Last night I had another legal-related dream. I somehow managed to score an interview with Terry McAuliffe, who was the secretary of HHS (maybe Sebelius was still a governor). I began by asking him about the FISMA certification for HealthCare.gov. FISMA is the network security certifications that all federal information systems must undergo (in another life I did network security for DOD so I am intimately familiar with FISMA). According to reports, there was no authority to operate (ATO) given under FISMA prior to launch, and that someone in HHS gave a greenlight even without this authorization. (One of many laws waived to allow the operation of this program).
Anyway, first I ask McAuliffe about FISMA and he starts to dance around the issue, saying that he doesn’t get involved in these policy decisions, and that the policy people don’t talk to him. It was something like, oh they don’t like when I bother them, so they work by themselves. I pressed him further, and finally he burst out laughing and said, well, it’s like I am Santa Clause, and I gave them what they wanted. In other words, he implied that he gave the authorization to go ahead with HealthCare.gov even though it hadn’t obtained certification under FISMA (this would be a clear violation of federal law). He chuckled, and said, “this is all off the record, right?” I said, of course.
I had thought, in my dream, that the interview was on the record. But–and I’ve learned this from doing interviews for my book–interviews that begin on the record suddenly become off the record when the interviewee says something he or she probably shouldn’t have. I had this uncomfortable situation where I quoted someone for attribution, and they were fine with it, only to tell me later, oh no, that was off the record. Hence all the unnamed “lawyers” in Unprecedented.
Anyway, then I stared to ask about HHS’s lack of rulemaking to achieve goals. I said something like, oh this is a horribly drafted statute. He replied that it was, and there was something like a “million” parts to the law. He said they couldn’t make rules for everything, and had to do what they were doing. I was probably going to ask something about the Administrative Procedure Act, but I don’t recall the rest of the dream.
I tend to think in reality, similar conversations with Kathleen Sebelius would go almost identically.