Even before the launch of Obamacare, one of the few things that was clear about the program was that the Bush-appointed HHS inspector general, Daniel Levinson, placed self-preservation above his statutory duty to bring public attention to Obamacare’s waste, fraud and abuse. It is a point I have made before in these pages, but Levinson continues to stir only in a perfunctory manner when roused by complaints from Congress.
Despite spectacular incompetence at the federal level and federal criminal investigations in several states, Levinson has repeatedly looked away from Obamacare’s wreckage. Levinson has also looked away from the most massive violations of the Privacy Act by a domestic agency since its enactment, a failure that I have documented here and, more recently, in The Cleveland Plain Dealer. Moreover, he has allowed HHS to mislead Congress and the public about what happens to sensitive data supplied by people who apply for coverage through healthcare.gov. Extensive data on more than ten million Americans (soon to be tens of millions) have never magically disappeared in the so-called “data hub”—they reside with a large Beltway contractor called CACI in a massive and vulnerable data base unmonitored in any meaningful way by HHS as contractors rummage through it to create positive Obamacare news.
Ricardo Alonso-Zalvidar of the Associated Press reported last January in a series of articles that healthcare.gov regularly transferred personal details from applicants—including age, income, pregnancy status and tobacco use—to at least fifty outside entities embedded within the system, including advertising agencies and web analytics sites. The subsequent outcry caused HHS to reduce these embedded entities by less than half, but HHS continues to stonewall about who these entities are, what information they use and how they use it, and why it is so smugly confident that none of its partners is abusing their unprecedented access for commercial gain.
President Obama could help to strengthen the oversight of Obamacare by backing legislation to appoint a new inspector general, one with comprehensive jurisdiction over all the participating agencies, but he will never take that step for fear that these improvements would document the failures of his legacy program. Two of the most thoughtful Members of Congress, Senator Pat Roberts (R-Kansas) and Representative Peter Roskam (R-Ohio), seek to accomplish that goal by introducing introduced legislation (S.1368 and H.R. 2400) that addresses the reckless spending and legal violations that have marked Obamacare’s implementation.
The Roberts-Roskam bill would create a new inspector general with broad interagency authority to look not just at Obamacare failures at HHS, but also at the substantial failures at the Justice Department, the Internal Revenue Service and other agencies with Obamacare responsibilities. In many ways the bill, including its interagency authorities, is modeled after the Inspector General position created by the Recovery Act, a section of that legislation that President Obama has repeatedly and rightly praised.
The bill’s sponsors carefully crafted their bill and followed time-honored authorizing language. Their bill requires a Presidential nomination and Senate confirmation, relevant expertise, prohibitions on political activity, and independence from executive branch interference in investigations. It also authorizes the standard tools for obtaining information and “sunsets” the new entity by requiring Congressional reauthorization before January 1, 2025 or the repeal of the Affordable Care Act—a good habit for Congress to embrace. Finally, it requires a litany of reports on critically important topics that Levinson has ignored.
When the Senate Finance Committee and the House Ways and Means Committee hold hearings on this bill, they should specify that this new inspector general would have full authority to investigate whether Levinson and his office misled Congress. As just one example of the need for such investigations, as Obamacare lurched into operation, Levinson’s office stuck closely in its congressional testimony to deceptive HHS talking points implying that personal data of applicants magically disappeared once processed by HHS—talking points which were misleading, and which Levinson’s office knew were misleading.
The bill should also clarify that the new entity has authority sufficient to investigate instances of prosecutorial misconduct at Justice, such as whether the close personal ties between former Massachusetts governor Deval Patrick and President Obama caused a delay in the federal criminal investigation of the implementation of Obamacare in Massachusetts. Investigations spurred by similar, if arguably less egregious, facts began about a year earlier in Oregon and Maryland. In Massachusetts, however, the Justice Department and HHS inspector general Levinson waited until just days after Patrick left office to commence their work—a fact pattern that simply does not pass the smell test.
Finally, the statute should be clear that the new inspector general should be more than just a financial watchdog. As Obamacare bloated, HHS rejected its early inclination to destroy personal records after each enrollment season because it decided to use those data in studies to make the case for its agenda; thousands of unmonitored researchers and advocates inside and outside of HHS now use the MIDAS data base to thwart reform of Obamacare. Those of us who have used healthcare.gov never consented to this hijacking of our personal data, but the HHS Inspector General has said and done nothing about these Privacy Act violations. Moreover, the HHS Inspector General has failed to conduct audits or studies that would evaluate any aspect of Obamacare’s implementation in a serious way.
President Obama has reneged on his campaign promises about increasing government transparency—the truth is that he has moved us backwards. For Obamacare to survive in anything near its current incarnation, its supporters need to withhold information to prevent its opponents from making their case. If we are to have a full and fair debate about the future of health care in America, we need a fully empowered inspector general to have access to those facts. Senator Roberts and Congressman Roskam have offered an important first step in that direction.
Michael Astrue is a former HHS general counsel and commissioner of social security.
