| Offices : Beckley • Charleston • Fairmont • Martinsburg • Washington, DC | E-mail Senator Rockefeller |
April 18, 2008
WITH LAW ON THEIR SIDE, SENATORS CALL ON BUSH ADMINISTRATION TO VOLUNTARILY RESCIND AUGUST 17 CHIP DIRECTIVE
~Two Non-Partisan Analyzes Conclude August 17 "Directive" Violates the Congressional Review Act~
Washington, D.C. – Senators John D. (Jay) Rockefeller IV (D-WV) and Olympia Snowe (R-ME) today released legal opinions from the non-partisan Government Accountability Office (GAO) and Congressional Research Service (CRS), both of which indicate that the August 17 CHIP “directive” is in fact a rule for purposes of the Congressional Review Act and, therefore, in violation of the statutory requirements for Congressional notice and review.
At the request of the two Senators, GAO and CRS were asked to provide their independent legal analyses of the August 17 directive issued last year by the Centers for Medicare and Medicaid Services (CMS). The directive mandates that states achieve 95% enrollment of children in families earning less than 200% of the poverty level before they can seek to enroll additional low-income children in families earning more than 250% of the poverty level.
A cornerstone of the Children’s Health Insurance Program (CHIP) has always been state flexibility. However, with the August 17 directive the Administration knowingly mandated changes to CHIP that are unachievable – in effect, tying the hands of those states attempting to provide greater access to health insurance for children.
According to GAO, “The August 17 letter from CMS to state health officials is a statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy with regard to [CHIP]. Accordingly, it is a rule under the Congressional Review Act. Therefore, before it can take effect, it must be submitted to Congress and the Comptroller General.”
“Both GAO and CRS have now confirmed what so many of us have known for some time, that the Administration clearly overstepped its legal authority in issuing the August 17 letter,” Rockefeller said. “The directive is a bold-faced attempt to subvert the law and prevent states from implementing their plans to provide health insurance coverage to millions of uninsured children nationwide. CMS now has a critical choice to make: rescind the rule or continue to spend taxpayer money defending a growing list of lawsuits it is unlikely to win.”
“It would be in the best interest of all parties involved, but particularly children, if CMS voluntarily withdrew the August 17 letter,” Rockefeller concluded.
“Rather than working with Congress and the Governors in an open, cooperative and transparent manner, CMS chose to circumvent the rules and go their own way,” said Snowe. “As we can see from the opinions released today, this is clearly the wrong approach. That’s why we have encouraged the Administration to rescind their August 17th directive and try to develop a workable consensus – with proper notice and full opportunity for public comment – on how to balance expanding CHIP eligibility with enrolling the lowest income children first.”
The August 17 CHIP directive to state health officials, released by CMS, effectively mandates that any state trying to enroll children in CHIP from families earning more than 250% of the federal poverty level, or $44,000 for a family of three in 2008, has to first prove that it covered 95% of children in families earning less than 200% of the federal poverty level ($35,200 for a family of three in 2008).
The directive was issued during the height of last year’s CHIP reauthorization debate in an attempt to suppress states’ efforts to cover additional low-income children. When it became clear that there was an overwhelming bipartisan majority in Congress that would not support the Bush Administration’s position, they issued the guidance to the states.
Last week, the Senate Finance Subcommittee on Health Care, which Senator Rockefeller chairs, held a hearing on the August 17 directive. Testimony from that hearing is available at: http://finance.senate.gov/sitepages/hearing040908.htm.
The legal opinions from both the Government Accountability Office (GAO) and the Congressional Research Service (CRS) are attached.
###
E-mail Senator Rockefeller | Click here for more contact information.