Web Site: House Hearings a Blame Game

Since the debut of the site on October 1, when most potential enrollees could not get onto the site, there has been much criticism and placing of blame.  In the U.S. House of Representatives, both the Committee on Oversight and Government Reform and the Energy and Commerce Committee recently held hearings to assign responsibility for its failure to launch.  At a hearing of the Energy and Commerce Committee on October 24th, representatives of two of the contractors involved, CGI Federal and Quality Software Services, Inc., testified that they warned CMS the system had not been adequately tested and was not ready to go live. Rep. Diana Degette (D. Col.) noted that the witnesses had not mentioned that more testing was needed when they testified in September.

The following week, HHS Secretary Kathleen Sebelius testified before the same committee. She conceded that the rollout of the web site was “a debacle” and apologized. Still, she said she was not aware of the specific issues regarding any failed testing or security gaps. She promised the site would be performing optimally by the end of November. But developments since then suggest that the promise may be impossible to keep.

On November 6th, Tony Trenkle, CMS’ Chief Information Officer, who was responsible for the security of the web site, announced his resignation after it was revealed that he and two other CMS officials had signed off on a “risk acknowledgement” stating that the agency’s plan for ongoing monitoring and testing would “not reduce the (security) risk to the … system itself going into operation on October 1, 2013.”   The possibility that adequate security controls would not be ready was raised in an OIG report in August. The auditors found that CMS was behind schedule in its assessments of the security of the data hub used to exchange data among agencies. In July 2013, the agency extended the deadline for a final review of the security of the site to September 30, 2013, the day before the web site would launch. CMS Director Marilyn Tavenner signed off on the launch on September 27th, after Trenkle and other officials had signed the risk acknowledgement.

House Oversight Committee Hearings

On November 13, 2013, Rep. Darrell Issa (R.- Calif.) presided over a hearing of the House Committee on Oversight and Government Reform, at which several high-level HHS information technology ( IT) officials, a representative of the Government Accountability Office (GAO), and Todd Park,  Chief Technology Officer at the White House Office of Science and Technology, testified about the efforts to fix the system, and management issues that contributed to the inadequacy of the site. The committee members asked many questions about the decision, made in mid-September, to eliminate the “anonymous shopping” feature of and require visitors to create an account and register first. Issa asked nearly every witness whether anyone in the administration had made that decision to prevent “sticker shock” when potential enrollees saw the premiums they would have to pay. Henry Chao, Deputy Chief Information Officer and Deputy Director of the Office of Information Services at CMS, stated that the feature was pulled because it  had failed during testing; Issa contended that it actually had passed security testing in September, and repeated his allegation. Chao admitted that the “end-to-end” security testing had not been completed before the launch, but insisted that his responsibilities were largely limited to specific operational issues, primarily the data hub, which he stated was not part of the security problem.

Todd Park agreed with other witnesses that best practices would require testing to begin several months before the launch date. He was not involved in the development of but was brought in to work on the fix after October 1. He stated that the site now can process 17,000 applications per hour and that the response time for a user request, such as loading a page, had been reduced from eight seconds to less than one second.

David Powner, GAO’s Director of Information Technology Management Issues, testified that GAO had studied government IT acquisitions and development for years, and cost overruns and delays were common. Most recently, GAO studied successful projects at several different agencies to learn why they succeeded. He determined that there were specific best practices, particularly in program management, that were necessary for success. Among them were involvement of all stakeholders, including end users, in setting the scope of the project, the prioritization of requirements by program management, and maintaining regular communication between the agency officials and the prime contractor. GAO has developed and published best practices for government IT acquisition, and the Office of Management and Budget (OMB) also has resources available. OMB established a Dashboard to track agencies’ IT acquisitions, but Powner testified that agencies often do not enter the information accurately and timely. The project consistently showed a “green light” status, notwithstanding the delays and difficulties.

Richard Spires, former Chief Information Officer at the Department of Homeland Security, testified similarly with respect to best practices in government IT acquisition. He also noted that CIOs need to have more control over their projects and that it is important that the person with ultimate responsibility for managing the project be a staff member at the agency rather than an outside contractor. In response to a question from the committee, he stated, “Outsourcing doesn’t work.”

The Committee’s Focus

Many of the committee members made lengthy statements about their opposition to the health reform law in general. Several times, they asked witnesses questions they could not reasonably be expected to answer. For example, an IT witness was asked what law Secretary Sebelius referred to when she told Congress that the law required that the site be up and running on October 1. Todd Park was asked how many people had enrolled in a plan.

Rep. Stephen Lynch (D-Mass.) expressed concern that outreach workers found the requirement to have an email address was the biggest obstacle to the enrollment of low-income people and the elderly through the web site.



Outcry Over HealthCare.Gov Launch Almost Matches Outcry Over Medicare Part D Launch

This blog recently examined the similarities between the partial government shutdown in 1995/96 and the recently ended shutdown of 2013 (Government Shutdown, 1995—1996: The More Things Change….). The country (or at least Washington, D.C.) is experiencing another bout of déjà vu, this time involving the glitch-filled launch of the website that individuals can use to sign up for health insurance. In 2006, the federal government rolled out what was at that point the biggest new health care benefit in 40 years – Medicare Part D – and that rollout featured its own share of glitches, and similar calls for delays, requests for amendments, and the filing of lawsuits.

To review, Medicare Part D, the prescription drug benefit, was included as part of the Medicare Modernization Act of 2003. Enrollment for the new benefit started November 15, 2005. So the time period between enactment of the law and its full implementation was slightly more than two years, compared to the three-and-a-half year rollout of the Affordable Care Act. Like the Navigators that are helping individuals sign up for new health coverage (see “Attorneys General for 13 States Raise Concerns Regarding Exchange Navigators,”) the Bush administration in 2005 provided assistance to help train local partners, such as the State Health Insurance Assistance Programs, senior centers, faith-based organizations and others to guide beneficiaries in making choices about prescription drug coverage.

By the end of 2005, about 24 million Medicare beneficiaries had signed up for a Part D plan, 1 million voluntarily and the rest because they were dually eligible for Medicare and Medicaid or were enrolled in a Medicare managed care plan.


By the beginning of 2006, however, problems with the implementation of the plan became more public. Some residents of long-term care facilities who had signed up for Part D coverage through pharmacies located in the facility where they lived were told the LTC’s pharmacy did not qualify to offer prescription drug benefits; CMS had to issue further guidance to ensure that coverage residents had paid for was honored.

Medicare Part D required that individuals who were dually eligible for Medicare and Medicaid but received a drug benefit through Medicaid would receive the benefit through a Part D plan as of January 1, 2006. But many Medicaid recipients discovered that had no drug coverage at the beginning of the year because their Medicare Part D coverage had not started yet. Many states had to provide temporary coverage for this vulnerable population until the Part D benefit became available. At the end of February, CMS Administrator McClellan told the National Governors’ Association that his agency was working to ensure that states are repaid quickly for the drug costs they covered as the Medicaid population transitioned to Part D. The Bush administration later reimbursed the states for this temporary coverage.

Then-CMS Administrator Mark McClellan, at a February 2, 2006, hearing of the Senate Special Committee on Aging, said he was “very concerned” about the ability of seniors to obtain their drugs when they visited the pharmacy. He acknowledged the Medicare Part D program had some glitches, but said the CMS was doing what it could to address them. “We are finding and fixing them,” he said.

Dual Eligibles

At that hearing, Committee Chairman Gordon Smith (R-Ore.), said that although more than 24 million beneficiaries had enrolled as of mid-January, there had been significant problems with the system. “It is most unfortunate that many of the problems reported involve the so-called dual eligibles. These often are the poorest and most vulnerable Americans who rely on medications to manage their chronic physical and mental illnesses,” he said.

A report issued by the HHS Office of Inspector General in January 2006 noted that dual eligibles were particularly vulnerable to problems navigating the new benefit options because they faced greater health and resource challenges than other Medicare beneficiaries. Thirty-eight percent of dual eligibles had cognitive or mental impairments. Over a third were disabled. On average, dual eligibles used at least ten more prescription drugs than non-dual eligible beneficiaries.

Problems with dual eligibles were the focus of another hearing in mid-February, this time by the Senate Finance Committee. Chairman Charles Grassley (R-Iowa) said. “Things have not gone as well as they should have. I’m not going to let up on this until it’s crystal clear that the agency has gotten the start-up issues under control.”

On February 15, 2006, then HHS Secretary Michael Leavitt told the House Energy and Commerce Committee that it was too early for Congress to enact legislation to address Medicare Part D problems. He acknowledged glitches, but said the administration could address them through regulation. In addition, he emphasized, seniors already were experiencing “substantial savings” as a result of the benefit. “This is a good deal for seniors,” he said.

In response to critics, Leavitt also explained that an extension of the May 15, 2006, deadline for signing up for plans was not needed. Seniors were signing up at a rate of 250,000 per week, Leavitt said, adding that he expected between 28 million and 30 million people to enroll in the first year.

Medicaid Clawback

42 U.S.C. §1396u-5(c) (Social Security Act sec. 1935) required that all states “shall provide” for paying the Secretary a portion of the costs of providing drugs under Part D to dually eligible  individuals as set by the statutory formula. CMS calculated what each state owed based on the statutory formula and sent each state an annual bill describing the state’s monthly clawback payments. If the states did not pay the required amount, the federal government would offset the amount owed, plus interest, against the share of federal Medicaid reimbursement  that it would have otherwise received.

In March, the states of Texas, Kentucky, Maine, Missouri, and New Jersey asked the U.S. Supreme Court to hear their claim that the requirement that states contribute to financing the Part D prescription drug benefit for dual eligibles imposed a discriminatory tax upon them and infringed on their budgetary processes, in violation of constitutional principles. The states argued that the “clawback” provision was unconstitutional because it taxed the states in their sovereign capacities, commandeered the appropriations powers of state legislatures to fund the Medicare program, and violated the states’ rights to a republican form of government.

The Court denied the states’ request.

Enrollment Deadline

Throughout the spring, members of Congress asked the Bush administration to extend enrollment past the May 15, 2006 deadline. “A deadline at some point is necessary, but May 15 does not seem like an appropriate date given all the confusion, the complexity and the errors,” said Rep. Pete Stark (D-Calif) at a House committee hearing in early May. Various proposals floated at the time would have extended the deadline to the end of the year. McClellan said a deadline was necessary to spur seniors to sign up for the benefit. “Seniors are focusing in on this because of the deadline,” he said.

By the time the May 15 deadline came, 30 million Medicare beneficiaries had signed up for the benefit.  When McClellan returned to the Senate in June for another hearing on the program, enrollment had surged to 38 million beneficiaries, or 90 percent of eligible beneficiaries.


Congress Requests Cost Data on Expanding Medicaid to Inmates Cycling Out of Jail

Fred Upton (R-Mich), Chairman of the House Energy and Commerce Committee, and Joseph Pitts (R-Penn.), Chairman of the Health Subcommittee, have sent a letter to Gene L. Dodaro, Comptroller General of the United States, requesting that the Government Accountability Office (GAO) review the projected Medicaid costs associated with jail inmates due to the Patient Protection and Affordable Care (PPACA) (P.L. 111-148) expansion. In their letter, the Congressman cite a recent webinar by the Center for Health Care Strategies (CHCS), Inc., entitled “Preparing for Medicaid Expansion: Ensuring Health Care Access for Individuals with Criminal Justice Involvement,” as a basis for their concern that the Medicaid expansion under PPACA will divert Medicaid benefits from their originally intended purpose, the assistance of children, pregnant women, the disabled, and low-income seniors. The Congressman specifically request that the GAO analyze federal Medicaid costs and enrollment data for: (1) inmates and detainees for costs associated with allowable inpatient treatment and (2) for inmates that have been released into the community and are newly eligible for Medicaid due to the PPACA expansion.

Effect of Medicaid Expansion

According to CHCS, approximately 90 percent of those entering jails today have no health insurance, with health costs paid predominantly by states or counties. Despite the fact that Medicaid funding under PPACA is not available for health care services provided within jails or prisons, the center predicts that: (1) six to seven million individuals cycling out of jails are likely to qualify for Medicaid because approximately 60 percent of jail inmates have a pre-arrest income of less than 138 percent of the federal poverty level (the new PPACA eligibility level); (2) depending on state decisions to expand Medicaid, three to four million could enroll in Medicaid; and (3) individuals cycling out of jails could represent up to 30 percent of the total 2014 Medicaid expansion.

Behavioral Health and Substance Use Disorders

CHCS estimates that among individuals involved in the criminal justice system: (1) more than 50 percent of the jail-involved have a diagnosable substance use disorder; (2) 14.5 percent of men and 31 percent of women in jail have a serious mental illness; and (3) over 70 percent of people in jails with serious mental illness also have a co-occurring substance-use disorder. The center believes that these disorders contribute to the high rate of recidivism among inmates and suggests that improved treatment of these disorders through Medicaid coverage could lower the recidivism rate. In its webinar, CHCS suggests that jails and other correctional centers could serve as Medicaid enrollment centers through the use of HHS and Department of Corrections staff along with state and community assistance.

Challenges Remain

CHCS recognizes several challenges remain in the enrollment and treatment of prison inmates in Medicaid, including: (1) staff training, (2) funding, (3) identity verification, (4) unknown release date for non-sentenced population, (5) potential lag prior to health plan enrollment, and (6) provider competencies in treating justice-involved populations.


CHCS is a non-profit health policy resource center dedicated to improving services for Americans receiving publicly financed care. CHCS is funded by HHS and through private donations.

Breaking News: Government Shutdown- Impact on HHS



A majority of HHS employees will be furloughed as a result of the impasse in Congress regarding passage of a continuing resolution (CR) to fund federal government operations until December 15, 2013. According to an HHS contingency staffing plan, 52 percent of HHS employees will be furloughed. This includes 65 percent of CMS employees and 45 percent of FDA employees. HHS had 78,198 employees as of October 1, 2013; a total of 40,512 will be furloughed. CMS had 5,994 employees; 3,881 will be furloughed. The FDA had 14,779 employees; 6,620 will be furloughed.

 Activities relating to the new health insurance marketplaces instituted under the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148), and which open today, October 1, are unaffected by the stand-off in Congress.

 Appropriations provided under the Consolidated and Further Continuing Appropriations Act, 2013 (P.L. 113-6) expired at midnight September 30. The Senate rejected a House version of the CR that would have provided funding for government operations through December 15, but would have delayed the individual mandate to purchase health insurance under PPACA until October 1, 2014. The House-passed CR also amended the Internal Revenue Code to repeal the 2.3 percent excise tax on medical devices that was instituted under PPACA.

 CMS Operations

The HHS contingency plan notes that CMS activities related to implementation of PPACA are largely unaffected by Congress’ failure to agree on a continuing resolution. In particular, CMS will still provide support to state-based marketplaces in determining which people signing up for health insurance are eligible for Medicaid. CMS will continue providing insurance rate reviews for plans offered in the new marketplaces.  The Medicare program will continue uninterrupted and both Medicaid and the Children’s Health Insurance Program are fully funded.

 On the other hand funding has stopped for CMS’ health care fraud and abuse strike force teams. In addition, CMS will reduce the number of recertification and initial surveys for Medicare and Medicaid providers.

FDA Operations

The FDA will continue limited activities related to its user fee-funded programs including the activities in the Center for Tobacco Products. The agency also will continue maintaining critical consumer protection to handle emergencies, high-risk recalls, civil and criminal investigations, import entry review, and other critical public health issues. The FDA will retain sufficient staff to inspect regulated products and manufacturers, conduct sample analysis on products and review imports offered for entry into the U.S.

 The FDA will cease safety activities such as routine establishment inspections, some compliance and enforcement activities, monitoring of imports, notification programs, and the majority of the laboratory research necessary to inform public health decision-making.