E&C, Ways and Means subpoena Burwell after ‘yearlong effort to obtain information’

Representatives from the House Energy and Commerce Committee and the House Ways and Means Committee issued subpoenas requiring that HHS Secretary Sylvia Burwell produce certain documentation regarding the Basic Health Program, which is part of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), by April 12, 2016. According to the committeesannouncements of the subpoenas, Chairmen and Reps. Fred Upton (R-Mich) and Kevin Brady (R-Texas) are behind these issuances and have lead a yearlong effort to obtain the information sought on the subpoenas.

Specifically, according to the Energy and Commerce Committee, “the committees have been seeking to understand the facts that led the [A]dministration’s decision to fund the Basic Health Program without a congressional appropriation.” The Ways and Means Committee’s press release added that, “the committee leaders have been concerned that the [A]dministration is making payment subsidies to insurance companies under section 1402 [of the ACA] without a legal appropriation from Congress.” According to the Ways and Means representatives, these types of expenditures equal more than $5 billion now and will exceed $170 billion in the next 10 years.


Specifically, the subpoena issued by the Ways and Means Committee required Burwell to produce the following before the committee by April 12, 2016: (1) current and previous iterations of the Health Reform Tracker, which is “also known as the ‘Big Ugly Table;’” (2) all HHS or other agencies’ documents relating to the apportionment of funds for the Basic Health Program; (3) all documents and communications relating to the Office of Management and Budget’s consideration or grant of any request of apportionment of these funds; (4) the final memorandum of understanding between the IRS and CMS with regard to payments pursuant to the Basic Health Program and all documents and communications relating to this memorandum. The subpoena from the Energy and Commerce committee requests the same information to be presented on the same day.


According to the committees’ announcements, the issuance of the subpoena is the culmination of a yearlong effort to obtain this information from HHS. Further, the committees claim that HHS has failed to respond to each of the request for information in this area. Each committee accompanied its announcement with a timeline of attempts to request the information dating back to June of 2015.