Rescissions Package Shows Washington’s Spending Problem

Talk about swampy: Republicans control the House, the Senate, and the White House, yet even token attempts to reduce spending cannot succeed.

Last week’s failure of a $15 billion package of rescissions (i.e., spending cuts) that the administration had proposed partly reflected the narrow Republican majority in the Senate. With Republicans’ one-vote margin, objections by Sens. Susan Collins (R-ME) and Richard Burr (R-NC) sank the measure in a 48-50 vote.

Health Care: Dems Demagogue, GOP Caves

Nearly half of the proposed savings, approximately $7 billion, in the rescissions package came from the State Children’s Health Insurance Program (SCHIP)—roughly $5.1 billion in unobligated balances, and $1.9 billion in child enrollment contingency funds for the current fiscal year that ends in September.

Liberals claimed the rescissions package would “gut” the contingency fund and “put the health of children at risk.” However, the Congressional Budget Office (CBO) last month noted that, with respect to the $5.1 billion in unobligated SCHIP balances, “authority to distribute the funds to states…expired in 2017.”

CBO also “projected that the rescission from the child enrollment contingency fund would not affect payments to states.” In sum, the budget office concluded that the $7 billion rescission “would not affect…the number of individuals with insurance coverage.”

Had Republicans stuck to their prior principles on SCHIP, much of the rescissions package would have proved unnecessary. Congress never would have authorized the funds in the first place, eliminating the need to rescind that spending. They did not. Collins voted against the package because of the SCHIP funds, while Sen. Lisa Murkowski (R-AK) voted to support it, but very begrudgingly.

Parochial Interests Clip the Other Vote

The other Senate Republican no vote came from Burr, a surprise opponent of the measure. Burr said he opposed the package’s $16 million reduction in funding for the Land and Water Conservation Fund.

Burr’s staff told the Washington Post they had not received assurances that Burr could receive a vote on an amendment striking the land and water reduction from the package, leading the senator to oppose the procedural motion to bring the package to the floor.

On the other hand, killing a $15 billion spending reduction package over literally 0.1 percent of its contents seems more than slightly absurd. With the federal debt at $21 trillion and rising, if Congress will not act on this package—buckets of unspent money lying around at agencies, like spare change under the proverbial couch cushions—when will it discover fiscal discipline?

All Dessert, No Spinach

The defeat of this rescissions package means another may not follow in short order. The administration wanted to propose reductions in spending from March’s omnibus legislation. But appropriators like Senate Majority Leader Mitch McConnell (R-KY) said that one party clawing back money included in a bipartisan budget deal might impede Congress’ ability to pass budget-busting legislation in the future. (Quelle horreur!)

The administration relented in the short-term, hoping to start a virtuous cycle of fiscal responsibility and set spending-reducing precedent they could build upon. Unfortunately, however, the administration failed to recognize the magnitude of this Congress’ bipartisan addiction to federal spending.

Sooner or later, Congress will end up passing spending reductions of a much larger scale than last week’s rescissions package. That they failed to start that task when they had an easy opportunity—the lowest of the low-hanging fruit—will make the spending reductions Congress ultimately enacts that much larger, and more painful.

This post was originally published at The Federalist.

Is CBO Working with Budget Committee Staff to Hide an Illegal Obamacare Bailout?

It appears my recent article, which raised questions about whether the Congressional Budget Office (CBO) illegally manipulated the budget baseline to ease the passage of an Obamacare “stability” bill, hit a nerve. To borrow a current metaphor, if there were any more collusion between the House Budget Committee and CBO on this issue, Rod Rosenstein would need to appoint a special counsel to investigate.

Consider a series of questions asked by Rep. Diane Black (R-TN) at House Budget’s April 12 hearing on the new Budget and Economic Outlook. Black asked CBO Director Keith Hall about the agency’s treatment of the law’s cost-sharing reduction payments (CSRs), which President Trump cancelled in October.

  1. Black asked about this issue, and only this issue. After completing her exchange with Hall on CSRs, she yielded back more than half of the five minutes allotted to her for questions—an unusual occurrence. Think about it: How often have you seen members of Congress take two minutes to give a five-minute speech?
  2. Black began the exchange by asking Hall a very friendly, and some would argue leading, question: “Is CBO doing this [i.e., changing the budgetary baseline] in full compliance with” the law?
  3. In response, Hall looked down at his notes no fewer than seven times in a roughly 45-second response. Particularly during the seventh and final instance, Hall quite clearly appears to be reading from his briefing materials. Members of Congress often read questions at hearings, but in nearly 15 years of working on and around Capitol Hill, I can recall precious few times where witnesses read answers.

Based on these circumstances, it seems reasonable to conclude that the exchange was scripted well in advance. If that’s the case, it appears Black, and whomever wrote her questions, worked with CBO to choreograph an exchange designed to rebut one of my allegations, namely, that CBO violated the Gramm-Rudman-Hollings Act in making this budgetary change.

Mind you, the change does violate the law, Hall’s claims notwithstanding. CBO can claim that the budget baseline funds CSRs indirectly—via “higher premiums and larger premium tax credit subsidies”—only by assuming that Congress does not fund CSRs directly.

Later in the April 12 hearing, Rep. Gary Palmer (R-AL) also queried Hall on the circumstances behind this questionable change.

Palmer asked Hall: “Why did you change that [i.e., raise the baseline]?…You would have had to have gotten instruction to” make the alteration. Hall didn’t directly answer the question: He claimed CBO had the authority to make the change, but never said where his instruction came from.

But the budget committees already gave CBO instructions—which CBO suddenly chose to ignore. In an October estimate of Obamacare “stability” legislation, the budget office specifically said that “after consultation with the Budget Committees, CBO has not changed its baseline” to reflect the Trump administration’s cancellation of the CSR payments. Last week’s updated CBO document, which altered the budgetary baseline, said nothing about consultation with the budget committees—a break from the October precedent, and a direct violation of Hall’s promise in his January 30 testimony.

What changed? Did the CBO director just wake up one morning and decide to make a scoring change affecting $200 billion in taxpayer dollars? Or did someone pressure the CBO director to make that change—and if so, who?

If the House Budget Committee staff knows—and I’d bet they do—they certainly don’t want to say. At first my repeated e-mails to committee staff disappeared into dead air. Once I noted this radio silence on Twitter, I got a response, but not a substantive reply. The House Budget Committee’s communications director said my queries were within CBO’s purview, and sent me to them.

However, given the opaque and questionable way this budgetary change transpired, both CBO and House Budget have very clear reasons not to answer the question:

  • If House Budget admits that CBO did reach out to them about this scoring change, that places the fingerprints of House leadership on a heavy-handed attempt to strong-arm CBO and alter scoring rules in a way that favors an Obamacare bailout—the issue I first wrote about back in January.
  • If House Budget admits that CBO did not reach out to them about this scoring change, that means CBO “went rogue,” and increased spending on Obamacare subsidies by $194 billion without guidance or direction from the elected members of Congress who govern it. It also raises questions of whether Hall materially misled the Budget Committee (a felony offense) during his January 30 testimony.

Answering my question involves someone assuming responsibility for this mysterious occurrence. Because no one wants to assume responsibility for the chicanery behind this budget gimmick, apparently people think, or hope, that ignoring questions will make them go away. (I haven’t yet reached out to CBO for a comment, but anyone want to lay odds that their spokesman says, “I’m sorry, but we can’t disclose our communications with members of Congress”?) News flash: They’re not.

If CBO and House Budget are completely blameless, and everything about this budget change occurred in an above-board manner, they seem to have a funny way of going about proving their innocence—sidestepping questions. Not two months ago, Hall testified before the House Budget Committee about the ways CBO will improve transparency surrounding the budget process. If he wants to follow through on his promise, then Hall (to say nothing of House Budget) should start by disclosing exactly who ordered CBO to make this change—the sooner, the better.

This post was originally published at The Federalist.

Is the CBO Director Breaking the Law to Help Paul Ryan Bail Out Obamacare?

Why would an ostensibly nonpartisan Congressional Budget Office (CBO) director violate the law and the word he gave to Congress only a few short weeks ago? Maybe because Paul Ryan asked him to.

In late January, I wrote about how the House speaker wanted CBO to violate budget rules to make it easier for Congress to pass an Obamacare bailout. At the time, House leadership aides dismissed my theories as unfounded and inaccurate speculation. Yet buried on page 103 of Monday’s report on the budget and economic outlook, CBO did exactly what I reported on earlier this year—it changed the rules, and violated the law, to make it easier for Congress to pass an Obamacare bailout.

The Making of a Budget Gimmick

Because of the interactions between the (higher) premiums and federal premium subsidies (which went up in turn), the federal government will likely spend more on subsidies this year without making CSR payments than with them.

Therein lay the basis of the budgetary gimmick Ryan and congressional leaders wanted CBO to help them accomplish. House staffers wanted CBO to adjust its baseline and assume the higher levels of spending under the “no-CSR” scenario. By turning around and appropriating funds for CSRs, thereby lowering this higher baseline, Congress could generate budgetary “savings”—which Republicans could spend on more corporate welfare for insurers, in the form of reinsurance payments.

The Problem? It’s Illegal

As I previously noted, the House’s scheme, and CBO’s actions on Monday to perpetrate that scheme, violate the law. Section 257(b)(1) of the Gramm-Rudman-Hollings Act (available here) requires budget scorekeeping agencies to assume that “funding for entitlement authority is…adequate to make all payments required by those laws.”

Following my January post, Rep. Dave Brat (R-VA) asked CBO Director Keith Hall about this issue at a House Budget Committee hearing. Hall noted that CBO had been treating the cost-sharing reductions “as an entitlement, so it’s”—that is, the full funding of CSRs in the baseline—“remained there, unless we get direction to do something different. We’re assuming essentially that the money will be found somewhere, because it’s an entitlement.”

In a separate exchange with Rep. Jan Schakowsky (D-IL) at the same hearing, Hall went even further: He said, “We’ve treated the cost-sharing reductions actually as an entitlement, at least so far until we get other direction from the Budget Committee.”

Then Comes the Flip-Flop

Yet Monday’s document on the budget outlook did exactly what Hall said mere weeks ago that CBO would not. A paragraph deep in the section on “Technical Changes in Outlays” included this nugget:

Technical revisions caused estimates of spending for subsidies for coverage purchased through the marketplaces established under the ACA and related spending to be $44 billion higher, on net, over the 2018–2027 period than in CBO’s June baseline. A significant factor contributing to the increase is that the current baseline projections reflect that the entitlement for subsidies for cost-sharing reductions (CSRs) is being funded through higher premiums and larger premium tax credit subsidies rather than through a direct appropriation.

In the span of a few weeks, then, Hall and CBO went from “We’re assuming essentially that the money [i.e., the CSR appropriation] will be found somewhere” to the exact opposite assumption. Yet the report mentions no directive from the budget committees asking CBO to change its scorekeeping methodology, likely because the committees did not give such a directive.

In analyzing the status of the Medicare trust fund, which CBO projects will become exhausted in fiscal year 2026, Footnote A of Table C-1 notes how the baseline “shows a zero [balance] rather than a cumulative negative balance in the trust fund after the exhaustion date”—because that’s what Gramm-Rudman-Hollings requires:

CBO may try to make the semantic argument, implied in the passage quoted above, that it continues to assume full funding of CSRs, albeit through indirect means (i.e., higher spending on premium subsidies) rather than “a direct appropriation.” But that violates what Hall himself said back in late January, when he laid out CBO’s position, and said it would not change absent an explicit directive—even though the budget report nowhere indicates that CBO received such direction.

It also violates sheer common sense that the budget office should assume “funding for entitlement authority is…adequate to make all payments” by assuming that the administration does not make all payments, namely the direct CSR payments to insurers.

Coming Up: An Embarrassing Spectacle

During his testimony before the House and Senate Budget Committees this week, Hall may make a spectacle of himself—and not in a good way. He will have to explain why he unilaterally changed the budgetary baseline in a way that explicitly violated his January testimony. He will also have to justify why CBO believes Gramm-Rudman-Hollings’ direction to assume full funding for “all payments” allows CBO to assume that Congress will not make direct CSR payments to insurers.

Conservatives should fight to expose this absurd and costly budget gimmick, and demand answers from Hall as to what—or, more specifically, whom—prompted his U-turn. If Hall wants to transform himself into the puppet of House leadership, and break his word to Congress in the process, he should at least be transparent about it.

This post was originally published at The Federalist.

Paul Ryan Flip-Flops on Fiscal Responsibility to Prop Up Obamacare

What a difference eight years makes. In February 2010, Rep. Paul Ryan (R-WI), then Ranking Member of the House Budget Committee, spoke at the White House health care summit decrying Obamacare as “a bill that is full of gimmicks and smoke-and-mirrors.” His comments became a viral sensation, so much so that the Wall Street Journal published a condensed version of his remarks as an op-ed. (Here’s the video.)

Reporters confirmed as much on Monday, when an article claimed that the Congressional Budget Office (CBO) believes appropriating funds for cost-sharing reduction payments (CSRs) for three years would save the federal government $32 billion, when compared to a scenario in which Congress does not appropriate CSR payments. Not coincidentally, the article noted that a separate bill by Rep. Ryan Costello (R-PA) — “which House leaders have embraced” — would create a $30 billion “Stability Fund” for insurers, purportedly paid for by the $32 billion in “savings” caused from appropriating CSRs.

The article doesn’t say so outright, but it’s not hard to figure out what happened behind the scenes:

  1. House Republican leadership directed CBO to score the fiscal effects of making CSR payments to insurers compared to not making the payments.
  2. House Republican leaders leaked results of the score to insurer lobbyists.
  3. Those insurer lobbyists then leaked the results to reporters — to claim their bill would generate “savings” for the federal government.

The end result sounds like a Broadway musical: “How to Spend $60 Billion in Taxpayer Funds without Really Trying.” If insurers have their way, Congress would spend roughly $30 billion in CSR payments for the next three years, and that $30 billion in spending would “save” another $32 billion — which Congress would turn right around and send to insurers, via the $30 billion “Stability Fund.”

Compare this maneuver to Obamacare — or, more specifically, Paul Ryan’s 2010 critique of Obamacare. At the White House health care summit, Ryan told President Obama in regard to Obamacare’s proposed reductions to Medicare: “You can’t say that you’re using this money to either extend Medicare solvency and also offset the cost of this new program. That’s double counting.” If claiming that Medicare savings both enhance Medicare’s solvency and pay for Obamacare constitutes double counting — and it does — then what exactly is jiggering the budgetary baseline solely to generate “savings” that Republicans can turn around and spend…?

There’s another problem too: The fraudulent “savings” are also illegal. As I previously noted, the Gramm-Rudman-Hollings statute requires CBO to assume full payment of CSRs — meaning the scenario that House Republicans asked CBO to score violates the statutory requirements.

Some might claim that, since President Trump stopped making CSR payments last October, a scenario in which CBO does not assume the federal government makes those payments represents a more realistic fiscal approach than that currently required by Gramm-Rudman-Hollings. To which I have one simple retort: If you don’t like the law, then Change. The. Law.

Ryan and House Republican leaders don’t want to change the Gramm-Rudman-Hollings law — just like they don’t want to pay for the insurer bailout. Such efforts would take time and effort, necessitate legislative transparency — as opposed to closed-door meetings and selective leaks to K Street lobbyists — and require difficult decisions about how to pay for new spending. Why make those tough choices now, when Republicans can just charge the tab for the insurer bailout on to the national credit card, and let the next generation pay the bill instead?

Congressional Republicans spent eight years decrying Obamacare’s fiscal gimmickry, and President Obama’s executive lawlessness. If they follow the example of the House Republican leadership, and engage in their own illegal budgetary gimmicks, they will have no grounds to complain about Democrats’ spending sprees or overreach. And they shouldn’t be surprised if no one believes their claims of fiscal responsibility come November 6.

This post was originally published at The Federalist.

The Binary Choice Paul Ryan Doesn’t Want to Face

This time last year, House Speaker Paul Ryan (R-WI) spoke to all who would listen about the health care legislation that Republican leadership crafted: “This is the closest we will ever get to repealing and replacing Obamacare. It really comes down to a binary choice.” Now, however, Ryan faces a binary choice himself — one that he and his leadership colleagues seem intent on deflecting.

Ryan can support an Obamacare bailout, or he can support the pro-life movement. He cannot support both.

The deafening silence emanating from Republican leaders on the life issue speaks volumes to both their knowledge of the problem, and their intent of how to handle it. Ryan desperately wants to bail out Obamacare, going so far as to promote a ridiculous budgetary gimmick that should make Ryan, in his former role as Budget Committee Chairman, laugh out loud in its absurdity.

If Republican leaders considered the life issue a red line they cannot, and will not, cross, to pass an Obamacare bailout, they would have said so months ago. By and large, they have not done so, instead issuing only mealy-mouthed statements that “we have been working on it.”

Such statements constitute, in plain English, a cop-out. When the issue presents a binary choice, as here, Congress has little to “work on”—the Hyde amendment either appears in the bill, or it doesn’t. A cynic might argue that the “we have been working on it” statement means that Republican leaders consider the life issue a political problem to game their way around, rather than a moral principle that they must uphold first, last, and always.

But executive action cannot trump the statute itself. Senate Majority Leader Mitch McConnell (R-KY) said the week Obamacare passed that the law “forces taxpayers to pay for abortions,” and only another law will change that dynamic.

As Congressman Jim Sensenbrenner observed in March 2010:

This bill expands abortion funding to the greatest extent in history. I have heard that the president is contemplating an executive order to try to limit this. Members should not be fooled. Executive orders cannot override the clear intent of a statute. … If an executive order moves the abortion funding in this bill away from where it is now, it will be struck down as unconstitutional because executive orders cannot constitutionally do that.

Republican leaders may also embrace the political tactic of a “headpat vote.” This gambit would bring to the floor two separate bills — one containing the Obamacare “stability” funding, and a separate, stand-alone bill codifying pro-life protections for that funding. While that concept might sound reasonable at first blush, the pro-life community would find the outcome unacceptable — the Obamacare funding would remain on a “must-pass” bill headed straight to the president’s desk, while the pro-life restrictions would die in the Senate by failing to get the 60 votes needed to break a filibuster.

This procedural gimmick would represent the worst of the Washington “swamp,” allowing Republican politicians to echo John Kerry in 2004 by taking both sides of an issue: “I actually voted for the $87 billion before I voted against it.” Moreover, it would demonstrate that, when the chips are down, Republican leaders view the life issue and community as something to be bargained away, or appeased through meaningless political tokenism, rather than as a moral imperative and matter of first principles.

In the end, the pro-life community has witnessed enough political double-talk, most notably by Democrats attempting to claim Obamacare does not fund abortion coverage, to see through any procedural gimmicks Republican leaders might propose. The question of whether Republicans support taxpayer funding of abortion coverage in Obamacare really does come down to a binary choice. Here’s hoping that Republicans choose the side of life.

This post was originally published at The Federalist.

Republicans’ SCHIP Surrender

In spring 2015, Senate Republican leaders pressured their members to accept a clean, two-year reauthorization of the State Children’s Health Insurance Program (SCHIP) added as part of a larger health spending measure.

The SCHIP reauthorization added to a larger Medicare bill included none of the reforms Republicans had proposed that year, many of which attempted to turn the program’s focus back toward covering low-income families first, as the George W. Bush administration had done. But Republican leaders said that the two-year extension, rather than the four-year extension Democrats supported, would allow conservatives to fight harder for reforms in 2017.

The press has focused on the disputes over paying for the SCHIP program, which have held up final enactment of a long-term reauthorization. (The House passed its version of the bill in November; the Senate, failing to find agreement on pay-fors, has not considered the bill on the floor.) But the focus on pay-fors has ignored Republicans’ abject surrender on the policy behind the program, because the media defines “bipartisanship” as conservatives agreeing to do liberal things. That occurred in abundance on this particular bill.

So Much for Our Promises, Voters

On the underlying policy, all the groups who pledged to fight for conservative reforms vacated the field. Senate Finance Committee Chairman Orrin Hatch (R-UT), who brags about how he created the program as part of the Balanced Budget Act in 1997, cut a deal with Ranking Member Ron Wyden (D-OR) that, as detailed below, includes virtually no conservative reforms to the program—raising questions about whether Hatch was so desperate for a deal to preserve his legacy that he failed to fight for conservative reforms.

House Speaker Paul Ryan (R-WI) did not repudiate the agreement Hatch and Wyden struck, even though that agreement maintained virtually the provisions of the 2009 SCHIP reauthorization that Ryan himself, then the ranking member of the House Budget Committee, called “an entitlement train wreck.”

Republicans have thus suffered the worst of both worlds: getting blamed for inaction on a program’s reauthorization, while already having conceded virtually every element of that program, save for its funding.

Details About the SCHIP Proposals

A detailed examination of the Hatch-Wyden agreement (original version here, and slightly revised version in Sections 301-304 of the House-passed bill here) demonstrates how it extends provisions of the 2009 reauthorization passed by a Democratic Congress and signed by President Obama—which Republicans in large part opposed. Moreover, the Hatch-Wyden agreement and House-passed bill includes none of the reforms the House Energy and Commerce Committee proposed, but were not enacted into law, in 2015.

The only “reform” in the pending reauthorization consists of phasing out an enhanced match for states included in Section 2101(a) of Obamacare—one already scheduled to expire. Even though the enhanced match will end on its own in October 2019, the Hatch-Wyden agreement and the House-passed bill would extend that enhanced match by one year further, albeit at a reduced level, before phasing it out entirely.

Child Enrollment Contingency Fund: Created in Section 103 of the 2009 reauthorization. As I noted then, “Some Members may be concerned that the fund—which does not include provisions making additional payments contingent on enrolling the low-income children­ for which the program was designed—will therefore help to subsidize wealthier children in states which have expanded their programs to higher-income populations, diverting SCHIP funds from the program’s original purpose” (emphasis original). Section 301(c) of the House-passed bill would extend this fund, without any reforms.

Express Lane Eligibility: Created in Section 203 of the 2009 reauthorization, as a way of using eligibility determinations from other agencies and programs to facilitate enrollment in SCHIP. As I noted then, “Some Members may be concerned first that the streamlined verification processes outlined above will facilitate individuals who would not otherwise qualify for Medicaid or SCHIP, due either to their income or citizenship, to obtain federally-paid health benefits.” Section 301(e) of the House-passed bill would extend this option, without any reforms.

Citizenship Verification: Section 211 of the 2009 reauthorization created a new process for verifying citizenship, but not identity, to circumvent strict verification requirements included in the 2005 Deficit Reduction Act. As I wrote in 2009:

Some Members may echo the concerns of Social Security Commissioner Michael Astrue, who in a September 2007 letter stated that the verification process proposed in the bill would not keep ineligible individuals from receiving federal benefits—since many applicants would instead submit another person’s name and Social Security number to qualify. Some Members may believe the bill, by laying out a policy of ‘enroll and chase,’ will permit ineligible individuals, including illegal aliens, to obtain federally-paid health coverage for at least four months during the course of the verification process. Finally, some Members may be concerned that the bill, by not taking remedial action against states for enrolling illegal aliens—which can be waived entirely at the Secretary’s discretion—until states’ error rate exceeds 3%, effectively allows states to provide benefits to illegal aliens.

Legal Aliens: Section 214 of the 2009 reauthorization allowed states to cover legal aliens in their SCHIP programs without subjecting them to the five-year waiting period required for means-tested benefits under the 1996 welfare reform law.

As I wrote in 2009, “Some Members may be concerned that permitting states to cover legal aliens without imposing waiting periods will override the language of bipartisan welfare reform legislation passed by a Republican Congress and signed by a Democrat President, conflict with decades-long practices in other federally-sponsored entitlement health programs (i.e., Medicare), and encourage migrants to travel to the United States for the sole or primary purpose of receiving health benefits paid for by federal taxpayers.” The House-passed bill includes no provisions modifying or repealing this option.

Premium Assistance: Section 301 of the 2009 reauthorization created new options regarding premium assistance—allowing states to subsidize employer-sponsored coverage, rather than enrolling individuals in government-run plans. While that reauthorization contained some language designed to make premium assistance programs more flexible for states, it also expressly prohibited states from subsidizing health savings account (HSA) coverage through premium assistance. The House-passed bill includes no provisions modifying or repealing this prohibition on states subsidizing HSA coverage.

Health Opportunity Accounts: Section 613 of the 2009 reauthorization prohibited the Department of Health and Human Services from approving any new demonstration programs regarding Health Opportunity Accounts, a new consumer-oriented option for low-income beneficiaries created in the 2005 Deficit Reduction Act. The House-passed bill includes no provisions modifying or repealing this prohibition on states offering more consumer-oriented options.

Covering Poor Kids First: The 2015 proposed reauthorization looked to restore SCHIP’s focus on covering low-income children first, by 1) eliminating the enhanced federal match rate for states choosing to cover children in families between 250-300 percent of the federal poverty level ($61,500-$73,800 for a family of four in 2017) and 2) eliminating the federal match entirely for states choosing to cover children in families above 300 percent of poverty. These provisions were consistent with the policy of the George W. Bush administration, which in 2007 issued guidance seeking to ensure that states covered low-income families first before expanding their SCHIP programs further up the income ladder. The House-passed bill includes no such provision.

Maintenance of Effort: Section 2001(b) of Obamacare included a requirement that states could not alter eligibility standards for children enrolled in SCHIP through October 1, 2019, limiting their ability to manage their state programs. Whereas the 2015 proposed reauthorization would have repealed this requirement, effective October 1, 2015, Section 301(f) of the House-passed bill would extend this requirement, through October 1, 2022. (However, under the House-passed bill, states could alter eligibility for children in families with incomes over 300 percent of poverty, beginning in October 2019.)

Crowd-Out: The 2015 proposed reauthorization allowed states to impose a waiting period of up to 12 months for individuals who declined an offer of, or disenrolled from, employer-based coverage—a provision designed to keep families from dropping private insurance to enroll in a government program. The House-passed bill contains no such provision.

Program Name: The 2009 reauthorization sought to remove the “state” element of the “State Children’s Health Insurance Program,” renaming the program as the “Children’s Health Insurance Program.” While the 2015 proposed reauthorization looked to restore the “state” element to “SCHIP,” the House-passed bill includes no such provision.

Cave, Not a Compromise

For all the focus on paying for SCHIP, the underlying policy represents a near-total cave by Republicans, who failed to obtain any meaningful reforms to the program. Granted, Democrats likely would not agree to all the changes detailed above. But the idea that a “bipartisan” bill should include exactly none of them also seems absurd—unless Republicans threw in the towel and failed to fight for any changes.

The press spent much of 2017 focused on Republican efforts to unwind Obamacare. But the SCHIP bill represents just as consequential a story. The cave on SCHIP demonstrates how many Republicans, after spending the last eight years objecting to the Obama agenda, suddenly have little interest in rolling it back.

This post was originally published at The Federalist.

Tom Price’s Nomination and the Road Ahead for Obamacare Repeal

In announcing the nomination of Georgia orthopedic surgeon and congressman Tom Price as Health and Human Services secretary, Donald Trump sent an important signal about his incoming administration’s desire to undertake major efforts to repeal and replace Obamacare, along with other entitlement reforms. However, Price’s nomination also illustrates why those efforts face a difficult road to passage and enactment.

As news of the Price appointment leaked out late on Monday evening, reporters spent much of their time breathlessly analyzing Dr. Price’s health-care legislation—H.R. 2300, the Empowering Patients First Act—for clues as to what it might mean for the replace effort. However, Price’s bill may be more noteworthy for what it does not include than what it does:

  • Any premium support plan for Medicare reform;
  • Any reform of Medicaid—whether block grants or per capita caps; and
  • Any spending reductions to fund the refundable portion of tax credits Price proposes as an alternative to Obamacare’s insurance subsidies.

In other words, despite releasing a 243-page health-care bill, Price, along with his Republican colleagues in Congress, hasn’t translated into legislative specifics his policy positions on many, if not most, of the important health-care issues the Republican Congress will face next year. For instance:

  • How should a premium support system under Medicare be structured? Should payments to seniors be based upon the average plan bid, the lowest plan bid, or another formula? How quickly should those payments rise in future years?
  • How quickly should Medicaid block grants, or per capita caps, rise in future years?
  • Should an Obamacare repeal-and-replace plan rely on pre-Obamacare levels of taxes and spending, or should it redirect existing Obamacare spending in a different direction?

Price’s legislation does not shed much light on these and other critically important questions that Congress will need to undertake next year.

Budget Gimmicks and Magic Asterisks

As chairman of the House Budget Committee, Price earlier this year released a budget blueprint that did include some ideas for entitlement reform. However, that document included only about four pages of proposals on Medicare, Medicaid, and Obamacare—some of which focused more on making the case against Obamacare than outlining the specifics of a Republican alternative. The Budget Committee did draft more specific (and non-binding) report language, but ultimately left the details of determining policy—as all budgets do—to the committees of jurisdiction, namely House Ways and Means and House Energy and Commerce.

More importantly, even though the Republican budget document said it “gets rid of all of Obamacare,” that’s not what it did. The budget, like those issued by House Speaker Paul Ryan when he was Budget Committee chairman, assumes Obamacare’s higher levels of taxes and lower levels of Medicare spending to achieve balance within the decade. Either the budget doesn’t repeal all of Obamacare, or it assumes that Congress, after repealing Obamacare, would go back and re-enact equivalent levels of tax increases and Medicare spending reductions.

It’s particularly noteworthy that Price’s Empowering Patients First Act, which proposes a new refundable tax credit, includes only one idea to pay for said credit—a cap on the tax deductibility of employer-sponsored health coverage. Although administered through the tax code, refundable credits are considered for budgetary purposes government spending—Washington writing “refund” checks to individuals and families with no income tax liability.

While it’s difficult to determine without a Congressional Budget Office score to his bill, one could argue the chairman of the House Budget Committee proposed raising taxes (the cap on deducting employer-sponsored health coverage) to pay for new spending (the refundable portion of the tax credit/insurance subsidy).

None of these omissions by Price suggest he lacks an intricate knowledge of health policy—far from it. In fact, to the extent Price has purposefully avoided many of the political minefields omnipresent in health policy, that public silence makes his Senate confirmation more likely.

But it also illustrates the extent of the obstacles Republicans face. If one of the few conservatives in Congress with an interest in, and knowledge of, health care achieved that reputation in part by avoiding tough choices, what will Republicans do when they have to make those difficult decisions—and trust me, they will have to—without him next year?

Legislating vs. Implementing

Given his influential perch in Congress, Price did not accept the HHS nomination because he intends to oversee the legislative process at a close distance. He will play a key role in liaising with Congress, no doubt, but perhaps more from a “big picture” perspective—working to persuade his former legislative colleagues—than by drafting minute details with Hill staff, Ryan, and Senate Majority Leader Mitch McConnell.

Price’s nomination to HHS makes much more sense from an implementation standpoint—the opportunity to shape and mold the regulatory process. Price can lay the regulatory groundwork for repealing Obamacare and reforming entitlements. But the heavy lifting of policy will remain Congress’s purview, and Price’s record—both what it includes, and more importantly, what it excludes—illustrates that lift will be heavy indeed.

This post was originally published in The Federalist.

Three Lessons from Last Year’s Obamacare Repeal Effort

In a move virtually ignored outside Washington and largely unnoticed even within it, last December the House and Senate passed legislation repealing much of Obamacare. President Obama promptly vetoed the measure — an obstacle that will disappear come January 20. As reporters and policymakers attempt to catch up and learn the details of a process they had not closely followed, three important lessons stand out from last year’s “dry run” at repealing Obamacare.

The Senate Should Take the Lead

The legislation in question, H.R. 3762, made it to President Obama’s desk only because Republicans used a special procedure called budget reconciliation to circumvent the Senate’s 60-vote requirement to overcome a Democratic filibuster. While reconciliation allowed the bill to make it to the president’s desk, it came with several procedural strings in the Senate. Reconciliation legislation may only consider provisions that are primarily budgetary in nature; policy changes, or policy changes with an incidental fiscal impact, will get stripped from the bill. In addition, reconciliation legislation may not increase the budget deficit.

Unfortunately, the original version of the bill the House introduced did not comply with the Senate requirements. The legislation repealed Obamacare’s Independent Payment Advisory Board (IPAB) — but because that change was primarily policy-related and not fiscal in nature, it did not pass muster with the Senate parliamentarian. Likewise, according to a cost estimate by the Congressional Budget Office, the House-passed bill would have increased the deficit in the “out years” beyond the ten-year budget window, making it subject to another point-of-order challenge that would require 60 votes to overcome. Ultimately, the legislation contained enough of these procedural flaws that Senate majority leader Mitch McConnell had to introduce a completely new substitute for the bill as it came to the Senate floor, to ensure that it would receive the procedural protections accorded to a reconciliation measure.

The arcane and technical nature of the budget-reconciliation process means that the Senate will play the key role in determining what passes — simply because Senate procedure will dictate what can pass. While the House has the constitutional prerogative to originate all tax legislation, and by custom it initiates most major spending legislation, the Senate may do well to initiate action in this particular case. House Republicans proposed an Obamacare-replacement plan earlier this year, Paul Ryan’s “A Better Way,” but what good is passing that through the House if much of it ends up on the Senate’s proverbial cutting-room floor?

Personnel Matters, Because Institutional Memory Is Scarce

The original reconciliation bill was introduced in the House on October 16, during what amounted to an interval between leaders. John Boehner had announced his intention to resign the speakership, but Paul Ryan had not yet assumed that title. And while House members played another round of “musical chairs,” staff underwent their own turnover, as Speaker Boehner’s longtime health-policy adviser departed Capitol Hill a few weeks before Boehner announced his surprise resignation.

To say that relevant leaders and committee chairs have swapped places in the House recently is putting it mildly. Not one has served in his current post for more than two years. Two years ago, Paul Ryan chaired the House Budget Committee; his reign at Ways and Means lasted a brief nine months before he assumed the speakership. Elsewhere in leadership, both Majority Leader Kevin McCarthy and Majority Whip Steve Scalise assumed their jobs after the defeat of Eric Cantor in August 2014. At the committees, Budget Committee chairman Tom Price and Ways and Means Committee chairman Kevin Brady succeeded Paul Ryan in leading their respective committees last year. And the Energy and Commerce and Education and Workforce Committees will soon choose new chairmen to assume their gavels in January.

While Senate leadership has remained more stable at the member level, most of the staff in both chambers has turned over since the Obamacare debate of 2009–10. I served in House leadership during 2009, and Senate leadership from 2010 to 2012; most of my former colleagues have long since moved on, whether to lobbying jobs, grad school, or even outside Washington altogether. Both at the member level and the staff level, the critically important institutional knowledge of what happened to Democrats — and when, why, and how — during the Obamacare debacle eight short years ago is dangerously thin.

The Washington gossip circles seem most interested in playing the parlor game of who will fill what post in the new administration. But particularly if the administration defers to Capitol Hill on policy, the true action in determining what happens to Obamacare — and what replaces it — may well lie at the other end of Pennsylvania Avenue. Both reporters and would-be job applicants should react and plan accordingly.

An Influential Troika of Senate Conservatives

In addition to its procedural shortfalls, the original House reconciliation bill represented something much less than full repeal of Obamacare. While the law as enacted contains 419 sections, four of which had already been repealed prior to last October, the House’s reconciliation bill repealed just seven of them. Admittedly, much of Obamacare contains extraneous provisions unrelated to the law’s coverage expansions: nursing-home regulations, loan-forgiveness programs, and the like. But the original House reconciliation bill left intact many of Obamacare’s tax increases and all of its coverage expansions, leaving it far short of anything that could be called full repeal.

Into the breach stepped three conservative senators: Mike Lee, Marco Rubio, and Ted Cruz. The day before the House voted to pass its reconciliation bill, they issued a joint statement calling it thin gruel indeed:

On Friday the House of Representatives is set to vote on a reconciliation bill that repeals only parts of Obamacare. This simply isn’t good enough. Each of us campaigned on a promise to fully repeal Obamacare, and a reconciliation bill is the best way to send such legislation to President Obama’s desk. If this bill cannot be amended so that it fully repeals Obamacare pursuant to Senate rules, we cannot support this bill. With millions of Americans now getting health premium increase notices in the mail, we owe our constituents nothing less. 

Knowing that the bill lacked the votes to pass the chamber without support from the three conservatives, Senate leadership significantly broadened the bill’s scope. The revised version that went to the president’s desk repealed all of the law’s tax increases and all of its coverage expansions. It was not a one-sentence repeal bill that eradicated all of Obamacare from the statute books, but it came much closer to “fully repeal[ing] Obamacare pursuant to Senate rules,” as the three senators laid out in their statement.

The conservatives’ mettle will be tested once again. Already, Republican congressional sources are telling reporters that they intend to keep the law’s Medicaid expansion, albeit in a different fashion. “One of the aides said this version of the bill [that passed last year] was mostly about ‘messaging,’ and that this time, ‘We’re not going to use that package. We’re not dumb.’”

Apart from the wisdom of calling a bill that their bosses voted for less than one year ago “dumb,” the comment clarifies the obvious fissure points that will emerge in the coming weeks. Will conservatives such as Lee, Rubio, and Cruz hold out for legislation mirroring last year’s bill — and vote no if they do not receive it? Conversely, what Republican who voted for the reconciliation bill last year will object if it returns to the Senate floor? Will senators be willing to vote against something in 2017 that they voted for in 2015?

As I noted last week, Republicans’ path on Obamacare could prove more complicated than the new conventional wisdom in Washington suggests. If past is prologue, last year’s reconciliation bill provides one possible roadmap for how the congressional debate may play out.

This post was originally published at National Review.

A House Budget Response to High Court Ruling on Health Subsidies?

While the Supreme Court weighs King v. Burwell–the lawsuit questioning the federal government’s authority to provide financial assistance to people who buy insurance in the 37 states using federally operated insurance exchanges–many have focused on potential responses to the outcome. Language in the budget resolution unveiled this week appears to lay the groundwork for the House of Representatives to address this ruling through budget reconciliation procedures.

Section 2002 of the budget conference report lays out special procedures for budget reconciliation in the House. That section instructs the House Budget Committee chairman to use the Congressional Budget Office’s March 2015 budgetary baseline “if the estimates used to determine the compliance of such measures with the budgetary requirements included in this concurrent resolution are inaccurate because adjustments made to the baseline are inconsistent with the assumptions underlying the budgetary levels set forth in this concurrent resolution. Such inaccurate adjustments made after the adoption of this concurrent resolution may include selected adjustments for rule-making, judicial actions, adjudication, and interpretative rules that have major budgetary effects and are inconsistent with the assumptions underlying the budgetary levels set forth in this concurrent resolution.”

Simply put: This language allows the Budget Committee chairman to disregard the potential budgetary impacts of “judicial actions” and “adjudication”—such as a Supreme Court ruling in King v. Burwell—that take place after a budget is adopted. CBO is directed to do likewise.

Here’s how it might work. After the court’s ruling in King v. Burwell is issued, CBO would probably update its spending estimates to reflect any fiscal implications arising from the ruling. In the summer of 2012, the Supreme Court’s ruling in National Federation of Independent Business v. Sebelius made Medicaid expansion optional for states; CBO said three weeks after the ruling that this change would reduce projected spending on the law by $84 billion over 10 years.

If the court strikes down federal insurance subsidies, CBO is likely to reduce its spending estimates for the health-care law, to reflect fewer people receiving subsidies, and could also reduce its revenue estimates because fewer people receiving subsidies would eliminate the employer and individual mandate penalties in many cases. Once CBO revises its baseline, any legislative action restoring prior spending levels—whether as a temporary transition to prevent dislocation for those who purchased coverage through the exchanges, a block grant to states providing additional flexibility, or a permanent extension of subsidies—would ordinarily be scored by CBO as increasing both spending and the deficit.

But the language in the budget resolution would allow the House Budget Committee chairman to revert to the pre-King baseline—meaning that legislation designed to address the ruling would not be scored as a spending increase and could be scored as a spending cut, when compared to the spending baseline currently in effect.

The resolution applies these special procedures only in the House; other procedural hurdles could apply in the Senate. But the inclusion of this language in the budget suggests that the House leadership wants to address any King v. Burwell ruling legislatively—and do so through budget reconciliation.

This post was originally published in the Wall Street Journal Think Tank blog.

Legislative Bulletin: H.R. 7174, James Zadroga 9/11 Health and Compensation Act

Order of Business:  Reports indicate the bill is expected to be considered on Sunday, September 28, under floor procedures that have yet to be determined.

Summary:  H.R. 7174 would amend the Public Health Service Act to establish new federal entitlement programs for 9/11 workers related to health monitoring and treatments, and expand eligibility for the 9/11 victim compensation fund.  Specific details of the legislation include the following:

World Trade Center Health Program:  The bill would establish within the National Institute for Occupational Safety and Health (NIOSH) a new program to provide medical monitoring, screening, and treatment to workers (including federal employees) who responded to the 9/11 attacks on the World Trade Center (WTC), and residents of New York City “who were directly impacted and adversely affected by such attacks.”  The program is intended to provide:

  • Medical monitoring for those exposed to airborne toxins or other hazards;
  • Screening for community members;
  • Treatment for “all medically necessary health and mental health care expenses (including necessary prescription drugs;)”
  • Outreach to potentially eligible individuals to inform them of benefits available;
  • Uniform data collection and monitoring; and
  • Research on health conditions arising from the World Trade Center attacks.

Specific details of the program include:

Payments:  H.R. 7174 provides that all health benefits provided under the program will be provided “without any deductibles, co-payments, or other cost-sharing.”  In cases where a worker is eligible for workman’s compensation, or holds other public or private health insurance coverage, the bill provides that the federal government’s WTC program shall serve as a secondary payer for such claims, similar to the Medicare Secondary Payer program for Medicare beneficiaries with end-stage renal disease.  The bill provides for the creation of quality control and anti-fraud elements within the new program, and incorporates existing anti-fraud penalties to the WTC program.

Advisory and Steering Committees:  The bill creates a scientific and technical advisory committee to provide expertise on eligibility criteria and WTC-related health conditions, and two steering committees—one for WTC responders, the other for community members—to co-ordinate the screening and treatment of eligible members.

Outreach:  The bill includes language requiring the Program Administrator—either the NIOSH Director or his designee—to establish a website, create partnerships with local agencies, and take other measures necessary to inform potentially eligible beneficiaries of the existence of the WTC program.

Centers of Excellence:  The bill directs the Administrator to enter into contracts with “Clinical Centers of Excellence” with respect to monitoring, treating, and counseling individuals related to WTC-related health conditions, and separate contracts with “Co-Ordinating Centers of Excellence” with respect to analyzing and reporting on relevant data and medical protocols.  The bill names the Clinical Centers of Excellence:

  • New York City Fire Department;
  • Mount Sinai co-ordinated consortium;
  • Queens College;
  • State University of New York at Stony Brook;
  • University of Medicine and Dentistry of New Jersey;
  • Bellevue Hospital; and
  • Other hospitals identified by the Administrator.

The bill designates the New York Fire Department, the Mount Sinai co-ordinated consortium, and Bellevue Hospital as Co-ordinating Centers of Excellence.

H.R. 7174 would reimburse Clinical Centers of Excellence $600 annually per eligible participant in the treatment program, and an additional $300 annually per eligible participant in the monitoring program—amounts subject to an inflation index reflecting increases in medical costs in future years.  The bill provides that the payments will be made “regardless of the volume or cost of services required.”  The bill permits the Administrator to authorize payment levels for Co-ordinating Centers of Excellence, and requires a review and GAO study on payment levels within five years.

Eligibility for Responders Entitlement:  H.R. 7174 includes several categories of 9/11-related responders eligible for the new federal health care entitlement.  The bill would expand eligibility for the new entitlement to persons who “performed rescue, recovery, demolition, debris cleanup, or other related services in the New York City disaster area” and meet certain criteria with respect to airborne toxins.  H.R. 7174 also specifies categories of currently eligible individuals in line to receive the new health care entitlement, including:

  • New York City Fire Department employees who “participated at least one day in the rescue and recovery effort at any of the former World Trade sites (including Ground Zero, Staten Island landfill, and the New York City Chief Medical Examiner’s office” at any point between September 11, 2001 and July 31, 2002;
  • Surviving immediate family members of New York City firefighters killed on September 11 at the World Trade Center who received mental health treatment related to their loss—but such individuals are only subject to the new entitlement with respect to mental health treatments;
  • Participants in the WTC cleanup efforts in Lower Manhattan, the Staten Island landfill, or the barge loading piers who worked:
    • At least 4 hours between September 11 and September 14, 2001;
    • At least 24 hours between September 11 and September 30, 2001; or
    • At least 80 hours between September 11, 2001, and July 31, 2002;
  • Workers in the New York City Medical Examiner’s office;
  • Workers in the Port Authority Trans-Hudson Corporation tunnel who worked at least 24 hours between February 1, 2002, and July 1, 2002; and
  • Vehicle maintenance workers exposed to debris “while maintaining vehicles contaminated by airborne toxins” related to the WTC attacks during the time periods outlined above.

The bill includes provisions for an application process lasting no more than 60 days, and an appeal to an administrative law judge in cases where applications are initially denied.

The bill limits the number of beneficiaries to a maximum of 15,000 who at any time qualify for the program, but exempts from the numerical cap those beneficiaries receiving treatment for an identified WTC-related condition at the time of the bill’s enactment.

H.R. 7174 also includes language providing that, in the event that the program’s expenditures are less than 90% of Congressional Budget Office projections as of December 1, 2011, and January 1, 2015, the Administrator may increase the number of eligible participants to meet the CBO expenditure estimates.

Conditions Eligible for Treatment:  The bill defines a WTC-related health condition as “an illness or health condition for which exposure to airborne toxins, any other hazard, or any other adverse condition resulting from the September 11, 2001 attacks on the World Trade Center…is substantially likely to be a significant factor in aggravating, contributing to, or causing the illness or health condition,” or a mental health condition “substantially likely to be a significant factor in aggravating, contributing to, or causing the condition.”  The bill includes a list of aerodigestive (i.e. asthma and other pulmonary conditions), musculoskeletal, and mental health diseases (including post-traumatic stress disorder) that qualify for treatment.

H.R. 7174 also includes an application process to add additional illnesses subject to review by the Administrator and the Advisory Committees, and permits physicians at Clinical Centers of Excellence to receive federal payments for treatments for WTC-related diseases not yet identified as such under the provisions above, subject to a subsequent determination by the Administrator as to whether or not the condition will be added to the eligible list of diseases.

Standards for Treatment:  The bill limits treatments paid for by the federal government to medically necessary standards, including those that are “not primarily for the convenience of the patient or physician…and not more costly than an alternative service or sequence of services at least as likely to produce equivalent therapeutic or diagnostic results.”

The bill provides for review by “a federal employee designated by the WTC Program Administrator” with respect to determinations of WTC-related health conditions, and includes provisions requiring an appeals process before an administrative law judge with respect to the Administrator’s certification of individuals’ claims for treatment, and a separate appeals process before a physician panel with respect to medical necessity determinations.

Payment Levels:  H.R. 7174 provides that payments to physicians and other medical providers shall generally be based upon reimbursement levels under the Federal Employees Compensation Act (FECA), which governs federal workman’s compensation claims.  The bill also includes language establishing a competitive bidding process among vendors to govern pharmaceutical purchases by eligible beneficiaries, and permits the Administrator to designate reimbursement rates for other services not referenced in the bill language.  The bill requires New York City and its public hospitals to contribute a 10% match in order to be eligible to receive payment for treatment services rendered.

Eligibility for Community Entitlement:  H.R. 7174 creates a separate entitlement for various segments of the community affected by the World Trade Center attacks.  Eligible groups of individuals include:

  • “A person who was present in the New York City disaster area in the dust or dust cloud on September 11, 2001;”
  • Individuals who “worked, resided, or attended school, child care, or adult day care in the New York City disaster area” for at least four days between September 11, 2001 and January 10, 2002—or at least 30 days between September 11, 2001 and July 31, 2002;
  • “Any person who worked as a clean-up worker or performed maintenance work in the New York City disaster area” between September 11, 2001 and January 10, 2002 “and had extensive exposure to WTC dust as a result of such work;”
  • Individuals residing or having a place of employment in the New York City disaster area between September 11, 2001 and May 31, 2003, and deemed eligible to receive grants from the Lower Manhattan Development Corporation; and
  • Any individuals receiving treatment at the World Trade Center Environmental Health Center as of the date of the bill’s enactment.

The bill includes an application and certification process for community beneficiaries similar to that for responder beneficiaries discussed above.  The bill limits the number of beneficiaries to a maximum of 15,000 who at any time qualify for the program, but exempts from the numerical cap those beneficiaries receiving treatment for an identified WTC-related condition at the time of the bill’s enactment.  As a result, CBO estimates that, between the community entitlement and the responder entitlement discussed above, about 80,000 people would receive these new WTC-related entitlements to obtain benefits for respiratory and mental health treatments, increasing mandatory spending by $4.6 billion over ten years.

Beneficiaries under the community-based entitlement would generally receive the same benefits and treatments as the WTC responders, except that the community-based entitlement does not include musculoskeletal disorders in the list of identified health conditions (although some or all of these could be added under the process described above).

Treatment for Other Individuals:  H.R. 7174 establishes an additional capped entitlement fund to finance care for “WTC community members”—i.e. those living in the New York disaster area at the time of the September 11 attacks, but not meeting the criteria listed above—diagnosed with an identified WTC-related health condition.  The bill caps such entitlement spending at $20 million in Fiscal Year 2009, rising annually according to medical inflation rates.

Care Outside New York:  The bill would require the Administrator to “establish a nationwide network of health care providers” to treat eligible recipients outside the New York City metropolitan area, subject to certain reporting and quality requirements.

Research:  The bill would require the WTC Administrator to establish an epidemiological research program on health conditions arising from the World Trade Center attacks.  The program would cover diagnosis and treatment of WTC-related health conditions among responders and in sample populations from Lower Manhattan and Brooklyn, “to identify potential for long-term adverse health effects in less exposed populations.”  H.R. 7174 authorizes $15 million annually for such research.  In addition, the bill authorizes $7 million annually for New York City to maintain a WTC Health Registry, as well as $8.5 million for grants to the New York Department of Mental Health and Mental Hygiene for WTC-related mental health treatment.

Changes to September 11 Compensation Fund:  In addition to establishing the new NIOSH program, H.R. 7174 would also make several changes to the September 11 victim compensation fund established in 2001 (Title IV of P.L. 107-42), as listed below.

Extension for Applications:  H.R. 7174 would reopen applications to the September 11 compensation fund in cases where the Special Master for the compensation fund determines that the individual became aware of physical injuries suffered as a result of the September 11 attacks after applications to the compensation fund were closed.  The bill would generally reopen applications for the reasons stated above (and for individuals subject to the expanded eligibility provisions noted below) for two years after the individual became aware of such injuries, provided the individual seeks treatment in a prompt manner and the claim can be verified.  Additional claims applications under this extension would be accepted through December 22, 2031.

Expansion of Eligibility Definitions:  The bill would modify the definition of eligibility for compensation to define the “immediate aftermath” of the September 11 attacks as including time through August 30, 2002.  The bill would also expand eligibility to include workers handling debris from the World Trade Center, including “any area contiguous to a site of [the 9/11] crashes that the Special Master determines was sufficiently close to the site that there was a demonstrable risk of physical harm” and “any area related to, or along, routes of debris removal,” including (but not limited to) the Fresh Kills landfill in Staten Island.  The Congressional Budget Office notes that the provisions in the bill “would significantly increase the number of individuals who could seek compensation from the fund,” resulting in an estimated 18,000 additional individuals receiving federal compensation benefits averaging $350,000 each—increasing mandatory spending by nearly $6.4 billion over ten years.  According to Justice Department statistics, this figure would represent a nearly seven-fold increase from the 2,852 personal injury claims originally filed during the 2001-03 period. (See “Additional Background” below.)

Applicability to Pending Lawsuits:  H.R. 7174 would require debris workers or other individuals with pending legal claims relating to 9/11-related injuries, and wishing to seek compensation from the victim compensation fund, to withdraw those legal actions within 90 days after updated regulations regarding the fund application extension are promulgated.  The bill would permit individuals whose applications are denied by the Special Master subsequently to reinstitute their legal claims without prejudice within 90 days of the ineligibility determination—a right not granted to fund applications during the original 2001-03 application period.

Limited Liability:  H.R. 7174 limits the liability for construction and related contractors regarding workers’ claims to the sum of the funds available in the WTC Captive Insurance Company, an amount not exceeding $350 million from New York City, and the amount of all available insurance held by the Port Authority of New York and New Jersey and the relevant contractors and sub-contractors.  According to the Republican staff of the Judiciary Committee, this amount would total approximately $2 billion in funds available to pay legal claims.

Tax Increases:  H.R. 7174 includes several tax provisions designed to pay for the entitlement created in the bill, including

Economic Substance Doctrine:  The bill codifies the “economic substance doctrine” used in certain court decisions, which prohibits businesses from making certain free-market business decisions (and from taking the related tax benefits) based solely on tax-lowering motives.  The bill would also impose a 20% penalty on understatements attributable to a transaction lacking economic substance (40% in cases where certain facts are not disclosed).  In other words, under this provision, companies could be assessed tax penalties for engaging in business transactions aimed primarily at lowering their tax bills beginning on the date of this bill’s enactment.

Increased Taxes on Domestic Subsidiaries of Multinational Corporations:  H.R. 7174 denies certain U.S. subsidiaries of multinational companies the benefits of tax treaties in certain circumstances.  When a U.S. subsidiary of a foreign-owned company makes certain tax-deductible payments (like interest, rents, and royalties) to a related party located in another country, the U.S. imposes a tax on those payments.  The default rate is 30%, but this rate can be reduced, sometimes down to 0%, by tax treaties.  The U.S. has 58 tax treaties with 66 different countries.  This bill would deny the U.S. subsidiary the benefits of the negotiated treaty rate when those tax-deductible payments are made by the subsidiary to a related foreign company, if the ultimate parent of the multinational company is based in a country that does not have a tax treaty with the U.S.

Corporate Estimated Tax Timing Gimmick.  This provision would increase the estimated tax payments that certain corporations must remit to the federal government.  Under current law, corporations with assets of at least $1 billion must make equally divided estimated tax payments for each quarter.  This legislation would increase the payment due for the third quarter of calendar-year 2013 by 5 percentage points.  (If each regular quarterly payment is 100% of what is owed, this additional payment would be 105% of what would otherwise be owed.)  The payment due for the fourth quarter of calendar-year 2013 (i.e. the 1st quarter of fiscal-year 2014) would be reduced accordingly so that the corporations pay no net increase in estimated payments in calendar-year 2013.  This provision is merely a revenue timing shift, a gimmick used to comply with the House’s PAYGO rules, yet would have real-world implications, as it forces certain companies to pay more of their tax payments earlier.  Given the time value of money, there’s little doubt that requiring bigger, earlier payments would harm the bottom lines of qualified corporations.

Additional Background on 9/11 Compensation Fund:  As noted above, Title IV of Public Law 107-42 authorized payments by the federal government to individuals injured or killed as a result of the September 11 attacks; eligible individuals (victims injured and families of individuals killed in the attacks) received $7 billion in payments before the fund closed in 2004.  Justice Department statistics note that during its operation, the fund issued award letters to 5,562 families whose relatives were killed in the September 11 attacks, and to 2,682 claimants suffering personal injuries as a result of the attacks.

While the process created under the law, and administered by Special Master Kenneth Feinberg, was praised by many victims’ families, Members of Congress, and outside experts as fair and judicious, proponents of H.R. 7174 assert that first responders who worked at the World Trade Center site have incurred respiratory and other injuries as a result of the toxins inhaled at Ground Zero—but that these conditions only became manifest after the application period provided for in P.L. 107-42 expired.  Title II of H.R. 7174 would therefore seek to reopen the compensation fund to allow these workers, and other individuals, to make claims for compensation.

However, asked by Judiciary Committee Republican staff to comment on a proposed draft of Title II, former Special Master Feinberg responded with an e-mail noting several concerns with the approach taken by the bill sponsors and the majority.  These concerns included:

  • An extension of the eligibility definition of “immediate aftermath” from the first four days following September 11 (as prescribed in regulations creating the compensation fund) to August 30, 2002— which could result in “a huge influx of additional claims” and could cause some individuals to re-apply for compensation;
  • Language that “vastly extends [the fund’s] geographic scope,” potentially leading to “thousands and thousands of additional claimants” and causing additional individuals to re-apply for compensation;
  • An extension of the filing period until 2031—“no latent claims need such an extended date;”
  • Provisions requiring the Special Master to determine when an individual first knew or should have known about their injuries—“how can the Special Master possibly make that determination?” and
  • Language permitting individuals denied eligibility for compensation to return to the tort system and re-file their claims—a right which was specifically denied as a pre-condition for initial applicants of the 9/11 fund, but which some who were denied compensation by the Special Master may now attempt to exercise.

Republican Committee staff notes that, to the extent the 9/11 compensation fund is re-opened at all, Mr. Feinberg recommends that it be done solely to allow first responders with diseases not manifest at the time of the initial application period to receive compensation—language that would be much narrower in scope than the provisions discussed above.  Particularly given that payments made pursuant to the 9/11 compensation fund constitute mandatory spending, conservatives may agree with the former Special Master that any potential changes considered by Congress should be narrow in scope and designed to ensure that first responders receive reasonable compensation in a manner that uses federal taxpayer dollars prudently.

Committee Action:  H.R. 7174 was introduced on July 24, 2008 and referred to the Committees on Energy and Commerce, Judiciary, and the Budget, none of which took official action.

Possible Conservative Concerns:  Several aspects of H.R. 7174 may raise concerns for conservatives, including, but not necessarily limited to, the following:

  • Tax Increase.  In order to pay for the more than $10 billion cost of this new federal entitlement, H.R. 7174 would codify the economic substance doctrine, under which companies could be assessed tax penalties for engaging in legitimate business transactions aimed primarily at lowering their tax bills.  Some conservatives may therefore be concerned that this provision, and other tax hikes in H.R. 7174, would increase taxes on Americans in order to pay for new federal entitlement spending.
  • Creates Multiple New Federal Entitlements.  H.R. 7174 would establish several new federal entitlement programs to provide health benefits to 80,000 people according to the Congressional Budget Office, and re-open the 9/11 compensation fund to an additional 18,000 personal injury claims.  Some conservatives may be concerned that, with Congress contemplating a $700 billion bailout of the financial sector, now is not an appropriate time to be creating new mandatory spending programs.
  • Mandatory Spending Earmarks to New York Hospitals.  The bill establishes “Centers of Excellence” related to treatment of WTC-related conditions, and provides for payment of up to $900 annually per eligible beneficiary to certain named New York City hospitals and institutions as Clinical Centers of Excellence, “regardless of the volume or cost of services required.”  Some conservatives may be concerned first that this language constitutes a legislative earmark for mandatory spending, and second that the hospitals named could receive federal payments under this earmark without performing a single service for WTC victims.
  • No Restrictions on Trial Lawyers.  While H.R. 7174 does cap liability for legal claims arising from the September 11 cleanup at the sum of all available insurance funds, the bill does not include language placing restraints on attorney contingency fees or other legal expenses.  The bill also permits individuals who file personal injury claims with the 9/11 fund under the new criteria, yet have their applications denied, to reinstate their lawsuits without prejudice.  Some conservatives may be concerned that these provisions may lead to additional lawsuits and funds flowing to trial lawyers as opposed to 9/11 victims awarded compensation.
  • Overly Broad Eligibility Standards.  H.R. 7174 includes expansive definitions of eligibility for the entitlements under the bill, including individuals who worked or volunteered in the New York City Medical Examiner’s Office for as little as one day, or who were present along “routes of debris removal.”  Some conservatives may echo the concerns of former Special Master Kenneth Feinberg, who expressed unease at the implications of re-opening the 9/11 compensation fund to create what CBO estimates would be a nearly seven-fold increase in the number of personal injury awards when compared to the original 2001-03 application period.
  • Overly Generous Health Benefits.  H.R. 7174 explicitly states that all health care provided shall not include any form of cost-sharing for beneficiaries, and reimburses providers at rates established by the Federal Employee Compensation Act—which according to Administration sources pays providers at much higher rates than Medicare.  These provisions, coupled with the additional earmarked per capita payments to hospitals discussed above, may cause some conservatives concern that the bill lacks any meaningful cost-containment mechanisms for this new federal entitlement, which could encourage providers and patients alike to spend taxpayer money extravagantly.
  • Process.  This 120-page bill creating a new federal entitlement includes matter under the jurisdiction of at least four congressional committees—none of which has marked up the legislation.  Some conservatives may be concerned that these new federal entitlement programs deserve proper consideration under regular order—not a rushed proceeding as the House prepares to conclude its work for the year.

Administration Position:  A Statement of Administration Policy (SAP) on H.R. 7174 was not available at press time; however, reports indicate the White House has numerous concerns with the bill.

Cost to Taxpayers:  According to the Congressional Budget Office (CBO), H.R. 7174 would increase mandatory spending by just under $11 billion over ten years.  Title I provides a new entitlement to health benefits, and CBO estimates that about 80,000 people would receive this new WTC-related entitlement to obtain benefits for respiratory and mental health treatments.  CBO estimates that this entitlement would increase mandatory spending by $1.8 billion over five years, and $4.6 billion over ten years, net of a 10% payment by the City of New York and other recoupment from beneficiaries’ health insurance, workers compensation benefits, or other forms of third party payment.

Title II of H.R. 7174 would re-open and expand eligibility for the September 11 compensation fund, which paid out $7 billion in claims to victims before closing in 2004.  CBO notes that the provisions in the bill “would significantly increase the number of individuals who could seek compensation from the fund,” resulting in an estimated 18,000 additional individuals receiving federal compensation benefits averaging $350,000 each—13,000 emergency workers and 5,000 area residents.  CBO estimates this provision would cost $5.5 billion over five years, and nearly $6.4 billion over ten.

The bill’s new mandatory spending is paid for by tax increases—including the codification of the economic substance doctrine—as well as a timing shift budgetary gimmick with respect to estimated corporate tax payments, as explained above.

The bill also includes authorizations for discretionary spending, totaling $30.5 million annually “for each fiscal year.”

Does the Bill Expand the Size and Scope of the Federal Government?:  Yes, the bill would create two new health entitlement programs for 9/11 workers and community members, and expand eligibility for—and re-open applications to—the September 11 compensation fund, further increasing mandatory spending.

Does the Bill Contain Any New State-Government, Local-Government, or Private-Sector Mandates?:  No.

Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax Benefits/Limited Tariff Benefits?:  A committee report citing compliance with clause 9 of rule XXI was unavailable.

Constitutional Authority:  A committee report citing Constitutional authority was unavailable.