Democrats Assess Medicare Report

Posted May 4, 2004 at 6:40pm

Congressional Democrats are split over the significance of a recent report by the Congressional Research Service that supports Democratic claims that Bush administration officials violated the law by withholding cost estimates in advance of last year’s Medicare vote.

The report, requested by Ways and Means ranking member Charlie Rangel (D-N.Y.) and dated April 26, used Supreme Court rulings and a variety of federal statutes to conclude that, “Congress’ right to receive truthful information from federal agencies to assist in its legislative function is clear and unassailable.”

But given that CRS reports generally accept the assumptions of its Congressional requesters, some Members are wary of holding the report up as the evidence they need to force further investigation.

Others, however, argue that the report should be used precisely in that way. Senate Minority Leader Tom Daschle (D-S.D.) said Tuesday that the CRS report should compel a Justice Department investigation into whether former Centers for Medicare and Medicaid Services Administrator Tom Scully improperly told CMS Chief Actuary Rick Foster to withhold cost data on the Medicare prescription drug bill during last summer’s Congressional debate on the bill.

“Perhaps turning this over to the Justice Department will be warranted,” Daschle said. “We know enough about the facts to warrant investigations on all levels.”

Several Democratic lawmakers have already asked Justice to investigate whether Scully broke criminal laws in allegedly threatening to fire Foster if he revealed that his cost estimate was $136 billion higher than the estimate provided by the Congressional Budget Office. In addition, the inspector general of the Health and Human Services Department is investigating both the allegations that such information was improperly withheld as well as the alleged threat to Foster’s job.

Scully, who took joint positions with a lobbying firm and an investment bank after the Medicare bill passed last fall, has acknowledged directing Foster to withhold the cost estimates, but denies threatening to fire him.

Meanwhile, Rangel spokesman Dan Maffei urged that the CRS report be viewed in the context under which it was requested. Rangel had asked for the report in an effort to force Ways and Means Chairman Bill Thomas (R-Calif.) to subpoena Scully as well as Doug Badger, the White House health policy adviser who was closely involved in Hill negotiations over Medicare.

At a hearing last month, Thomas said he would not agree to Democratic demands for the subpoenas unless he had some evidence that the law had been violated — something he contended had not happened.

Rangel’s “focus is on having a full committee hearing in public with all the information,” said Maffei. “Maybe Justice may want to take a look at it, but the CRS report is predominantly talking about civil violations” not criminal ones that Justice would have purview over.

Thomas has not yet responded to an April 30 letter in which Rangel asks him to issue committee subpoenas for Scully and Badger. The two were invited to the April 1 hearing but declined to appear. Scully sent a letter saying he couldn’t attend, while Badger said his position as a close adviser to the president meant that executive privilege allowed him to decline.

Sen. Frank Lautenberg (D-N.J.) is another Member who expressed skepticism about whether the CRS report should be considered an authority on a possible violation of laws.

“I’m not sure we’re ready for that,” said Lautenberg, who added that he wanted to review the report further.

Meanwhile, Lautenberg spokesman Alex Formuzis said the CRS report needed to be taken with a grain of salt.

“CRS is not totally independent,” said Formuzis. “It’s an independent validation of your point. It’s definitely not nearly as thorough or authoritative as” the General Accounting Office — the independent investigative arm of Congress.

Members often use CRS for procedural and historical opinions on policy questions. CRS staff does not have the luxury, as GAO does, to reject Member requests.

Formuzis’ point was echoed by a Bush administration official.

“They’re obviously going to look at this from a perspective that’s not too unfavorable to Congress,” the official said.

The Bush administration is looking to the HHS inspector’s general’s report, which is expected this month or in early June, to settle the issue, the official said.