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Obamacare's memory hole? 'Please delete this email'

Marilyn Tavenner
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Marilyn Tavenner

Congressional Republicans investigating last fall's botched launch of HealthCare.gov revealed Friday that a top Obamacare official had asked her spokeswoman to delete an email from a senior White House advisor that discussed problems with customer service calls about that website.

Those Republicans now want Centers for Medicare and Medicaid Services Administrator Marilyn Tavenner to explain that deletion request, and to reveal if she has asked staff to "delete or otherwise destroy emails, communications or any other documents relating to HealthCare.gov." The Republicans said the Obama administration has a "pattern" of being unable to preserve records.

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Tavenner's email asking the subordinate to delete an email was turned over to the House Energy and Commerce Committee last week, just a day after her staff told the committee that some copies of her email communications might have been lost.

"Please delete this email," Tavenner wrote to then-CMS spokeswoman Julie Bataille on Oct. 5, 2013.

Tavenner was referring to an email sent to her and other Obama administration officials hours earlier on that same day, a Saturday, from Jeanne Lambrew, President Obama's health policy advisor. Lambrew's initial email was in the thread directly below Tavenner's brief note to Bataille.

Lambrew's note pointed out a potential problem with how customer service representatives were dealing with callers who were trying to navigate HealthCare.gov, the federal Obamacare exchange that enrolls people in health insurance plans.

At the time, HealthCare.gov—which CMS operates—was effectively unable to enroll any significant number of people because of serious software problems that came to light on the Oct. 1 launch.

"There may be a problem with the CSR [customer service representative] training or script," Lambrew wrote. "I tried again. I was told that they could take my information, depending on how complicated my circumstances are and whether they could [verify] information, it could take 20-30 minutes."

"When I pushed and asked if I could enroll without going to the website, I was told no, at some point I would have to create an account on HealthCare.gov," Lambrew wrote.

In fact, assistance was and is available for people who cannot, or refuse to use that website.

After Tavenner got the email, she wrote Bataille, and copied in a number of other CMS staffers. While she asked Bataille to delete Lambrew's missive, Tavenner also wrote, "but please see if we can work on a call script."

Another brief sentence, or sentences, were blacked out in the email sent to Bataille, which was turned over to the House Energy and Commerce Committee.

Bataille had never deleted the email from Tavenner, according to a CMS spokesman.

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Bataille left CMS last month to purse other opportunities and her departure was not linked to the email, according to the department.

On Friday, when CMS was asked about Tavenner's email, current CMS spokesman Aaron Albright said: "The administrator forwarded this email to a press staffer for her awareness. She also copied her immediate staff, and the email was therefore preserved."

In a letter to Tavenner on Friday, Reps. Fred Upton, R-Mich., and Tim Murphy, R-Pa., noted that in an Oct. 10 request they had asked Tavenner's then-boss Kathleen Sebelius to provide the committee "all communications, including email," to and from CMS and the U.S. Health and Human Services Department "that refers or relates to any problems, flaws, testing plans, testing results, or any other issue related to" HealthCare.gov.

Jeanne Lambrew in 2008
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Jeanne Lambrew in 2008

The two congressmen in their letter said that "over 10 months after sending this request, last week your staff informed" the committee "that copies of your email communications could have been lost."

"CMS also informed the National Archives and Record Administration that it was possible that some of your email records 'may not be available to HHS,'" the representatives wrote.

"This unusual development is unfortunately part of a pattern of this administration's ability to properly preserve records."

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Upton and Murphy asked Tavenner to make herself available "as soon as possible" to answer the question "Why did you ask Julie Bataille" to delete the emails, and other questions, including what purported "Executive Branch interest(s)" are being cited to justify the redactions in the deletion request email that the committee received.

Committee Chairman Upton, in a prepared statement Friday, said, "Right on cue, when the going gets tough, the Obama administration proclaims it can't find the documents."

"Time and again, the self-proclaimed 'most transparent administration' has been anything but. And now we know that when HealthCare.gov was crashing, those in charge were hitting the delete button. What was the Obama administration trying to hide?"

In a statement issued last week, CMS had said: "An initial analysis gives us confidence that the vast majority of Administrator Tavenner's email records are retrievable. To date, we have identified more than 71,000 emails, which include Administrator Tavenner that contain search terms agreed upon with the committee. There are no significant chronological gaps and we are working to compile the most complete email record for her as possible."

The agency also noted that federal guidelines do not require all emails to be saved, but only that so-called federal records be preserved. Those same guidelines also encourage email account holders to delete messages that do not meet the standard of being a federal record, the agency pointed out.

CMS and HHS also noted that they have turned over nearly 135,000 documents and participated in more than 100 hours of transcribed interviews in response to the subpoena from the House Oversight and Government Reform Committee, and that HHS has expended more than 23,000 staff hours in responding to the committee's requests since October 2013.

By CNBC's Dan Mangan

Health Care

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