Grassley, Chaffetz slam HHS memo they say will mute whistleblowing calling it illegal, unconstitutional

Memo from HHS Secretary Tom Price's chief of staff instructed employees not to have "any communications" with Congress, staff without approval.
By Kaiser Health News
12:22 PM
Share

HHS Secretary Tom Price hosting a listening session on prescription drug costs on May 8. Photo via Twitter

Two influential Republican congressmen are blasting a Department of Health and Human Services memo to division heads as a "potentially illegal and unconstitutional" infringement on whistleblowers' rights to call attention to waste, fraud and abuse in the executive branch.|

The May 3 memo from HHS Secretary Tom Price's chief of staff, Lance Leggitt, instructed employees not to have "any communications" with members of Congress or their staffs without first consulting the department's assistant secretary for legislation. Leggitt's memo said he was only restating a long-standing policy on congressional relations and gave eight examples of contacts needing approval, including requests for calls, briefings, hearings and oversight.

[Also: Health IT important, but too burdensome for doctors, Tom Price says]

The 10-sentence memo drew an incensed reply from Sen. Chuck Grassley (R-Iowa) and Rep. Jason Chaffetz (R-Utah), the chairmen, respectively, of the Senate Judiciary Committee and the House Committee on Oversight and Government Reform. They asked Price to clarify in writing Leggitt's communication as soon as possible.

Their complaint was that the memo contained no exception for lawful, protected communications with Congress.

"In its current form, employees are likely to interpret it as a prohibition, and will not necessarily understand their rights," they wrote in their letter to Price.

"Protecting whistleblowers who courageously speak out is not a partisan issue -- it is critical to the functioning of our government," added the lawmakers.

[Also: Tom Price tells HHS to reimagine how the agency works]

Grassley and Chaffetz warned that the memo could violate federal employees' constitutional rights to petition the government, as well as violate other laws protecting government employees from reprisals for speaking with members of Congress.

Two experts on good government practices agreed with the congressmen's viewpoint.

[Also: Tom Price says NIH has plenty of room to make cuts]

Liz Hempowicz, policy counsel at the Project on Government Oversight, said the memo's failure to remind employees of their rights as potential whistleblowers made it illegal.

"If they don't know they have that right, it's essentially taking it away from them," she said.

Thomas Scully, who served as administrator for the Centers for Medicare & Medicaid under President George W. Bush, said the Trump administration isn't the first to try to coordinate congressional relations, but using a formal memo to do so surprised him.

Congress regularly seeks information from staffers in HHS -- and other agencies -- and certain employees often go to Capitol Hill to give technical briefings, testify or request more budget money, he said. "People should be able to go to the Hill whenever they need to, but if you're up there pushing an agenda that's different than the president's, they're going to get reined in one way or another," he said. "You shouldn't be up there as a free agent."

Grassley and Chaffetz instructed Price to provide all documents and communications about Leggitt's directive to their committees by May 18.

[Also: There are 5 other HHS staff additions not announced under Tom Price]

President Donald Trump has not yet named a nominee to head the HHS Office of Assistant Secretary for Legislation. Until then, employees complying with the memo will go through the acting assistant secretary, Barbara Clark.

Leggitt's memo isn't the first to stir controversy in HHS this month. Some media outlets reported last week that another directive ordered television monitors to be switched from CNN to Fox at the Food and Drug Administration's main campus. Some details were disputed by an FDA spokesperson, and The Wall Street Journal reported the switch was temporary. The FDA is part of HHS.