NHeLP Comments on Identity Verification

NHeLP Comments on Identity Verification

Executive Summary

NHeLP Comments to Covered California This letter to Covered California outlines potential enrollment barriers for vulnerable populations who apply on-line under the federal identity proofing policy and includes specific recommendations for the state to help minimize the harm of the policy.

November 21, 2013
Diana Dooley, Chairwoman
Peter Lee, Executive Director
Covered California
560 J Street, Suite 290
Sacramento, CA 95814
RE: ID Proofing Policy for on-line applications via Covered California
Dear Ms. Dooley and Mr. Lee:
We are writing to express concerns about the potential barriers to enrollment created by the enhanced ID proofing requirement.   Due to the federal government?s new requirements for ID proofing that was released in June 2013 through guidance (and not in regulations), Covered California must now revise its existing ID proofing policy to comply with the new federal rules.  Yet we are concerned that the enhanced ID proofing is too restrictive for California?s state-based exchange and will harm a number of vulnerable populations in California based on our state?s demographics.  Given the existing technology challenges to enrollment faced by consumers in the federally facilitated and state-based exchanges, this enhanced ID proofing policy could lead to unintended consequences and keep millions of Californians (as well as Americans) from being able to apply for coverage via the streamlined application in the comfort of their own home.  If so, this could further erode support for the Affordable Care Act (ACA), including from those who could most benefit from the ACA.
While we understand Board action is required today to comply with federal instructions, we support the Board approving this policy on a temporary, 90-day basis at this time.  First, we believe federal guidance for ID proofing allows state-based exchanges, such as Covered California, additional flexibility and are working with staff to ensure California takes advantage of this flexibility to the fullest extent possible.  We appreciate your staff?s ongoing efforts to try to mitigate the harm of this policy on Californians.  In addition, as advocates who represent low-income and other vulnerable consumers, the National Health Law Program and the Western Center on Law and Poverty will also raise these concerns directly with the federal government in the next several months and request certain changes to this policy.
Background
Based on CMS? ?Guidance Regarding Identity Proofing for the Marketplace, Medicaid, CHIP, and the Disclosure of Certain Data Obtained through the Data Services Hub?(dated June 11, 2013)(hereinafter referred to as ?CMS Guidance?) and Covered California?s October 2013 board brief and draft regulation, all applicants and application filers ?who file an online and telephone application without enrollment assistance – will be required to have their identity verified before they can even start and complete an application and receive an eligibility determination.  An individual ideally will be able tPo have his/her identity electronically verified in real-time, but if not, he/she will have to take additional steps and provide further documentation to prove his/her identity, just to be able to start an application. This new enhanced ID proofing is required by the federal agencies for privacy safeguards so that an applicant?s application information can be verified in real time against the information in the federal data services hub (FDSH).
Based on available guidance, for both the federally facilitated and state-based marketplaces, the first step in the ID proofing process is referred to as Remote Identity Proofing Process (RIDP) and entails an applicant?s ID be electronically verified via a credit reporting agency (either Experian or Equifax Working Solutions).  If an applicant?s ID cannot be electronically verified in this first step, the applicant/application filer will be referred to the Experian Help Desk for telephone assistance to complete an electronic verification.  CMS has distributed the enclosed FAQ which provides details of this second step with the Experian Help Desk.  If an applicant/application filer still cannot have his/her ID verified in this second step, he or she must complete a manual verification of identity by providing a copy of an acceptable ID document to the marketplace or Medicaid agency by mail, electronic upload, fax or in-person.  Per the FAQ, the Experian Help Desk will not be able to assist consumers with this manual verification process or help accept documents from consumers.
Consumer Concerns
We are concerned that the enhanced ID proofing is unnecessary.  We agree and support that consumers? personal data should be safeguarded and not easily accessible and thus some type of ID proofing is needed when applying on-line.  However, Covered California has already been operating with ID proofing.  Furthermore, the benefit of this enhanced ID proofing is unclear.  First, the CMS Guidance states that income information from the Internal Revenue Service (IRS) will not be accessible to the applicant even with the changes to the ID proofing because the level of ID proofing still does not meet IRS data sharing requirements.  Second, there are concerns on how accurate this real time verification against the credit reporting agencies? database will actually be.  Finally, the request for SSN for ID proofing is problematic.  Per the CMS guidance, a Social Security Number (SSN) is NOT to verify identity through this process, but it is unclear how an individual could verify his/her identity electronically without an SSN.  However, requiring an SSN from an application filer, who is likely a non-applicant, in order to verify his/her ID would violate existing federal prohibitions of requiring an SSN of a non-applicant.
Yet we are most concerned that the enhanced ID proofing policy will create a new enrollment barrier for low-income and vulnerable Californians.  The new stricter ID proofing policy assumes that the majority of on-line applicants will be able to easily verify their identity through this real-time system.  This ID proofing policy applies to all applicants and application filers; however, the policy will disproportionately create barriers for lower income Californians and likely those in most need of coverage.
Verification of identify through the credit reporting agency requires an individual to have a well-documented financial history sufficient to be able to establish a credit history.  This would require individuals to have open lines of credit in terms of loans, credit cards, mortgages, and banking history.  However, certain populations of Californians do not have access nor use these financial services and thus will not be able to prove their identity electronically at the first or second steps of the process under the current policy.  In effect, these individuals have no alternative but to prove their identity through the manual process of providing Covered California or Medi-Cal a copy of certain acceptable identification.  These individuals also may not have acceptable identity documents for the same reasons their identity cannot be verified electronically.
Many vulnerable populations may not be able to provide proof of identify via a credit report or a limited set of acceptable identity documents for a variety of reasons.  For example, 38% of low income households in the U.S are ?unbanked? or ?underbanked? ? those who do not have bank accounts or credit cards or have little in the way of the proper financial documentation to have a credit history to verify against.   This includes communities of color, self-employed, part-time workers, freelancers, contractors, younger individuals (including former foster youth), immigrants, and homeless individuals.
In addition, seniors, younger individuals, and minorities are most likely to not have the proper identity documents.  For example, when the Medicaid citizenship documentation requirements were implemented in 2006, it was estimated that 1-2 million Americans would not have the appropriate documents to prove citizenship and identity.   In Wisconsin, the identity documentation requirements proved more of a barrier than citizenship documentation for Medicaid enrollees under the new federal rule.   Furthermore, transgender individuals and individuals recently released from incarceration may not have current identity documents and may have challenges obtaining current identity documents.
We understand the need to ensure the person applying for coverage is who they say they are, yet the current electronic ID proofing policy may be too strict given other policies and protections.
First, the CMS guidance states that an individual?s personal and sensitive data from the federal data services hub will not be able to be seen by the applicant, even to someone who has proved his/her identity under the enhanced ID proofing.  This information may only be accessible to the marketplace or Medicaid/CHIP agencies in order to conduct its eligibility determination for Medicaid, CHIP or APTCs.  Second, this policy targets and creates challenges only for consumers who attempt to apply on their own on-line or by phone.  For instance, those who apply via a paper application, a signature is sufficient to prove identity.  Consumers who seek assistance from navigators or enrollment assistors can have the assistors verify their identity without going through the electronic verification of ID. Thus, it is counter-intuitive to think that consumers may be advised that applying via a paper application is easier than applying on-line under the enhanced ID proofing.
Recommendations
Below are suggestions for immediate ways that California can mitigate the harm of enhanced ID proofing policy.  We have shared these suggestions with Covered California staff and appreciate their consideration of our recommendations, some of which they have already taken into account.
1) We recommend clear notice be provided to on-line and telephone applicants that ID proofing is required, what it entails, and that electronic verification of ID will not affect one?s credit report.
2) We recommend the list of acceptable documentation to prove identity for those who cannot be electronically verified (described in the draft regulations at (e)(2)(ii)) be expanded to the fullest extent possible. The CMS guidance indicates that a ?Marketplace, state Medicaid agency, or state CHIP agency may accept additional documents, provided that these documents are described in the Marketplace/agency?s security artifacts.?
We suggest that Covered California adopt the list of identity documents allowed under existing Medi-Cal citizenship documentation rules.  See California Department of Health Care Services? (DHCS) All County Welfare Directors? Letter 08-29, pages 6-7 and DHCS Enclosure 2, pages 8-9.  See also Title 42 Code of Federal Regulations Section 274a.2(b)(1)(v)(B)(1).  In addition, California?s voter ID regulation includes additional acceptable ID documents that we recommend be included among Covered California?s acceptable identity documents.  See Title 2 California Code of Regulations Section § 20107 (2006)
3) We recommend Covered California and Medi-Cal explicitly add the ability for an applicant to email a copy of his/her identity documents in addition to regular mail, fax, in-person, or electronic upload to CoveredCA.com.  We also recommend that additional alternatives to bringing ID in person be created.  We appreciate that applicants are able to mail, fax, or upload a copy of acceptable ID; however, we are concerned that the additional burden of showing ID in person simply to start an online application will likely lead to individuals not following up due to simple inconvenience.  Best practices from the private sector and lessons learned by California when the Medicaid citizenship documentation requirement was implemented in 2006 may be helpful in developing alternatives to in-person verification.

4) We recommend that an on-line applicant be able to start his/her application even if his/her ID cannot be electronically verified and that he/she has an opportunity to ?save? the application on-line and be able to return to this application after verification of identity.  We recommend that the application date be preserved for on-line and telephone applicants who attempt to start the application process, but are unable to complete the application due to the enhanced ID proofing policy.

5) We recommend that applicants be given and notified that they have a reasonable opportunity period to provide proof of identity through an alternative process if they are unable to verify ID electronically.

6) We recommend on-line or telephone applicants be provided clear notice from the onset about the ID proofing requirements and be instructed that there are alternative ways to apply if they do not want to have their identity verified electronically.
7) We recommend clear instructions be provided to on-line or telephone applicants who fail the first step of the ID proofing process on the alternative methods of providing proof of identity ? the Experian Help Desk, in person, mail, or electronic upload.  We also recommend that an applicant who fails the first step of ID proofing also be instructed that he/she can choose to forgo the Experian Help Desk verification and go directly to other manual verification options.  Finally, we recommend that an applicant who fails ID verification on-line be offered an option to complete a paper application.
8) We recommend Covered California, Medi-Cal, and CalHEERS develop metrics and reporting mechanisms to track successful and unsuccessful attempts to verify ID under the enhanced ID proofing.  We also recommend that the time between the first attempt to start an application and submission of the application for an eligibility determination post ID verification be tracked to document the application delays caused by the enhanced ID proofing.  We also recommend tracking of the number of applicants who do not have the required ID documents to manually verify their identity.
9) We recommend Covered California and Medi-Cal periodically evaluate and update the list of acceptable identity documents that can be used to manually verify identity.
Thank you for considering our recommendations and we look forward to working with your staff to ensure low-income and vulnerable Californians can apply for affordable health care without significant hurdles despite this enhanced ID proofing policy.  If you have any questions, feel free to contact Sonal Ambegaokar at ambegaokar@healhtlaw.org or Elizabeth Landsberg at elandsberg@wclp.org.
Sincerely,
Sonal Ambegaokar and Byron Gross, National Health Law Program
Elizabeth Landsberg and Jen Flory, Western Center on Law and Poverty
cc:
Board Member Kimberly Belshé
Board Member Paul Fearer
Board Member Susan Kennedy
Board Member Dr. Robert Ross

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