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Republicans Grill Burwell on Health Law Payments

By Melanie Zanona, CQ Roll Call

March 15, 2016 -- Health and Human Services (HHS) Secretary Sylvia Mathews Burwell defended her agency’s authority to implement a reinsurance payment program under the health care law. But Republicans at a Tuesday hearing were unconvinced that the move is legal and even blamed the administration’s actions for contributing to an angry electorate.

A report from the nonpartisan Congressional Research Service (CRS) suggests that the diversion of funds to insurers for a payment program in the 2010 health care overhaul was illegal. Burwell was first confronted with the memo during a House Energy and Commerce Committee hearing last month, where she said she hadn't seen the report and would need to read it in order to respond.

The issue bubbled up again during an Education and the Workforce hearing on Tuesday as Rep. Bradley Byrne pressed the administration’s top health official on the report.

"I assume you’ve had a chance to go over this with your staff, with your counsel," the Alabama Republican said. "Do you now not agree that you violated the law?

"We believe our reading of the law is accurate and correct," Burwell said. "We actually put out our reading of the law in a notice of proposed rulemaking for public comment....No one raised any concerns."

Byrne shot back that "the fact you put it out for comment does not relieve you of your responsibility to enforce the law as it is plainly written."

The transitional reinsurance program is a temporary program that is meant to mitigate the risk for insurers of taking on potentially expensive health care enrollees in an effort to keep prices down, CRS noted. At dispute is a health care law requirement for payments to the Treasury.

The reinsurance program was supposed to deposit a total of $5 billion in the Treasury from its estimated $25 billion in cumulative collections. But HHS announced it would be prioritizing payments to reinsurance claimants over payments to the Treasury. The CRS report examined the legal authority of CMS to prioritize reinsurance claimants over payments to the Treasury.

The reinsurance program is funded by a tax on health insurance premiums. According to CRS, the amount was $63 per person in 2014, $44 for 2015, and $27 for 2016.

Byrne, who just went through a primary election, accused the administration’s actions of contributing to what he described as an angry electorate.

"They’re angry because people of positions of responsibility, like you, violate the law," Byrne said. "I hope you and your legal staff, after this is over, will put something together and send it back to us."

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