JULY 09, 2013
Judicial Watch and The Heritage Foundation joined forces last month to investigate Obamacare activity on the part of Health & Human Services (HHS) Secretary Kathleen Sebelius. The joint investigation was prompted by reports that the Secretary had “gone, hat in hand, to health industry officials, asking them to make large financial donations to help with the effort to implement President Obama’s landmark health-care law.” In response, U.S. Senator Lamar Alexander launched a congressional inquiry into whether the Secretary’s fundraising appeals, conducted by phone and in person, primarily made on behalf of Enroll America, violated the Antideficiency Act, codified at 31 U.S.C. §§ 1341, 1342, and 1517. Contrary to HHS’s claims that a shoestring budget to launch Obamacare has forced it to go begging for private monies, records published at www.usaspending.gov show the agency has distributed more than $5 million in grants and paid more than $15 million in contracts to implement the Patient Protection & Affordable Care Act (“Obamacare”) since its enactment on March 23, 2010.
Documents obtained today through the Freedom of Information Act (FOIA), 5 U.S.C. § 552, show that, despite a government-wide pay freeze in place at the time, the administration cast aside normal hiring practices in order to expedite the implementation of Obamacare. Highlights from the documents obtained so far show that:
The same day Obamacare was enacted, the U.S. Office of Personnel Management (OPM) Director John Berry gave HHS Deputy Assistant Secretary for Human Resources (HR) Denise Wells “direct-hire appointing authority” to add 1,814 new HHS staffers, including 92 Grants Management Specialists and 50 Criminal Investigators;
On May 3, 2010, Ms. Wells granted all Operating and Staff Division Heads the authority to begin hiring in all occupational categories identified by OPM as necessary “to support the Administration’s Health Care Reform initiative”;
An undated attachment to Ms. Wells’ May 3 memo notes that while use of www.usajobs.gov is “strongly encouraged,” hand-delivered hard-copy applications for certain “name request” applicants would be accepted on a case-by-case basis.
Public interest in the Secretary’s possible misconduct in this instance is heightened by the fact that it would not represent Ms. Sebelius’s first ethical challenge during her tenure as an Obama administration official, having been found guilty in September 2012 of violating the Hatch Act in support of the President’s reelection campaign. The documents highlighted here stem from Judicial Watch’s May 16, 2013 requested of all HHS communications from January 1, 2010 through the present with Anne Filipic, former White House staffer turned president of Enroll America, a nonprofit organization “tasked with selling Obamacare.”
Judicial Watch continues pursuing additional documentary evidence surrounding Obamacare’s implementation as media coverage continues to unfold regarding the Secretary’s “dancing around serious ethical lines”:
May 16, 2013: Request to the Internal Revenue Service (IRS) for Enroll America’s 2010, 2011, and 2012 tax transcripts as well as the organization’s tax-exempt status determination letter;
May 17, 2013: Request to HHS for all records reflecting the scope and extent of the Secretary’s healthcare fundraising activities, including emails to or from the White House, Congress, any member of the media, or other third party, particularly on behalf of Enroll America;
May 20, 2013: Request to HHS for records reflecting the Secretary’s solicitation of time, money, and expertise from “eighteen categories of individuals and organizations,” per HHS spokesman Jason Young;
May 23, 2013: Request to HHS for records reflecting the agency’s communications from, to, or about the nation’s major health insurers, druggists, and a medical records software company, plus an additional advocacy group: Families USA;
May 24, 2013: Request to IRS for Robert Wood Johnson Foundation’s 2010, 2011, and 2012 tax transcripts as well as the organization’s tax-exempt status determination letter;
June 25, 2013: Request to HHS for all communications about Obamacare from May 1, 2013 through the present with any media outlet;
June 25, 2013: Request to HHS for all records respecting how to use the National Football League (NFL) and the National Basketball Assocation (NBA) to promote Obamacare.
The Obama administration responded to the foregoing requests in a variety of ways, none of them involving disclosure:
May 20, 2013: Health Resources & Services Administration (HRSA), the division of HHS primarily responsible for implementing Obamacare, classified Judicial Watch as a Commercial Use Requester, denying our organization’s request for a fee waiver in obtaining public records and disseminating them in the public interest.
May 22, 2013: HRSA granted Judicial Watch’s fee waiver appeal of the same day, claiming that the misclassification of our organization as a profit-driven enterprise was an “inadvertent error.”
June 18, 2013: HHS conceded locating 388 pages of records regarding the agency’s efforts on behalf of Enroll America. HHS also admitted withholding the entire production, claiming that release of these records would have “a detrimental effect on [HHS’s] decisionmaking process.”
June 18, 2013: HHS conceded locating an additional 267 pages of records, these focused on the Secretary’s solicitation of time, money, and expertise from 18 categories of individuals and organizations. The agency withheld all these records, too, claiming they were created in preparation for a lawsuit.
June 25, 2013: Providing no records responsive to Judicial Watch’s request, IRS claimed that Enroll America’s 2012 tax transcript had been moved to an office of the U.S. Department of the Treasury (Treasury) in Cincinnati, Ohio. Judicial Watch redirected its request for Enroll America’s transcripts to the indicated location.
June 25, 2013: HHS claimed never to have received Judicial Watch’s request for records of the agency’s communications with the nation’s major health insurers. Judicial Watch put this false claim to rest by supplying HHS with delivery confirmation obtained from the U.S. Postal Service.
As of June 26, 2013, Judicial Watch has appealed two of the five pending FOIA requests and has warned HHS that, pursuant to recent precedent of the D.C. Circuit, litigation respecting a third unfulfilled request is imminent. The IRS has fulfilled none of the requests made to it, making that agency subject to suit on all counts. Judicial Watch and Heritage will continue fighting for disclosure of all government activity in relation to the administration’s rollout of Obamacare.