Bush administration SCHIP policy violates Congressional Review Act

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GAO investigation accuses Bush administration of bypassing Congress to pass SCHIP. Source: Nature  

The investigative arm of Congress has determined that President George W. Bush’s administration’s limits on expansions of the State Children’s Health Insurance Program (SCHIP) are unlawful.
The Centers for Medicare & Medicaid Services (CMS) unlawfully bypassed congressional review when it issued a directive to states in August alerting them that federal authorities would seek to restrict raising the income eligibility level for the program, the Government Accountability Office (GAO) concluded in a report issued April 18.

The GAO’s findings are consistent with an analysis completed in January by the Congressional Research Service (CRS), another legislative branch agency.

The administration has repeatedly asserted that it is acting within its authority to manage SCHIP and the federal dollars allocated to the program.

Several states are suing the federal government over the directive, making similar claims that it was unlawfully implemented. Within weeks of CMS adopting the policies, one state, New York, had its application rejected to expand SCHIP to children of families with incomes above 400 percent of the federal poverty level.

In August 2007, a CMS official sent a letter to state authorities laying out the Bush administration’s new standards for approving expansions of SCHIP.

The chief tenet of the directive is that CMS would deny any application to expand enrollment to children of families with incomes exceeding 250 percent of the federal poverty level unless that state could certify it had already signed up at least 95 percent of children living in households with incomes below 200 percent of poverty.

The GAO report specifically states that the SCHIP directive violates the Congressional Review Act because it makes significant changes to present and future policies without being subject to public comment or Congress.

“The Aug. 17 letter from CMS to state health officials is a statement of general applicability and future effect designed to implement, interpret or prescribe law or policy with regard to the SCHIP program. Accordingly, it is a rule under the Congressional Review Act,” the GAO report said.