Democrats Ask Justice For a Medicare Probe

Posted March 24, 2004 at 6:19pm

The partisan war over the cost of the Medicare prescription drug bill continued to escalate Wednesday, with Senate Democrats charging that criminal laws may have been broken when a former Medicare official ordered Bush administration cost estimates withheld from Congress.

But Medicare actuary Rick Foster, who has alleged he was threatened with dismissal if he revealed his $534 billion cost estimate for the bill before Congress voted on it, nonetheless said Wednesday that he does not believe any laws were broken. He made that statement during testimony before the Ways and Means Committee.

Still, Sens. Hillary Rodham Clinton (D-N.Y.), Frank Lautenberg (D-N.J.), Edward Kennedy (D-Mass.) and Debbie Stabenow (D-Mich.) sent a letter to Attorney General John Ashcroft alerting him to two federal criminal laws prohibiting the withholding of some information from Congress.

The foursome believe that former Bush official Tom Scully may have broken those criminal laws when, in June 2003, he allegedly threatened to fire Foster if the actuary told Congress that his estimate was $139 billion more than the one prepared by Congress’ own independent scorekeepers, the Congressional Budget Office.

Scully has acknowledged withholding some information, but has sharply denied threatening Foster.

The Senate Democrats note in their letter that current law requires fines or five years imprisonment for “whoever corruptly, or by threats of force, or by any threatening letter or communications influences, obstructs or impedes … the due and proper inquiry under which any inquiry or investigation is being had by either House or any committee of either House or any joint committee of Congress.”

A Senate Democratic aide said a formal request that Ashcroft open a criminal inquiry was likely in the next few days.

Separately, Foster testified that he consulted a CMS lawyer shortly after being told that all Congressional requests for information would have to be approved by Scully.

“When I consulted the attorney at CMS, I became convinced that the administration had the legal right to direct our activities,” said Foster, who said his understanding was that because he was officially an executive branch employee he did not have to give information to the legislative branch.

Still, Foster said he thought the “new policy on communication with Congress” was “unethical.”

Because all Congressional requests were handled by Scully, said Foster, “what I perceived was that some responses went out and some responses did not go out, and that struck me as political.”

But Republican members of the Ways and Means Committee seized upon Foster’s statement that the conduct was not illegal.

“You mentioned earlier that you were following the law,” said Rep. Wally Herger (R-Calif.), to which Foster replied, “Yes.”

Foster’s allegations came under increased scrutiny by often-testy Ways and Means members, with Democrats generally seeking to bolster their claims that they were misled about the cost of the drug bill by the Bush administration and Republicans reiterating their belief that no matter Foster’s estimate, Congress is bound to use only the estimates provided by CBO.

Ways and Means Chairman Bill Thomas (R-Calif.) told Foster plainly that his estimates were helpful, but “if we are forced to choose, the law says very clearly that [CBO Director Douglas] Holtz-Eakin wins.”

Thomas, who has had his share of partisan spats with Democrats, also drew laughter from the packed committee room when he implored Foster and Holtz-Eakin to consult more often to avoid bickering.

“Would you two please get together and talk to each other so we can narrow the difference?” Thomas asked.