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New HHS Rules Subject Whistleblowers to 'Significantly Increased Risk of Reprisal,' GOPs Argue

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WASHINGTON — Republican chairmen slammed a new memo from the Department of Health and Human Services requiring employees to get permission before talking to Congress.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) argued the new restriction will only open whistleblowers to retaliation.

The May 3 memo from HHS chef of staff Lance Leggitt states that “any communications with Members of Congress and staff should not occur without prior consultation with the Office of the Assistant Secretary for Legislation (ASL).”

“This includes requests for calls, meetings, briefings, technical assistance, policy development, hearings, oversight, detailees, etc.,” the memo adds. “…Your cooperation will help us avoid unnecessary problems in our relationships with Congress.”

In a May 4 letter to HHS Secretary Tom Price, Grassley and Chaffetz noted that federal employees “will most certainly read this instruction as a prohibition against direct communications with Congress without permission.”

“As such, it is potentially illegal and unconstitutional, and will likely chill protected disclosures of waste, fraud, and abuse,” they wrote.

The Lloyd-Lafollette Act of 1912, they reminded Price, states: “The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.” That was enforced with later anti-gag provisions by Congress.

“Although the language of the attached memorandum does not ultimately prohibit all direct communication from employees, it forces employees to expose their communications with Congress to agency management, necessarily subjecting them to a significantly increased risk of reprisal. The effect will be to substantially chill those communications,” Grassley and Chaffetz continued. “…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.”

Whistleblower protections enacted by Congress “are significant because they ensure that attention can be brought to problems in the Executive Branch that need to be fixed.”

“Protecting whistleblowers who courageously speak out is not a partisan issue-it is critical to the functioning of our government,” the letter continues.

Grassley and Chaffetz asked Price to hand over to their respective committees all communications surrounding the directive by May 18.

“In addition, in order to correct this potential violation of federal law, we request that as soon as possible you issue specific written guidance to all agency employees making them aware of their right to communicate directly and independently with Congress. Such guidance 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,” they added. “Once you have issued this guidance, please provide the Committees with a copy.”