Did Sebelius Have the Authority to Delay Obamacare Website Launch?

Health and Human Services Secretary Kathleen Sebelius

Health and Human Services Secretary Kathleen Sebelius Evan Vucci/AP

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

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 theHealthCare.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."