Despite excitement over creative marketing strategies (“brosurance,” anyone?), the launch of the Affordable Care Act hasn’t gone as planned. The new website has faced technical difficulties since it went live on October 1st. The website is intended to be the main way to sign up for one of the government’s health care exchange programs, and it has been the focus of growing controversy. As people attempted to sign up for insurance on the website, many were met with repeated error messages. Media outlets filled airtime with demonstrations of the waiting process.

On October 30th, Kathleen Sebelius, Secretary of the U.S. Department of Health and Human Services, testified in front of the House Committee on Energy and Commerce. Sebelius tried to answer questions about the website’s glitches. The problems weren’t just technical; the problems were in the website’s design. Consumers had to sign up before comparing prices — a defect Sebelius said rested squarely with Centers for Medicaid and Medicare (CMS) contractors.

On November 1st, news outlets reported that only 6 people were able to sign up for health insurance on the website’s first day, followed by 248 on day two. The Obama administration has not released any official estimate of the number of people who have purchased insurance, but millions need to do so in order for the new healthcare law to function as intended.

With so many parties involved in the website’s development and implementation, it’s obviously impossible to place all the blame on any one individual or organization. However, things could get even more complicated if the government decides to file lawsuits against any of the 55 contractors reportedly involved in setting up the exchanges. If contractors haven’t met their obligations to help get the website up and running, the government may have grounds to recover some of the funds it’s poured into the process. At the same time, the government likely needs these same contractors to stay on the job and fix the website’s problems. QSSI, for example, has been tapped by Health and Human Services as the lead in fixing the website’s problems, and it was also the contractor hired to create the data hub for the exchange.

All this, however, will continue to be mere speculation until the government releases the content of the agreements it had with these contractors. For example, a “best efforts” clause in the contracts could mean that the contractors didn’t necessarily guarantee their portions of the website would work, and may preclude a government suit. Another possibility is that there may already be qui tam suits pending under seal. (Some statutes, and especially government procurement laws, allow qui tam suits — meaning a private citizen with knowledge of alleged fraud could file suit on behalf of the government.)

A decision to litigate would be complicated. The Obama administration has an interest in getting the website and the exchanges running, and could decide that the public doesn’t want to see any more finger-pointing. Government contractors want to get the problems fixed, and they want to be trusted with more contracts in the future. At the same time, the bipartisan fallout over the website’s failure thus far doesn’t seem to be going away, and someone may have to answer in court to satisfy both the critics and supporters of the law.

–Elizabeth Mulkey

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One Response to Legal Battles Over

  1. Shannon Han says:

    A hacktivist tool aimed at launching denial of service attacks at has recently been uncovered, although research indicates that it did not play a part in the sites failures when it went live. It may however be used as another pawn for the contractors when they attempt to claim that the site’s failures were not their doing.

    Also, my understanding of Qui Tam suits (under the False Claims Act) in this situation would require actual fraud against the government. It seems more likely that any claims against the contractors would be for negligence or breach of contract rather than actual fraud given the little information we know.