Despite a provision in state law that requires it, the members of the board of directors who oversee Gov. Butch Otter’s health insurance exchange began their work more than a month ago without being confirmed by the Senate. As the board continues its work in establishing the operations of the insurance exchange, the issue of whether or not the Senate will actually take up the confirmation of board members remains uncertain.

“The appointing of the board members happened after the Legislature wrapped up this year,” Rep. Kelley Packer, R-McCammon, a member of the insurance exchange board told IdahoReporter.com. “The Senate simply hasn’t had the opportunity to vote on this matter this year because they haven’t met since the appointments.”

Packer added that the insurance exchange law only requires board members who are not also legislators to receive Senate confirmation.

Within the bill that the Legislature passed and the governor signed that created the insurance exchange, a stipulation reads that “the members appointed to the board by the governor shall be subject to confirmation by the Senate, provided that, upon appointment board members shall have full authority to exercise all the rights and duties, and participate in all decisions, required of the position.”

According to Brian Kane, deputy attorney general, Otter was able to navigate around the need for Senate confirmation of the board members because of how he timed their appointments.

“The insurance exchange bill was signed in to law by Gov. Otter on March 28,” Kane explained to IdahoReporter.com. “The Legislature adjourned on April 4 of this year, and then the governor appointed the board members on April 10. According to Article 4 Section VI of the Idaho State Constitution, the governor can fill vacancies on boards by himself when the Senate is not in session, so the governor’s appointments stand without Senate confirmation, and this was all done in accordance with the law and the constitution.”

During the last session of the Legislature, a central point of debate was whether or not the Idaho health insurance exchange would be overseen adequately by those in elective offices or merely by appointees of the governor.

For example, at a February meeting of the Senate Commerce and Human Resources Committee, Sen. Branden Durst, D-Boise, said that “legislators need to think very carefully whether or not we want to abdicate our authority to a governing board,” adding “why is it that the governor, the executive branch, seems to have final authority over this?” Durst was the only member of the committee to vote against the insurance exchange bill, and the only Democrat to vote against it in the full Senate.

Similarly, in March, House Majority Leader Mike Moyle, R-Star, debated against the insurance exchange bill, noting that the exchange would be a non-governmental entity “consisting of unelected folks who will tax us and make our decisions.” He asked his fellow House members, “Have you really read this bill? If you want a state exchange, then have the state involved in running it for cryin’ out loud.”

IdahoReporter.com asked Kane if the Senate would vote to confirm the governor’s board member appointees when it convenes next year. “I presume so, but I can’t comment on that with certainty,” he replied. “I am not expert in the intricacies of gubernatorial appointees so I suggest you ask the Senate and the governor’s legal counsel.”

Senate Pro Tem Brent Hill, R-Rexburg, told IdahoReporter.com that he will consult with the attorney general’s office before deciding the next steps. “I honestly haven’t thought that far ahead on the insurance exchange board,” he noted, “but I suspect we will probably need to hold a vote on this next year.”

Kane told IdahoReporter.com that if the Senate votes to not approve one or more of the governor’s board appointees, then that person(s) would likely be removed from the board. “A rejection of that sort actually happened earlier this year,” he said, in reference to the Senate rejecting Otter’s appointment of Joan Hurlock to the Idaho Fish and Game Commission back in February. “Presumably, it could happen again.”