After repeated denied requests for information from the Obama Administration, the House Energy and Commerce Committee and the Ways and Means Committee issued subpoenas to HHS for documents regarding the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) cost-reduction (CSR) program. The subpoenas come after more than a year of efforts by the committees to request information from HHS via letters and telephone calls.
Subpoenas. Energy and Commerce Committee Chairman Fred Upton (R-Mich) and Ways and Means Committee Chairman Kevin Brady (R-Texas) issued subpoenas to HHS and the Office of Management and Budget (OMB). The subpoenas come after a January 2016 phone call during which HHS Secretary Sylvia Burwell agreed with Chairman Upton to provide the requested information. The threatened subpoena was put on hold, but the Administration has yet to follow through.
The subpoenas to HHS from the Energy and Commerce Committee and the Ways and Means Committee request "[a]ll documents and communications referring or relating to budget requests and the source of funding for cost-sharing reduction payments made by the Administration to health insurance issuers under Section 1402 and/or 1412(c)(3) of the [ACA]." The subpoenas to the OMB from the Energy and Commerce Committee and the Ways and Means Committee request "[a]ll drafts, including the final version, of a memorandum drafted by [OMB] personnel related to the Cost-Sharing Reduction program of the [ACA], a version of which was distributed by OMB personnel to select Internal Revenue Service officials on January 13, 2014, at a meeting in the Old Executive Office Building."
CSR program. Undersection 1402 of the ACA, certain individuals are subject to CSRs or subsidies for health insurance plans obtained on the health insurance marketplace. The federal government pays the health plan issuers for the value of the reductions they make under the CSR program. Committee leaders are concerned that the administration is paying subsidies to insurance companies without a legal appropriation from Congress. The expenditures total more than $5 billion to date and are estimated to amount to approximately $170 billion over the next 10 years.
Previous attempts. Starting in February 2015, the committees sent letters to HHS requesting documents regarding the implementation of the CSR program. After the first attempt, HHS refused to provide the information, stating that it relates to matters that are the subject of a pending lawsuit. In July 2015, the committees reiterated their request and threatened the use of the compulsory process to obtain them (see House committee chairs demand answers on unappropriated payments made under ACA, July 15, 2015). After several more refused attempts, the committees again threatened to subpoena the agency (see Reps threaten ‘compelled process’ after Administration is silent on cost-sharing reduction, December 16, 2015).
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