Department of Health and Human Services—Chief Actuary's Communications with Congress, B-302911, September 7, 2004

B-302911 Sep 07, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights The Department of Health and Human Services appropriation was unavailable to pay the salary of an official who prohibited an employee from communicating cost estimates and providing technical assistance regarding Medicare legislation to Congressional offices. Section 618 of the Consolidated Appropriations Act of 2004 bars HHS from using appropriated funds to pay the salary of an official who prohibits or prevents another federal employee from communicating with Congress on an issue related to his agency. While certain applications of section 618 could raise constitutional concerns, such concerns are inapplicable when Congress requests limited, non-privileged information that is necessary to carry out its legislative duties. View Decision B-302911, Department of Health and Human Services Chief Actuary's Communications with Congress, September 7, 2004 B-302911 September 7, 2004 The Honorable Frank R. Lautenberg The Honorable Tom Daschle The Honorable Edward M. Kennedy The Honorable Jack Reed The Honorable Jon S. Corzine The Honorable John F. Kerry The Honorable Patrick J. Leahy The Honorable Debbie Stabenow The Honorable Tim Johnson The Honorable Mark Pryor The Honorable Maria Cantwell The Honorable Joseph I. Lieberman The Honorable Carl Levin The Honorable Paul Sarbanes The Honorable Barbara A. Mikulski The Honorable Charles Schumer The Honorable John Edwards The Honorable Hillary Rodham Clinton United States Senate Subject: Department of Health and Human Services Chief Actuary's Communications with Congress By letter dated March 18, 2004, you asked for our legal opinion regarding a potential violation of the prohibitions in the Consolidated Appropriations Act of 2004 and the Consolidated Appropriations Resolution of 2003 on the use of appropriated funds to pay the salary of a federal official who prohibits another federal employee from communicating with Congress. Pub. L. No. 108-199, Div. F, tit. VI, 618, 188 Stat. 3, 354 (Jan. 23, 2004); Pub. L. No. 108-7, Div. J, tit. V, 620, 117 Stat. 11, 468 (Feb. 20, 2003). Specifically, you ask whether alleged threats made by Thomas A. Scully, the former Administrator of the Centers for Medicare & Medicaid Services (CMS), to CMS Chief Actuary Richard S. Foster to terminate his employment if Mr. Foster provided various cost estimates of the then-pending prescription drug legislation to members of Congress and their staff made CMS's appropriation unavailable for the payment of Mr. Scully's salary. As agreed, this opinion relies on the factual findings of the Office of Inspector General (OIG) for the Department of Health and Human Services (HHS), who conducted an independent investigation into whether Mr. Foster was prohibited from communicating with congressional offices and whether he was threatened with dismissal if he did so. [1] Tom Scully and Chief Actuary - Information , Report of the Office of Inspector General, Department of Health and Human Services, July 1, 2004 (OIG Report). The OIG concluded that CMS did not provide information requested by members of Congress and their staff, that Mr. Scully ordered Mr. Foster not to provide information to members and staff, and that Mr. Scully threatened to sanction Mr. Foster if he made any unauthorized disclosures. OIG Report, at 4. As we explain below, in our opinion, HHS's appropriation, which was otherwise available for payment of Mr. Scully's salary, was unavailable for such purpose because section 618 of the Consolidated Appropriations Act of 2004 and section 620 of the Consolidated Appropriations Resolution of 2003 prohibit the use of appropriated funds to pay the salary of a federal official who prevents another employee from communicating with Congress. [2] While the HHS Office of General Counsel and the Office of Legal Counsel for the Department of Justice raised constitutional separation of powers concerns regarding the application of section 618, in our view, absent an opinion from a federal court concluding that section 618 is unconstitutional, we will apply it to the facts of this case. Background In December 2003, Congress passed and the President signed into law the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, which added a prescription drug benefit to the Medicare program. Pub. L. No. 108-173, 117 Stat. 2066 (Dec. 8, 2003). During the previous summer and fall as Congress debated various proposals, several members of Congress and committee staff asked Mr. Foster, a career civil servant and the Chief Actuary for CMS, to provide estimates of the cost of various provisions of the Medicare bills under debate. [3] OIG Report, at 2-3. Members and staff also made requests for technical assistance, including requests that Mr. Foster perform analyses of various provisions of the Medicare legislation. Id. Mr.