EXCLUSIVE: In emails to AmSpec editor, CMS' Foster decisively debunks Prowler stories

Media Matters for America has exclusively obtained emails from the Center for Medicare & Medicaid Services' (CMS) chief actuary Richard Foster to the American Spectator's editor-in-chief, in which Foster criticizes the American Spectator's Washington Prowler column for “reporting factually incorrect information,” and demands a correction.

On April 27, the American Spectator's Prowler column accused the Department of Health and Human Services of intentionally hiding a report by the CMS actuaries to keep it from influencing the health care vote, citing unnamed “career HHS sources.” Media Matters debunked this claim at the time, noting that Foster had written a letter to Senator Mitch McConnell expressing his inability to score the health care legislation in the requested period of time.

That same day, Foster also addressed this falsehood in an email to American Spectator editor-in-chief R. Emmett Tyrrell, Jr. in which Foster wrote:


The purpose of this note is to inform you that the article in yesterday's Washington Prowler column, regarding claims that HHS Secretary Kathleen Sebelius delayed a report by the Office of the Actuary, is completely inaccurate. The facts are that our memorandum on the Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act of 2010 was provided to members of Secretary Sebelius' staff late on April 22, at the same time that we sent it to the various Congressional requesters and other interested parties. It was not submitted at an earlier date for approval or clearance by HHS (or anyone else), and it was not delayed in any way.

We didn't have access to the health care reconciliation bill until it was publicly issued on March 18, which was 3 days before the House vote took place on March 21. Because of the complexity of the reconciliation changes, it wasn't possible to estimate the package prior to the House or Senate votes. We began work on the estimates right away, but we didn't finalize them until the afternoon of April 22. As noted above, we finished the memo later that same day and immediately sent it out to the individuals and organizations that had requested it, including Congressional staff, HHS staff, and media representatives.

I don't know how or why this rumor began, but I'm disappointed that The American Spectator would publicize such rumors without any effort to verify the allegations. I would not normally be concerned by false, tabloid-like stories, but this one could raise doubts about the independence of the Office of the Actuary-and that is a subject I take very seriously. Our goal has been, and remains, to provide objective technical information to the nation's policy makers on an independent and nonpartisan basis.

If you have any questions regarding this information, please don't hesitate to call me. On the expectation that The American Spectator is not a tabloid-like publication, specializing in false allegations, I respectfully ask that you run a correction.

Richard S. Foster

Chief Actuary

Centers for Medicare & Medicaid Services

U.S. Department of Health & Human Services

The Prowler, however, went further, writing a second post on April 28 which completely changed the story, now claiming that HHS had not received the report, but had received the data on which the report was based. Foster subsequently wrote a second email to Tyrrell, again denying the Prowler's claims and requesting that they run a correction:

Attention: R. Emmett Tyrrell, Jr.


The American Spectator

Mr. Tyrell,

Okay, I'll give this one last try. The Spectator's Washington Prowler column is reporting factually incorrect information and, in the process, is potentially damaging the Office of the Actuary's reputation for independence and integrity. My previous letter, below, spells out the basic facts regarding the preparation and release of our April 22 memorandum on the Patient Protection and Affordable Care Act, as amended.

Despite my letter, the Prowler's follow-up online article continues to misrepresent the facts of the situation. Although much more could be said, I'll limit my comments to the allegation made in the following two paragraphs from the article:

“Our sources stand by the facts that prior to final passage of the health care reform bill on Sunday, March 21, the Office of the Actuary had provided senior leaders inside HHS with data that indicated the then-bill would increase the cost of health care and impose higher costs on Americans. And that data was not provided to anyone publicly until after the legislation was passed.”
“All of which is a long way of saying, our sources stand by their information conveyed to The Prowler: that data on the outcomes of the Obama health care reform was available to Centers for Medicare & Medicaid Services and HHS officials days before the final vote, and that that data was not released to the public or the press until almost a month after the final bill's passage.

The facts, which can be readily demonstrated to anyone's satisfaction, are as follows:

  • Our report on the PPACA, as enacted and amended, was released on April 22-the same day that the OACT Health Reform Modeling Team completed the financial, coverage, and national health expenditure estimates for the new legislation. The report was issued simultaneously to all of the Congressional requesters and other interested parties. No one received our estimates, data, findings, draft language, or any other content of the report prior to April 22. As of “days before the final vote,” none of this information existed for the Health Care and Education Reconciliation Act of 2010.
  • The Office of the Actuary had issued a report on January 8 for the PPACA, as passed by the Senate. The findings in this report were fairly similar to those in our later memorandum on the PPACA as enacted and amended, since the latter was based heavily on the Senate-passed bill. As with all of our analyses of the health reform legislative proposals, our January 8 memo was issued simultaneously to all requesters and interested parties. Perhaps the HHS source was thinking of this report? But it clearly was “provided publicly” months before the reconciliation act was taken up in the House and Senate.
  • We notified key members of Congress that we would not be able to estimate the PPACA as amended by the reconciliation act prior to the House vote on March 21, since we had only received the legislative language on March 18 and the amendments were too complex to estimate that quickly. (See attached letter to House Republican Leader John Boehner.)

Thus, it is absolutely false that I or anyone else in the Office of the Actuary provided our analysis of the PPACA as amended by the reconciliation act “days before the final vote” or that this information existed and was purposely withheld by us or anyone else until after the law was enacted. The HHS source is just plain wrong about this, and The American Spectator is irresponsibly spreading an inaccurate story.

We do not know each either, and thus you have no direct basis on which to judge my honesty. I've devoted my 37-year actuarial career to providing objective technical information to the Administration and Congress on a nonpartisan, open, and straightforward basis. If you doubt my veracity, I encourage you to talk with any of the individuals listed below.

Finally, I will repeat my request that you run a correction to the Washington Prowler columns. I have worked with many reporters and news publications over the years to help ensure that complex programs like Medicare and Social Security are understood and reported on accurately. I would like to think that The American Spectator is similarly interested in accurate reporting. This is a good opportunity for you to demonstrate your own integrity and good faith.


Richard S. Foster

Chief Actuary

Centers for Medicare & Medicaid Services

U.S. Department of Health & Human Services

Foster may not want to hold out too much hope that "The American Spectator is similarly interested in accurate reporting," and has an “expectation that The American Spectator is not a tabloid-like publication, specializing in false allegations.” Even conservative commentators have stated that, in the words of Jim Geraghty, “Putting faith in a Prowler report requires caution and assessment of risk, much like handling flammable materials or giving up three draft picks to get Tim Tebow."