How the Impeachment Frenzy Could Block Bad Health Care Policies

House Democrats’ headlong rush to impeach President Trump will have many implications for American politics and the presidential election. On policy, it could have a salutary effect for conservatives, by precluding the enactment of harmful policies that would push our health care system in the wrong direction.

Congress should of course do something about our health care system, particularly the millions of individuals priced out of insurance by Obamacare, also known as the Unaffordable Care Act. But in recent weeks, it appears that Republicans have fallen into the typical definition of bipartisanship—when conservatives agree to do liberal things. As a result, if the controversy over impeachment leads to a legislative stalemate over health care, it will at least prevent Congress from making our current flawed system any worse.

Renewed Impeachment Push

The emerging controversy over Trump’s interactions with Ukraine, and whether those actions constituted an impeachable offense, resulted in analyses of whether and how the impeachment push will affect the legislative agenda on multiple issues, including health care.

Multiple Republicans suggested impeachment could bring Congress’ other work to a halt, whether by consuming the time and energy of members of Congress and staff, poisoning the proverbial well for negotiations and compromise, or a combination of the two. Consider the following quotes from Republicans in a Wednesday story:

  • House Ways and Means Committee Ranking Member Kevin Brady (R-Texas): “Impeachment makes a toxic environment more toxic.”
  • Former House Freedom Caucus Chairman Mark Meadows (R-N.C.): “There is more oxygen on impeachment than there is on legislation….My Democratic colleagues have put everything on hold to try to make sure that this President is not the one that signs any proposed bills.”
  • President Trump: Nancy Pelosi has “been taken over by the radical left. Unfortunately, she’s no longer the Speaker of the House.”
  • The White House: Democrats have “destroyed any chances of legislative progress” with their focus on impeachment.

Ultimately, whether any major legislation passes in this environment, whether on health care or other issues, will depend on two factors. First, will President Trump want to strike legislative bargains with House Democrats at the same time the latter are working to impeach and remove him from office? On that front, color me skeptical, at best.

Second, at a time when Trump will need Republicans to support him in an impeachment fight, will he aggressively push policies that many of them oppose?

Controversial Agenda in Congress

In July, the Senate Finance Committee approved drug pricing legislation over the concerns of many Republicans. A majority of Republicans voted against the Finance Committee bill, believing (correctly) that its provisions limiting price increases for pharmaceuticals amounted to price controls, which would have a harmful impact on innovation.

Since that time, House Speaker Nancy Pelosi (D-Calif.) has taken ideas from Senate Finance Committee Chairman Chuck Grassley (R-Iowa), and the Trump administration, and put them on steroids. The drug pricing legislation she recently introduced as H.R. 3 would force drug companies into a “negotiation” with defined price limits, confiscating virtually all their revenues if they do not submit to these government-imposed price controls.

Likewise, Congress’ action on “surprise” billing appears ominous. While Washington should allow states to come up with their own solutions to this issue, some Republicans want Congress to intervene.

Save Us from ‘Socialism-Lite’

If Congress’ legislative agenda grinds to a halt over a combination of the impeachment food fight and the impending 2020 presidential campaign, it would mean that lawmakers at least did not make the health care system worse via a series of socialist-style price controls.

The American people do deserve better than the failed status quo. They need the enactment of a conservative health care agenda that will help lower the skyrocketing cost of health care.

But if Republicans have failed to embrace such an agenda, as by and large they have, at least they can stop doing any more damage through new policies that will push us further in the direction of government-run health care. Thankfully, Pelosi’s newfound embrace of a march towards impeachment may slow the march towards socialized medicine—at least for the time being.

This post was originally published at The Federalist.

Biden Precedent Provides Roadmap for Repealing Obamacare with 51 Votes

With Congress having effectively repealed its individual mandate in the tax relief bill, what should Republicans do about Obamacare now?

While eliminating a penalty for Americans who cannot afford government-approved health insurance removes a financial burden on low-income families, it does not give people the freedom to purchase the coverage they do want to buy. Doubtless the president’s October executive order, when implemented, will provide more affordable options through regulatory relief. But ensuring that relief remains intact through future administrations will require legislative action.

How Joe Biden Used His Senate Presidency

While Democrats did not use budget reconciliation—a Senate procedure allowing bills to pass with a simple 51-vote majority, instead of the 60 votes needed to overcome a filibuster—to pass Obamacare, they did use a reconciliation bill to “fix” the law they passed. In March 2010, the Senate considered, and President Obama eventually signed, a reconciliation bill that removed the odious “Cornhusker Kickback” for Nebraska, and made other amendments to the health law.

That reconciliation bill also changed Obamacare’s regulatory regime. Specifically, Section 2301(a) of the reconciliation measure applied four insurance requirements—limiting waiting periods to join employer plans, banning lifetime limits, ending rescissions by insurers, and extending coverage to “dependents” under age 26—to “grandfathered” health plans established before the law’s enactment. In addition, Section 2301(b) of the bill amended Obamacare itself, removing language that limited under-26 “dependent” coverage to unmarried individuals.

During consideration of the reconciliation bill on the Senate floor, Iowa Republican Chuck Grassley objected to including these provisions. He argued that Section 2301 of the bill violated the Senate’s “Byrd rule,” designed to prevent the inclusion of matters with a merely incidental fiscal component on a budget reconciliation bill. In a colloquy memorialized in the Congressional Record, Vice President Biden, acting in his capacity as president of the Senate, overruled Grassley, and said the provisions in question did in fact comply with the “Byrd rule.”

“Grandfathered” plans do not qualify for Obamacare subsidies, and many do not qualify for any tax preference. Yet Biden held that the new requirements on “grandfathered” plans held enough of a fiscal nexus to comply with the “Byrd rule” for budget reconciliation. As a result, the “Biden precedent” allows the Senate to enact—or to repeal outright—health insurance rules through the reconciliation process.

Democrats Paved the Way for Obamacare Repeal

Moreover, the particular insurance requirements included in Section 2301(a)—especially the restrictions on employer waiting periods and the ban on rescissions—carry a relatively small fiscal impact. Because Vice President Biden ruled that Democrats could enact these comparatively small requirements in a reconciliation bill, Senate Republicans should have every right to repeal more costly restrictions, such as those on essential health benefits and actuarial value, outright through budget reconciliation, rather than relying upon the cumbersome state waiver processes included in last year’s bills.

Senate sources indicate that, recognizing the “Biden precedent” would allow for a robust Obamacare repeal, Democratic staffers tried to limit its impact last year. They argued to Elizabeth MacDonough, the Senate parliamentarian, that changes covered by that precedent were targeted in scope, technical in nature, and limited only to plans that qualify for subsidies.

But a textual analysis of the 2010 reconciliation bill shows that it changed requirements for all types of health insurance, not just “grandfathered” plans, and not just those that qualified for subsidies. And because Biden overruled Republican objections that these changes to insurance rules exceeded the scope of budget reconciliation in 2010, Republicans can and should use that precedent to undo Obamacare’s regulatory regime.

Obamacare’s insurance rules represent the beating heart of the law, necessitating a massive system of subsidies and tax increases to make this newly expensive coverage “affordable.” Because Democrats used the “Biden precedent” to impose some of those rules through budget reconciliation, Republicans have every opportunity to repeal these requirements outright through a reconciliation bill. They should take that opportunity, for removing the regulatory regime would effectively repeal Obamacare—and permanently restore health care freedom to the American people.

This post was originally published at The Federalist.

How About MEDICAID For Members?

The Twitterverse exploded with outrage today, following last night’s Politico story indicating that congressional leadership have engaged in secret conversations attempting to craft an Obamacare waiver for Members of Congress and/or their staffs.  As with the rest of Obamacare, the problem lies in the botched way the legislation was enacted — drafted in secret, then rammed through Congress on a party-line vote.  Harry Reid drafted this particular section of the bill behind closed doors; Senator Grassley later offered an amendment clarifying the provisions, but Democrats defeated it three years ago. (Text of the Grassley amendment available here; my summary of the amendment here; Senate floor vote here).  So there’s one important principle at play: Having rammed the bill through while claiming that reading the bill was a waste of time, because we had to act “real fast” and didn’t have two lawyers over two days to understand the legislation, Democrats now want to exempt themselves from the mess they created.  As we’ve said before, you break it, you own it.

But there’s another important principle as well regarding Members’ health coverage, and the ongoing state-level debate regarding Obamacare’s expansion of Medicaid: How many state legislators who want to expand Medicaid FOR OTHERS want to go on Medicaid THEMSELVES?  We know the answer to this question at the federal level — Sen. LeMieux offered a “Medicaid for Members” amendment in March 2010, which received not a single vote from Senate Democrats. (Text of the amendment here; my summary here; Senate floor vote here.)  In 2009, Rep. Henry Waxman publicly admitted that “it is highly unlikely that you are going to find millionaires who would like to go on Medicaid.”  In other words, Medicaid provides such inferior coverage that millionaires — and wealthy Members of Congress — wouldn’t dream of enrolling in it themselves, but have no qualms about putting low-income individuals on this “insurance.”

So to the original story: The root problem is not that Congress drafted the law sloppily — although that did happen in spades.  The problem is that not enough individuals have been exposed to Obamacare’s underlying flaws.  Because it’s easy to see how requiring federal and state representatives to go on Medicaid themselves would make many legislators much less enthusiastic about expanding “coverage” under Obamacare.

Kathleen Sebelius, Obamacare’s Resident Spendthrift

Do you remember the old TV show “Supermarket Sweep” – the one where people went running wildly through a grocery store, picking up expensive products (and occasionally crashing in the process), in an attempt to spend the greatest amount of money in the shortest amount of time?  Well, that’s not a bad analogy for how HHS is trying to blow through vast sums of Obamacare money before the law gets struck down and/or repealed, as two pieces in this morning’s Wall Street Journal outline.  The first piece, an editorial appropriately entitled “Fannie Med,” discusses among other things Obamacare’s co-op loans.  Even the Administration estimates at least $1 billion in taxpayer funds spent on co-op loans will not be repaid – not least because of the way HHS chose to structure the loans, which place federal taxpayers at the BACK of the line to be repaid, in an attempt to circumvent state requirements regarding insurers’ reserves.

In a separate op-ed on the Journal’s pages, Steven Greer, a former grants administrator for Obamacare’s Center for Medicare and Medicaid Innovation (CMMI), gives his firsthand experience about how that program’s $10 billion “slush fund” is being spent with little oversight or forethought:

Having written numerous other federal grant applications as a medical researcher, I was surprised by the very short time allotted to review 12 applications, each of which ran more than 100 pages.  We had only two weeks to assemble a team and grade the applications on such criteria as the promise of the project design and its workforce goals.  Applications to the government’s National Institutes of Health or the Patient-Centered Outcomes Research Institute, by contrast, undergo months of thoughtful review by scientists who are well-regarded in their fields.  I began to wonder how much CMMI was interested in high-quality input from the grant reviewers.

Of course, CMMI has its supporters; former Medicare Administrator Donald Berwick called it the “crown jewel” of Obamacare.  And little wonder – for as Greer exposes, Berwick’s former employer seems to be a big winner from Obamacare’s $10 billion giveaway:

Dr. Donald Berwick was Administrator of the Centers for Medicare and Medicaid Services from July 2010 to December 2011.  CMMI, which was established during his tenure, started another program called the Partnership for Patients….In December 2011, the Partnership for Patients awarded a contract to the Health Research and Education Trust, which in turn awarded a subcontract to the Boston-based Institute for Healthcare Improvement—which Dr. Berwick ran for 19 years before he moved to Medicare.  A source involved with Partnership for Patients told me about the relationship.

I emailed Dr. Berwick in May to confirm the subcontracts between the institute and the trust.  “I don’t think there are contracts between them, but they’re good friends,” he replied.  He was careful to note that he is no longer the institute’s CEO, though he now works out of the institute’s Boston offices as an adviser.  The Health Research and Education Trust and the Institute for Healthcare Improvement have not responded to requests for information about the subcontract.

(On a related note, has anyone ever questioned why Dr. Berwick never bothered to release tax information from the Institute for Healthcare Improvement that Sen. Grassley requested from him two years ago?  Why does an CMS Administrator who argued for transparency in government – and has claimed in interviews he wants “decision-making to be done in the daylight” – refuse to be transparent about HIS financial dealings?)

Greer’s op-ed also delightfully points out that several of the CMMI grants spend about as much money as they supposedly will save: “George Washington University earned $1,939,127 because it expected to reduce health costs by a mere $1.7 million.  Similarly, the Center for Health Care Services in San Antonio received $4,557,969 to save $5 million.”

Spending money to keep from going bankrupt?  Well, at least on that count, you can’t say they didn’t warn us…

Donald Berwick’s Greatest Hits

Given Medicare Administrator Berwick’s resignation today, it’s worth remembering some of the highlights (or lowlights) of Berwick’s tenure.  Berwick spent most of his time in a virtual bunker since his controversial recess appointment last July – hiding from reporters’ questions, and going to great lengths to do so.

Recall also that Berwick never responded to substantive document requests related to his nomination either.  Berwick promised Sen. Grassley to release financial statements related to his tenure as the head of the Institute for Healthcare Improvement, only to renege on this promise once he accepted his recess appointment last year.  It remains unclear whether, or what, Berwick was attempting to hide by not disclosing these documents.

Berwick had some “achievements” while at CMS – for instance, a preliminary rule for accountable care organizations so onerous and bureaucratic virtually every health care provider group imaginable promised not to participate.  But it’s worth asking:  If a Medicare Administrator has to go to such seemingly absurd lengths to avoid scrutiny of his own record, did he EVER belong in that role in the first place?  And how does the “most transparent and accountable Administration” justify such conduct?

This Morning’s Berwick Hearing By the Numbers

This morning’s Finance Committee hearing featuring testimony by CMS Administrator Donald Berwick adjourned almost as quickly as it began due to a series of votes on the Senate floor.  It’s worth noting that this morning’s vote series was already scheduled at the time the hearing was announced last week – meaning the scheduling conflict was easily preventable, had the majority chosen another time for the hearing.  Here’s a quick look at how the hearing shaped up:

10:03 – Time hearing began

10:27 – Time questioning began

11:23 – Time hearing adjourned

56 – Total minutes for questioning

4 – Number of Republican Senators able to question Dr. Berwick (Grassley, Hatch, Bunning, and Ensign)

Compare these numbers to the universe of material about which Senators may wish to query Dr. Berwick:

2,700 – Pages in the health care law (including reconciliation legislation and Indian Health Service provisions)

4,103 – Pages of regulations implementing the health care law released between March 23 and September 23

Thousands – Pages of Dr. Berwick’s controversial speeches, journal articles, and other writings over the past 30-plus years

Given the plethora of potential questions and the modicum of time Senators had to ask them, there’s one other key number to keep in mind:

November 29 – Date the Senate returns from Thanksgiving break

Will Chairman Baucus call a follow-up hearing to give all Senators a fair opportunity to ask questions – and if so, when?  As Dr. Berwick himself would say, “‘Some’ is not a number, ‘soon’ is not a time…”

“Doc Fix” Update

In order to prevent the 23 percent reduction in Medicare reimbursement levels scheduled to take effect on January 1, Sens. Reid, McConnell, Baucus, and Grassley have reached agreement on a one-year extension of the “doc fix.”  The legislation is being hotlined tonight, in the hope that it can pass by unanimous consent to allow for House consideration of the measure.

The legislation provides a zero percent update in physician reimbursement levels for calendar year 2011, and stipulates that the payment increase shall be disregarded for purposes of calculating SGR rates for periods after December 31, 2011.  The bill also includes several one-year extensions of expiring Medicare provisions (which are usually extended with the SGR), as well as some technical changes that were agreed to on a bipartisan basis.

The bill is paid for by increasing recapture payment thresholds for health insurance subsidies created under the health care law.  Current law provides that subsidy eligibility will be determined on the basis of prior year financial information (e.g., tax returns, etc.).  The bill would increase on a sliding-scale basis the $400 ($250 for individuals) amount that families will have to repay the federal government if they are found to have received a higher subsidy than their actual income warranted (because, for instance, a family member received a raise that wasn’t reflected on the prior year tax return).

A more complete summary follows below.  If your boss has concerns with this legislation, please contact the cloakroom.


Medicare Physician Payment:  Provides for a 0 percent update in reimbursement levels for 2011.  Provides that the 0 percent update for 2011 shall not be considered when calculating the Sustainable Growth Rate (SGR) reimbursement levels in 2012 and future years.  Spends $14.9 billion over five and ten years.

Medicare “Extenders:”  Extends for one year a series of Medicare and health-related provisions, all of which would expire at the end of the calendar year unless otherwise noted:

  • Section 508 hospital reclassifications (expired on September 30, 2010) at a cost of $300 million over ten years;
  • Geographic floor for work, costing $500 million over ten years;
  • Therapy caps exception process, costing $900 million;
  • Technical component of certain physician pathology services, costing $100 million;
  • Reimbursement raises for ambulance services, costing $100 million;
  • Mental health reimbursements (5% increase), costing $100 million;
  • Outpatient hold harmless provision, costing $200 million;
  • Reasonable cost payments for clinical diagnostic laboratory tests in rural areas (expires on July 1, 2011 under current law); no significant score;
  • Qualifying Individual (QI) program, assistance to low-income seniors in paying Medicare premiums, costing $600 million;
  • Transitional Medical Assistance, which provides Medicaid benefits for low-income families transitioning from welfare to work, costing $1 billion; and
  • Two year extension of special diabetes programs that fund research into Type 1 diabetes and prevention and treatment of diabetes through Indian Health Service facilities, costing $600 million.

Other Provisions:  Repeals the health law’s delay of the revised skilled nursing facility prospective payment system.  Includes other clarifying amendments with respect to drafting errors in the health care law.  Includes language regarding affiliated hospitals and provisions in the health care law surrounding distribution of medical residency positions, as well as a technical correction maintaining childrens hospitals’ ability to participate in the 340B discount program with respect to orphan drugs.  Includes clarifying provisions regarding eligibility for Medicaid health IT funding provided in the “stimulus.”

Funding for Claims Re-processing:  Provides $200 million in mandatory appropriations to CMS to re-process claims for calendar year 2010, as a result of the changes in Medicare payment policy enacted mid-year.

Medicare Improvement Fund:  Utilizes $275 million in funding from the Medicare Improvement Fund, which was created in 2008 “to make improvements under the original Medicare fee-for-service program.”

Health Insurance Subsidy Recapture:  The bill increases the repayment levels for insurance subsidies provided under the Patient Protection and Affordable Care Act (PPACA).  Under the health law, new health insurance subsidies are based on an individual’s (or family’s) most recent tax return – so that subsidy levels beginning in January 2014 will be based on reported income for 2012.  However, a family’s circumstances can change significantly during this time lag for a variety of reasons – a change in job, significant raise, divorce, birth, or death, to name just a few.

PPACA established a reconciliation process intended to recapture any subsidy over-payments – but the law capped the amount of such repayments at $250 for individuals and $400 for families for all families with incomes under 400 percent of the federal poverty level (FPL, $88,200 for a family of four); above 400% FPL, no limits currently apply.  The bill would raise these limits on a sliding scale basis to:

Income between 100-200% FPL:  $300 for an individual, $600 per family

Income between 200-250% FPL:  $500 for an individual, $1,000 per family

Income between 250-300% FPL:  $750 for an individual, $1,500 per family

Income between 300-350% FPL:  $1,000 for an individual, $2,000 per family

Income between 350-400% FPL:  $1,250 for an individual, $2,500 per family

Income between 400-450% FPL:  $1,500 for an individual, $3,000 per family*

Income between 450-500% FPL:  $1,750 for an individual, $3,500 per family*

(*While subsidies are only available to individuals and families with incomes below 400% FPL, the above recapture penalties would apply to individuals who received subsidies, yet were not eligible for ANY subsidies based on their income.  As noted above, currently individuals with incomes above 400% FPL would have to pay back ALL of the insurance subsidy amounts they received in error.)

CBO and the Joint Committee on Taxation score this provision as saving $19 billion over ten years; the provision would also reduce coverage estimates for the new insurance subsidies by an estimated 200,000 individuals.

Many may argue that this provision does NOT represent a tax increase, on the grounds that individuals will be repaying a subsidy they received in error. (In addition, most of the subsidies provided under PPACA are refundable in nature, and some would argue that limiting refundable subsidies reduces government spending, rather than increasing taxes.)


UPDATE: CBO tables for the bill match the descriptions included above.  Note that per CBO, the asterisk on the second page of the score indicates a net deficit reduction of less than $50 million.  (Also FYI, the shell vehicle for the “doc fix” is H.R. 4994; I neglected to mention that earlier.)

Update on One Month “Doc Fix”

In order to prevent the 23 percent reduction in Medicare reimbursement levels scheduled to take effect on December 1, Sens. Grassley and Baucus have reached agreement on a one-month extension of the “doc fix.” The legislation is in the process of being hotlined; if approved, it could be considered by the House (which has adjourned for the Thanksgiving break) on November 29 or 30.

The legislation extends the existing 2.2% increase in reimbursement levels (passed in June) for December 2010. The bill also stipulates that the payment increase shall be disregarded for purposes of calculating SGR rates for periods after December 31, 2010.

The approximately $1 billion cost of the SGR fix would be funded through changes to the multiple procedure payment reduction policy for therapy services. By way of background, the health care law required the Centers for Medicare and Medicaid Services (CMS) to re-adjust so-called “bundled” services – that is, multiple services delivered at the same time. As a result of that directive, CMS issued a final rule earlier this month that would reduce by 25 percent the practice component of the second and subsequent therapy services furnished by a provider to the same beneficiary on the same date. The 25 percent reduction would only apply to the practice (i.e., the “overhead”) component of the reimbursement – providers would still receive full reimbursement for the labor component of the Medicare fee.

The SGR bill would reduce the scheduled reduction in the practice component from 25 percent to 20 percent for multiple therapy procedures. However, it would also remove the budget neutrality provision in the regulation – meaning the budgetary savings would be returned to the federal government (to pay for the SGR extension), rather than reallocated to other components of the physician fee schedule.

A CBO score is available here; the line marked “total on-budget changes” indicates the legislation will cost $504 million over five years, and save $24 million over ten.


UPDATE: In case you weren’t just watching the floor, the Senate just passed by unanimous consent a 30-day patch to fix the SGR for the month of December.  As the House has completed its business for the week, that chamber can consider the measure on November 29 or 30, once it returns from the Thanksgiving break.

The Senate also just moved to proceed to the food safety bill (S. 510) on a 57-27 vote.  Senator Reid just indicated he and Senator McConnell are meeting to discuss the further disposition of the measure.  We will keep you posted with further developments on same.

Non-Transparency on Berwick Nomination

Given this morning’s scheduling conflicts, Sen. Grassley just asked CMS Administrator Berwick whether he would be willing to appear at another congressional hearing after Thanksgiving to answer senators’ questions.  Chairman Baucus interrupted Sen. Grassley to say that calling a hearing was his prerogative – and then refused to commit to a follow-up hearing after Thanksgiving.  This development comes after Chairman Baucus delivered a nearly 10-minute opening statement, and Dr. Berwick himself took more than the allotted five minutes for his opening statement (which the Chairman encouraged him to do).

Dr. Berwick also reiterated that he could not disclose information about the donations received by the organization he previously headed, which some may view as not consistent with the Administration’s promise of “an unmatched level of transparency” in government.

What To Watch For at This Morning’s Berwick Hearing

CMS Administrator Dr. Donald Berwick finally comes to Capitol Hill this morning, to testify before the Senate Finance Committee.  A couple of key points and themes that may emerge from the proceedings:

It’s About Time:  While many Republicans will argue that a hearing with Dr. Berwick is long overdue, given both his agency’s broad jurisdiction and the multiple previous requests made for his appearance, it’s possible this morning’s hearing may be cut short.  There are a series of votes scheduled for 11:00 – votes that were publicly announced six weeks ago, and known to the majority at the time the hearing was scheduled last week.  So it’s worth asking whether this hearing will be an opportunity for rigorous and thorough scrutiny of Dr. Berwick’s record, and his implementation of the 2,700 page health care law, or merely a “tick-the-box” exercise designed to say Dr. Berwick has testified before Congress whilst avoiding the tough questions on the key issues.

Transparency Much?  A widely leaked copy of his written testimony notes Dr. Berwick’s “pledge…to be as open and transparent as possible” in his dealings.  If that’s the case, why did Dr. Berwick renege on a commitment to release information about the funding sources of the Institute for Healthcare Improvement (IHI) that he headed prior to his appointment?  Dr. Berwick pledged to Sen. Grassley in June that he would disclose IHI’s funding sources – at a time when he remained the organization’s CEO.  However, he chose to ignore his commitment until after his recess appointment, at which point he claimed to Sen. Grassley that he could not honor his earlier pledge because he no longer was affiliated with IHI.  If Dr. Berwick is interested in being “open and transparent,” why didn’t he release his non-profit organization’s financial records when it was in his power to do so?

A “Point-by-Point Rebuttal?”  Astute readers may note that a late July article in the New York Times claimed that Dr. Berwick’s “friends and allies said he was preparing a point-by-point rebuttal [to his critics], most likely to be delivered when he first testifies before Congress.”  A review of his written testimony reveals no such rebuttal to his many controversial statements over the years; in fact, the testimony does not acknowledge his earlier comments at all.  If Dr. Berwick wants “to be as open and transparent as possible,” where is this rebuttal document publicly discussed in the New York Times four months ago?