GAO
final arbitrators of conflicting views |
Former Medicare administrator
Thomas Scully broke no law when he repeatedly directed his chief cost analyst
to withhold information that members of Congress sought about the cost of the
Medicare prescription-drug bill, a report released Tuesday concludes. |
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The finding by the Health and
Human Services Department's independent Office of Inspector General relies
heavily on a fresh opinion by the Bush administration's legal advisers, which
concluded that the analyst wasn't legally independent enough to override his
boss's order. |
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Critics of that view - who
included Republicans in the House of Representatives when the Clinton
administration was in power - contend that Congress can legislate wisely only
when executive branch experts share their information and expert opinions,
especially about the costs of government programs. |
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The new report, signed by
Acting Principal Deputy Inspector General Dara Corrigan, found that on five
occasions between June and October 2003, Scully blocked the efforts of his
chief actuary, Richard Foster, to comply with congressional Democrats' requests
for information about the cost of the Medicare drug bill. |
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"Our investigation failed
to produce evidence that criminal statutes were violated in connection with the
failure to respond to congressional requests," the report concludes. |
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Before 2003, the Medicare
actuary's expertise and figures usually were provided to lawmakers who were
debating Medicare legislation. |
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The finding that Scully's
actions violated no laws contradicts a report in April from the Congressional
Research Service that also probed the matter. That earlier analysis concluded
that Scully's efforts to muzzle and threats to fire Foster probably violated a
1912 statute that says a federal employee's right to communicate with and provide
information to Congress "may not be interfered with or impeded." |
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Lawyers for the General
Accounting Office, Congress's watchdog agency, will be the final arbitrators of
the conflicting opinions. The GAO is expected to report in a few weeks. |
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For the Bush administration,
the key issue was keeping Foster's analysis, which showed that the then-pending
Medicare drug bill would cost $500 billion to $600 billion over the first 10
years, from critical Democrats. That was far more than the $395 billion estimated
by the Congressional Budget Office and touted by the White House. |
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In March, Knight Ridder
reported exclusively that Foster nearly resigned in protest after Scully
directed him to withhold cost estimates and other information sought by members
of Congress who were drafting the Medicare legislation. |
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Foster's figures threatened the
passage of the White House-backed bill because 13 House Republicans had vowed
to vote against it if it cost more than $400 billion. The bill initially passed
the House by one vote in June 2003. A House-Senate compromise passed by five
votes last November. |
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In January, the Bush
administration acknowledged that the bill probably would cost $534 billion over
10 years, not $395 billion. After Foster's allegations became public, Democratic
lawmakers complained that Scully's actions were unethical and forced them to
vote without full knowledge of the bill's costs. |
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Rep. Charles Rangel, D-N.Y.,
the senior Democrat on the Ways and Means Committee, which handled the Medicare
drug bill in the House, said Tuesday: "All I know is that the Congress did
not have the best information available to make a judgment on vital
legislation. . . . We asked for it. We were not given it." |
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Justice Department lawyers, in
an analysis offered Tuesday, found that Scully was within his rights to order
Foster to withhold information - as long as the directive was "not based
upon an invalid or unlawful reason," wrote Katherine M. Drews, a Justice
Department associate general counsel. |
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The question Drews weighed was
a narrow one: whether Foster could speak independently of his boss or needed to
obey him. She concluded that Foster's job provides him "freedom from
supervision in performing actuarial duties, not supervision of disclosure of
Department records or information to the Congress." |
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"Since the Chief Actuary
is subject to CMS (Centres for Medicare and Medicaid Studies) supervision, the
Administrator has the right to direct the Chief Actuary, just as any other CMS
employee, to provide the Administrator with information for review prior to the
information being provided to the Congress, or even direct that the information
not be provided," Drews wrote. |
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Foster, reached at home
Tuesday, said he was surprised that the Congressional Research Service report
and the HHS report differed so much in their findings. |
"My perception remains
that Mr. Scully withheld that information for political purposes. And
regardless of his legal right to withhold it, I continue to believe that it's
wrong and unethical to withhold technical information from Congress."
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