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Health Insurance Marketplace Implementation Continues

Written by Julie E. Korostoff and Christine M. Wahr

The flow of traffic on on Tuesday, October 1, described by a representative from the Centers for Medicare & Medicaid Services (“CMS”) as “historic,” reportedly reached up to 2.8 million users, as individuals visited the new "federal "health insurance marketplace - formerly referred to as the federal health exchange (“Exchange”) - which forms the core of Affordable Care Act (“ACA”) implementation.   By Friday night, nearly nine million unique consumers had reportedly visited the site.  But while the opening marked a significant step forward in implementation of the ACA, the accomplishment was overshadowed almost instantly as users encountered technological glitches with the Exchange, which serves as a portal for 36 states. Among the 14 states, including Vermont, Maryland, and the District of Columbia that launched their own exchanges that rely on the federal system, performance has been mixed, with certain states reporting successfully enrolled individuals and others reporting similar technological problems.

While unclear whether technological errors have been the result of heavy traffic flow, system flaws, or a mixture of both, federal officials have announced that the government is making technological changes to both the software and hardware supporting the online marketplace.  The changes are anticipated to correct the issues that are leading to site crashes and slow network speeds that are preventing users from successfully creating accounts and purchasing policies. Beyond complications due to scaling, technology experts have cited possible contributing factors such as additional, unnecessary code, a poor software foundation, and a failure to implement basic efficiency techniques.

Amid sentiments ranging from hope and frustration, consumers should remember that the creation of such a vast technology platform under tight time constraints was almost inevitably going to result in systems that required some trouble-shooting once launched.  Upheld by the U.S. Supreme Court in June 2012, the ACA requires states to update their technology systems and create secure interfaces that link eligibility data among Medicaid, the Children’s Health Insurance Program (“CHIP”), and the exchanges - an enormous task that in many cases required states to undergo a wholesale replacement of their then-current technology systems. To accomplish this task, federal and state governments relied on a variety of both large and small technology contractors and subcontractors to build the web-based infrastructure for the exchanges, all while having to comply with evolving CMS regulations.  The result is an impressive but complex system that will need to be scaled and adjusted as capacity is tested.

The good news? The overwhelming traffic on the Exchange evidences the interest in the system and, with a six-month window for enrollment and technology specialists working around the clock, there is time for the technological glitches in the system to be worked out before the insurance policies now available for purchase go into effect in January 2014.

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Karen S. Lovitch

Member / Chair, Health Law Practice

Karen S. Lovitch is a Mintz attorney who represents health care companies in regulatory, transactional, and operational matters. She advises them on health care regulations such as the Stark Law and the Clinical Laboratory Improvement Amendments of 1988.