March 16,2011

Press Contact:

 Julia Lawless, Antonia Ferrier, 202.224.4515

Hatch Details Administration Circumventing Transparency, Public Scrutiny in Implementing Health Law

Utah Senator Releases Independent Report Showing Administration Circumvented Transparency, Public Feedback in 83 Percent of Rule Making; Finance Committee Minority Analysis That Administration Failed to Respond to 67 Percent of Republican Requests for Information on Health Law

WASHINGTON –U.S. Senator Orrin Hatch (R-Utah) released two separate analyses today that demonstrate how significantly the Obama Administration has failed to live up to its promise of transparency in implementing the $2.6 trillion health law almost a year after it was signed into law by President Obama. 

An independent report by the non-partisan Congressional Research Service (CRS) found that the Obama Administration circumvented the typical public comment period in implementing the regulations setting up the health law 83 percent of the time.  Additionally, Hatch releases a Senate Finance Committee minority analysis that found that the Department of Health and Human Services failed to respond to 67 percent of the requests for more information on the health law from Republican members of Congress.

“This White House promised the most open and transparent government in history.  But the facts tell an entirely different story.  According to an independent CRS report this Administration circumvented the typical public rulemaking process 83 percent of the time in implementing the health law – shutting out the views and concerns of the American people in one of the largest expansions of the federal government in history,” said Hatch.  “And when members of Congress, representing their constituents, request information about how the law is being put into place, the Administration has chosen to ignore them 67 percent of the time.  If this White House believes the health law is a cornerstone of its domestic agenda, then its more than past time that they start answering legitimate questions and concerns by the American people and their elective representatives.”

On January 21, 2009, President Obama declared in a White House memorandum that, “[m]y Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

The CRS report released by Hatch today found that the Obama Administration circumvented transparency and public feedback in 83 percent of its rule-making, primarily through “interim final rules,” instead of the typical rulemaking process that is generally required by law to allow for a public comment period on regulations that impact almost every American and one-sixth of the U.S. economy.

• Since President Obama signed the health bill into law, his Administration has issued 23 substantive final rules pursuant to the Patient Protection and Affordable Care Act (PPACA).  19 of those rules bypassed normal public notice and comment periods before making new government regulations effective, primarily through “interim final rules.”

• While federal agencies can issue interim final rules without public comment under certain circumstances, the Administration has abused these interim final rules thereby circumventing the transparency it promised.  According to CRS,  the law, known as “The Administrative Procedure Act (APA, 5 U.S.C. §551 et seq.) “…generally requires that federal agencies publish a notice of proposed rulemaking (NPRM) in the Federal Register, give “interested persons” an opportunity to comment on the proposed rule (usually at least 30 days), and after considering the public comments, publish a final rule.”

In addition, a Senate Finance Committee Minority analysis found that since June 2010, 35 out of 52 written requests – or 67 percent - for hearings, briefings or other information from the Administration by Republican Members of Congress about the health law had not been acknowledged or responded to. This is in addition to dozens of other email or telephone requests which also have not been addressed.