‘TELEPHONIC SIGNATURE’? As of Jan. 1, Obamacare Forces States to Accept Applications ‘Signed’ by Voice

The Obama administration’s interest in creating a streamlined application process for Medicaid, CHIP, and subsidized health insurance via the state Obamacare exchanges has come at the expense of effective security and fraud prevention.

As of January 1, 2014, this easing of requirements now includes the mandate that states accept applications completed entirely via telephone. Rather than require such applications be later accompanied by the electronic or mailed transmission of a signed document, HHS instead requires states to accept a spoken assent on a telephone call as the equivalent of an actual signature.

Says J. Christian Adams, PJ Media legal editor and former DOJ attorney:

Perjury prosecutions are impaired by telephone signups. Signing on a dotted line has been the core means of assent for hundreds of years, and even computerized signatures have a means of verifying that the person signing is real.

This is the administration inviting fraud.

The Affordable Care Act, as passed, does not mandate the acceptance of “telephonic signature.” The relevant passage -- Section 1413(b)(1)(a) -- only requires that applications “may be filed online, in-person, by mail, or by telephone.” Relevant regulations issued by HHS did not initially mandate telephonic signature, either. See 42 CFR 435.907, which only required “a written application from the applicant, an authorized representative, or, if the applicant is incompetent or incapacitated, someone acting responsibly for the applicant.”

However, on March 23, 2012, Section 435.907 was revised. This revised section went into effect on January 1, 2014. It included the new part (f):

(f) The agency must require that all initial applications are signed under penalty of perjury. Electronic, including telephonically recorded, signatures and handwritten signatures transmitted via any other electronic transmission must be accepted.

The comment-and-response process which resulted in the new part (f) is available here. Note that the comments include scant discussion regarding any expressed need or desire for the mandated acceptance of telephonic signatures. Part (f) simply appears later in the document, and is now in effect.

On August 9, 2013, the Center for Medicaid and CHIP Services issued a document titled "Medicaid and CHIP FAQs: Telephonic Applications." This document included the following passage:

2. Voice Signatures: All applications must be signed (under penalty of perjury) in order to complete an eligibility determination. In the case of telephonic applications, states must have a process in place to assist individuals in applying by phone and be able to accept telephonically recorded signatures at the time of application submission. If applicable, states can maintain their current practices of audio recording and accepting voice signatures as required for identity proofing.

With this document, CMS offered guidance to the states regarding enactment. But CMS left unaddressed both the motivations behind the issuance of this regulation, and how telephonic signature can provide any level of security or fraud prevention.

Why the interest in forcing states to mandate acceptance of telephonic signatures?

Perhaps the answer lies with Enroll America, the Obamacare enrollment organization that was exposed late last year by James O’Keefe for violations of its non-profit status.