July 17, 2008
Floor Statement: August 17 CHIP Directive
I rise in solidarity with the chairman of the Senate Finance Committee, Senator Baucus, as well as Senator Snowe, Senator Lautenberg, Senator Menendez, and many others, to wit, 41 other people who are cosponsores, and to introduce a resolution of disapproval, that is the name on it, of the August 17 CHIP directive.
The directive jeopardizes health care coverage for hundreds of thousands of children, which is reason enough to nullify the August 17 directive. But it also undermines the authority and the prerogatives of the legislative branch of Government.
I would caution those who would otherwise vote against this to think about the precedence for the future and the next administration. We have not been treated well. It is not necessary that we will be treated well or with proper respect in the next administration. We need to exert our privileges where they are legitimate. It is further evidence of this administration's, in my regard, this Senator's regard, blatant disregard for the rule of law.
As many of my colleagues may remember, on August 17, 2007, I referred to it as a domestic health care day of infamy, the Center for Medicare and Medicaid Services, otherwise known as CMS, issued a ``guidance letter'' to the States, ostensibly to clarify existing policies and requirements for States seeking to expand the Children's Health Insurance Program, otherwise known as CHIP, coverage to more children, which is what we are meant to be doing here.
However, the practical effect of the letter will be to drastically increase the number of uninsured children, children who should rightfully be covered by CHIP and who otherwise could benefit from the program. The directive has already taken a substantial toll on State coverage initiatives for uninsured children. Since it was issued, the directive has caused a diverse array of States, including Indiana, Louisiana, Ohio, and Oklahoma, that had planned to provide affordable coverage options for uninsured children through CHIP or Medicaid, in fact, to delay or scale back, or State fund their initiatives, if they can afford to so do.
As a result, tens of thousands of children have already missed out on coverage. By August, the directive will affect at least 22 States, including my own State of West Virginia. Hundreds of thousands of children, in red and blue States alike, will lose coverage immediately, if this directive goes into effect.
The directive goes directly against the will of the Congress. It was an act by a Cabinet officer or one of his minions, and it is not legal.
In addition to harming innocent children, the August 17 directive also undermines congressional authority. I am very sensitive about that after these last 7 1/2 years. In 1996, Congress passed what is called the Congressional Review Act, to protect the integrity of the legislative branch from the whims of Federal agencies or midlevel bureaucrats or upper level bureaucrats. The Congressional Review Act requires Federal agencies--requires Federal agencies--to submit any rules covered by the act to Congress and the Comptroller General of the United States before that rule can take affect. Both the Congressional Research Service and the Government Accountability Office have determined that the August 17 CHIP directive constitutes a rule--a rule--as defined in the Congressional Review Act.
Therefore, CMS has to submit the August 17 rule to each House of Congress and the Comptroller General before it can take effect. We are exactly 1 month from implementation of this harmful policy, and CMS has repeatedly failed to comply with the statutory requirements of the Congressional Review Act.
It is an outrage. It is embarrassing. It is pathetic policy, damaging policy to innocent children who do not start wars and only need to start off in life healthy. If CMS is so convinced that the policy is justifiable, then they should take the required steps suggested by the GAO and the CRS in their review and abide by the law.
Not all my colleagues may agree with me on the substance of this issue. Some may believe that the August 17 policy CMS put forth in this guidance letter is perfectly acceptable. That is fine. That is up to them. On that we disagree.
But we should all be able to agree--in fact, we have no choice but to agree, all of us--that CMS violated the proper process required by law. They did not submit to the proper agencies or to the Congress what they intended to do surreptitiously and devastatingly.
If you respect Congress, as an institution, which I know all my colleagues do, then I urge you to support this formal resolution of disapproval. The health care coverage of millions of children depends on what we do on this.
This is not a sense-of-the-Senate resolution. This is a motion of disapproval and it will cause things to happen or to be ignored and it will have consequences. But we can reverse the August 17 decision and allow children to get health insurance as the Congress intended if we simply vote for this at the proper time.
