[House Report 111-649]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-649

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


 
DIRECTING THE SECRETARY OF HEALTH AND HUMAN SERVICES TO TRANSMIT TO THE 
   HOUSE OF REPRESENTATIVES COPIES OF EACH PORTION OF ANY DOCUMENT, 
RECORD, OR COMMUNICATION IN HER POSSESSION CONSISTING OF OR RELATING TO 
   DOCUMENTS PREPARED BY OR FOR THE CENTERS FOR MEDICARE & MEDICAID 
SERVICES REGARDING THE PATIENT PROTECTION AND AFFORDABLE CARE ACT, AND 
                           FOR OTHER PURPOSES

                                _______
                                

 September 29, 2010.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Waxman, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H. Res. 1561]

    The Committee on Energy and Commerce, to whom was referred 
the resolution (H. Res. 1561) directing the Secretary of Health 
and Human Services to transmit to the House of Representatives 
copies of each portion of any document, record, or 
communication in her possession consisting of or relating to 
documents prepared by or for the Centers for Medicare & 
Medicaid Services regarding the Patient Protection and 
Affordable Care Act, and for other purposes, having considered 
the same, report favorably thereon without amendment and 
without recommendation.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Committee Consideration..........................................     4
Committee Votes..................................................     5
Committee Oversight Findings and Recommendations.................     7
New Budget Authority, Entitlement Authority, and Tax Expenditures     7
Statement of General Performance Goals and Objectives............     7
Constitutional Authority Statement...............................     7
Earmarks and Tax and Tariff Benefits.............................     7
Federal Advisory Committee Statement.............................     7
Applicability of Law to Legislative Branch.......................     7
Federal Mandates Statement.......................................     7
Committee Cost Estimate..........................................     7
Section-by-Section Analysis of the Legislation...................     8
Changes in Existing Law Made by the Bill, as Reported............     8
Dissenting Views.................................................     9

                          PURPOSE AND SUMMARY

    H. Res. 1561, introduced by Rep. Michael C. Burgess (R-TX), 
directs the Secretary of Health and Human Services (HHS) to 
provide certain documents to the House of Representatives 
concerning documents prepared by or for the Centers for 
Medicare and Medicaid Services (CMS) Office of the Actuary 
regarding the Patient Protection and Affordable Care Act and 
the Health Care and Education Reconciliation Act.
    H. Res. 1561 is a resolution of inquiry introduced on July 
27, 2010, and referred to the Committee on Energy and Commerce. 
Under clause 7 of rule XIII of the Rules of the House of 
Representatives, the Committee must act on such a resolution 
within 14 legislative days or a privileged motion to discharge 
the Committee is in order.
    Under the rules and precedents of the House, a resolution 
of inquiry is one of the methods used by the House to obtain 
information from the executive branch. According to volume 7, 
chapter 24, section 8 of Deschler's Procedure, it is a ``simple 
resolution making a direct request or demand of the President 
or the head of an executive department to furnish the House of 
Representatives with specific factual information in the 
possession of the executive branch.''

                  BACKGROUND AND NEED FOR LEGISLATION

    The Patient Protection and Affordable Care Act (Public Law 
111-148), comprehensive health care reform legislation, was 
enacted in the 111th Congress after more than a year of 
discussion and deliberation on this measure. The final version 
of the legislation was enacted on March 21, 2010, when the 
House approved the Senate version of this bill. On March 21, 
2010, the House also approved separate legislation, the Health 
Care and Education Reconciliation Act of 2010 (Public Law 111-
152), making a number of health financing and revenue changes 
to the health reform bill as well as changes to higher 
education assistance provisions. The Senate approved this 
measure on March 25, 2010.
    During the development of the health reform bill, the 
Office of the Actuary in the Centers for Medicare and Medicaid 
Services analyzed cost implications of various versions of the 
bill and specifically its impact on Medicare, and released 
these reports to Congress and the general public.\1\ On April 
22, 2010, the Office released letters on the impact of the 
final version of the bill and the specific impact on Medicare. 
After the release of these letters, a publication titled The 
American Spectator reported an allegation from an unnamed 
source that the Office of the Secretary of Health and Human 
Services had received this report more than a week before the 
March 2010 votes on the bill and had not released it 
publicly.\2\
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    \1\For example, on October 21, 2009, the Actuary released a letter 
estimating the impact of H.R. 3200, the version that had been 
considered by the relevant House Committees. On November 13, 2009, the 
Actuary released a letter estimating the impact of H.R. 3962, the 
version the full House passed on November 7, 2009. On January 8, 2010, 
the Actuary released a letter estimating the impact of H.R. 3590, the 
version passed by the Senate on December 24, 2009. See the Web site for 
the Centers for Medicare and Medicaid Services for copies of these 
letters (https://www.cms.gov/ActuarialStudies/
05_HealthCareReform.asp#TopOfPage).
    \2\What Lies Beneath: Office Politics, American Spectator (Apr. 26, 
2010) (online at http://spectator.org/archives/2010/04/26/what-lies-
beneath/print).
---------------------------------------------------------------------------
    The Chief Actuary in the CMS Office of the Actuary, Richard 
Foster, has addressed the allegation made by the American 
Spectator. On April 27, 2010, he issued a statement asserting 
``This article and the allegations it is based on are 
completely inaccurate.'' He provided a timeline regarding his 
April 22, 2010, estimate, stating:

          We received the reconciliation bill for the health 
        reform legislation when it was publicly issued on March 
        18, which was three days before the House vote took 
        place on March 21. Because of the complexity of the 
        legislation, it wasn't possible to estimate the bill's 
        financial and other impacts before either the House or 
        Senate votes. We began work on the estimates right 
        away, but were not able to finalize them until the 
        afternoon of April 22. We finished our memorandum on 
        the health reform act later that same day and 
        immediately sent it to those individuals and 
        organizations that had requested it, including 
        Congressional staff, HHS staff, and media 
        representatives.

    Mr. Foster further stated, ``Consistent with the Office of 
the Actuary's longstanding independent role on behalf of both 
Congress and the Administration, we did not seek approval or 
clearance from HHS (or anyone else) before issuing our 
analysis,'' and noted that neither Secretary Sebelius nor her 
staff ``have made any attempt to influence our results or 
prevent us from responding to Congressional requests for our 
analysis.''\3\
---------------------------------------------------------------------------
    \3\Centers for Medicare and Medicaid Services, Office of the 
Actuary, Statement of Richard S. Foster Regarding The American 
Spectator Article on the Office of the Actuary's Analysis of the 
Patient Protection and Affordable Care Act, as Amended (April 27, 
2010).
---------------------------------------------------------------------------
    These circumstances stand in contrast to a situation during 
the Bush Administration involving the Office of Actuary and 
this same Chief Actuary when Congress was considering the 
Medicare Prescription Drug, Improvement, and Modernization Act 
of 2003 (Public Law 108-173). In June 2003, minority members of 
Congress requested that Mr. Foster provide them with cost 
estimates and analyses of that legislation, which was 
ultimately considered that month by the House Committee on Ways 
and Means and the House Committee Energy and Commerce, and the 
full House. Thomas Scully, then the head of CMS, denied this 
information to these members of Congress. Mr. Foster testified 
in March 2004 that Mr. Scully had ordered him to withhold this 
information and threatened him with the loss of his job if he 
did not comply with this directive.\4\
---------------------------------------------------------------------------
    \4\See discussion in House Committee on Energy and Commerce, 
Adverse Report to Accompany H. Res. 776, Dissenting Views, pp. 8-15 (H. 
Rept. 108-754, part 2) (Oct. 8, 2004).
---------------------------------------------------------------------------
    An investigation at the Office of the Inspector General at 
HHS confirmed Mr. Foster's account that Mr. Scully had sought 
to prevent Mr. Foster from communicating with Congress in 
2003.\5\ The nonpartisan Government Accountability Office found 
that Mr. Scully's actions violated 2003 and 2004 appropriations 
acts and that no federal monies should have been used to pay 
Mr. Scully's salary from the date of the threats until Mr. 
Scully's departure in December 2003.\6\ When members of 
Congress in 2004 sought information regarding this incident 
through H. Res. 776, a resolution of inquiry, the Republicans 
on the Committee on Energy and Commerce and the Committee on 
Ways and Means voted to report this resolution unfavorably on 
virtually a party-line vote.\7\
---------------------------------------------------------------------------
    \5\HHS Office of Inspector General, Statement of Dara Corrigan, 
Acting Principal Deputy Inspector General, Department of Health and 
Human Services, on Thomas Scully and Richard Foster Investigation (July 
6, 2004).
    \6\Government Accountability Office, Department of Health and Human 
Services--Chief Actuary's Communications with Congress (Sept. 7, 2004) 
(Legal Opinion B-302911).
    \7\Committee on Energy and Commerce, Adverse Report to Accompany H. 
Res. 776 (H. Rept. 108-754, part 2) (Oct. 8, 2004); Committee on Ways 
and Means, Adverse Report to Accompany H. Res. 776 (H. Rept. 108-754, 
part 1) (Oct. 7, 2004).
---------------------------------------------------------------------------
    H. Res. 1561 is premised on the allegation that the Office 
of Secretary Sebelius withheld from Congress cost analysis of 
this legislation by the Office of Actuary.\8\ It is not an 
appropriate course of action at this point in time for several 
reasons. First, Mr. Foster thoroughly addressed this 
allegation, including in a letter to Rep. Burgess, and he has 
stated the allegation is not true.\9\ Mr. Foster is a credible 
source who has been willing to say in the past when he believed 
the Administration was denying Congress access to the analyses 
of the Office of the Actuary.
---------------------------------------------------------------------------
    \8\See Press Release of Congressman Michael C. Burgess, M.D., 
Resolution of Inquiry Requests Internal Documents Related to Report 
Predicting Health Costs Will Go UP Because of Health Law (July 28, 
2010) (online at http://burgess.house.gov/News/
DocumentSingle.aspx?DocumentID=201038) (describing H. Res. 1561 and the 
April 22, 2010, report of the Office of the Actuary and stating ``I am 
very concerned that the information in this report was deliberately 
kept secret before final passage of health care reform, thereby 
preventing Congress and the public from knowing the truth about the 
costs of implementation of the legislation. . . . Were Secretary 
Sebelius and others at HHS aware of this report while saying publicly 
that health care costs would go down because of the bill?'').
    \9\See, e.g., Letter from Richard Foster to Rep. Michael C. Burgess 
(Aug. 3, 2010).
---------------------------------------------------------------------------
    Second, the resolution is overly broad. For example, it 
requests any document, telephone or electronic communication, 
presentation, or briefing, of any HHS employee ``referring to 
or relating to'' any documents prepared by or for the Office of 
the Actuary on the Patient Protection and Affordable Care Act 
or the Health Care and Education Reconciliation Act of 2010. It 
also requests documents relating to any contacts with the 
Congressional Budget Office (CBO) on these bills. CBO has 
argued that such a request could undermine the ability of CBO 
in the future to provide estimates in a timely manner by having 
a chilling effect on communications between CBO and the parties 
relevant to providing information for such estimates.
    Before the Committee considered the resolution of inquiry, 
the Chairman of the Committee offered to join Mr. Burgess on a 
letter to the Secretary of Health and Human Services that would 
have made an information request that had a reasonable scope 
and at the same time would have assisted an assessment of Mr. 
Foster's statements that there was no inappropriate conduct 
relating to the release of the cost estimates on the final 
health care reform bill and reconciliation measure. Mr. 
Burgess, however, declined that offer.
    Given these facts, the Committee ordered reported H. Res. 
1561 without recommendation.

                        COMMITTEE CONSIDERATION

    H. Res. 1561, a resolution of inquiry directing the 
Secretary of Health and Human Services to provide the House of 
Representatives with CMS documents relating to health care 
reform bills, was introduced in the House by Mr. Burgess of 
Texas on July 27, 2010, and referred to the Committee on Energy 
and Commerce. H. Res. 1561 was referred to the Subcommittee on 
Health on July 28, 2010. There were no hearings held on the 
resolution. On September 23, 2010, the Committee on Energy and 
Commerce discharged H. Res. 1561 from the Subcommittee on 
Health and considered the resolution in open markup session. 
Subsequently, the Committee ordered H. Res. 1561 reported to 
the House without recommendation by a roll call vote of 26 yeas 
and 17 nays.

                            COMMITTEE VOTES

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list each record vote 
on the motion to report legislation and amendments thereto. A 
motion by Mr. Waxman ordering H. Res. 1561 reported to the 
House without recommendation was approved by a record vote of 
26 yeas and 17 nays. The following is the record vote taken 
during Committee consideration, including the names of those 
members voting for and against:


            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the findings and 
recommendations of the Committee are reflected in the 
descriptive portions of this report.

   NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that H. Res. 1561 
would result in no new budget authority, entitlement authority, 
or tax expenditures or revenues.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    H. Res. 1561 is intended to direct the Secretary of Health 
and Human Services to furnish certain documents relating to the 
cost estimates prepared by the Centers for Medicare and 
Medicaid Services Office of the Actuary regarding the Patient 
Protection and Affordable Care Act and the Health Care and 
Education Reconciliation Act.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    The Committee finds that the clause 3(d)(1) of rule XIII of 
the Rules of the House of Representatives, requiring a 
statement of constitutional authority for laws proposed by 
bills or joint resolutions, does not apply because H. Res. 1561 
is not a bill or joint resolution that may be enacted into law.

                  EARMARKS AND TAX AND TARIFF BENEFITS

    H. Res. 1561 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the Rules of the House of 
Representatives.

                  FEDERAL ADVISORY COMMITTEE STATEMENT

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by H. Res. 
1561.

             APPLICABILITY OF LAW TO THE LEGISLATIVE BRANCH

    The Committee finds that H. Res. 1561 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.

                       FEDERAL MANDATES STATEMENT

    H. Res. 1561 contains no unfunded mandates.

                        COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d) of rule XIII of the Rules of the 
House of Representatives, the committee estimates the costs of 
implementing the resolution would be minimal. The Congressional 
Budget Office did not provide a cost estimate for the 
resolution.

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

    H. Res. 1561, introduced by Mr. Burgess of Texas, directs 
the Secretary of Health and Human Services to provide certain 
documents to the House of Representatives concerning documents 
prepared by or for the Centers for Medicare and Medicaid 
Services regarding the Patient Protection and Affordable Care 
Act. Specifically, the resolution states that it seeks 
documents relating to:

          ``(1) Documents prepared by or for the Centers for 
        Medicare & Medicaid Services Office of the Actuary 
        regarding the Patient Protection and Affordable Care 
        Act (Public Law 111-148) or the Health Care and 
        Education Reconciliation Act of 2010 (Public Law 111-
        152).
          ``(2) Communications between any officer or employee 
        of the Centers for Medicare & Medicaid Services Office 
        of the Actuary and any person not an officer or 
        employee of such Office regarding data sources, 
        assumptions, or methodologies used for purposes of any 
        document described in paragraph (1).
          ``(3) Communications to or from any officer or 
        employee of the Congressional Budget Office relating to 
        any document described in paragraph (1).
          ``(4) Communications to or from any officer or 
        employee of the Department of Health and Human Services 
        relating to--
          ``(A) the April 22, 2010, report of the Chief Actuary 
        Richard S. Foster entitled Estimated Financial Effects 
        of the Patient Protection and Affordable Care Act,' as 
        Amended';
          ``(B) the report's impact on passage of the Patient 
        Protection and Affordable Care Act or the Health Care 
        and Education Reconciliation Act of 2010; or
          ``(C) the timing of the release of the report.''

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

          This resolution does not change any existing federal 
        statute.

                    DISSENTING VIEWS ON H. RES. 1561

    We, the undersigned Members of the Committee on Energy and 
Commerce (Committee), oppose the determination with which H. 
Res. 1561 was passed out of Committee, and submit the following 
comments to express our concerns and advocate for why it should 
have been passed out of Committee with a favorable 
recommendation.
    On June 14, 2010, Ranking Member Joe Barton and Rep. 
Michael Burgess, the Ranking Member of the Subcommittee on 
Oversight and Investigations, sent a letter to the Secretary of 
the Health and Human Services requesting production of the 
following:
          1. All records of communications relating to analysis 
        prepared or being prepared by or for the CMS Office of 
        the Actuary regarding the Patient Protection and 
        Affordable Care Act, including, but not limited to, e-
        mail, memoranda, and notes. These records were to 
        include records of presentations or briefings prepared 
        by or for the CMS Office of the Actuary regarding such 
        analysis, including preliminary presentations or 
        briefings to any HHS agency or office.
          2. All records of communications to or from the CMS 
        Office of Actuary and the personnel and staff of CMS 
        and any HHS agency and office regarding data sources, 
        assumptions, and methodologies utilized in analysis 
        prepared or being prepared by or for the CMS Office of 
        the Actuary regarding the Patient Protection and 
        Affordable Care Act, including, but not limited to, e-
        mail, memoranda, and notes.
          3. All records of communications to or from the CMS 
        Office of Actuary and persons outside of CMS and HHS 
        regarding data sources, assumptions, and methodologies 
        utilized in analysis prepared or being prepared by or 
        for the CMS Office of the Actuary regarding the Patient 
        Protection and Affordable Care Act, including, but not 
        limited to, e-mail, memoranda, and notes.
          4. All records of communications to or from personnel 
        and staff of the Congressional Budget Office relating 
        to any analysis prepared or being prepared by or for 
        the CMS Office of the Actuary regarding the Patient 
        Protection and Affordable Care Act, including, but not 
        limited to, e-mail, memoranda, and notes.
          5. All records of communications between any 
        personnel or staff of any HHS agency or office relating 
        to the April 22, 2010, report by Chief Actuary Richard 
        Foster, including, but not limited to, e-mail, 
        memoranda, and notes.
    Ranking Member Barton and Subcommittee Ranking Member 
Burgess requested that the information be provided within two 
weeks of the date of the letter. No response from the 
Department of Health and Human Services was received for 
several weeks. Minority Committee staff notified the Majority 
Committee staff that there had been no response to the June 14, 
2010, letter and requested the Majority's assistance in getting 
a response to the letter. By late July 2010, there had still 
been no progress in getting a response from the Department. On 
July 27, 2010, Subcommittee Ranking Member Burgess introduced 
H. Res. 1561 to obtain the requested information from the 
Department of Health and Human Services.\1\
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    \1\H. Res. 1561 is a resolution of inquiry referred to the 
Committee. Under clause 7 of rule XIII of the Rules of the House of 
Representatives, the Committee must act on such a resolution within 14 
legislative days or a privileged motion to discharge the Committee is 
in order. Under the rules and precedents of the House, a resolution of 
inquiry is one of the methods used by the House to obtain information 
from the executive branch. According to volume 7, chapter 24, section 8 
of Deschler's Procedure, it is a ``simple resolution making a direct 
request or demand of the President or the head of an executive 
department to furnish the House of Representatives with specific 
factual information in the possession of the executive branch.''
---------------------------------------------------------------------------
    On August 3, 2010, the Secretary of Health and Human 
Services sent a letter to Ranking Member Barton and 
Subcommittee Ranking Member Burgess enclosing an August 2, 
2010, memorandum from CMS Chief Actuary Richard Foster to CMS 
Administrator Donald Berwick about the timing and process for 
the Office of the Actuary's preparation of financial, coverage 
and national health expenditure estimates for the Affordable 
Care Act. No other documents or information were provided.
    The day before and on the day of the Committee's 
consideration of H. Res. 1561, Committee Chairman Waxman 
offered to co-sign and send a request letter to the Secretary 
for information related to the timing and process of the CMS 
Chief Actuary April 22, 2010, report. However, Subcommittee 
Ranking Member Burgess declined the offer because such a letter 
would not have addressed the requests in the June 14, 2010, 
letter and H. Res. 1561 relating to communications regarding 
the data sources, assumptions, and methodologies utilized in 
analysis prepared or being prepared by or for the CMS Office of 
the Actuary regarding the Patient Protection and Affordable 
Care Act.
    At the markup of H. Res 1561, Subcommittee Ranking Member 
Burgess presented four reasons why the resolution should be 
reported favorably. First, the Resolution of Inquiry was needed 
to ensure that a letter from any Member of Congress to the 
Administration is treated with respect and a resolution 
appeared to be the only means that has produced responses in 
previous instances. Second, the Secretary's August 3, 2010, 
letter did not produce any pre-existing documents or fully 
answer to the Committee's June 14, 2010, letter. The 
Secretary's letter stated ``it addresses many of the questions 
and concerns you raised,'' but not all. Third, the substance of 
the resolution remained unanswered. While Subcommittee Ranking 
Member Burgess accepted that the Chief Actuary did not feel 
improperly threatened or influenced, the Chief Actuary would 
not have known the Secretary's state of knowledge concerning 
cost concerns related to the healthcare legislation in question 
or her actions. Only a release of the requested documents would 
allow the Congress to know that the Secretary did not attempt 
to withhold information from the Actuary or coordinate with 
others in the White House regarding the release of his report. 
Finally, the Chief Actuary's August 2, 2010, memorandum 
strengthens the need for the resolution because he confirmed 
that the Congress did not have cost estimates of the 
legislation at the time of final passage. Mr. Foster wrote that 
on the eve of the bill's passage due to the ``very tight time 
frame'' he could not fully analyze the costs and efficacy of 
the bill before the House voted. In the August 2, 2010, memo 
Mr. Foster stated: ``We received the reconciliation bill . . . 
when it was publicly issued on March 18, which was three days 
before the House vote took place. Because of the complexity of 
the legislation, it wasn't possible to estimate the bill's 
financial and other impacts before either the House or Senate 
votes.'' Because the cost estimates were unknown at that time, 
the resolution is needed to get all the facts about how the new 
healthcare law would impact costs.
    By a roll call vote of 26-17, the Committee ordered 
reported H. Res. 1561 without recommendation. For the 
aforementioned reasons, the undersigned maintain that the 
resolution of inquiry should have been passed with a favorable 
recommendation.

                                    Joe Barton.
                                   Fred Upton.
                                   Roy Blunt.
                                   Cliff Stearns.
                                   Ralph M. Hall.
                                   Parker Griffith.
                                   Steve Scalise.
                                   John Sullivan.
                                   Tim Murphy.
                                   Sue Myrick.
                                   Mike Rogers (MI).
                                   Robert E. Latta.
                                   Steve Buyer.
                                   Lee Terry.
                                   George Radanovich.
                                   Ed Whitfield.
                                   Michael C. Burgess.
                                   John Shadegg.
                                   Joseph Pitts.
                                   Marsha Blackburn.
                                   Phil Gingrey.
                                   Mary Bono Mack.
                                   John Shimkus.

                                  
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