Energy and Commerce Republicans Launch New Era of Transparency

January 27, 2011

The Committee's Republican members used the hearing to press Sunstein on conflicting statements from the administration about whether this supposedly new approach to regulating would apply across the federal government, and to dig deeper into some recent regulatory controversies. 

  
Who is Actually Following These Rules? And Who Is Not?

In a January 18, 2011 Wall Street Journal article entitled "Health Care, Financial Reform Skirt Obama Review," an Obama administration official indicated this new approach to regulation would not apply to some of the most significant regulatory activity undertaken in the last two years - financial reform and health care.

President Barack Obama's government-wide review of federal regulations will have little effect on two of the president's major regulatory victories: an overhaul of Wall Street and the health-care market, according to a White House budget official.

The review focuses on old, outdated regulations so new ones written as part of the health-care and financial overhaul likely won't be affected, an official at the White House Office of Management and Budget said. Mr. Obama wants agencies to take a fresh look at old regulations to determine whether they are outdated or unnecessary. "New regulations will not be priorities for the lookback," the official said.

Yet when pressed by Chairman Stearns about whether the new policy would apply, Sunstein said,  "the answer is absolutely, yes."

Although Sunstein argued health care regulations - of which there are already many thousands of pages - and financial regulations are subject to the administration's new policies, he also acknowledged that numerous agencies are exempt.

 

In his op-ed announcing this new policy, President Obama said, "We are seeking more affordable, less intrusive means to achieve the same ends -giving careful consideration to benefits and costs." However, as Sunstein's testimony makes clear, this cost-benefit analysis does not apply to a whole host of agencies including: 

"¢ Board of Governors, Federal Reserve System
"¢ Bureau of Consumer Financial Protection
"¢ Commodity Futures Trading Commission
"¢ Consumer Product Safety Commission
"¢ Federal Communications Commission
"¢ Federal Deposit Insurance Corporation
"¢ Federal Energy Regulatory Commission
"¢ Federal Housing Finance Board
"¢ Federal Maritime Commission
"¢ Federal Trade Commission
"¢ Mine Enforcement Safety and Health Review Commission
"¢ National Labor Relations Board
"¢ Nuclear Regulatory Commission
"¢ Occupational Safety and Health Review Commission
"¢ Postal Rate Commission
"¢ Securities and Exchange Commission

Who Wrote the Secret Health Care Regs?

There has been much speculation about the source of end-of-life planning regulations that mysteriously appeared in a final Medicare rule last November, despite the fact that such a policy was not included anywhere in the new health care law. In fact, as reported in a January 4, 2011 article in The New York Times, "U.S. Alters Rules on Paying for End-of-Life Planning," the administration rescinded these regulations after coming under fire for surreptitiously inserting them into the final rules package, which denied the public an opportunity to review and comment on the proposal.

The Obama administration, reversing course, will revise a Medicare regulation to delete references to end-of-life planning as part of the annual physical examinations covered under the new health care law, administration officials said Tuesday.

The move is an abrupt shift, coming just days after the new policy took effect on Jan. 1.

Although the health care bill signed into law in March did not mention end-of-life planning, the topic was included in a huge Medicare regulation setting payment rates for thousands of physician services. The final regulation was published in the Federal Register in late November. The proposed rule, published for public comment in July, did not include advance care planning.

An administration official, authorized by the White House to explain the mix-up, said Tuesday, "We realize that this should have been included in the proposed rule, so more people could have commented on it specifically."

Rep. Phil Gingrey (R-GA), a medical doctor and member of the subcommittee, questioned Sunstein about the mysterious appearance of the end-of-life regulation and the failure to allow public comment on the proposal.

GINGREY: Do you or OMB know who in the administration made that decision, to not allow public participation, and instead slipped this regulation into the rule in the dark of night. Yes or no?

SUNSTEIN: I don't personally know.

GINGREY: Another yes or no. Do you know which individuals within the administration would have the authority to slip a regulation into a final rule in the dark of night, without allowing for this public comment?

SUNSTEIN: I don't think anyone has that authority.

Republicans are committed to a new era of transparency and government accountability. These hearings are going to become a lot less rare.

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