The CMS violated the Congressional Review Act by not reporting to Congress a directive on the State Childrens Health Insurance Program that effectively operates as a rule, witnesses testified before the House Energy and Commerce health subcommittee.
The directive was issued last August and set tighter enrollment requirements for higher-income families under SCHIP. Dayna Shah, managing associate general counsel with the Government Accountability Office, testified that the directive qualifies as a rule under the act in that it is designed to implement, interpret, or prescribe law or policy with regard to SCHIP. The review act enables Congress to review and overrule regulations issued by government agencies.
Shahs testimony builds on a GAO report that concluded the CMS overstepped its authority when it tightened enrollment requirements for SCHIP. The directive required states to first enroll 95% of children in families earning less than 200% of the federal poverty level$42,400 for a family of fourbefore they could enroll children in families earning more than 250% of the federal poverty level.
Subcommittee Chairman Frank Pallone (D-N.J.) and Rep. Carol Shea-Porter (D-N.H.) have introduced a bill that would block the Aug. 17 directive, but there are other actions Congress could take, said Morton Rosenberg, a specialist in American public law with the Congressional Research Service. Lawmakers could introduce a disapproval resolution, although that might be subject to a presidential veto, Rosenberg testified. Another possibility would be the use of an appropriations limitation to delay implementation of the CMS letter, he added. -- by Jennifer Lubell