[House Report 108-754]
[From the U.S. Government Publishing Office]
108th Congress Rept. 108-754
HOUSE OF REPRESENTATIVES
2d Session Part 2
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REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF HEALTH AND
HUMAN SERVICES PROVIDE CERTAIN DOCUMENTS TO THE HOUSE OF
REPRESENTATIVES RELATING TO ESTIMATES AND ANALYSES OF THE COST OF THE
MEDICARE PRESCRIPTION DRUG LEGISLATION
_______
October 8, 2004.--Referred to the House Calendar and Ordered to be
Printed
_______
Mr. Barton of Texas, from the Committee on Energy and Commerce,
submitted the following
ADVERSE REPORT
together with
DISSENTING VIEWS
[To accompany H. Res. 776]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the resolution (H. Res. 776) of inquiry requesting the
President and directing the Secretary of Health and Human
Services provide certain documents to the House of
Representatives relating to estimates and analyses of the cost
of the Medicare prescription drug legislation, having
considered the same, report unfavorably thereon without
amendment and recommend that the resolution not be agreed to.
CONTENTS
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 5
Statement of General Performance Goals and Objectives............ 5
New Budget Authority, Entitlement Authority, and Tax Expenditures 5
Committee Cost Estimate.......................................... 5
Congressional Budget Office Estimate............................. 5
Federal Mandates Statement....................................... 6
Advisory Committee Statement..................................... 6
Constitutional Authority Statement............................... 6
Applicability to Legislative Branch.............................. 6
Section-by-Section Analysis of the Legislation................... 6
Changes in Existing Law Made by the Bill, as Reported............ 7
Dissenting Views................................................. 8
PURPOSE AND SUMMARY
H. Res. 776 requests the President of the United States and
directs the Secretary of Health and Human Services to provide
certain documents to the House of Representatives relating to
estimates and analysis of the cost of the Medicare prescription
drug legislation.
BACKGROUND AND NEED FOR LEGISLATION
On November 20, 2003 the Congressional Budget Office (CBO)
completed its cost estimate of H.R. 1, the Medicare
modernization Act (MMA). The official score for this
legislation was $395 billion over ten years.
On November 22, 2003, the House agreed to the conference
report on H.R. 1 by a vote of 220 to 215. H.R. 1 was
subsequently signed into law (P.L. 108-173) on December 8,
2003.
On December 23, 2003 the Centers for Medicare and Medicaid
Services Office of the Actuary completed its cost estimate of
the MMA. The CMS Office of the Actuary scored the bill at $534
billion over ten years
On September 15, 2004, Mr. Rangel (for himself, Mr.
Dingell, Mr. Stark, and Mr. Brown of Ohio) filed House
Resolution 776, which requests the President of the United
States and directs the Secretary of Health and Human Services
to provide certain documents to the House of Representatives
relating to estimates and analysis of the cost of the Medicare
prescription drug legislation. Specifically, the information
requested is as follows: (1) any estimates and any analyses
made by the Department of Health and Human Services or the
Office of Management and Budget relating to the cost of any
version of the Medicare prescription drug legislation; (2) any
communications (whether written or electronic) relating to such
cost estimates or analyses or their release to Members of
Congress between employees within the executive branch; (3) any
communications (whether written or electronic) relating to such
cost estimates or analyses or their release to Members of
Congress between employees of the executive branch and Members
of Congress or their staff; and, (4) any communications
(whether written or electronic) relating to such cost estimates
or analyses or their release to Members of Congress between
employees of the executive branch and persons other than
employees of the executive branch or legislative branch. For
purposes of this resolution the term `any version of the
Medicare prescription drug legislation' refers to any version
of H.R. 1 or S. 1 (108th Congress), including the conference
report on H.R. 1.
House Resolution 776 seeks information regarding cost
estimates on all prior iterations of the Medicare prescription
drug legislation made by Administration officials. The premise
of this resolution suggests that this information would somehow
have been relevant to the legislative process that led to
passage of H.R. 1.
The information sought by the resolution is by definition
irrelevant to the legislative process that led to the passage
of H.R. 1. Furthermore, the substance of the information
sought, coupled with the timing of the resolution strongly
suggests the partisan nature and political motivations
underlying the request.
As previously noted, CBO completed its estimate of the
costs of H.R. 1 on November 20, 2003. They estimated that the
total cost of the bill was $395 billion over ten years. CBO
subsequently reaffirmed their belief that the accuracy of this
prior estimate correctly reflects the true costs of H.R. 1.
According to House precedents and procedures, CBO estimates are
the only binding analysis that can be used to determine the
cost of legislation. Suggestions that the availability of
higher Administration cost estimates might have been relevant
to the sponsors of the resolution is undermined by their
support of alternative legislative proposals that far exceeded
the costs of H.R. 1, including the subsequent Administration
estimates.
The differences between the November 20, 2003 CBO estimate
and the subsequent analysis released by the CMS Office of the
Actuary results from differing actuarial assumptions used by
the two organizations. These differences have been subsequently
well publicized and described in substantial detail in
testimony before the Ways and Means Committee on March 24, and
April 1, 2004. In the opinion of the Chief CMS Actuary, CBO's
estimate was both competent and performed in good faith. Both
sets of actuaries also acknowledged that either set of
assumptions could be correct and that such differences are not
uncommon in performing cost estimates on such complicated
legislation.
HEARINGS
The Committee on Energy and Commerce has not held hearings
on this legislation.
COMMITTEE CONSIDERATION
On Thursday, September 30, 2004, the Full Committee on
Energy and Commerce met in open markup session and ordered H.
Res. 776 adversely reported to the House, without amendment, by
a roll call vote of 26 yeas and 21 nays, a quorum being
present.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. The
following is the recorded vote taken on the motion by Mr.
Bilirakis to order H. Res. 776 adversely reported to the House,
without amendment, which was agreed to by a recorded vote of 26
yeas to 21 nays.
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee has not held oversight
or legislative hearings on this legislation.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
The goal of H. Res. 776 is to seek information from the
President of the United States and the Secretary of Health and
Human Services relating to the estimates and analysis of the
cost of the Medicare prescription drug bill.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.
Res. 776, a resolution of inquiry requesting the President of
the United States and directing the Secretary of Health and
Human Services to provide certain documents to the House of
Representatives relating to estimates and analysis of the cost
of the Medicare prescription drug legislation, would result in
no new or increased budget authority, entitlement authority, or
tax expenditures or revenues.
COMMITTEE COST ESTIMATE
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 8, 2004.
Hon. Joe Barton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H. Res. 776, a
resolution of inquiry requesting the President and directing
the Secretary of Health and Human Services provide certain
documents to the House of Representatives relating to estimates
and analyses of the cost of the Medicare prescription drug
legislation.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Tom Bradley.
Sincerely,
Elizabeth Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
H. Res. 776--A resolution of inquiry requesting the President and
directing the Secretary of Health and Human Services provide
certain documents to the House of Representatives relating to
estimates and analyses of the cost of the Medicare prescription
drug legislation
H. Res. 776 would request the President, and direct the
Secretary of Health and Human Services, to furnish the House of
Representatives all documents relating to the
administration's's cost estimates or analyses of any version of
H.R. 1 or S. 1 (Medicare prescription drug legislation), as
considered by the 108th Congress. CBO estimates that complying
with that resolution would not have a significant effect on
federal spending. Implementation of H. Res. 776 would not
affect direct spending or revenues.
On September 28, 2004, CBO transmitted a cost estimate for
H. Res. 776, as ordered reported by the Committee on Ways and
Means on September 23, 2004. The two versions of the resolution
are identical, as are CBO's cost estimates.
The CBO staff contact for this estimate is Tom Bradley.
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislations is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the Several
States, and with the Indian tribes.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
H. Res. 776 requests the President of the United States and
directs the Secretary of Health and Human Services, to the
extent possible, to furnish the House of Representatives, not
later than 14 days after the adoption of this resolution, all
documents, including telephone and electronic mail records,
logs and calendars, and records of internal discussions in the
possession of the Secretary of Health and Human Resources, the
Director of the Office of Management and Budget, and the
Director of the Office of the National Economic Council,
respectively, relating to the following: (1) any estimates any
analyses made by the Department of Health and Human Services or
the Office of Management and Budget relating to the cost of any
version of the Medicare prescription drug legislation; (2) any
communications (whether written or electronic) relating to such
cost estimates or analyses or their release to Members of
Congress between employees within the executive branch; (3) any
communications (whether written or electronic) relating to such
cost estimates or analyses or their release to Members of
Congress between employees of the executive branch and Members
of Congress or their staff; and, (4) any communications
(whether written or electronic) relating to such cost estimates
or analyses or their release to Members of Congress between
employees of the executive branch and persons other than
employees of the executive branch or legislative branch.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation does not amend any existing Federal
statute.
DISSENTING VIEWS
Once again, this Committee turned its back on its
obligation to get the facts for the American people. Our
Republican colleagues rejected a resolution of inquiry that
requested President Bush and directed the Secretary of Health
and Human Services (HHS) to provide certain documents to the
House of Representatives relating to estimates and analyses of
the cost of the Medicare prescription drug program. The
resolution was reported adversely on a near party-line basis.
This is not routine information that is at issue. The
Administration, through Centers for Medicare and Medicaid
Service (CMS) former Administrator Thomas Scully, hid important
cost information that Congress should have seen prior to voting
on the Medicare prescription bill in 2003. Mr. Scully
threatened the CMS Chief Actuary with adverse consequences if
he provided requested estimates to Congress, all the while
making sure that the White House had the real information from
the Actuary. Did the White House direct this coverup? We do not
know.
Why does this matter? Most immediately, the Medicare bill
that has since become law will contribute to an increase in
Medicare premiums of more than 17 percent next year--the
largest premium increase ever. Fifteen percent of that increase
in premiums is because of multi-billion dollar overpayments to
big insurance companies and health maintenance organizations
(HMOs) that were included in the Medicare bill. These are the
very same insurance companies that the Government
Accountability Office (GAO) found receive more taxpayer dollars
to treat beneficiaries than is paid under traditional Medicare.
So millions of seniors are now paying billions of dollars--and
getting nothing back for that money--to finance the Republican
effort to draw seniors away from traditional Medicare.
Moreover, the manner in which the information was withheld
was specifically forbidden by the Balanced Budget Act of 1997,
in which the Chief Actuary's position was established. This
provision was added because Republicans thought they needed to
establish in statutory and report language the clear right of
Congress to obtain the Actuary's estimates and analyses of cost
of changes in Medicare. It specifically forbade the use of an
``internal Administration clearance process'' to keep this
information from Congress. And yet, it was exactly such a
``clearance process'' that kept the Actuary from informing
Congress before it voted to pass the Medicare bill that the
estimated cost would be $500-$600 billion instead of the $395
billion the Administration and its Congressional allies
claimed.
Congress, and the public, should know what the White House
and the Department knew when the bill was being considered. We
have repeatedly asked the Administration to turn over
information on the cost estimates and have been ignored. We
also asked Speaker Hastert and Senate Majority Leader Frist to
investigate, and got the same treatment. So this resolution of
inquiry was our last resort.
All Administrations, regardless of which party is in the
White House, prefer not to give embarrassing or controversial
information to the Congress. But the Committee on Energy and
Commerce has a long history of obtaining the information it
needs to do its work, whether it is for investigative or
legislative hearings and regardless of the party affiliation of
the person in the White House. This record is now sullied.
Congressional oversight is only credible if it is
consistent regardless of the party in charge of the Executive
Branch. Had President Clinton's Administration tried to hide
the bill like this, Congressional subpoenas would have flown
like confetti. But when the Bush Administration hides the ball,
all we get from the Republican Majority is silence. The public
deserves better.
Efforts to obtain the Medicare Actuary's estimates of cost of the
Medicare prescription drug legislation
In mid-June of 2003, the Minority staff of the House
Committee on Ways and Means requested that Richard Foster, the
CMS Chief Actuary, provide them with the cost estimates and
analyses of the Medicare prescription drug legislation that he
had prepared for CMS. During that month, this legislation was
being considered by the Committee on Ways and Means, the
Committee on Energy and Commerce, and the full House of
Representatives. For decades, such estimates and analyses had
been routinely provided to Congress through an informal, but
important, working relationship between the Congress and the
Office of the Actuary. Thomas A. Scully, then head of CMS, took
it upon himself to deny information about the Actuary's
projected cost of the bill to the Minority and--ultimately--to
the full Congress for what he openly admitted were political
reasons.
This action by Mr. Scully was at odds with the previous
working relationship between Congress and the Office of the
Actuary and Mr. Foster protested. According to testimony given
by Mr. Foster before the Committee on Ways and Means on March
23, 2004, he was ordered by Mr. Scully to withhold the
requested information from particular Members. Mr. Foster said
that he understood from Mr. Scully and Mr. Scully's assistant
that he would lose his job if he provided the requested
estimates and analyses. On June 24, 2003, Mr. Scully informed a
Minority staff member of the Committee on Ways and Means that
Mr. Foster would ``be fired so fast his head would spin'' if he
provided this information directly to the Committee staff.
According to a Washington Post article and others, Mr. Foster
memorialized the situation on June 26, 2003, and ``dispatched
an e-mail to several senior assistants and private actuaries in
which he called the situation `nightmarish' * * * I'm perhaps
no longer in grave danger of being fired, but there remains a
strong likelihood that I will have to resign in protest of
withholding of important technical information from key policy
makers for political reasons.''\1\
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\1\ Official Says He Was Told to Withhold Medicare Data, The
Washington Post, March 13, 2004. A1.
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Mr. Foster's estimates--which consistently set the cost of
this legislation at $500-$600 billion--were critically
important for consideration of this Medicare prescription drug
bill. Congress had set a cost ceiling of no more than $400
billion over the next 10 years. The Congressional Budget Office
had provided an estimate of $395 billion. Nonetheless, in
theHouse, it took nearly an hour-long roll call vote in June of 2003 to
persuade enough Republican Members to support this bill, which passed
by one vote. In July 2003, a number of conservative House members wrote
to the Speaker requesting his assurances that the bill not exceed $400
billion, which the Administration gave, notwithstanding Mr. Foster's
estimates. The Senate passed it only on the Administration's assurance
that it would cost no more than $400 billion. In November of 2003, when
the conference bill returned to the House floor, there was an
unprecedented three-hour call vote to allow the Republican leadership
and Administration, including the Secretary of the Department of Health
and Human Services Tommy G. Thompson, to change the votes of wavering
colleagues leading to a virtual party-line vote at dawn after members
were told once again it would cost $395 billion. As the Wall Street
Journal wrote, ``[N]o one doubts that release of the higher cost
estimates last fall could have killed the measure, which only passed by
one vote after hours of arm-twisting in the House.'' \2\
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\2\ Medicare's Chief Actuary Reveals E-Mail Warning, Wall Street
Journal, March 18, 2004.
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Then in January of this year, shortly after President Bush
highlighted the Medicare legislation in his State of the Union
address and just prior to the release of the Administration's
FY 2005 budget submission, the White House announced that the
drug program would cost $534 billion. On January 30, 2004,
White House Press Secretary Scott McClellan said that President
Bush had learned of these higher estimates only in ``the last
two weeks.'' However, while the Administration had said their
cost estimates were not ``final'' until after the bill was
signed into law, Mr. Foster confirmed in his testimony before
the Committee on Ways and Means on March 24, 2004, that he had
given Mr. Scully preliminary estimates that were very close to
the final estimate weeks before the final votes on the Medicare
prescription drug bill. News articles reported that Mr.
Foster's estimates had been provided to the Office of
Management and Budget several months before.\3\ More recently,
the cost of this legislation has been projected at $576
billion.\4\
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\3\ See, Official Says He Was Told to Withhold Medicare Data, The
Washington Post, March 13, 2004, A1; Democrats Demand Inquiry Into
Charge by Medicare Officer, The New York Times, March 14, 2004, A1.
\4\ ``OMB Says Medicare Drug Law Could Cost Still More,'' The
Washington Post, Sept. 19, 2004, A4.
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Mr. Scully and Secretary Thompson have stated on several
occasions that some of these estimates were conveyed to Members
of Congress or their staff. Secretary Thompson said in a press
conference in February that conferees and others were made
``aware that we expected our final score would be higher.''\5\
With the exception, however, of a June 26, 2003, memo to Rep.
Rangel on the extent to which premiums for traditional Medicare
would rise under a provision in the legislation,\6\ none of the
complete requested estimates or analyses were provided to the
Democratic Members of these committees, including those who
were officially on the Conference Committee and responsible for
negotiating this legislation prior to its passage. Subsequent
testimony and media reports have made it quite clear that the
projections were withheld from Congress for a political
purpose--so that the Medicare Modernization Act would pass. Mr.
Scully told a reporter in March of 2004 that he had denied the
information to Democratic Members because they were trying to
be ``politically cute'' on the eve of the first House vote.\7\
Mr. Scully later told an investigator from HHS's Office of
Inspector General that information was not provided because it
was ``sought solely to defeat the legislation.'' \8\ These
actions are exactly what the Conferees were trying to prevent
in the Balanced Budget Act when they stated that there should
not be an ``internal Administration clearance process'' because
if Congress did not receive this information, its ability to
make ``informed decisions based on the best available
information is compromised.'' \9\ There was no exemption to
full disclosure of actuarial numbers for Members deemed to be
``politically cute,'' or those who might be attempting to
defeat legislation.
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\5\ ``Remarks by: Tommy G. Thompson, Secretary of Health and Human
Services,'' Feb. 2, 2004, p. 4.
\6\ Memorandum from Richard S. Foster to Rep. Charles B. Rangel,
``Estimated Impact of H.R. 1 on Premiums for Fee-for-Service
Beneficiaries in 2010 and Later,'' June 26, 2003.
\7\ See Medicare Agency Withheld Bill's Cost, St. Paul Pioneer,
March 12, 2004.
\8\ Letter from Dara Corrigan to Rep. John Dingell, July 20, 2004,
p. 1-2.
\9\ H. Rpt. 105-217, p. 838.
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Further, Mr. Foster testified before the Committee on Ways
and Means that this was not an across-the-board policy for all
Members. Some responses to Congressional requests for
information were approved by Mr. Scully, and others were not.
Mr. Foster stated that he believed that there was ``a political
basis for making that decision'' and said he ``considered that
inappropriate and, in fact, unethical.'' \10\ Full estimates
and analyses to this date still have not been shared with the
Democratic Members of Congress who served on the Medicare
conference, and no justification has been provided.
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\10\ Id.
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Attempts to obtain information
There have been numerous written requests made for the cost
estimates and analyses that the Administration had as far back
as June of 2003. On February 3, 2004, Ranking Members Waxman,
Dingell, and Rangel requested all cost information and analyses
for the Medicare Prescription Drug bill from Secretary
Thompson. On February 12, 2004, Ranking Members Rangel and
Stark sent a follow-up letter to Secretary Thompson requesting
the estimates and analyses after Secretary Thompson made a
commitment to members of the Committee on Ways and Means at a
February 10, 2004, hearing that he would restore access to the
Office of Chief Actuary. On March 2, 2004, Ranking Member
Waxman and every Minority member of the Committee on Government
Reform sent another letter to Secretary Thompson requesting the
information that Representatives and others had already
requested. On March 15, 2004, Ranking Member Dingell sent yet
another letter to Secretary Thompson requesting the
information. Again, on March 17, 2004, Ranking Member Waxman
sent a letter to Secretary Thompson asking for the information.
On March 19, 2004, Ranking Members Waxman, Rangel, Dingell,
Stark, and Brown sent a letter to the White House asking for
all costs and estimates the White House had received. To date,
none of these Members has received a complete response to
theirrepeated requests and in most cases have received no response at
all. In addition, Members of the ``Blue Dog coalition'' sent a letter
on March 26, 2004, asking the President to look into the matter, noting
that they were particularly troubled that such information was
potentially withheld.
Similarly, on May 14, 2004, Ranking Member Stark sent a
letter to Dr. Mark McClellan, the new administrator of CMS,
following Dr. McClellan's commitment to provide materials at a
subcommittee hearing on May 11, 2004. Dr. McClellan has not
provided the requesting Members with complete information.
Efforts to have Congress investigate
Mr. Foster testified before the Committee on Ways and Means
on March 24, 2004. It was his first public appearance and
discussion on these issues in which he revealed the threats he
received from Mr. Scully, that his estimates were consistently
higher than those put forward by the Administration, and that
he was pretty close to the number released in 2004 weeks before
the final vote in 2003. Democratic members of that Committee
requested an additional hearing under Rule XI in order to hear
from additional witnesses.
Chairman Thomas held a hearing on April 1, 2004, pursuant
to the Rule XI request, to continue discussions on the
estimates. Witnesses were CMS Deputy Administrator Leslie
Norwalk and CMS San Francisco Regional Administrator Jeff Flick
(Mr. Scully's former special assistant). Mr. Scully declined to
attend, citing fatigue. White House counsel Alberto Gonzalez
declined on behalf of Presidential aide Doug Badger. At the
hearing, Republicans refused to subpoena Mr. Scully and Mr.
Badger.
On June 22, 2004, House and Senate Minority leaders Rep.
Nancy Polosi and Senator Thomas Daschle and numerous Ranking
Members and Senators including Reps. Waxman, Dingell, Rangel,
Stark, Hoyer, and Brown and Senators Kennedy, Graham,
Lautenburg, Stabenow, and Clinton sent a request to House
Speaker Dennis Hastert and Senate Majority Leader Bill Frist.
Members not only asked for an investigation into the possible
withholding of Medicare cost estimates but requested that these
Congressional leaders ask the Administration to provide Members
with the cost estimates and analyses they had been repeatedly
asked for in other letters.
On September 8, 2004, having received no response, these
Members sent a follow-up letter to Speaker Hastert and Majority
Leader Frist requesting an investigation and the estimates and
analyses. they also cited that by this time the Inspector
General's Office and the Government Accountability Office had
concluded in independent reports that suppression of
information occurred. To date, neither the Majority leaders nor
the Administration have provided Members with the cost
estimates and analyses requested by Members in both houses of
Congress.
On September 23, 2004, the Committee on Ways and Means held
a markup on the Resolution of Inquiry. After a very short and
uneventful series of statements from both the Majority and
Minority, the Resolution was reported out of Committee
unfavorably on a party-line vote of 19 to 12.
The violation of the right of Congress to information from the Chief
Actuary
The Chief Actuary's position for the Centers for Medicare
and Medicaid Services (CMS) was codified into law by Congress
in 1997 as a highly independent office, specifically so that
Congress and its committees could have guaranteed access to the
Actuary's assessment of the ``financial condition of the
Medicare trust funds and in developing estimates of the
financial effects of potential legislative and administrative
changes in the Medicare and Medicaid programs.'' \11\
Ironically, the momentum for this provision came from
Republican members of the Committee on Ways and Means. The
Republicans were concerned that they would not get full
information from the Chief Actuary since they did not control
the White House. The following statutory protections were
provided: ``The Chief Actuary shall exercise such duties as are
appropriate for the office of the Chief Actuary and in
accordance with professional standards of actuarial
independence. The Chief Actuary may be removed only for
cause.'' (42 U.S.C. 1317(b)(1)) (emphasis added)
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\11\ H. Rpt. 105-217, July 30, 1997, p. 837.
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The conferees were very specific about the role and
responsibilities of the Chief Actuary in working with Congress.
Contrary to a statement from HHS Secretary Tommy G. Thompson in
February of 2004, the conferees believed that the Chief
Actuary's estimates were critical to the work of Congress.\12\
There can be no misunderstanding of their legislative intent.
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\12\ Secretary Thompson said in a press conference that ``everyone
knows that during the legislative process the only number that counts
is the CBO score. There can be only one scorecard when creating
legislation, and that scorecard is CBO's.'' ``Remarks by: Tommy G.
Thompson, Secretary of Health and Human Services,'' Feb. 2, 2004, p. 4.
4 The office of the Actuary has a unique role within
the agency in that it serves both the Administration
and the Congress. While the Chief Actuary is an
official within the Administration, this individual and
his or her office often must work with the committees
of jurisdiction in the development of legislation.
Beginning with the appointment of the first Chief
Actuary for Social Security in 1936, through the
enactment of Medicare and Medicaid in 1965, and through
the establishment of the Health Care Financing
Administration in 1977, the tradition has been for a
close and confidential working relationship between the
[Social Security Administration] and HCFA chief
actuaries and the committees of jurisdiction in the
Congress--a relationship which the Committees value
highly. It is important to emphasize that the Senate
Committee on Finance, the House Committee on Ways and
Means, and the House Committee on Commerce all rely on
their ability to seek estimates and other technical
assistance from the Chief Actuary, especially when
developing new legislation. Similarly, the
Congressional Budget Office and the Congressional
Research Service depend heavily on such assistance.
Thus, the independence of the Officeof the Actuary with
respect to providing assistance to the Congress is vital. The process
of monitoring, updating, and reforming the Medicare and Medicaid
programs is greatly enhanced by the free flow of actuarial information
from the Office of the Actuary to this committees of jurisdiction in
the Congress.
* * * The Committees rely on the actuaries to provide
prompt, impartial, authoritative, and confidential
information with respect to the effects of legislative
proposals. When information is delayed or circumscribed
by the operation of an internal Administration
clearance process or the inadequacy of actuarial
resources, the Committees' ability to make informed
decisions based on the best available information in
compromised.\13\
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\13\ H.Rept. 105, July 30, 1997, pp. 837-838 (emphasis added).
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And in a prescient statement, the conferees concluded that:
* * * The need for actuarial assistance will be
greater than ever in the next few years as the Congress
and the Administration, with advice from the bipartisan
commission mandated in this legislation, address the
future financial pressures facing the Medicare program
as a result of the retirement of the post-World War II
``baby boom'' generation.\14\
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\14\ Id., p. 838.
In response to a Congressional request for an
investigation, the Inspector General of HHS found that Mr.
Scully threatened Mr. Foster to keep Mr. Foster from
communicating with the Congress.\15\ The GAO determined such
actions to be a violation of 2003 and 2004 appropriations acts,
and that no federal monies should have been used to pay Mr.
Scully's salary from the date the first threats were made until
Mr. Scully left in December of 2003.\16\ HHS has refused to
seek reimbursement.
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\15\ Office of Inspector General, Department of Health and Human
Services, ``Summary: Scully and Chief Actuary,'' undated, p. 4.
\16\ Government Accountability Office, ``Department of Health and
Human Services--Chief Actuary's Communications with Congress.'' Legal
Opinion B-302911, September 7, 2004, p. 13.
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Conclusion
This resolution posed a simple question--is Congress going
to roll over when Executive Branch employees are prevented from
providing Congress critical information on important and
controversial legislation under consideration? Given that
Republicans run both houses of Congress and the Administration,
and given the rejection of this resolution of inquiry the
answer is yes--politically sensitive oversight will not be
allowed. That is a disservice to the people we represent, and
an affront to our constitutional form of government.
John D. Dingell.
Henry A. Waxman.
Edward J. Markey.
Rick Boucher.
Edolphus Towns.
Frank Pallone, Jr.
Sherrod Brown.
Bart Gordon.
Peter Deutsch.
Bobby L. Rush.
Anna G. Eshoo.
Bart Stupak.
Eliot L. Engel.
Albert R. Wynn.
Gene Green.
Karen McCarthy.
Ted Strickland.
Diana DeGette.
Lois Capps.
Michael F. Doyle.
Christopher John.
Tom Allen.
Jim Davis.
Jan Schakowsky.
Hilda L. Solis.
Charles A. Gonzalez.