Did Sebelius Have the Authority to Delay Obamacare Website Launch?

CMS Administrator Marilyn Tavenner says she doesn’t know the answer.

HHS Secretary Sebelius
National Journal
Sophie Novack
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Sophie Novack
Nov. 5, 2013, 8:51 a.m.

Cen­ters for Medi­care and Medi­caid Ser­vices Ad­min­is­trat­or Mar­ilyn Taven­ner said Tues­day that she did not know wheth­er Health and Hu­man Ser­vices Sec­ret­ary Kath­leen Se­beli­us had the au­thor­ity to delay the Oct. 1 launch of Health­Care.gov.

The CMS of­fi­cial test­i­fied be­fore the Sen­ate Health, Edu­ca­tion, Labor, and Pen­sions com­mit­tee on the rocky rol­lout of the Obama­care en­roll­ment web­site.  

Taven­ner’s state­ment came as Sen. Richard Burr, R-N.C., ques­tioned her on the de­cision to go ahead with the sched­uled launch date des­pite in­dic­a­tions that there were se­cur­ity is­sues with the site.

Burr brought up a CMS memo dated Sept. 27 that said in­suf­fi­cient test­ing “ex­posed a level of un­cer­tainty that can be deemed as a high risk,” just a few days be­fore the site went live. The memo — signed by Taven­ner — gran­ted au­thor­ity to pro­ceed with the web­site launch.

“I think in this case, be­cause of the vis­ib­il­ity of the ex­change, the chief in­form­a­tion of­ficer wanted to make me aware of it, and I agreed to sign it, with their re­com­mend­a­tion to pro­ceed,” Taven­ner said, ex­plain­ing that no one else, in­clud­ing Se­beli­us, re­viewed that de­cision.

“My ex­pect­a­tion was that the site would work, but have the cus­tom­ary glitches of any new site,” she said of the Health­Care.gov launch.

Law­makers have tried to get to the bot­tom of what ex­actly was known about the ex­tent of the web­site’s prob­lems pri­or to Oct. 1, and who made the ul­ti­mate de­cision to go ahead with the sched­uled launch date des­pite in­dic­a­tions of trouble.

HHS did not im­me­di­ately re­spond to a re­quest for com­ment on wheth­er Se­beli­us had that au­thor­ity.

Here today’s ex­change:

Burr: “Sec­ret­ary Se­beli­us said last week that the im­ple­ment­a­tion took place on Oct. 1 be­cause that was the law. Now let me ask you: I’ve read the act sev­er­al times. My in­ter­pret­a­tion is that Sec­ret­ary Se­beli­us had the au­thor­ity not to ex­ecute that on Oct. 1 — and clearly my in­ter­pret­a­tion — if you had not signed the au­thor­ity to op­er­ate the web­site, it would not have stood up on Oct. 1. Are my two state­ments ac­cur­ate?”

Taven­ner: “I don’t know that your state­ments are ac­cur­ate. The law says that Jan. 1 is when in­di­vidu­als have to have cov­er­age. We put a reg­u­la­tion in place that said Oct. 1 would be the day we would start, so that people would have time to sign up. We did — we de­clared the six-month en­roll­ment win­dow.”

Burr: “Do you think that the sec­ret­ary had the au­thor­ity to waive the Oct. 1 reg­u­la­tion?”

Taven­ner: “I do not know the an­swer to that ques­tion.”

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