Attorney General Greg Abbott joined Gov. Rick Perry on Wednesday in requesting additional state oversight of the federal navigators who are helping Texans sign up for health insurance through the online marketplace created by the Affordable Care Act.
“Inexplicably, the federal government has failed to enact safeguards that are necessary to properly protect Texans’ privacy, so I am deeply concerned about the threat of identity theft,” Abbott said in a statement. “Given the Obama administration’s apparent indifference to the seriousness of these problems, I am thankful that Texas officials are stepping up and moving toward meaningful protections for Texans.”
After Perry requested that the Texas Department of Insurance establish additional regulations for federal navigators in September, the agency held an informal hearing to obtain public input on the governor's proposal. The majority of the people at that hearing were Democrats, recipients of the federal navigator grants and trained navigators who testified against Perry’s proposals.
Abbott and 12 other state attorneys general also raised concerns in September about the privacy protections in the federal navigator program in a letter sent to U.S. Health and Human Services Secretary Kathleen Sebelius. The agency has not responded.
In a letter sent to Texas Insurance Commissioner Julia Rathgeber on Tuesday, Abbott requested that the agency enact state regulations to ensure federal navigators did not put Texans’ private information at risk, and said the staff of the attorney general’s office is available to provide legal advice on establishing additional consumer protections.
John Greeley, a spokesman at TDI, said the agency is reviewing the contents of Abbott’s letter and continuing to follow the rule-making steps outlined in the agency’s administrative code.
“It’ll be the same process as other rules, and that process does include public hearings normally, and it will this time,” he said. The rule-making process could take several months, he said, because the agency plans to post an informal draft of the rules, invite the public to comment, and then post a revised version of the proposed rules and receive additional public input.
President Obama’s signature health reform law requires most Texans to carry health insurance in 2014. Texas' Republican majority, which vehemently opposes the federal health law, declined to establish a state-based insurance marketplace, so the federal government is doing it instead. The federal health insurance marketplace, which launched on Oct. 1, has experienced myriad technical problems and requires individuals to input sensitive tax information, including their Social Security numbers and estimated annual income, to determine whether they qualify for tax credits to purchase coverage.
To help uninsured Texans use the complicated new system, the federal government awarded nearly $11 million in August to local organizations charged with hiring and training navigators, who will help consumers input their financial information and pick a health plan through the federal marketplace. At least two organizations that received navigator grants in Texas have backed out of the program in response to the political pressure. The navigators must undergo 20 to 30 hours of training, pass a certification test and renew their certification annually, according to the U.S. Department of Health and Human Services.
At the informal hearing held by TDI in September, state Sen. Kirk Watson, D-Austin, said he feared legislation he authored to ensure navigators could effectively help Texans find coverage in the federal marketplace had been wrongly co-opted by Perry in an effort to derail implementation of the Affordable Care Act.
“These provisions were put in place to prevent precisely what I fear may be in motion here today,” Watson said at the informal hearing. “And that is a politically motivated effort to circumvent federal and state law concerning navigators and an even larger coordinated nationwide effort to shut down implementation of the Affordable Care Act.”
Watson told the agency that Senate Bill 1795, which he authored in the last legislative session, requires TDI to make a “good faith effort” to work with the U.S. Department of Health and Human Services to improve the federal navigator rules before implementing additional state rules. Only after “a reasonable interval” does the law allow the insurance commissioner to begin a rule-making process.
TDI said the stakeholder meeting was scheduled to address concerns raised by state leaders regarding the inadequacy of consumer privacy protections in the federal navigator program. Before the meeting was held, TDI sent a letter to Sebelius stating that concerns had been raised about the consumer privacy protections in the navigator program, and invited the federal government to participate in TDI's stakeholder meeting.
Federal officials said some of the rules Perry ordered the state insurance department to implement are forbidden under U.S. law. For example, navigators are not allowed to retain or report information on consumers who sign up for coverage through the exchange; therefore, they could not submit that information to TDI, as Perry has requested. The federal agency also emphasized that navigators are not allowed to access consumers’ information after it has been submitted to the exchange.
Some medical professionals and advocates have objected to the privacy concerns raised by conservatives, suggesting they are politically motivated. For example, navigators must already comply with state and federal laws governing the privacy of sensitive medical information. If they do not adhere to strict security and privacy standards, including how to handle and safeguard consumers’ Social Security numbers and identifiable information, they are subject to criminal and civil penalties at both the federal and state level. The federal government imposes up to a $25,000 civil penalty for violating its privacy and security standards.
This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.