HHS Seeks Birth Control... For Deer

    These days, mentioning birth control and the Department of Health and Human Services (HHS) in the same sentence will likely draw some strong reactions. But a recent contractor inquiry by HHS for its National Institutes of Health (NIH) campus in Bethesda, Maryland adds a new wrinkle. This time, the focus is on deer.
     The NIH site in Maryland is a 500-acre research facility, fully enclosed with a nine-foot perimeter fence and access gates. Lately, the campus has been, relatively speaking, overrun with deer; in this case, overrun means an estimated population of thirty to forty. A Youtube video taken earlier this year on the campus near the access gates illustrates the dilemma in which NIH finds itself:

    As the video shows and the documents say, "[t]he campus is densely developed with few remaining open spaces suitable as deer habitat.  The property is surrounded by high density residential and commercial development."  After mentioning that hunting has never been permitted on campus, the HHS document deadpans that "there are no non-human predators present that are capable of limiting a deer population," a fact for which NIH employees are no doubt grateful. So now that the deer population has reached "a level that is incompatible with some local land uses," NIH is seeking a solution and seems to have settled upon birth control: specifically, ovariectomies.
    Apparently thinking long-term, NIH is not looking for a contractor simply to perform the initial work, but one that can train NIH veterinary staff to perform the operations in the future:

The National Institutes of Health (NIH), Office of Research Services (ORS), within the Office of the Director (OD) has a requirement to provide the NIH with wildlife expertise for the control of the deer population on the Bethesda Campus.  The contractor will perform ovariectomies on adult female deer, provide tagging and provide expert advice for humanely controlling the deer population.   Additionally, the contractor will provide training of NIH veterinary staff in the performance of ovariectomies in deer.

    The NIH plan includes using tranquilizer darts to catch an appropriate number of does to sufficiently regulate the size of the deer population. After the operations, the does will be monitored for infection and treated for pain as well before being released. And although hunting is still forbidden on campus, NIH is taking no chances. One of the requirements of the contract is that "[a]ll ovariectomized animals will be fitted with livestock ear tags labeled 'Do Not Consume'."

Note: A version of this post first appeared at The Weekly Standard.

HHS Silent on New, Unfilled 'Chief Risk Officer' Position

    Nearly two months after Health and Human Services (HHS) Secretary Kathleen Sebelius announced that her agency would create a new Chief Risk Officer (CRO) position to prevent a repeat of the Healthcare.gov debacle, the position is apparently still unfilled.  HHS, however, has continued to solicit and award the very information technology (IT) contracts that the new CRO was intended to oversee.
    On December 11, 2013, Sebelius announced a directive to Centers for Medicare and Medicaid Services (CMS) Administrator Marilyn Tavenner to create the Chief Risk Officer position and appoint someone to fill the role. However, CMS has been silent about the position so far, and the CMS organizational chart still does not include a CRO.  Although Sebelius set no deadline for creating or filling the position, the secretary implied urgency by saying that the new CRO would be required to report back in 60 days with recommendations.
    When Sebelius announced her intent to create the CRO position, she made the following statement:

The Chief Risk Officer’s first assignment will be to review risk management practices when it comes to IT acquisition and contracting, starting with identifying the risk factors that impeded the successful launch of the HealthCare.gov website.  I will ask this individual to report back to me in 60 days with recommendations for strategies to mitigate risks in future large-scale, CMS contracting and IT [information technology] acquisition projects.

    Despite the fact the the CRO position is unfilled and possibly still undefined, CMS has continued to solicit and award IT contracts.  On December 24, CMS awarded a $3.6 million contract for "Operations, Maintenance, and Data Conversion of the Waiver Management System and Medicaid Model Data Lab."
    Earlier, just two days after Sebelius's announcement, CMS posted a notice that the agency was seeking sources for a major "Enterprise System Development" contract that is "required to support critical Medicare, Medicaid and Affordable Care Act (ACA) Federal Healthcare Marketplace business functions," and that the contract "encompasses the full range of mission support capabilities that are needed by CMS... to operate, maintain, and modernize CMS' systems with a priority on enterprise approaches."
    Additionally, in early January CMS revealed that the major Healthcare.gov contractor, CGI Federal, would be replaced by Accenture just one month before the end of the current Obamacare open enrollment period.
    Total contracting activity by CMS, information technology-related and otherwise, has actually picked up considerably since Sebelius's announcement.  In all, 22 contracts awards, solicitations, or sources-sought notices have been posted by CMS since December 11 compared to 9 in the 60 days preceding the announcement.
    In addition to the new CRO position, there were two other steps announced by Sebelius in December.  One was a request to the inspector general of HHS to conduct a thorough review of the contracting and management process that led to the Healthcare.gov debacle.  Since inspector general cases often take months to plan and execute and the IG does not comment on ongoing investigations, there is no information available yet on that review's status.
    The other step involved improving "CMS employee training on best practices for contractor and procurement management, rules and procedures."  Although it is unclear how much training, if any, has taken place since December 11, CMS went ahead with its 2014 Contracting with CMS Conference on January 31 as reported by THE WEEKLY STANDARD in December. Among the topics were "The Good, The Bad, & The Ugly of Contract Proposals" and "Why Past Performance is Important."
    Neither CMS or HHS has responded to an inquiry about the status of the CRO position.


Note: A version of this post first appeared at The Weekly Standard.

HHS "Corrects" Obamacare Rule, Waives Comment Period and 30-Day Delay

    On New Year's Eve day, a Department of Health and Human Services (HHS) rule correction was entered in the Federal Register related to an Affordable Care Act rule that had been finalized two months earlier.  The published version of the rule entitled (in part) ‘‘Patient Protection and Affordable Care Act; Program Integrity" , subpart M (‘‘Oversight and Program Integrity Standards for State Exchanges’’), failed to include a cross-reference to the small business health options program (SHOP) Exchanges section of the regulations. This "technical nonconformity" meant that SHOP's were not subject to the new rule.  Since HHS believed the intent of the original rule was clear, the correction was made without the usual comment period and 30-day delay before the rule would take effect in 2014.
    The substance of the correction is explained in the Federal Register as follows:

On page 65095, in the Federal Register of October 30, 2013, we added subpart M ‘‘Oversight and Program Integrity Standards for State Exchanges’’ to the regulations text at 45 CFR part 155. While it was clear from the preamble and regulations text that subpart M applies to all Exchanges, including small business health options program (SHOP) Exchanges, due to an oversight we inadvertently omitted cross-referencing new subpart M at § 155.705(a) of the regulations in part 155, subpart H—Exchange Functions: Small Business Health Options Program. Accordingly, we are revising § 155.705(a) so that the regulations in part 155 consistently reflect our policy that all Exchanges, including SHOP Exchanges, must carry out the required functions of an Exchange that are set forth at subpart M. We are correcting § 155.705(a) by adding a cross reference to subpart M, so that the provision reads, ‘‘Exchange functions that apply to SHOP’’. The SHOP must carry out all the required functions of an Exchange described in this subpart and in subparts C, E, K, and M of this part, except..."

    The notice explains that the comment period and 30-day delay may be waived "if the Secretary finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the findings and the reasons therefor in the rule issued."
    In late November, the Obama administration announced that online enrollment for the federally facilitated SHOP's would be delayed for a year due to problems with the Healthcare.gov site.  The SHOP program, however, is still available to businesses through brokers, and is also available for businesses in states operating their own online insurance exchanges.


Note: A version of this article first appeared at The Weekly Standard.

Government Remains Silent on Emergency, No-Bid Obamacare Financial Management Contract

    Even before the October 1 launch, concerns were mounting over the ability of the government to handle the implementation of the Affordable Care Act (ACA), or Obamacare.  Though many expressed those concerns publicly, insiders at the White House, Health and Human Services (HHS), and the contractors hired to design and run the site and its programs were largely silent about potential pitfalls, or at least downplayed them.  However, some internal memos and reports have since come to light as the "glitches" mounted.  But at least one red flag is hiding in plain sight, and the impacts of the serious concerns expressed in an HHS document first reported on by THE WEEKLY STANDARD on September 16 are still looming against a fast-approaching January 1 deadline.
    In testimony before Congress on Tuesday,  Deputy Chief Information Officer Henry Chao for the Centers for Medicare and Medicaid Services (CMS) addressed a heretofore largely overlooked element of the federal government's role in Obamacare's ongoing functions: what happens beginning in 2014.  The website roll out problems have obscured the larger issue of the ongoing responsibilities of CMS.  But, as Politco reports, Chao spoke to some of those issues on Tuesday:

Financial management tools remain unfinished, he said, particularly the process that will deliver payments to insurers... 

The functions need to operate correctly so insurers can enroll the right people in the right plans. That process, called reconciliation, has to work so people can get the care they seek starting as early as Jan. 1. 

...“back office” functions, including accounting and payment systems, were not yet complete.

    Last Thursday, President Obama said that the problems of Healthcare.gov stem from the fact that it is "very complicated.  The website itself is doing a lot of stuff."  While there may be room for debate about whether Healthcare.gov rivals Amazon or Travelocity in complexity, arguably the real work of the ACA still lies ahead: this financial management of ACA functions over the long haul to which Chao referred.  While the current functions of the website may be complex, the financial management functions that CMS needs to have in place by January 1 are far more involved.  Details of these functions and the concerns CMS expressed about its readiness and ability to carry them out are contained in a Justification and Approval that accompanied the awarding of a no-bid, emergency contract to Novitas Solutions, Inc. in early August of this year.
    THE WEEKLY STANDARD in September reported the $11.6 million contract award, noting that in early August CMS had recognized that the "specialized financial management services and expertise are needed beyond what was initially anticipated and beyond CMS' currently available resources," and that development and testing, at that point less than two months from the October 1 launch and less than five months from the January 1 effective date of new coverage, were "already minimally two months overdue."
    The document is remarkable both for its dire warnings and its candor. CMS disclosed that the need had "reached an unusual and compelling level of urgency. The prospect of a delay in implementing the Marketplace by the operational date of January 1, 2014, even for a few days, would result in severe consequences, financial and other..." and "...if payments are not made and debts are not collected, with critical consideration given to timeliness, accuracy and integrity, the Agency's implementation and operation of the Marketplace and the Affordable Care Act will certainly be jeopardized."  These statements are part of a rather lengthy narrative describing the tenuous position in which CMS found itself, but it is worth an extended look to appreciate the magnitude of the task with which CMS believed it was faced and the level of CMS's concerns regarding the dire circumstances that would likely result from any further delay [emphasis added]:

Since enactment of the Affordable Care Act and establishment of the new Marketplace, CMS has been actively developing and refining new and existing procedures and requirements to ensure the successful implementation and operation of the new, complex Marketplace. Throughout every phase of implementing such a large and dynamic program of a kind that has never been done before and as requirements and procedures are being developed and are emerging, CMS continues to learn, evolve and gain insight. As the deadline for implementing the new Marketplace nears, the Agency has been assessing and testing its plan and solution for implementing the new Marketplace. With every unknown and variable encountered, CMS has been leveraging resources and changing, refining and retesting its solution, to not only ensure that the Marketplace is operational on January 1, 20l4, but to ensure that this vital part of the Affordable Care Act is operating effectively and efficiently with as little complication as possible. CMS has recently learned that specialized financial management services and expertise are needed beyond what was initially anticipated and beyond CMS' currently available resources... 

With the impending and mandated October 1, 20l3 Marketplace enrollment and January 1, 2014 go-live deadlines nearing, CMS' need for contractor-provided financial management services has reached an unusual and compelling level of urgency. The prospect of a delay in implementing the Marketplace by the operational date of January 1, 2014, even for a few days, would result in severe consequences, financial and other. The effect of those consequences would most importantly be measured by the impact to the estimated millions of Americans and small businesses that have no health care today or access to affordable health care. Furthermore, if payments are not made and debts are not collected, with critical consideration given to timeliness, accuracy and integrity, the Agency's implementation and operation of the Marketplace and the Affordable Care Act will certainly be jeopardized.
In addition to the urgent and compelling nature of this requirement and the potential for financial and other harm to the Government if the Marketplace is delayed, regrettably CMS does not have enough time to conduct a full and open or limited competition. Acquiring contractor financial services to assist CMS in developing and testing its Marketplace financial activity implementation solution is already minimally two months overdue; therefore, the contractor will be working under an accelerated and fast-tracked schedule...

    The document goes on to describe how CMS arrived at the decision to award the no-bid contract to Novitas, a contractor that already does a considerable amount of work for CMS.  The approval was signed by no fewer than nine CMS officials, up to and including  Chief Operating Officer A. Michelle Snyder.
    The type of work to be done by Novitas is quite extensive and is itemized in the project description:

The contractor shall provide financial management, accounting and reporting services in support of CMS' administration and oversight of the Marketplace financial activities and functions using CMS' accounting system, the Healthcare Integrated General Ledger Accounting System (HIGLAS) to include: accounting, printing and mailing, tracking of accounts receivable and accounts payable, documenting funds collected by CMS, data validation, activity reporting, debt management functions, application of receipts to appropriate transactions, referral of debt to the Department of the Treasury (Treasury), specified batch payment functions in HIGLAS, and systems interface testing and support for HIGLAS functionality.

     The contract announcement and accompanying documents are not completely clear how these activities translate into functions to carry out the ACA and support Healthcare.gov. For example, regulations governing the marketplaces say that an "Exchange may establish a process to facilitate through electronic means the collection and payment of premiums to QHP issuers."  It remains unclear if Healthcare.gov offers such a facilitation process yet, or if that feature will be activated later. (Maryland recently announced that its state-run exchange was indefinitely suspending the bill-pay feature.)
    In any case, as another example, CMS will be responsible for facilitating the payment of the advance tax credits for consumers receiving government subsidies for their plans.  The regulations describing that one function alone reveal a complex formula to determine how, when, and to whom the funds should be remitted, and notifications and other requirements regarding the disposition of the credits.
    However, since the exact nature of the contractor's work remains unclear, we contacted CMS on September 26 to ask for clarification on the contract, and how the work related to the ACA and its functions.  The following email was received in reply:

    However, despite repeated followup email requests, no further information has been received from Mr. Olague or anyone else at CMS in the seven intervening weeks.  A similar email to the contractor, Novitas, was answered promptly, but the company declined to provide further details and referred questions back to CMS.
    The lack of proper operational and security testing of Healthcare.gov that was revealed in the last month and a half give rise to serious questions about the readiness of other areas under CMS's purview related to Obamacare.  Though the agency acknowledged back in August that development and testing were "already minimally two months overdue," there has been no  publicly available update on the status of the Obamacare financial management system until Chao's rather vague testimony on Tuesday that the system may be 60% or so complete.  Without some level of transparency from CMS, the public has no way of knowing if CMS's warnings of "severe consequences, financial and other" will materialize, or whether concerns that the "Agency's implementation and operation of the Marketplace and the Affordable Care Act will certainly be jeopardized" have been adequately addressed.


Note: A version of this article first appeared at The Weekly Standard.

HHS Cancels November Conference for Contractors

    Last Thursday, representatives from four of the main contractors working on various aspects of the implementation of the Affordable Care Act testified at a Congressional hearing.  The contractors were hired by the Centers for Medicare and Medicaid Services (CMS), the division of the Department of Health and Human Services (HHS) that is responsible for administering the Obamacare insurance exchanges.  The testimony revealed a disturbing lack of coordination and communication between CMS and the contractors throughout the development period for the website, as well as related tasks.
    As if on cue, late Friday afternoon CMS announced the cancellation of a conference originally scheduled for November 4 entitled "Contracting with CMS Conference".  The conference was announced on September 16 with the following flyer:

    The announcement of the indefinite postponement that appeared on Friday afternoon read:

THIS NOTICE IS TO INFORM YOU THAT THE "SAVE THE DATE:  NOVEMBER 4, 2013" CONFERENCE HAS BEEN POSTPONED UNTIL FURTHER NOTICE.  PLEASE CONTINUE TO MONITOR THE FBO FOR A NEW DATE.

    CMS holds such conferences periodically to allow contractors to "[l]earn about future opportunities, ...forecast of opportunities, critical missions, and specific program initiatives."  A document for just such a conference in May listed CGI, the main contractor responsible for Healthcare.gov, as one of the companies represented.
    No reason was given for the postponement of the November conference.  An email sent to the address provided for the conference was answered with an automated reply saying that registration was not currently open, but that a conference would be held in Baltimore in the "near future."


Note: A version of this article first appeared at The Weekly Standard.

Obamacare Website Quietly Adds Back Missing Copyright Lines to Code

    A week after THE WEEKLY STANDARD reported that the Obamacare website Healthcare.gov was using a copyrighted web script without attribution, the lines have been quietly added back to the code.  In a tacit admission that the lines should not have been omitted, the full attribution now appears at the top of the script in question.  Up until now, the script appeared as follows, with only the name DataTables and the version mentioned:

    Now, the author of the script, the company (SpryMedia), the copyright, and the related licenses are all included:

    THE WEEKLY STANDARD had contacted the Department of Health and Human Services more than a week ago by email, but never received a response about the license violation.


Note: A version of this article first appeared at The Weekly Standard.

Audit Finds Maryland Overcharged Federal Government in 95% of Cases in Waiver Program

    A Social Security program administered by the Centers for Medicare & Medicaid Services (CMS) allows states to apply for waivers for longterm care of individuals with developmental disabilities in home and community settings instead of institutions.  For the three years ending June 2012, the State of Maryland claimed $648.6 million from the federal government under its Community Pathways waiver program.
    An audit by the Office of the Inspector General (OIG) of the Department of Health and Human Services (HHS) found that errors in paperwork filed by the state resulted in overcharges to the federal government in excess of $20 million.  But even more startling than the dollar amount is the 95% error rate uncovered by the audit.  The OIG explains in the Findings section of the report [emphasis added]:

The State agency did not comply with Federal and State requirements when it claimed costs for residential habilitation services under the waiver.  Of the 100 claim lines that we sampled, 5 complied with Federal and State requirements; however, 95 did not.  The 95 claim lines had 135 errors:  

• For 81 claim lines, the State agency included unallowable costs for room and board.    
• For 54 claim lines, the State agency reduced provider payments to reflect amounts in excess of room and board that providers had collected from beneficiaries but did not reduce claims for Federal reimbursement accordingly.   

Forty claim lines included both errors.We estimate that, as a result of these errors, the State agency claimed at least $20,627,705 (Federal share) in unallowable costs.
The State agency claimed these unallowable costs because it lacked internal controls to ensure that unallowable costs were not included in claims for provider per diem payments.  

    In response, the State of Maryland agreed with the finding of the audit, including the recommendation to reimburse the federal government for the $20 million overcharge.  The state agency responsible also noted steps being taken to prevent a reoccurrence of the errors.
    As the Affordable Care Act begins to take full effect in 2014, Maryland is one of the states participating in the Medicaid expansion that is part of the law.  State agencies will have an expanding workload as the Medicaid expansion kicks in, increasing the need for safeguards to be sure that the states are in compliance with reimbursement guidelines.

HHS Seeking Obamacare Marketplace Translation Services for Over 100 Languages

    News broke yesterday that, even as the October 1st deadline for Obamacare "marketplaces" approaches, training requirements for Obamacare "navigators" were being scaled back by one-third. With less than two months remaining, the Obama administration is also facing increasing pressure to make sure data privacy and security concerns are addressed with the new system.
    Now the Department of Health and Human Services (HHS) is seeking to fill another need relating to the operation of the exchanges: translation services.  On Monday, HHS posted a notice looking for small business sources to provide "Telephone Interpretation and Written Document Translation Services" for the Centers for Medicare & Medicaid Services's (CMS) 24 x 7 Medicare contact center as well as CMS's Health Insurance Marketplace call center.  Among the list of fourteen quite stringent requirements [emphasis added]:

1. Effectively provide 24x7 oral over-the-phone interpretation services in any language (supporting at least 100 languages)...
2. Ensure appropriate capacity to handle at least 100 languages 24x7, including Spanish and have the capacity to handle approximately 50,000 calls per year...
4. Maintain the confidentiality of all interpretations; protect the integrity of information with customer person-sensitive information including Personal Health Information and Personally Identifiable information (personal health records, etc) while handling calls, and adhere to all applicable federal Privacy and Security acts, especially the Health Insurance Portability & Accountability Act (HIPAA) and the Privacy Act...
6. Ensure interpreters are trained and competent in healthcare and health insurance terminology and provide accurate interpretations in support of CMS's customers and stakeholders...

    The notice includes a list of the languages for which services would be required:

    HHS is not actually requesting proposals or quotes yet for this service; rather, "[t]he information from this market research will assist the Government in determining the appropriate acquisition method, including whether a [service-disabled veteran owned small business, HUBZone small business, small disadvantaged business, veteran-owned small business, and women-owned small business] set-aside is possible."
    Interested businesses must respond by August 14th.


Note: A version of this article first appeared at The Weekly Standard.