Swing and a Miss on Canceling SCHIP Cuts

The Senate missed an opportunity this week to beat back a Bush administration policy that will keep low-income kids from receiving government insurance.

In August 2007, the Centers for Medicare and Medicaid Services (CMS) announced a policy [1], to take effect this August, which will make it more difficult for uninsured kids to qualify for the State Children's Health Insurance Program (SCHIP). For example, New York state wants to set its eligibility limit at 250 percent of the poverty level. While that may sound like a lot, it's only about $44,000 for a family of three. Unfortunately, CMS thinks those folks are too wealthy to qualify.

Sens. Max Baucus (D-MT) and John Rockefeller (D-WV) are trying to stop the policy by using a little-known law called the Congressional Review Act which allows Congress to disapprove of agency regulations.

But the Senate has run into a bit of a sticky wicket. CMS did not release the policy as a formal rule; rather, they issued it as a guidance document — a less formal class of government policy that is not subject to Congressional Review Act challenges.

On April 17, 2008, the Government Accountability Office said that the CMS guidance document should be considered a rule [2] for the purposes of the Congressional Review Act. So that means Congress can challenge the rule…right?

The problem, it turns out, is timing. Congress only has 60 "session" days to introduce a resolution of disapproval. The 60-day clock starts the day the agency informs Congress of its rule. After GAO's April ruling, CMS sent a letter May 7 saying the agency would ignore GAO, and it refused to submit the policy to Congress as it would a normal rule.

So GAO says the policy is a rule, a decision Baucus and Rockefeller prefer because it means they can file a Congressional Review Act challenge; but CMS says the policy is not a rule and won't submit it to Congress. The question becomes: When does the 60-day clock start?

The Senate parliamentarian sent a letter to Baucus and Rockefeller this week that says the clock started April 17, the day of the GAO ruling. That means the deadline for introducing the resolution was July 8. (Don't bother trying to figure out how the Senate counts days. Nobody knows.) Baucus and Rockefeller introduced the measure on July 17.

The parliamentarian's determination doesn't make much sense — not that any other date would make much sense either. This is uncharted territory for the Congressional Review Act.

But this shouldn't even be an issue. Why did it take Baucus and Rockefeller so long to introduce the resolution? As a result of the parliamentarian's decision, they had to postpone a scheduled markup of the resolution. Now, the Senate will miss out on the expediencies that an official Congressional Review Act challenge carries (limited debate and no filibuster).

Those expediencies could have been valuable, since time is of the essence for low-income families. If Congress can't find another way to nullify the CMS policy by August 17, many deserving kids will be left without insurance.