Fox News burned by dubious Prowler report they failed to “independently confirm”

Fox News' Megyn Kelly and Bret Baier seized on a dubious, anonymously sourced post on The American Spectator's Washington Prowler blog that claimed that the Department of Health and Human Services (HHS) withheld a report on health care reform until after the health care vote. Kelly acknowledged during the report that Fox had not “independently confirmed this”; in a later segment, Baier stated that the report's author called the Prowler's claims “completely false.”

Kelly and Baier promote dubious story they haven't “independently confirmed”

Kelly admits “we haven't independently confirmed this,” runs with Prowler story anyway. On the April 27 edition of Fox News' America Live, Megyn Kelly stated that “the American Spectator blog reports that according to an HHS official that it spoke with, the government ... buried the report.” Kelly went on to tell Fox News host Bret Baier, “we haven't independently confirmed this.” After reading from the Prowler story, asked, “Are we to believe this thing?”

Baier: “If true, this is a huge story.” Baier stated, “If true, this is a huge story, and just by the anonymous quote and all the things that are in this blog, it is pretty interesting to read.” He added, “We reported on” the HHS report “last week, but now we're getting news, and if true, it would be stunning that they kept out this report right before the congressional vote.”

Baier: Report was “an even bigger deal” if administration tried to delay its release. Baier later stated of the report, “We said it was a big deal when it came out just last week. It's an even bigger deal if it was available to the White House and the Secretary of HHS, one week before the congressional vote. ”

Kelly, Baier agree White House “need[s] to comment” on anonymous comment reported by right-wing website. After Baier stated that “we reached out to the White House, HHS and actuary's office with exactly what the facts are with the post,” Kelly interjected: “Well they need to comment on this, don't they, Bret?.” Baier replied, “They do, and we will have some kind of comment, I guarantee you, over the next day or so, I hope.”

Kelly baselessly speculates about the existence of an “initial draft” of the HHS report. Kelly stated that “it's one thing to say we didn't have the final bill, and so we didn't issue our final report, saying what it's going to do to costs until recently, but what we need to know is whether an initial draft from this Medicare actuary went around saying, 'This thing's going to jack up health care costs for the American public,' and if so, who had that report and was it released, and to whom, and if not, why not. I mean, this has got -- this is one-sixth of the nation's economy, the people have the right to know this, do they not?” Baier replied, “Definitely.”

In follow-up, Baier says report's author rejected claim

An hour after reporting on Spectator's dubious claims, Baier says report's author called story “completely false.” From the following hour of America Live:

KELLY: New details coming in now on a story that we brought you last hour. The Health and Human Services Department released a report last week indicating that health care costs will rise as a result of the big health care overhaul law. Well there were some reports out today, one specifically we discussed in the American Spectator, that the feds had that report in hand before the healthcare vote and reportedly tried to bury it. Bret Baier and I talked about it. He just got done talking with the man who authored that report. He joins me now. Alright Bret, so what have we learned?

BAIER: It's all about the timing, isn't it? The Chief Medicare Actuary, Rick Foster, returned our email about this American Spectator blog with those anonymous quotes in there about an HHS employee saying that this report was actually submitted to Secretary Sebelius at HHS a week before the congressional vote. He said that is not true. The American Spectator blog is not accurate. He said the facts are as follows. “We had access” -- meaning the Medicare actuary's office had access to the reconciliation bill -- “when it was publicly released March 18.” Because of the complexity of the bill he says it wasn't feasible to estimate the financial and other effects prior to the House vote on March 21. He said his office worked then on those estimates right away, but they only finished it on the afternoon of April 22, which is when we brought you that report and it went public. He said at that point and not before that is when Secretary Sebelius' staff got the actual report that was released last week. And that he acted independently on behalf of Congress, did not seek approval from HHS at any time. That said, he still stands by the estimate as of last week. And points out they did do an estimate of the Senate bill that all see said costs would go up by about $222 billion. That was released before the congressional vote on March 18. But they didn't have the full estimate of both reports, the reconciliation bill which became law before the vote. So, he's saying the Spectator is completely false, and that is the response we were trying to get from that office.

KELLY: Very interesting. Glad we followed up as we always do when trying to get to the bottom of it. And you saw it all unfold live right here. Bret Baier, thank you so much, Bret.

Report originated with Prowler's dubious, anonymously sourced claim

Prowler: "[C]areer HHS sources" say Sebelius' office had CMS report “more than a week before” health care votes, but it “refused to review the document before the vote was taken.” The April 26 Prowler column reported [emphasis in the original]:

The economic report released last week by Health and Human Services, which indicated that President Barack Obama's health care “reform” law would actually increase the cost of health care and impose higher costs on consumers, had been submitted to the office of HHS Secretary Kathleen Sebelius more than a week before the Congressional votes on the bill, according to career HHS sources, who added that Sebelius's staff refused to review the document before the vote was taken.

“The reason we were given was that they did not want to influence the vote,” says an HHS source. “Which is actually the point of having a review like this, you would think.”

The analysis, performed by Medicare's Office of the Actuary, which in the past has been identified as a “nonpolitical” office, set off alarm bells when submitted. “We know a copy was sent to the White House via their legislative affairs staff,” says the HHS staffer, “and there were a number of meetings here almost right after the analysis was submitted to the secretary's office. Everyone went into lockdown, and people here were too scared to go public with the report.”

In the end, the report was released several weeks after the vote -- the review by the secretary's office reportedly took less than three days -- and bore a note that the analysis was not the official position of the Obama administration.

Several right-wing media outlets subsequently ran with the Prowler's report.

Previously: Fox exec told staff unverified stories are not “ready for air on FNC”

Former Fox exec: “For the record: seeing an item on a website does not mean it is right.” After Steve Doocy retracted his false assertion that then-Sen. Barack Obama “was educated in a madrassa,” then-Fox News Vice President for News John Moody reportedly said in a memo to Fox News staff: “For the record: seeing an item on a website does not mean it is right. Nor does it mean it is ready for air on FNC. The urgent queue is our way of communicating information that is air-worthy. Please adhere to this.”

As Baier himself acknowledged, Foster previously wrote he was unable to score the bill

Baier: “We do know” Foster issued letter “saying that time was too tight” to produce report. In his original segment, Baier stated: “We do know that the chief Medicare actuary did come out with a letter the day before the House started debate on the final vote on health care, saying that time was too tight. Richard Foster saying that he could not get his staff to do the final bill of the analysis, but he thought it would be generally similar to the Senate bill, which he analyzed and his office analyzed would -- the cost would go up by some $222 billion over the first ten years.

Foster on March 20: CMS actuaries ”will not be able to prepare our analysis within this very tight time frame" and referred GOP to January 8 report. In a March 20 letter to Senate Minority Leader Mitch McConnell, days before the final vote on health care reform, Centers for Medicare & Medicaid Services chief actuary Richard S. Foster, who authored the report released April 23, wrote that he was unable to comply with Republican leadership's request for an updated analysis due to the “very tight time frame” and “complexity of the legislation.” From Foster's March 20 letter:

Dear Senator McConnell:

This letter is in preliminary response to your inquiry of March 19 requesting an updated analysis by the Office of the Actuary of the Patient Protection and Affordable Care Act (as passed by the Senate) as it would be modified by the “Amendment in the Nature of a Substitute to H.R. 4872, the Reconciliation Act of 2010” (as released by the House Committee on Rules on March 18). The request was made jointly by yourself and 10 other members of the House and Senate Republican Leadership.

In your letter, you requested that we provide the updated actuarial estimates in time for your review prior to the expected House debate and vote on this legislation on March 21,2010. I regret that my staff and I will not be able to prepare our analysis within this very tight time frame, due to the complexity of the legislation. We will, however, continue working to estimate the financial, coverage, and other impacts of the health reform package and will provide these results to you as quickly as possible.

As you know, the Office of the Actuary has assisted Congressional Administration policy makers on health legislative and policy initiatives for many years, including the original Medicare legislation in 1965, all subsequent amendments to this program, Medicaid amendments since 1976, and the Clinton Administration's proposed Health Security Act in 1993-94. Our goal has always been to provide independent, objective technical information for use by policy makers as they deliberate Medicare, Medicaid, and national health reform proposals.

We issued an analysis of the Senate Patient Protection and Affordable Care Act in a memorandum dated January 8, 2010. While it is reasonable to expect that our updated analysis of this legislation, as modified by the reconciliation amendments, would be generally similar to the results in the January 8 memorandum, I cannot confirm this expectation without a full evaluation of the amendments and re-estimation of the provisions.

I am sending a similar letter to House Republican Leader Boehner, and, for expediency, will email copies to the other cosigners of your request. I am sorry that we cannot respond more quickly. Please let us know if you have any other questions we can assist with.


Richard. S. Foster

Chief Actuary

House voted on health care reform with reconciliation changes on March 21. The House of Representatives voted on the Patient Protection and Affordable Care Act with fixes on March 21. The Senate voted on reconciliation fixes to the bill on March 25.

Other reporting calls Prowler claim into question

Time: Recently released CMS report is “nearly identical” to CMS “report released January 8, 2010.” In an April 23 post on Time's Swampland blog, staff writer Kate Pickert reported:

[T]he actuary who wrote the report, Richard S. Foster, authored a nearly identical report released January 8, 2010. Some of his figures changed in the interim -- he wrote about the Senate bill in January and this week's report includes changes made by the reconciliation package that altered the Senate bill -- but overall, Foster's assessment is the same.


The health reform law will increase overall spending in the near future because more people will have insurance and therefore access to medical care. Those who are now going without care because of cost will, post-implementation of reform, seek care, insurance or Medicaid card in hand. Reductions in Medicare reimbursements to providers may cause some to limit the Medicare patients they accept; future cuts to Medicare reimbursements called for in the bill may never happen due to political pressure; the long-term care insurance program created by the law may be unsustainable. This is all important, truthful information and provides a worthy counter-balance to those celebrating the health reform law's less contentious implications. But it's worth stressing what this report is not - surprising new information that was kept under wraps during the health reform debate.

NBC News: “It's pretty clear that the Spectator report isn't accurate.” In an April 27 blog post, NBC deputy political director Mark Murray reported:

But after some digging, it's pretty clear that the Spectator report isn't accurate.

1. The Office of the Actuary didn't receive the language of the reconciliation bill until March 18 (when the legislation was posted), so the Spectator's assertion that HHS had a copy of the Actuary's score a week before congressional passage -- on March 22 -- doesn't make sense.

2. Past scores from the Office of the Actuary came out AFTER passage of the legislation. For the House bill that passed on Nov. 7, 2009, the Actuary's score came out on Nov. 13. And for the Senate bill that passed on Dec. 24, 2009, the Actuary's score came out on Jan. 8, 2010. This most recent Actuary report is dated April 22.

3. Given points #1 and #2, it's hard to see how the Actuary's score was available before the CBO's, which came out on March 18.

Baier uses made-up number to suggest administration had something to hide

Baier's claim about report's estimate on overall national health expenditures off by $200 billion. In the original segment, Baier claimed that in his letter, Foster said he thought his estimate of overall national health expenditures for the final bill “would be generally similar to the Senate bill, which he analyzed and his office analyzed would -- the cost would go up by some $222 billion over the first ten years,” but that the final report “says that health care costs would go up $511 billion in the first ten years.” In fact, the final report estimates that “overall national health expenditures under the health reform act would increase by a total of $311 billion” from 2010 to 2019.

Prowler has history of dubious, anonymously sourced reports

Anonymous quotes are a staple of the Prowler column. For example, the Prowler published quotes from anonymous “Republican leadership aides” falsely accusing Democrats of secretly authoring a talking points memo that described the Terri Schiavo case as a “great political issue” for Senate Republicans. An aide to then-Sen. Mel Martinez (R-FL) admitted publicly that he wrote the memo. “Allahpundit,” a conservative writer for the blog Hot Air, has repeatedly noted Prowler's history of publishing dubious quotes from Democrats.