Senate Republicans Call on HHS Secretary Sebelius to Produce Documents, Answer Questions Related to Fundraising

Washington, D.C., June 27 – A group of 28 Republican senators today sent a letter to Health and Human Services Secretary Kathleen Sebelius asking for documents and answers previously requested by Senators Lamar Alexander (R-Tenn.) and Senate Finance Committee Republicans.

Alexander and Senate Finance members sent separate letters in May to Secretary Sebelius requesting information on reports that she was fundraising for Enroll America, a private non-profit group working on implementation and promotion of the insurance exchanges created by the new health care law—an activity for which Congress has refused to appropriate additional funds.

The agency responded [response attached] to both inquiries with identical letters that revealed the Secretary has solicited entities regulated by HHS to provide services to Enroll America and that Enroll America has closer ties to the agency than previously known.  Today 28 senators from throughout the caucus are requesting information and documents which were omitted in the agency’s response and which should shed further light on the extent of the Secretary's fundraising and the nature of the relationship with Enroll America.

The senators write: “We are writing to follow up on identical letters from the U.S. Department of Health and Human Services (HHS) to Senator Alexander and, separately, to Senator Hatch and Finance Committee Republicans dated June 3, 2013, in response to their letters questioning your fundraising efforts as reported in The Washington Post and The New York Times.  The letters provided confirmation for the first time that you solicited entities HHS regulates. They also revealed that the relationship between Enroll America and HHS is closer than previously known.  The letters unfortunately did not respond to several questions asked by Senate Republicans and neither did your agency provide documents that were requested, despite referencing the documents in the responses.”

Sen. Alexander was joined in the letter by Senators John Barrasso (R-Wyo.), Roy Blunt (R-Mo.), John Boozman (R-Ark.), Richard Burr (R-N.C.), Saxby Chambliss (R-Ga.), Dan Coats (R-Ind.), Thad Cochran (R-Miss.), Bob Corker (R-Tenn.), John Cornyn (R-Texas), Mike Crapo (R-Idaho), Mike Enzi (R-Wyo.), Jeff Flake (R-Ariz.), Chuck Grassley (R-Iowa), John Hoeven (R-N.D.), James Inhofe (R-Okla.), Johnny Isakson (R-Ga.), Mike Johanns (R-Neb.), Mark Kirk (R-Ill.), Ron Johnson (R-Wis.), Mitch McConnell (R-Ky.), Rob Portman (R-Ohio), James Risch (R-Idaho), Pat Roberts (R-Kan.), Marco Rubio (R-Fla.), Tim Scott (R-S.C.), John Thune (R-S.D.), and Roger Wicker (R-Miss.).

The response from HHS confirmed the news reports from recent weeks that Secretary Sebelius has been soliciting money and other support to benefit Enroll America. The senators write: “Your agency’s letters defended these actions by comparing them to outreach for the new Medicare Part D and Children’s Health Insurance Program laws passed during the Clinton and George W. Bush administrations.  HHS did engage in broad public outreach efforts and in some cases worked with the private sector to support these programs.  However, we can find no evidence that an HHS Secretary ever solicited money or services for any specific third-party organization, particularly one run by a former White House aide as a “Plan B” when appropriated funds were denied to HHS by Congress.  In this case, you have admitted to asking, in your official capacity, private sector entities to donate money and services to help a specific entity, Enroll America, carry out a job for which Congress has expressly denied HHS additional funding.”

The senators note that while the agency’s case for fundraising “hinge[s] entirely on its claims that two provisions added to the Public Health Service Act in 1976 give the Secretary authority to fundraise for Enroll America… No reasonable reading of this language could allow an HHS Secretary to bypass Congressional appropriations and ethics laws to fundraise for any third-party entity that can be vaguely described as promoting health information.”

The senators continue: “Many questions remain about the level of coordination between Enroll America and the administration, and the degree to which HHS has been seeking support for it or other third-party entities.  Your agency’s letters do not answer specific questions raised in Senator Alexander’s May 13, 2013, letter or requests from Senator Hatch and other Republicans on the Finance Committee on May 14, 2013.”

The letter concludes, “We urge HHS to immediately stop its solicitation for, and coordination with, Enroll America until these questions have been answered.”

The full text of the letter below:

June 27, 2013

The Honorable Kathleen Sebelius

Secretary

U.S. Department of Health and Human Services

330 Independence Avenue, SW

Washington, DC 20201

Dear Madam Secretary:

We are writing to follow up on identical letters from the U.S. Department of Health and Human Services (HHS) to Senator Alexander and, separately, to Senator Hatch and Finance Committee Republicans dated June 3, 2013, in response to their letters questioning your fundraising efforts as reported in The Washington Post and The New York Times.  The letters provided confirmation for the first time that you solicited entities HHS regulates. They also revealed that the relationship between Enroll America and HHS is closer than previously known.  The letters unfortunately did not respond to several questions asked by Senate Republicans and neither did your agency provide documents that were requested, despite referencing the documents in the responses.

Your agency’s letters confirmed news reports from recent weeks that you have been soliciting money and other support to benefit Enroll America, a nonprofit HHS describes as a “valuable partner” that is “playing a central role” in promoting enrollment on the new health insurance exchanges.  Your agency stated that you have asked two non-regulated entities to give money to Enroll America since January, and revealed that you have asked at least three other entities in the health insurance and pharmaceutical industries to give support to Enroll America.  The letters state that you made these phone calls in your official capacity as Secretary of the Department and that these solicitations occurred at the request of Enroll America.  Enroll America even suggested talking points for these calls.

The letters read:

“[T]he Secretary has applauded [Enroll America] publicly and in private conversations numerous times and urged others to support its important work in a number of ways outside of financial contributions.  The Secretary has publicly described Enroll America as a valuable partner ….

“In addition to the Secretary’s public statements of support, over the last few months, at Enroll America’s suggestion, she has made telephone calls to three other organizations—Kaiser Permanente, Johnson & Johnson, and Ascension Health—to ask that these corporate leaders support Enroll America’s work through their own public expressions of support, and by providing the organization technical support and advice.”

Since receiving these letters, we have also learned that you and President Obama attended a meeting at the White House on May 1, 2013, with private foundations during which the private sector’s work with Enroll America was discussed.

Your agency’s letters defended these actions by comparing them to outreach for the new Medicare Part D and Children’s Health Insurance Program laws passed during the Clinton and George W. Bush administrations.  HHS did engage in broad public outreach efforts and in some cases worked with the private sector to support these programs.  However, we can find no evidence that an HHS Secretary ever solicited money or services for any specific third-party organization, particularly one run by a former White House aide as a “Plan B” when appropriated funds were denied to HHS by Congress.  In this case, you have admitted to asking, in your official capacity, private sector entities to donate money and services to help a specific entity, Enroll America, carry out a job for which Congress has expressly denied HHS additional funding.

Your agency also compared Enroll America to the federally chartered National Foundation for the Centers for Disease Control and the Foundation for the National Institutes of Health.  However, those foundations are specifically created in statute and chartered as public-private partnerships.  The statute and legislative history direct HHS to work with the foundations, to provide resources to the foundations, and to set up funds for non-federal donations.  Enroll America, a private-sector non-profit working with the administration on activities for which Congress refused to provide additional appropriations, is not analogous to the federally chartered foundations. 

Regarding ethics issues, your agency asserts that federal ethics laws “do not purport to dictate the ethical parameters under which agencies may act” when fundraising in an official capacity.  However, the rules governing fundraising in an official’s private capacity are not the only relevant laws.  The federal ethics rules also prohibit gifts from prohibited sources, and a gift includes money or other services “[g]iven to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee.”  5 CFR 2635.203.  Health insurance companies and pharmaceutical companies certainly fall under the definition of “prohibited sources” who “conduct activities regulated by [HHS].”

Thus, your agency’s arguments hinge entirely on its claims that two provisions added to the Public Health Service Act in 1976 give the Secretary authority to fundraise for Enroll America.  These amendments state, “The Secretary is authorized to conduct and support by grant or contract (and to encourage others to support) new and innovative programs in health information and health promotion, preventive health services, and education in the appropriate use of health care….”  42 U.S.C. § 300u-2.  Your agency claims this provision “provides the Secretary broad authority beyond that available to other government officials.”  This is an unprecedented interpretation of the statute, and in 37 years we are not aware of it ever having been used to fundraise for a private entity in this manner.  No reasonable reading of this language could allow an HHS Secretary to bypass Congressional appropriations and ethics laws to fundraise for any third-party entity that can be vaguely described as promoting health information.

The Appropriations Clause is arguably the Constitution’s single most important curb on executive branch power.  Article I of the Constitution gives Congress alone the power of the purse.  Your agency requested additional money to implement the exchanges, and Congress denied that request.  You cannot evade Congress’ Constitutional power of the purse through gifts or donations to an entity that appears to be “just an arm of the administration,” as one health industry official described Enroll America in The Hill.

Many questions remain about the level of coordination between Enroll America and the administration, and the degree to which HHS has been seeking support for it or other third-party entities.  Your agency’s letters do not answer specific questions raised in Senator Alexander’s May 13, 2013, letter or requests from Senator Hatch and other Republicans on the Finance Committee on May 14, 2013.

We urge HHS to immediately stop its solicitation for, and coordination with, Enroll America until these questions have been answered.

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