“If a regulation based on a proposal that could not be enacted through the legislative process can be inserted into a final rule without a chance for any public comment, then there appear to be no limits to the power delegated to you as Secretary under [the reform law],” they continued.
Blumenaeur, who plans to again sponsor end-of-life counseling legislation, told The Hill in December he was unaware of the letter from his office and said he regretted the language.
“If I had seen the memo, I would have suggested it be worded differently,” Blumenauer told The Hill.
Before end-of-life counseling became a GOP target in the summer of 2009, three Republicans had actually co-sponsored Blumenauer’s bill in April 2009.
The Obama administration defended the Medicare regulation as a continuation of a policy enacted under former President George W. Bush.
A law passed in 2008, despite a Bush veto, said orientation visits for Medicare beneficiaries can include voluntary end-of-life planning discussions. The Obama administration’s now-withdrawn regulation said those discussions could take place during the new annual wellness visits. Bush's veto message did not mention end-of-life care.
Energy and Commerce Republicans asked HHS to brief the committee staff on the Medicare regulation next week.
"We hope to learn what the department's internal discussions were regarding this provision," they wrote, "and to learn how the proposal was surreptitiously inserted and what can be done in the future to guarantee that the administration will not attempt to usurp congressional prerogatives."