[House Report 108-754]
[From the U.S. Government Publishing Office]



108th Congress                                            Rept. 108-754
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 2

======================================================================

 
  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\
---------------------------------------------------------------------------
    \1\ Official Says He Was Told to Withhold Medicare Data, The 
Washington Post, March 13, 2004. A1.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \2\ Medicare's Chief Actuary Reveals E-Mail Warning, Wall Street 
Journal, March 18, 2004.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \10\ Id.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
    \11\ H. Rpt. 105-217, July 30, 1997, p. 837.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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.

                                  
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