Lawmakers Blast HHS Gag Order as Harmful to Whistleblowers

HHS Secretary Tom Price HHS Secretary Tom Price J. Scott Applewhite/AP

In another sign of tension between the Trump administration and congressional protectors of whistleblowers, two key Republican lawmakers have sent the Health and Human Services secretary a warning that a memo from his staff shortchanges the right to disclose wrongdoing to Congress.

The May 4 letter to Secretary Tom Price from Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and House Oversight and Government Reform Chairman Jason Chaffetz, R-Utah, called a recent departmentwide memo sent on Price’s behalf “potentially illegal and unconstitutional.”

On May 3, HHS chief of staff Lance Leggitt sent staff short guidance on congressional relations. It read: “To ensure that our efforts are coordinated, any communications with Members of Congress and staff should not occur without prior consultation with the Office of the Assistant Secretary for Legislation. This includes requests for calls, meetings, briefings, technical assistance, policy development, hearings, oversight, detailees, etc. The ASL is responsible for ensuring Secretary Price's involvement on appropriate matters.”

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Grassley and Chaffetz noted that “the attached memorandum contains no exception whatsoever 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 cited statutory whistleblower protections and asked the secretary to issue guidance clarifying that employees have the right to communicate "directly and independently with Congress."

Such revised guidance, a copy of which should be sent to congressional committees, the lawmakers wrote, “should inform employees of the whistleblower protections that apply, and make clear that the agency will not retaliate against any employee who chooses to exercise these rights.”

The chairmen’s action comes as one of their Republican peers is taking a contrasting approach. Rep. Jeb Hensarling, R-Texas, chairman of the Financial Services Committee, sent letters to several agencies in April instructing them to consider their correspondence with the committee to be outside the record-keeping requirements of the Freedom of Information Act.

As reported on Monday by Buzzfeed, the dozen or so agencies included the Treasury Department, the Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau, and the National Credit Union Administration. Those last three replied that they will comply. The Ways and Means Committee, Buzzfeed also noted, sent a similar directive to HHS’ Centers for Medicare and Medicaid Services.

An HHS spokeswoman told Government Executive that her office is responding to the lawmakers' letter with a rebuttal. "The purpose of the memorandum was to notify staff of the role of the Office of the Assistant Secretary of Legislation in coordinating policy responses with Congress," she said. "Transitions between administrations can mean significant staff turnover which often leads to confusion and a breakdown of communications."

HHS chiefs during past administrations, including Clinton HHS Secretary Donna Shalala, issued similar memos vetted by the Office of the General Counsel, she added. "If an HHS employee has concerns about waste, fraud or abuse at the agency, we want them to contact the appropriate officials so it can be stopped," she said. 

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