Fortunately, there’s a better solution. The federal government has the legal flexibility to waive the penalty for people subject to the mandate but unable to access a functioning exchange website.
Nestled in the health-care law is a “hardship exemption.” It waives the penalty for anyone who “is determined by the Secretary of Health and Human Services under section 1311(d)(4)(H) to have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.” In turn, section 1311 requires exchanges to “grant a certification” for particular individuals attesting that “there is no affordable qualified health plan available through the Exchange.”
Putting the two provisions together, it could be a “hardship” if there’s “no affordable qualified health plan available through the Exchange.” That statutory language fits this case: if an exchange doesn’t work, then no plans are available through it. Health and Human Services Secretary Kathleen Sebelius has already issued hardship exemptions for discrete groups, including people who would have qualified for Medicaid but for their state’s decision not to expand the program. She could do the same for those who can’t access an exchange.