. This is coverage that carriers require from licensed insurance agents. I, along with others, felt it was important to require that Ohioans have basic protections when providing detailed personal information to Navigators. HB 3 requires training and educational requirements on such topics as ethics. HB 3 requires that they submit a disclosure regarding conflict of interest and that they complete criminal records checks (requirements that are consistent with licensed agents). I believe these are important protections to have in place before Ohioans allow Navigators into their homes and provide them with detailed personal and financial information. HB 3 requires that they are certified and registered with the Ohio Department of Insurance and their employer is listed. HB 3 allows the Ohio Department of Insurance to set fees and fines, revoke or non renew Navigators or Business Entity should they act improperly.
HB 3 also includes language that permits any insurer that is a qualified health plan under the PPACA to offer their plan through the Exchange.
I believe HB 3 is very consist with Ohio regulatory position as enforced through the Department of Insurance and would be very surprised if Ms. Howe truly felt comfortable with have Navigators work in the State of Ohio without any basic protections against bad acts. I can not imagine that she would feel it appropriate if the legislature allowed unregulated, potential felons into someone home to collect their personal financial and medical data.
Yes, I am employed by an independent insurance agency and I’m thankful that they consider me a “resource”. It would be personally disappointing to be employed but someone as a nonresource. I have disclosed my position freely. I believe that it is important for our elected official to work under the rules and laws that they impose. I complete disclosures both for licensing and in my elected position that are filed with the Department and with the State.
It is surprising to believe that Ms. Howe would believe that we should work to serve Ohio and our district only on committees that we have little understanding of the issues. Clearly, if we are looking at insurance issues, someone with an insurance background would be helpful; as legal issues come up we look at our attorneys; additional it would make little sense to ask our urban legislators to be the legislative lead on our farming issues and our farming legislators to solve urban issues. Being knowledgeable and specializing in specific areas of study should be valued, even when parties disagree. I am thankful that I have a reputation for being more of a legislative policy “geek” than a party politics based legislator, although I have always been considered conservative.
Ms. Howe writes “the fact that she works at an insurance agency that will benefit from her bill seems a conflict of interest.” I would refer Ms. Howe again to HB 3 which states “(3) The superintendent shall not certify as a navigator, and shall revoke any existing navigator certification of, any individual, organization, or business entity that is receiving financial compensation, including monetary and in-kind compensation, gifts, or grants, on or after October 1, 2013, from an insurer offering a qualified health benefit plan through an exchange operating in this state.”
We very specifically drafted the bill to prevent someone from working as either a licensed insurance agent or a navigator and receiving a financial gain from both the exchange and qualified health benefit plans. Quite frankly, I ensured that I could not gain from HB 3. I suppose that I could quit my position as a licensed insurance agent and work as a navigator whose expected income will be between $10 and $14 dollar hourly rate, however I will suggest that is not likely.
Currently I serve the 47th House District which includes most of Western Lucas County and much of Fulton County. As a Representative I serve as the House Majority Floor Leader andserve on the Finance and Appropriations Committee, the Human Services SubCommittee, Health and Aging Committee and the Insurance Committee.
Maggie, I thank you for reaching out to me. I am happy to provide additional information regarding any of these topics and look forward to talking to you.