National Review – by Jillian Kay Melchior
One in seven of New Mexico’s certified Obamacare navigators had a match in the Federal Bureau of Investigation’s National Crime Information Center (NCIC) database, according to public records obtained by National Review Online.
In total, 38 health-care guides or certified application counselors received their certification despite a match, according to records from the New Mexico Office of the Superintendent of Insurance (OSI), which certifies navigators working with the New Mexico Health Insurance Exchange.
A hit in the NCIC does not necessarily reflect a criminal conviction. The database can include, for example, arrest records and criminal cases that were dismissed or led to an acquittal, according to the FBI.
An NCIC background check is “a tool for finding out if there may be an issue. It’s not a tool for knowing that there is one,” says Aaron Ezekiel, the OSI’sdirector of Affordable Care Act Implementation Projects.
The records obtained by NRO did not specify how many of the 38 navigators with NCIC hits had been convicted of a crime. Health and Human Services secretary Kathleen Sebelius told Congress late last year that it was “possible” for convicted felons to be working as navigators.
When navigators sign up people for health coverage under the Affordable Care Act, they have access to private information, including Social Security numbers, financial data, and health records.
Certified New Mexico navigators had been charged with crimes including: eight domestic-violence charges, including aggravated battery and aggravated assault of a household member; four drug charges; two larceny charges; one petty-theft charge; one shoplifting charge; and two child-abuse charges. There were also several driving-related charges, including DWIs, DUIs, and speeding or traffic crimes. In at least two instances, navigators had traffic charges for lacking insurance.
The OSI does not retain records regarding which organization employs the navigators with NCIC matches, and the New Mexico Health Insurance Exchange would not disclose that information to NRO.
The OSI’s certification process was carefully crafted to protect the public, Ezekiel says. The OSI receives navigator applications from New Mexico’s health exchange, running them through the NCIC system by name, date of birth, and Social Security number. Applicants who have committed a significant financial crime or were listed on the sex-offender registry are automatically disqualified.
For other navigator applicants who trigger NCIC hits, three OSI experts then review the results, assessing on a case-by-case basis whether a navigator should receive certification. For example, a 20-year-old shoplifting conviction for an otherwise upstanding citizen might not be disqualifying, while a recent fraud charge could be.
“We’ve been very careful not to provide licensure to anyone we thought was a risk,” says Ezekiel, who was among the three OSI officials reviewing background-check results and making the certification decisions. He adds that while “reasonable people could disagree about this, of course,” the existence of NCIC hits shouldn’t in itself cause alarm.
“We left ourselves very deliberately a category of, ‘Wow, that makes me uncomfortable,’” Ezekiel continues. “It didn’t fit a specific category, but if we felt like we didn’t want to take the risk of this person. . . . It’s not a right to become a health-care guide. It’s a privilege. And we want to make sure that the people who are doing it have the best interests of the public in mind.”
In 2010, New Mexico passed the Criminal Offender Employment Act, which states that a criminal conviction “shall not operate as an automatic bar to obtaining public employment or license.” It forbids state agencies from asking about criminal convictions on the initial employment application, allowing it to be considered only when a candidate becomes a finalist.
New Mexico’s application for health-care “guides” notes that “the appearance of past offenses in a background check will not automatically exclude the Candidate from consideration and will be evaluated on a case by case basis.”
Debra Hammer, spokeswoman for New Mexico’s health exchange, says, “We definitely believe in second chances, and people have a right to be gainfully employed.” The 38 navigators with charges flagged “are no longer in adjudication,” she says. “Their employers also do background checks, and these are past crimes that they have paid their dues on.”
But Pam Wiseman, executive director of the New Mexico Coalition Against Domestic Violence, said the number of domestic-violence charges in particular was unsettling.
“People who commit child abuse [or] domestic violence may not always be the best people to provide assistance to others who are vulnerable,” she says. “These are not minor crimes, and they need to be scrutinized carefully.”
Not all states have review processes in place that are as extensive as New Mexico’s.
In Massachusetts, “there is no law or regulation requiring background checks for our Navigators,” Jason Lefferts, director of communications for the Commonwealth Health Connector, tells NRO by e-mail. “The organization[s] we partner with as Navigators are trusted, known community partners to us. . . . As we selected Navigators, we did not make them undergo checks.”
Other state exchanges, including those in Colorado, Maryland, and Washington, have established guidelines that include basic offenses that would be disqualifying, but they rely heavily on their partners outside the public sector to conduct background checks and make hiring decisions about navigators.
NRO has submitted several records requests in states operating their own exchanges, and it is suing in Nevada to obtain information about navigators with a criminal history.
— Jillian Kay Melchior is a Thomas L. Rhodes Fellow for the Franklin Center for Government and Public Integrity.