The Kansas Attorney General's Office weighed in today on a bill that would add restrictions for the application counselors who help people enroll in health coverage through the new federal marketplace in Kansas.
Among those testifying before the Senate Public Health and Welfare Committee on Senate Bill 362 was Deputy Attorney General Jeff Chanay.
"The attorney general has long been concerned about the potential for identity thieves, fraudsters or others with criminal intent to become a health care navigator and use that position to gain access to Kansas consumers' personal information," said Chanay, speaking before the Senate Public Health and Welfare Committee.
Sec. Sebelius letter to Kansas Attorney General regarding health insurance navigators
States 'invited to regulate'
Chanay said Attorney General Derek Schmidt and his counterparts in 12 other states sent a Jan. 2 letter to U.S. Health and Human Services Secretary Kathleen Sebelius expressing their worries.
Sebelius, in a Jan. 6 reply, said "states are free to enact such provisions so long as they do not prevent" navigators from doing their job.
"Secretary Sebelius recognized the problem and essentially invited the states to enact regulations to ensure the integrity of the individuals who operate as health care navigators. For these reasons, the attorney general is a strong supporter of the concept behind this bill," Chaney said.
But he said the Attorney General's Office was neutral on the bill because safeguards could be deployed in other ways than proposed in the bill.
Among those testifying against the measure was Cathy Harding, executive director of the Kansas Association for the Medically Underserved. KAMU is one of three organizations in the state that received federal funding to train the application counselors or "navigators."
Kansas Insurance Department testimony on SB 362
"There needs to be safeguards in place to protect consumers' information. We have completed national background checks on all of our navigators. We've done that all along ..." Harding said.
"Safeguards are already in place. They're working in the private sector without unnecessary government regulation. If the intent of Senate Bill 362 is to protect the welfare of Kansas citizens, I do not believe it will succeed. In fact, I think it will have just the opposite effect. It will make it nearly impossible for navigators in our state to do their work," she said.
The Wichita Independent Business Association was also among those opposing the measure, and submitted written testimony:
"WIBA members do not support federal health reform and would like to see it repealed. However, it is the law of the land and WIBA members are struggling to find quality, cost-effective health care for their employees ... This oversight increases the size and cost of government ... SB 362 would increase the burden on WIBA members and would potentially remove a helpful tool for them to use in these trying times."
The proposed legislation would require navigators to be certified by the Attorney General's office after undergoing a criminal background check and credit check. The navigators would be finger printed and required to pay initial and annual fees to do their work.
The bill also would forbid navigators from offering "advice about which health insurance plan is better or worse for a particular individual or employer."
It was introduced by Sen. Mary Pilcher-Cook, the Shawnee Republican who chairs the committee. She has been one of the Legislature's more vocal and persistent opponents of the Affordable Care Act, commonly referred to as Obamacare.
Pilcher-Cook said the bill was spurred by national news reports in October that a navigator in Kansas had an outstanding bench warrant. Rosilyn Wells, an outreach worker at the Heartland Community Health Center in Lawrence, was issued the bench warrant by a Shawnee County District Court for failure to pay more than $5,000 in medical debts.
The proposal is similar to one recently blocked by a federal court in Missouri.
Tim Jost, a national expert on the Affordable Care Act, wrote in his blog that the Jan. 23 Missouri ruling determined such laws "conflict directly with the federal law requirement that navigators 'distribute fair and impartial information' about health plans. The court held that providing information is indistinguishable from providing advice."
The fiscal note attached to the bill by legislative researchers reported that defending the bill — should it be passed into law — could cost the state as much as $75,000.
Sheldon Weisgrau, director of Health Reform Resource Project, told KHI News Service after the hearing that he thinks if the bill is enacted, it would be vulnerable to a challenge in court, too.
"The judge in the Missouri case stated very clearly that the law would prevent navigators from doing their jobs and create impermissible obstacles to people obtaining health insurance," Weisgrau said. "So, I don’t believe (Sebelius') letter would have any bearing on the judge’s ruling."
The committee took no action on the bill but is expected to vote on it later this week.
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