GOP questions HHS authority to grant healthcare waivers

Republicans are raising new questions about how much legal leeway the Obama administration has to fix pieces of the healthcare law.

Republicans are targeting the 1,000-plus waivers the Department of Health and Human Services (HHS) has given to groups that can’t meet new annual coverage requirements, as well as a voluntary long-term care insurance program the department acknowledges is deeply flawed.

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The push marks a new attack strategy for GOP lawmakers who want to prevent implementation of President Obama’s signature legislative achievement in any way possible.

Republicans have been increasingly critical of waivers granted by the Obama administration to organizations that cannot meet a new mandate to provide at least $750,000 in coverage in 2011. They say the waivers, granted for just the annual limits requirement, are indicative of problems in the law.

The Obama administration says the waivers are a necessary stopgap measure to stabilize the insurance market until individuals can purchase coverage on new state-run health exchanges in 2014.

But House Republicans with oversight powers say the massive overhaul doesn’t explicitly grant the administration power to provide waivers.

“The entire waivers process is predicated on the ability of the secretary to grant waivers in the first place,” said Rep. Trey Gowdy (R-S.C.), chairman of the House Oversight Health subcommittee. “However, this seemingly fundamental step — the statutory basis for waiving compliance with the law — appears to have been wholly neglected by the plain language of the statute.”

An HHS official recently defended the waivers during a hearing on the Hill, pointing out an annual limits provision in the law that says the secretary has the power "to ensure that access to needed services is made available with a minimal impact on premiums."

Gowdy remains unconvinced the law explicitly allows Sebelius to offer waivers for the annual coverage requirements.

“I think it’s interesting that expressed grants of waivers are provided in other pieces of the legislation, and then there’s a little bit of legislative footwork or statutory interpretive footwork that has to be done to reach the conclusion with respect to this piece of legislation,” Gowdy told The Hill. "Is it a fair question to ask? Yes, it is.”

Republicans are also challenging how much authority Sebelius has to alter a new long-term care insurance program, which she acknowledges is “totally unsustainable” in its current form. Sebelius said HHS will consider increasing premiums and tightening eligibility standards to make the Community Living Assistance Services and Supports (CLASS) Act solvent.

But Republicans are pointing to a new Congressional Research Service (CRS) report that questions just how much power Sebelius has to make changes to the voluntary program. The CRS report said a court may find the sweeping healthcare reform law does not provide the HHS secretary with the authority to raise minimum earnings requirements in order to be eligible for the program.

Rep. Denny Rehberg (R-Mont.) recently sent a letter to Sebelius asking about her statutory authority to alter the CLASS Act. Rep. Charles Boustany Jr. (R-La.), who last week introduced a bill to repeal the program, said the CRS report raises serious legal questions.

“The secretary admitted the law made CLASS ‘totally unsustainable,’ ” Boustany said in a statement to The Hill. “Now she wants to rewrite the law through regulations to exclude individuals who meet the minimum earnings requirement specified in the law President Obama signed. The CRS report warns this latest overreach could lead to lawsuits.”

But a former congressional staffer who helped design the long-term care program says the CRS report is far from a smoking gun, arguing the CLASS Act was intentionally built to allow the HHS secretary to make adjustments to the program.

“Until the administration rolls out the program, you won’t know the answer to the sustainability question,” said Connie Garner, a former top staffer for the late Sen. Edward Kennedy (D-Mass.).

“The legislation does not present you with a program yet — it gives the secretary parameters to design one,” Garner said. “People are commenting on something that is not real yet.”