United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-1520

___________________________

St. Louis Effort For AIDS; Planned Parenthood of the St. Louis Region and

Southwest Missouri; Consumers Council of Missouri; Missouri Jobs With Justice;

Jeanette Mott Oxford; Dr. Wayne Letizia; Dr. William Fogarty; Chris Worth

lllllllllllllllllllll Plaintiffs - Appellees

v.

Director John M. Huff, in his official capacity as the Director of the Missouri

Department of Insurance, Financial Institutions and Professional Registration

lllllllllllllllllllll Defendant - Appellant

------------------------------

Missouri Association of Insurance Agents

lllllllllllllllllllllAmicus on Behalf of Appellant

AARP; Sargent Shriver National Center on Poverty Law

lllllllllllllllllllllAmici on Behalf of Appellees

____________

Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

____________

 Submitted: January 14, 2015

 Filed: April 10, 2015 

____________
Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges.

____________

RILEY, Chief Judge.

St. Louis Effort for AIDS, Planned Parenthood of the St. Louis Region and

Southwest Missouri (Planned Parenthood) (collectively, appellees), and a number of

other individuals and entities brought this facial challenge to Missouri’s Health

Insurance Marketplace Innovation Act (HIMIA), Mo. Rev. Stat. § 376.2000 et seq.

The plaintiffs sought a preliminary injunction, claiming certain portions of the HIMIA

are preempted by federal law, violate the First Amendment to the United States

Constitution, and are void for vagueness under the Due Process Clause of the

Fourteenth Amendment. Enjoining the HIMIA in its entirety, the district court held

the appellees—but not the other named plaintiffs—were likely to succeed on the

merits of their preemption claim. John Huff, in his capacity as Director of the

Missouri Department of Insurance, Financial Institutions and Professional

Registration, appeals. We affirm in part and otherwise vacate the preliminary

injunction and remand the case to the district court.1

I. BACKGROUND

The Patient Protection and Affordable Care Act (ACA) created “navigators”—

individuals who assist consumers in purchasing health insurance from state and

federal health care exchanges. See 42 U.S.C. § 18031(i). The ACA granted the

Secretary of the United States Department of Health and Human Services (HHS) the

power to “establish standards for navigators,” id. § 18031(i)(4)(A), and more

generally, to “issue regulations setting standards for . . . the establishment and

operation of Exchanges,” id. § 18041(a)(1)(A). HHS regulations recognize three

categories of individuals who facilitate enrollment in exchanges: federal navigators,

1

Judge Colloton joins all but Part II.A.1 of this opinion.

-2-
certified application counselors (CACs), and non-navigator assistance personnel.2

 See

45 C.F.R. §§ 155.210, 155.215, 155.225. Because the primary goal of both federal

navigators and CACs is to facilitate enrollment in exchanges, they conduct many of

the same activities. Compare 42 U.S.C. § 18031(i)(3), and 45 C.F.R. § 155.210(e),

with 45 C.F.R. § 155.225(c). Still, federal navigators have a more extensive set of

duties than CACs, and only federal navigators receive federal monetary grants. See

42 U.S.C. § 18031(i)(1), (3). The appellees are both federally certified as counselor

designated organizations and employ individuals working as CACs.3

Acting under the ACA, the federal government established a Federallyfacilitated Exchange (FFE) in Missouri, and federal navigators and CACs assist in the

operation of this exchange. The Missouri legislature enacted the HIMIA to regulate

“person[s] that, for compensation, provide[] information or services in connection 

with eligibility, enrollment, or program specifications of any health benefit exchange

2

Non-navigator assistance personnel exist only in states operating their own

health care exchanges. See 42 U.S.C. § 18031(a); 45 C.F.R. § 155.215(a). Because

Missouri has not created an exchange, non-navigator assistance personnel are not

involved here.

3

The district court found the appellees “are Counselor Designated

Organizations, CACs, and Navigators under the ACA.” This finding is clearly

erroneous. See Goss Int’l Corp. v. Man Roland Druckmaschinen Aktiengesellschaft,

491 F.3d 355, 362 (8th Cir. 2007) (explaining that when reviewing “the issuance of

a preliminary injunction . . . [w]e review the District Court’s material factual findings

for clear error” (quotation omitted)). The complaint explicitly asserts the appellees

are “Counselor Designated Organizations”—which must comply with the federal

standards governing CACs, see 45 C.F.R. § 155.225(b)(1)(i). There is no suggestion

in the complaint that either organization received a federal grant, a defining

characteristic of federal navigators, see 42 U.S.C. § 18031(i)(1), and neither

organization employs individuals working as federal navigators. Absent evidence to

support the district court’s finding that these entities are federal navigators, we limit

the scope of our preemption inquiry to CACs and consider only those federal laws and

regulations applicable to CACs. 

-3-
operating in [Missouri].”4

 Mo. Rev. Stat. § 376.2000.2(4). The HIMIA includes

licensing provisions, see, e.g., id. §§ 376.2004, 376.2006, and regulatory provisions,

see, e.g., id. §§ 376.2002, 376.2008. The regulatory provisions dictate what state

navigators can do, see, e.g., id. § 376.2002.2, and more relevant to this appeal, what

state navigators cannot do unless they are also licensed insurance producers, see, e.g.,

id. § 376.2002.3. The HIMIA also includes a remedial provision, allowing Huff to

impose restrictions on a state navigator’s license or levy a fine of up to $1000 for

certain misconduct “or for other good cause.” Id. § 376.2010.1. 

The appellees brought the current suit seeking to enjoin preliminarily the

HIMIA before its enforcement. The appellees challenged several specific HIMIA

provisions, including: the definition of state navigators, see id. § 376.2000.2(4); three

“substantive provisions,” see id. §§ 376.2002.3(3), (5), 376.2008; and the “remedial

provision,” see id. § 376.2010.1. 

 

The district court granted the preliminary injunction, stopping the HIMIA’s

enforcement against federal navigators and CACs. Applying the familiar four-part

test for preliminary injunctions, see Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d

109, 113 (8th Cir. 1981), the district court found the appellees were likely to succeed

on the merits5

 because the ACA preempts the HIMIA. The district court reasoned: 

4

All individuals within the HIMIA’s scope are also called “navigators.” See

Mo. Rev. Stat. § 376.2000.2(4) (defining “Navigator”). To avoid confusion, we refer

to the broadly defined Missouri navigators as “state navigators,” recognizing this

phrase encompasses both federal navigators and CACs. 

5

As for the other named plaintiffs, the district court found it “ha[d] no basis for

believing the other Plaintiffs [were] likely to demonstrate HIMIA imposes any

restrictions or requirements upon them. The Court therefore conclude[d] the other

Plaintiffs ha[d] not demonstrated they [were] likely to succeed on the merits.” 

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[T]he Court is of the view that any attempt by Missouri to regulate the

conduct of those working on behalf of the FFE is preempted. . . .

Missouri has opted not to be in the health insurance exchange business. 

Having made the choice to leave the operation of the exchange to the

federal government, Missouri cannot choose to impose additional

requirements or limitations on the exchange. Doing so frustrates

Congress’ purpose of having HHS operate FFEs in states where no

exchange exists. 

Finding the other three prongs of the preliminary injunction test also favored the

appellees, the district court issued the injunction “preliminarily enjoin[ing]” Huff

“from enforcing HIMIA.” Huff appeals, challenging the district court’s conclusion

that the appellees were likely to succeed on the merits. We affirm the district court’s

order enjoining the HIMIA’s enforcement against CACs as to the three challenged

substantive provisions—Mo. Rev. Stat. §§ 376.2002.3(3), (5) and 376.2008—but

reverse to the extent the order applies to federal navigators or any other portion of the

HIMIA.

II. DISCUSSION

When granting a preliminary injunction, district courts apply “‘a flexible

consideration of (1) the threat of irreparable harm to the moving party; (2) balancing

this harm with any injury an injunction would inflict on other interested parties;

(3) the probability that the moving party would succeed on the merits; and (4) the

effect on the public interest.’” Minn. Citizens Concerned for Life, Inc. v. Swanson,

692 F.3d 864, 870 (8th Cir. 2012) (en banc) (quoting Planned Parenthood Minn.,

N.D., S.D. v. Rounds, 530 F.3d 724, 729 n.3 (8th Cir. 2008) (en banc)). “The decision

to grant or deny a preliminary injunction rests within the discretion of the district court

and will not be disturbed on appeal absent a showing of abuse of discretion.” United

States v. Gannaway, 536 F.2d 784, 786 (8th Cir. 1976). “When purely legal questions

are presented, however, this court owes no special deference to the district court,” 

Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir. 2006), and we review “its legal

conclusions de novo,” Goss, 491 F.3d at 362. 

-5-
A. Preemption

“The general law of preemption is grounded in the Constitution’s command that

federal law ‘shall be the supreme Law of the Land.’” In re Aurora Dairy Corp.

Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781, 791 (8th Cir. 2010)

(quoting U.S. Const. art. VI, cl. 2). “Congress does not cavalierly pre-empt state-law

causes of action.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). “‘In the interest

of avoiding unintended encroachment on the authority of the States, . . . a court

interpreting a federal statute pertaining to a subject traditionally governed by state law

will be reluctant to find pre-emption.’” Heart of Am. Grain Insp. Serv., Inc. v. Mo.

Dep’t of Agric., 123 F.3d 1098, 1103 (8th Cir. 1997) (quoting CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 663-64 (1993)). We thus will not find a law preempted

unless it “‘was the clear and manifest purpose of Congress,’” which “‘may be

indicated through a statute’s express language or through its structure and purpose.’” 

Aurora Dairy, 621 F.3d at 792 (quoting Medtronic, 518 U.S. at 485, and Altria Grp.,

Inc. v. Good, 555 U.S. 70, 76 (2008)). 

“Because the [ACA] contains an express preemption clause, we focus in the

first instance on the plain language of the statute, because it ‘necessarily contains the

best evidence of Congress’ pre-emptive intent.’” Chapman v. Lab One, 390 F.3d 620,

625 (8th Cir. 2004) (quoting CSX Transp., 507 U.S. at 664). Section 18041(d) of

Title 42—titled “No interference with State regulatory authority”—states, “Nothing

in this title shall be construed to preempt any State law that does not prevent the

application of the provisions of this title.” This preemption clause is a narrow one,

and only those state laws that “hinder or impede” the implementation of the ACA run

afoul of the Supremacy Clause. Black’s Law Dictionary 1226 (8th ed. 2004) (defining

“prevent”).

The district court ignored § 18041(d)’s limited preemptive effect. After

invalidating the licensing requirements in Mo. Rev. Stat. §§ 376.2002.1, 376.2004,

and 376.2006—even though the appellees did not argue these provisions were

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preempted—and two of the three challenged substantive provisions, the district court

concluded “any attempt by Missouri to regulate” CACs and federal navigators was

preempted by the ACA. (Emphasis added). Based on this conclusion, the district

court held the ACA entirely preempts the HIMIA as it applies to federal navigators,

CACs, and counselor designated organizations and then enjoined the enforcement of

the HIMIA in total as to those individuals. 

In so doing, the district court may have overlooked a tenet of Missouri law:

The provisions of every statute are severable. If any provision of

a statute is found by a court of competent jurisdiction to be

unconstitutional, the remaining provisions of the statute are valid unless

the court finds the valid provisions of the statute are so essentially and

inseparably connected with, and so dependent upon, the void provision

that it cannot be presumed the legislature would have enacted the valid

provisions without the void one; or unless the court finds that the valid

provisions, standing alone, are incomplete and are incapable of being

executed in accordance with the legislative intent.

Mo. Rev. Stat. § 1.140; see also id. § 376.2014.2 (“If any provision of [the HIMIA]

or its application to any person or circumstance is held invalid by a court of competent

jurisdiction or by federal law, the invalidity does not affect other provisions or

applications of [the HIMIA] that can be given effect without the invalid provision or

application. The provisions of [the HIMIA] are severable, and the valid provisions

or applications shall remain in full force and effect.”). Because the challenged

portions of the HIMIA operate independently of the remainder of the law, only those

provisions actually preempted should be invalidated.

Examining only those HIMIA provisions the appellees directly challenge, see

Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (per curiam)

(explaining a preliminary injunction “must be narrowly tailored . . . to remedy only

the specific harms shown by the plaintiffs, rather than ‘to enjoin all possible breaches

of the law’” (quoting Zepeda v. INS, 753 F.2d 719, 728 n.1 (9th Cir. 1983))), we find

-7-
Mo. Rev. Stat. §§ 376.2002.3(3), (5) and 376.2008, as applied to CACs, are likely

preempted by federal law.6

 We uphold the district court’s preliminary injunction only

as to these three provisions.

1. 2014 Regulations

On July 28, 2014, six months after the district court issued its order, new HHS

regulations became effective. These new regulations clarified the duties of CACs and

specifically addressed the scope of 42 U.S.C. § 18041(d)’s preemption clause as

applied to CACs. See 45 C.F.R. § 155.225(c), (d)(8); Patient Protection and

Affordable Care Act; Exchange and Insurance Market Standards for 2015 and

Beyond, 79 Fed. Reg. 30240, 30270-72 (May 27, 2014). Because the intervening

regulations are relevant to the current dispute, as a threshold matter, we consider the

new regulations’ applicability in this case. 

“‘That a statute shall not be given retroactive effect, unless such construction

is required by explicit language or by necessary implication, is a rule of general

application.’” Molina Jerez v. Holder, 625 F.3d 1058, 1076 (8th Cir. 2010) (quoting

United States v. St. Louis, S.F. & T. Ry. Co., 270 U.S. 1, 3 (1926)). But “[w]hen the

intervening statute authorizes or affects the propriety of prospective relief, application

of the new provision is not retroactive. . . . ‘[R]elief by injunction operates in futuro,’

and [] the plaintiff ha[s] no ‘vested right’ in the decree entered by the trial court.” 

6

At oral argument, the appellees urged this court to enjoin the three substantive

provisions, see id. §§ 376.2002.3(3), (5), 376.2008; the remedial provision, see id.

§ 376.2010.1; the definition of state navigators, see id. § 376.2000.2(4); and the grant

of authority to navigators, see id. § 376.2002.2(2). Because the appellees “did not

raise [the definition and grant of authority] claims in their brief, those claims are

deemed abandoned.” Rang v. Hartford Variable Annuity Life Ins. Co., 908 F.2d 380,

383 (8th Cir. 1990); cf. United States v. Johnson, 710 F.3d 784, 787 n.1 (8th Cir.

2013) (declining to address appellee’s argument raised for the first time at oral

argument). The claim concerning the remedial provision was briefed and is discussed

in Part B, infra. 

-8-
Landgraf v. USI Film Prods., 511 U.S. 244, 273-74 (1994) (quoting Am. Steel

Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 201 (1921)); accord

Viacom Inc. v. Ingram Enter., Inc., 141 F.3d 886, 888-90 (8th Cir. 1998). Although

we examine regulations, not statutes, these same principles apply. See, e.g., United

States v. Santee Sioux Tribe of Neb., 324 F.3d 607, 615 n.4 (8th Cir. 2003) (applying

“newly-amended regulations” under Landgraf); Grove v. Fed. Bureau of Prisons, 245

F.3d 743, 747 (8th Cir. 2001) (citing Landgraf and considering intervening

regulations). Because the appellees seek only forward-looking injunctive relief, we

consider the 2014 regulations in rendering our decision.

To the extent Huff claims HHS exceeded its authority to regulate when

promulgating the 2014 regulations, this argument is misplaced. In the ACA, Congress

delegated to HHS broad authority to “establish standards for navigators,” 42 U.S.C.

§ 18031(i)(4)(A), and to “issue regulations setting standards for . . . the establishment

and operation of Exchanges [and] such other requirements as the Secretary determines

appropriate,” id. § 18041(a)(1)(A), (D). As the Supreme Court has explained, its

“jurisprudence has been driven by a practical understanding that in our increasingly

complex society . . . Congress simply cannot do its job absent an ability to delegate

power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372

(1989) (citing Opp Cotton Mills, Inc. v. Admin. of Wage & Hour Div. of Dept. of

Labor, 312 U.S. 126, 145 (1941)). Given the wide discretion afforded HHS, it was

well within the Secretary’s authority to promulgate these particular regulations.

That HHS had the authority to issue the regulations does not determine whether

the regulations can preempt the HIMIA. “[A]n agency regulation with the force of

law can pre-empt conflicting state requirements.” Wyeth v. Levine, 555 U.S. 555, 576

(2009). The 2014 regulation describing the duties of CACs, see 45 C.F.R.

§ 155.225(c)(1), is a legislative rule carrying the force of law and can preempt the

HIMIA. See Iowa League of Cities v. EPA, 711 F.3d 844, 873 (8th Cir. 2013); Drake

-9-
v. Honeywell, Inc., 797 F.2d 603, 607 (8th Cir. 1986).7

 Section 155.225(d)(8),

however, “simply state[s] what the administrative agency thinks the [ACA’s

preemption clause] means,” and thus is an interpretive rule that does “not have the

force of law.” Iowa League of Cities, 711 F.3d at 873 (quotations omitted). 

Yet despite Huff’s contentions to the contrary, we may accord § 155.225(d)(8)

some weight. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000). The

question of whether § 155.225(d)(8) is to be afforded deference falls squarely under

the reasoning of Wyeth. In Wyeth, the Supreme Court refused to defer to a statement

in the preamble of a Food and Drug Administration (FDA)regulation proclaiming that

its rules preempted state tort law, and the Court noted it had “not deferred to an

agency’s conclusion that state law is pre-empted.” Wyeth, 555 U.S. at 576. The

Supreme Court explained:

While agencies have no special authority to pronounce on pre-emption

absent delegation by Congress, they do have a unique understanding of

the statutes they administer and an attendant ability to make informed

determinations about how state requirements may pose an obstacle to

the accomplishment and execution of the full purposes and objectives

of Congress. The weight we accord the agency’s explanation of state

law’s impact on the federal scheme depends on its thoroughness,

consistency, and persuasiveness. 

Id. at 576-77 (internal citations and quotation omitted). 

Although Wyeth suggests we may give some weight to 45 C.F.R.

§ 155.225(d)(8), we need not do so here because HHS’s understanding of the ACA’s

7

Although we consider an amendment to the original rule, “‘an amendment to

a legislative rule must itself be legislative.’” Iowa League of Cities, 711 F.3d at 875

(quoting Nat’l Family Planning & Reproductive Health Ass’n v. Sullivan, 979 F.2d

227, 235 (D.C. Cir. 1992)).

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preemptive scope is consistent with our independent preemption determination. The

July 28, 2014 regulations reenforce our determination that the ACA preempts the three

challenged substantive provisions of the HIMIA, but these new regulations do not

compel us to reach this result, nor do they supplant our independent preemption

analysis.

With these principles in mind, we turn to the challenged provisions. 

2. Missouri Revised Statutes § 376.2002.3(3)—No Advice

Mo. Rev. Stat. § 376.2002.3(3) states, “[A] navigator shall not . . . [p]rovide

advice concerning the benefits, terms, and features of a particular health plan or offer

advice about which exchange health plan is better or worse for a particular individual

or employer.” The appellees argue this provision conflicts with a CAC’s federally

mandated duty to “[p]rovide information to individuals and employees about the full

range of [Qualified Health Plan]8 options and insurance affordability programs for

which they are eligible,” including the requirement that CACs “clarify[] the

distinctions among health coverage options.” 45 C.F.R. § 155.225(c)(1). Huff

attempts to differentiate between “advice” and “information” and argues there is no

conflict because under the HHS regulations, CACs can give only information, not

advice. 

 In support of his position, Huff posits “advice” means a “‘recommendation

regarding a decision or course of conduct.’” (Quoting Webster’s Third New

International Dictionary 32 (1993)). Huff explains under his definition, CACs only

violate § 376.2002.3(3) if they explicitly state, “‘I recommend,’ or ‘this is the plan you

8

Qualified Health Plans (QHPs) are plans offered through an exchange. See 45

C.F.R. § 155.20 (“Qualified health plan or QHP means a health plan that has in effect

a certification that it meets the standards . . . issued or recognized by each Exchange

through which such plan is offered.”).

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should get,’ or ‘these are the features you should get.’” Under Missouri law, “‘the

primary rule of statutory interpretation is to give effect to legislative intent as reflected

in the plain language of the statute.’” E&B Granite, Inc. v. Dir. of Revenue, 331

S.W.3d 314, 318 (Mo. 2011) (en banc) (quoting Brinker Mo., Inc. v. Dir. of Revenue,

319 S.W.3d 433, 437-38 (Mo. 2010) (en banc)). While “[t]he plain meaning of a term

may be derived from a dictionary,” id., the ultimate construction must “‘be reasonable

and logical,’” Gash v. Lafayette Cnty., 245 S.W.3d 229, 232 (Mo. 2008) (en banc)

(quoting Donaldson v. Crawford, 230 S.W.3d 340, 342 (Mo. 2007) (en banc) (per

curiam)). 

Huff’s confined reading of § 376.2002.3(3) is unreasonable when the HIMIA

is read as a whole. The subsection directly following the HIMIA’s no-advice

provision—Mo. Rev. Stat. § 376.2002.3(4)—forbids CACs from “[r]ecommend[ing]

or endors[ing] a particular health plan or advis[ing] consumers about which health

plan to choose.” If § 376.2002.3(3) is read only to ban CACs from providing a

recommendation, it would make § 376.2002.3(4) superfluous. “This result would

defy the norm of statutory construction that every word, clause, sentence, and

provision of a statute must have effect. [We] presume[] that the legislature did not

insert idle verbiage or superfluous language in a statute.” Civil Serv. Com’n of St.

Louis v. Members of Bd. of Aldermen of St. Louis, 92 S.W.3d 785, 788 (Mo. 2003)

(en banc) (quotations omitted). 

Given § 376.2002.3(3) cannot be read to prohibit only the giving of a

recommendation, we turn to the next dictionary definition of advice: “information or

notice given.” Webster’s Third New International Dictionary 32 (1993). Under this

definition, § 376.2002.3(3) arguably prevents CACs from giving information about

the various health plans offered through the exchange. The appellees thus are likely

to succeed on the merits in arguing the no-advice provision, § 376.2002.3(3), directly

controverts the duties outlined in 45 C.F.R. § 155.225(c)(1).

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The 2014 HHS regulations confirm our conclusion. HHS considers

“[r]equirements that would prevent [CACs] from providing advice regarding

substantive benefits or comparative benefits of different health plans” preempted. 

45 C.F.R. § 155.225(d)(8)(iii). Huff counters this provision by again claiming CACs

are only authorized to give information, not advice. We are not convinced. It is likely

the appellees will succeed in proving Mo. Rev. Stat. § 376.2002.3(3) prevents the

application of the ACA by imposing upon a CAC’s duty to provide information about

different health insurance plans and to clarify the distinctions among these plans. See

45 C.F.R. § 155.225(c)(1).

3. Missouri Revised Statutes § 376.2002.3(5)—No Off-Exchange

Information

TheHIMIA also forbids CACs from giving “any information or services related

to health benefit plans or other products not offered in the exchange.” Mo. Rev. Stat.

§ 376.2002.3(5). But CACs must “clarify[] the distinctions among health coverage

options, including QHPs [and] help[] consumers make informed decisions during the

health coverage selection process.” 45 C.F.R. § 155.225(c)(1) (emphasis added). The

appellees argue the HIMIA’s ban on providing information about off-exchange health

plans prevents them from fulfilling these duties. 

Contrary to Huff’s claims, the relevant laws and regulations do not limit CACs

to discussing only those plans offered on the exchange. As the appellees explained

in their brief and at oral argument, there are situations where CACs must provide

information about an off-exchange health plan to give consumers a full understanding

of their options. For example, if a consumer already covered by an off-exchange

insurance plan seeks information about switching to an on-exchange plan, the CAC

assisting the consumer necessarily must discuss the off-exchange plan to “clarify[] the

distinctions” between that plan and exchange plans to “help [the consumer] make

informed decisions during the health coverage selection process.” 45 C.F.R.

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§ 155.225(c)(i). Further, the clause “clarif[ies] the distinctions among health coverage

options, including QHPs,” id. (emphasis added), suggests CACs must inform clients

of the differences between a number of health care plans, including—but not limited

to—those offered through the exchange.

It is likely the appellees will succeed in showing the HIMIA requirement that

state navigators refrain from providing information about health insurance plans not

offered through the exchange may prevent CACs from informing consumers about the

full range of health care available to them and “clarifying the distinctions among

health coverage options,” 45 C.F.R. § 155.225(c)(i).

4. Missouri Revised Statutes § 376.2008—Consult an Insurance

Producer 

Mo. Rev. Stat. § 376.2008 requires that “[u]pon contact with a person who

acknowledges having existing health insurance coverage obtained through an

insurance producer, a [state] navigator shall advise the person to consult with a

licensed insurance producer regarding coverage in the private market.” It is likely the

appellees will be able to demonstrate this provision contravenes a CAC’s duty to

provide “fair, impartial, and accurate information” about insurance options, 45 C.F.R.

§ 155.225(c)(1). 

Under Missouri law, the term “insurance producer” includes both insurance

brokers and agents. See Mo. Rev. Stat. § 375.012.3. Insurance agents in Missouri

generally represent the interests of insurance companies, not the insured, and thus owe

no duty to the insured. See Emerson Electric Co. v. Marsh & McLennan Cos., 362

S.W.3d 7, 12 (Mo. 2012) (en banc). Insurance brokers do owe fiduciary duties to the

insured, but these duties are limited and do not require brokers to provide complete

and impartial information. See id. at 9-10. For example, in Emerson Electric, the

Missouri Supreme Court found a broker, who was paid by commission, had no “duty

to find insureds the lowest possible cost insurance available to meet their needs.” Id.

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at 9. Sending consumers to insurance providers may prevent CACs from providing

those consumers with only “fair, impartial, and accurate information,” 45 C.F.R.

§ 155.225(c)(1).

In addition, the 2014 regulations declare as preempted any “[r]equirements that

[CACs] refer consumers to other entities not required to provide fair, accurate, and

impartial information,” which apparently includes Missouri insurance producers. 

45 C.F.R. § 155.225(d)(8)(i). Huff contends the HIMIA does not prevent the

application of § 155.225(d)(8)(i) because it does not require CACs to “refer” clients

to insurance producers and instead requires CACs to “advise [clients] to consult with”

insurance producers, Mo. Rev. Stat. § 376.2008. This distinction is unpersuasive. As

written, the HIMIA requires CACs to recommend certain clients consult with private

insurance producers—an act falling within the plain meaning of “refer.” Webster’s

Third New International Dictionary 1907 (1993) (defining refer as “to send [or] direct

for treatment, aid, information, or decision”).

As with the other provisions discussed, it is likely the appellees can establish

Mo. Rev. Stat. § 376.2008 interferes with federal law by preventing CACs from

performing their federally required duties.9

9

The appellees express concern that §§ 376.2002.3(3), (5) and 376.2008 may

also impose upon their freedom of speech, as guaranteed by the First Amendment. 

Because we find these sections are likely preempted by federal law, we do not reach

the First Amendment issue.

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B. Missouri Revised Statutes § 376.2010.1—Due Process Void for

Vagueness

Because it enjoined the entire act on preemption grounds, the district court did

not reach the appellees’ due process claim. The appellees challenge the HIMIA’s

remedial provision—Mo. Rev. Stat. § 376.2010.1—as being void for vagueness in

violation of the Due Process Clause. Section 376.2010.1 states: 

The director may place on probation, suspend, revoke, or refuse

to issue, renew, or reinstate a navigator license or may levy a fine not to

exceed one thousand dollars for each violation, or any combination of

actions, for any one or more of the causes listed in section 375.141,

375.936 or for other good cause. 

(Emphasis added). The appellees claim the phrase “or for other good cause” is

impermissibly vague, in violation of due process, because it “does not provide fair

notice of what is prohibited” and “creates the opportunity for arbitrary and

discriminatory enforcement.” 

“‘It is well established that vagueness challenges to statutes which do not

involve First Amendment freedoms must be examined in the light of the facts of the

case at hand.’” Gallagher v. City of Clayton, 699 F.3d 1013, 1021 (8th Cir. 2012)

(quoting United States v. Mazurie, 419 U.S. 544, 550 (1975)); accord Maynard v.

Cartwright, 486 U.S. 356, 361 (1988) (“Vagueness challenges to statutes not

threatening First Amendment interests are examined in light of the facts of the case

at hand; the statute is judged on an as-applied basis.”). Although the appellees argue

this provision will chill speech because it “empowers the Director to penalize

individuals who wish to talk about insurance but not to be licensed as navigators,” this

argument is based on a misreading of § 376.2010.1.

The appellees interpret the statute as penalizing individuals who violate the

HIMIA’s other sections. However, § 376.2010.1 only allows the director to limit a

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state navigator’s license for misconduct such as fraud, misrepresentation,

misappropriation of funds, and unfair practices. See Mo. Rev. Stat. §§ 375.141.1,

375.936. The appellees’ fear that § 376.2010.1 empowers the director to punish them

merely for engaging in the speech required of a CAC is unfounded.

Because § 376.2010.1 does not implicate the First Amendment “in light of the

facts of the case at hand,” Maynard, 486 U.S. at 361, the appellees are not likely to

succeed on the merits of their facial vagueness claim. See Gallagher, 699 F.3d at

1021-22. 

III. CONCLUSION

We affirm the order preliminarily enjoining the enforcement of Mo. Rev. Stat.

§§ 376.2003.3(3), (5) and 376.2008 against CACs, and we vacate the remainder of the

preliminary injunction, remanding the case back to the district court.

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