I’ve been somewhat quiet about the Department of Health and Human Services (HHS) “debacle” on the roll-out of the Affordable Care Act. Why? Because I wanted to see if my old employer had improved performance before passing judgment. Now that I’ve tried to use the website to enroll in health care after being cancelled on my recent birthday by my private insurance company, HealthNet, here are my thoughts.
Although I expected there would be website glitches resulting from a high volume of activity and political pundits drooling at the chance to cheer or jeer…what I didn’t expect in all the hoopla of the government shut-down and political infighting was the total lack of anyone noticing that HHS is a federal agency with horribly outdated webpages. So much so, that the HHS notice on the No Fear Act passed in 2002, had not been updated since 2004, see below. Yep, not updated in almost 10 years although new legislation was passed a year ago, The Whistleblower Protection Enhancement Act (WPEA) which expanded and clarified previous laws.
I discovered the irony of HHS having outdated webpages years ago, including it as evidence in my disclosure reports to Office of Special Counsel (OSC) that the agency had failed to file any annual No Fear Act reports. Story found here. Funny how right up until a week ago, no one seemed to care if HHS had an up to date website on notifying employees of civil rights or if the federal agency was obeying employment laws or in compliance with legally mandated reporting requirements pursuant to Section 203 of the Act.
I’d venture to say that someone tipped off the Secretary’s office that their website was horribly outdated based on my filing a disclosure to OSC. Particularly since the No Fear Act webpage disappeared from view one day before Secretary Sebelius’s testimony to Congress. Coincidence? I don’t think so. Someone picked up on the outdated webpage that notifies internal whistleblowers of their rights and said…Holy Vioxx! Delete that site! But thanks to Google, you don’t have to take my word for how behind the times HHS is on technology, we can see exactly when the deletion occurred and the old webpage. And if you click the new link, there is nothing replacing the old page. So now employees don’t receive any notice of the Act!
HHS has been out of compliance with anti-discrimination and anti-whistleblower retaliation laws for over a decade, yet no one noticed. Not Republicans or Democrats. Not the EEOC for the federal sector, not the Office of Personnel Management (OPM), not Office of Special Counsel (OSC), nor the Department of Justice (DOJ), nor the Government Accountability Office (GAO) nor IT consultants nor website builders who are very well paid HHS contractors. No federal employees union noticed either. Nor did the HHS Civil Rights Office or if they did, they continued to ignore their legal obligation. Nor did any good governance groups in D.C. or elsewhere ever notice HHS (and several other cabinet level agencies) had violated the Act for over a decade.
The only one to notice HHS and other federal agencies were out of compliance by not filing annual reports and out of date with notice to employees of the civil and whistleblower rights was me. I obtained the information of noncompliance through Freedom of Information Act (FOIA) requests starting 2 years ago. A WW mission is to educate the public on noncompliance of federal agencies. Until the FOIA’s began to arrive, not one single good governance group had ever asked for the annual reports pursuant to Section 203. Now there is a mad dash to obtain the same information we’ve already made public.
What I find so repugnant about this entire situation is that the agency that demands health care corporations sign Corporate Integrity Agreements (CIA) when fraud is discovered also fails to comprehend they have a legal obligation to be in compliance with federal civil rights laws that protect their own employees.
Furthermore, it would be a rare occurrence for HHS to cut off federal funding to any health care provider or manufacturer of pharmaceuticals. Yet if any pharmaceutical corporation or hospital failed to file a single report on time under a CIA, they’d be facing the possibility of criminal charges being filed by the Department of Justice (DOJ). That is the price of settlement in False Claims Act (FCA) lawsuits. The offenders pay a fine, pay back some money they stole from Medicare/Medicaid and a paper tiger controls their destiny. But what price does HHS pay for being out of compliance? None.
There is a serious disconnect when an agency like HHS is totally dependent on whistleblowers to prevent fraud in health care yet as an employer, the agency repeatedly violates whistleblower protections and equal employment laws with impunity. For the Affordable Care Act to work properly, internal whistleblowers at HHS must be protected from retaliation. With the HHS track record of covering up failures to protect their own employees, it should be of grave concern to the public that this agency lacks leadership to create an environment of ethical conduct where no one should be afraid to speak truth to power.
I’d love to discuss ways to improve HHS. One thing I’d suggest is how it looks to the public when tools in the toolbox to halt ethics violations are outdated or magically disappear from websites.