Monday, December 9, 2013

ObamaCare Website – A Case of Déja Vu

The ObamaCare website fiasco brings back memories of my role as primary legal counsel for another massive government information technology project involving extremely complex technical issues and a hypersensitive political backdrop.

In 1987, as a Special Assistant Attorney General for the State of Minnesota, I was responsible for technology procurement. The federal government was willing to pick up 90% of the costs incurred by the state to automate the delivery of federal programs such as Medicaid and food stamps.

My client, the Minnesota Department of Health and Human Services, used this federal money to integrate the many disparate computer systems across the state being used to deliver federal programs.  The 87 counties in Minnesota used a variety of systems involving multiple staffs and government agencies. There were political agendas and technical issues to overcome.  The end result—a fully functional and integrated system—required extensive planning and a significant commitment of financial and human resources before any productive use or “go live” date of the system. Following the successful completion of this project for MDHS, I was invited by the Federal Department of Health and Human Services to conduct a workshop for federal procurement staff on technology contracts.

As legal advisor, my primary role was to guide MDHS through the procurement process. This included preparation of the RFP, vendor review and selection, and contract drafting and negotiation. If you have read our Legal Guide to  Technology Transactions or attended one of our workshops, you will see the special consideration given to these types of projects and related agreements. In addition to essential warranties, remedies, indemnities, termination rights and other critical contract provisions, these projects demand extensive project planning with frequent testing to assure that the technology performs in accordance with the agreed upon requirements and specifications.

What did I learn during that process of integrating the 87 Minnesota county computer systems? First and foremost, make sure that you have experienced technical and legal personnel familiar with IT projects. You have to get the parties involved early to focus on exactly what they want to accomplish. What will a fully functional system look like when it is completed? Set performance milestones. Establish acceptance criteria. Test all modules.  Reserve payment until final acceptance.  Determine a completion schedule.  All of these issues should be covered in the related vendor agreements.  One thing is certain: You can almost guarantee that problems will arise during and after implementation of any IT project.

No matter what your political views may be related to ObamaCare, the need for the government website to be fully functional is imperative to allow for the enrollment of individuals in health insurance programs. And, from a lawyer who has been there, I hope the lawyers working with the technical staff did a good job when negotiating the vendor agreements.

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