Advisory Committee Act: Violation by Health Care Financing Administration, File: B-278940, Date: January 13, 1998

B-278940 Jan 13, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights You also requested that we provide our opinion whether the Committee is in compliance with the requirements of the Federal Advisory Committee Act and. If it is not. The purpose of the Technology Advisory Committee (the Committee) is to help the Health Care Financing Administration (HCFA) make decisions concerning whether Medicare should reimburse providers on a national basis for new procedures and technologies. May decide individually whether they will cover a particular technology. As it was constituted as of December 31. The Committee was an advisory committee as defined in the Federal Advisory Committee Act (the Act or FACA). Was not operating in compliance with the Act. Unless a specific exception to that requirement is invoked. View Decision Matter of: Advisory Committee Act: Violation by Health Care Financing Administration File: B-278940 Date: January 13, 1998 The Honorable Bill Thomas Chairman, Subcommittee on Health Committee on Ways and Means House of Representatives Dear Mr. Chairman: The Health Care Financing Administration created the Technology Advisory Committee to provide it with expert advice concerning whether Medicare should cover specific technologies on a national basis. In your November 7, 1997, letter to this Office, you asked that we provide a description of the responsibilities and operations of the Committee. You also requested that we provide our opinion whether the Committee is in compliance with the requirements of the Federal Advisory Committee Act and, if it is not, that we discuss the legal implications of that violation. The purpose of the Technology Advisory Committee (the Committee) is to help the Health Care Financing Administration (HCFA) make decisions concerning whether Medicare should reimburse providers on a national basis for new procedures and technologies. Until HCFA makes a decision to provide national coverage, the carriers--the private-sector companies that operate the Medicare program under contract with HCFA--may decide individually whether they will cover a particular technology. The Committee meets several times a year to consider an agenda established by HCFA. The membership has consisted of both government employees and carrier medical directors. Although it merely provides information in some instances, the Committee has on occasion made recommendations to HCFA. As it was constituted as of December 31, 1997, the Committee was an advisory committee as defined in the Federal Advisory Committee Act (the Act or FACA), but was not operating in compliance with the Act. The Act requires that meetings of an advisory committee be open, unless a specific exception to that requirement is invoked. Although HCFA promptly publishes a summary of meetings of the Committee after they take place, the meetings are not open to the public, and no exception has been invoked. The Committee has also not been in compliance with other provisions of the Act. These include the requirements that the head of the agency, in consultation with the Administrator of General Services, make a formal determination that creation of an advisory committee would be in the public interest, that a charter for an advisory committee be on file with the agency using it and with the congressional committees having legislative jurisdiction, and that the committee have an expiration date. The Act is silent concerning the consequences of non-compliance. A person who can establish that he is adversely affected by the violation can seek relief from the courts, which are free to craft what they consider to be an appropriate remedy. For example, when the complaint is based on failure to hold open meetings, the courts have ordered that the meetings be opened. HCFA, in commenting on a draft of this letter, acknowledged that the Committee was "likely not in compliance with the requirements of FACA," and indicates that it is taking steps to cure the violation. HCFA points out that the Committee "performs a very important role in augmenting the limited clinical resources available on our staff to review the scientific evidence respecting the appropriateness of extending Medicare coverage to specific health care items and services." HCFA and the Department of Health and Human Services are therefore developing a proposal for a new committee, chartered under the Act, and with broad public membership, that would in effect replace the existing Committee. Pending that decision, HCFA will "reformulate the current committee" with membership limited to federal employees. (We were told that this would be done before the next scheduled meeting of the Committee in February.) A committee so constituted would not be subject to the Act, which excludes from coverage committees consisting entirely of full-time government officers or employees. We agree with HCFA's course of action.