Badger Will Not Testify at House Hearing on Medicare Estimates

The Bush administration will not allow Doug Badger, President Bush's health policy adviser, to testify at a House Ways and Means Committee hearing on Thursday regarding CMS chief actuary Richard Foster's allegations that the Bush administration was aware of his analysis that the Medicare legislation would exceed its target spending goal and sought to withhold the estimates, the Philadelphia Inquirer reports. White House spokesperson Trent Duffy said the Bush administration's decision is justified by the "long-standing principle" of executive privilege, which "exempts assistants to the president from testifying before Congress," according to the Inquirer. Duffy added that executive privilege "preserve[s] the White House's ability to get the best information possible and to speak candidly" (Pugh, Philadelphia Inquirer, 4/1). Instead of allowing Badger to testify, the Bush administration "is making its case by distributing a sheaf of documents and news clippings to contest ... allegations that it covered up its higher estimates to ensure the bill's passage," according to CongressDaily. HHS spokesperson Bill Pierce said Wednesday, "We were giving clear signals to anyone who reads that we felt there were going to be significant differences between how we viewed this legislation and how Congress viewed this. ... We were giving [lawmakers] strong signals that decisions they were making would cost more than [the Congressional Budget Office] was telling them" (Rovner, CongressDaily, 3/31). Democrats "may offer a motion ... to subpoena" Badger, a move that would require the support of a majority of the Ways and Means Committee, according to CQ Today. One Democratic aide said that lawmakers might consent to written questioning of Badger (Schuler, CQ Today, 3/31). Former CMS Administrator Tom Scully also has been called to testify at Thursday's hearing, but he said Wednesday that he had not yet decided whether to attend. CongressDaily reports that Scully is expected to decline the committee's invitation to testify (CongressDaily, 3/31). Leslie Norwalk, acting deputy administrator of CMS, and Jeffrey Flick, former special assistant to Scully, are scheduled to testify at the hearing (CQ Today, 3/31).

The hearing is a follow-up to one last week at which Foster testified. Foster told Ways and Means Committee members that as early as June, he shared with Badger and James Capretta, associate director of the Office of Management and Budget, his higher cost estimates for the Medicare legislation. According to OMB estimates released after Congress passed the legislation, the Medicare law will cost $534 billion over the next 10 years, $134 billion more than estimated by CBO. Foster has said that the higher cost projection was known before the final House and Senate votes on the legislation in November but that Scully told him, "We can't let that get out." In an e-mail to colleagues at CMS, Foster indicated he believed he might lose his job if he revealed his cost estimates for the Medicare legislation. Scully has said that he did not threaten to fire Foster if the higher estimates were released. Scully also said that he "curbed Foster on only one specific request" made by Democrats at the time of the first House vote on the Medicare bill. Last week, HHS Secretary Tommy Thompson requested that the department's Office of Inspector General look into the issue, and on Thursday, 18 Senate Democrats asked the General Accounting Office to look into Foster's allegations. Further, Democrats on the Senate Finance Committee have sent committee Chair Chuck Grassley (R-Iowa) a letter requesting that the committee hold a hearing to discuss the reasons why Congress did not receive OMB's estimates (California Healthline, 3/31).