Justice Department Issues Statement on the U.S. Department of Agriculture’s Proposed Rules to Support Enforcement of the Packers and Stockyards Act

Acting Assistant Attorney General Richard A. Powers of the Justice Department’s Antitrust Division issued the following statement today after the U.S. Department of Agriculture’s (USDA) announcement concerning their proposed rules to support enforcement of the Packers and Stockyards Act:

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    In U.S GAO News
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The results of the covert tests ranged from sales representatives appropriately explaining to GAO's undercover agents that a PPACA-exempt plan would not cover the pre-existing condition the undercover agents stated that they had, to engaging in potentially deceptive marketing practices that misrepresented or omitted information about the products they were selling. Specifically, in 21 of 31 covert tests, the sales representative appropriately referred undercover agents to a PPACA-compliant plan. In two of 31 covert tests, the sales representatives did not appear to engage in deceptive marketing practices but were not always consistent or clear in their explanation of the type of coverage and plans they were selling. In the remaining eight of 31 covert tests, the sales representatives engaged in potentially deceptive marketing practices, such as claiming the pre-existing condition was covered when the health plan documents GAO received after purchase said otherwise. GAO plans to refer these eight cases of potential deceptive marketing practices to the Federal Trade Commission (FTC) and corresponding state insurance commissioners' offices for follow-up as appropriate. Millions of Americans obtain health insurance coverage in the individual market, which consists mainly of private plans sold directly to consumers without access to group coverage. While generally regulated by states, starting in 2014, PPACA established a number of new federal requirements for the individual health insurance market. For example, PPACA prohibited insurers from excluding coverage or charging higher premiums for pre-existing conditions and required that individual market plans cover a set of essential health benefits, including coverage for mental health and substance abuse disorder services, prescription drugs, and maternity and newborn care. 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Further, the devastating economic effects of the Coronavirus Disease 2019 (COVID-19) pandemic could create additional demand for affordable health coverage, including PPACA-exempt plans.  With these changes, and because of their lower relative costs, PPACA-exempt health coverage arrangements may be attractive to consumers, particularly those who find it difficult to afford PPACA-compliant plans. However, such arrangements generally do not need to follow PPACA's requirement that plans in the individual market be presented to consumers in defined categories outlining the extent to which they are expected to cover medical care. As a result, depending on how they are marketed and sold, PPACA-exempt arrangements could present risks for consumers, if, for example, they buy them mistakenly believing that coverage is as comprehensive as for PPACA-compliant plans. GAO was asked to obtain insights on the marketing and sales practices of insurance sales representatives who sell PPACA-exempt plans. In this report, GAO describes the results of covert tests we conducted involving selected sales representatives, when contacted by individuals stating that they had pre-existing conditions. In this regard, GAO agents performed a number of covert tests (i.e., undercover phone calls) from November 2019 through January 2020 posing as individuals needing to purchase health insurance to cover pre-existing conditions. GAO also discussed the marketing and oversight of PPACA-exempt arrangements with senior officials from federal agencies, including the FTC, and Centers of Medicare and Medicaid Services (CMS) within the Department of Health and Human Services (HHS), as well as the National Association of Insurance Commissioners (NAIC)5. GAO provided a draft of this product to FTC, HHS, and NAIC for review and comment. 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    In U.S GAO News
    The Office of Refugee Resettlement's (ORR) grant announcements soliciting care providers for unaccompanied children—those without lawful immigration status and without a parent or guardian in the U.S. available to provide care and physical custody for them—lack clarity about what state licensing information is required. Further, ORR does not systematically confirm the information submitted by applicants or document a review of their past performance on ORR grants, when applicable, according to GAO's analysis of ORR documents and interviews with ORR officials. The grant announcements do not specify how applicants without a state license should show license eligibility—a criterion for receiving an ORR grant—or specify what past licensing allegations and concerns they must report. In addition, the extent to which ORR staff verify applicants' licensing information is unclear. In fiscal years 2018 and 2019, ORR awarded grants to approximately 14 facilities that were unable to serve children for 12 or more months because they remained unlicensed. In addition, ORR did not provide any documentation that staff conducted a review of past performance for the nearly 70 percent of applicants that previously held ORR grants. Without addressing these issues, ORR risks awarding grants to organizations that cannot obtain a state license or that have a history of poor performance. State licensing agencies regularly monitor ORR-funded facilities, but according to GAO's survey of these agencies, their information sharing with ORR is limited (see figure). State licensing agencies and ORR staff both said that improved information sharing would benefit their monitoring of facilities. Without such improvements, ORR may lack information about ongoing issues at its facilities. Key Survey Responses on Information-Sharing with the Office of Refugee Resettlement (ORR) by the 23 State Agencies That Licensed ORR-Funded Facilities in Fall 2019 ORR requires grantees to take corrective action to address noncompliance it identifies through monitoring, but ORR has not met some of its monitoring goals or notified grantees of the need for corrective actions in a timely manner. For example, under ORR regulations, each facility is to be audited for compliance with standards to prevent and respond to sexual abuse and harassment of children by February 22, 2019, but by April 2020, only 67 of 133 facilities had been audited. In fiscal years 2018 and 2019, ORR also did not meet its policy goals to visit each facility at least every 2 years, or to submit a report to facilities on any corrective actions identified within 30 days of a visit. Without further action, ORR will continue to not meet its own monitoring goals, which are designed to ensure the safety and well-being of children in its care. ORR is responsible for the care and placement of unaccompanied children in its custody, which it provides through grants to state-licensed care provider facilities. ORR was appropriated $1.3 billion for this program in fiscal year 2020. GAO was asked to review ORR's grant making process and oversight of its grantees. This report examines (1) how ORR considers state licensing issues and past performance in its review of grant applications; (2) state licensing agencies' oversight of ORR grantees, and how ORR and states share information; and (3) how ORR addresses grantee noncompliance. GAO reviewed ORR grant announcements and applications for fiscal years 2018 and 2019. GAO conducted a survey of 29 state licensing agencies in states with ORR facilities, and reviewed ORR monitoring documentation and corrective action reports. GAO also reviewed ORR guidance and policies, as well as relevant federal laws and regulations, and interviewed ORR officials. GAO is making eight recommendations to ORR on improving clarity in its grant announcements, communication with state licensing agencies, and monitoring of its grantees. ORR agreed with all eight recommendations. For more information, contact Kathryn A. Larin at (202) 512-7215 or larink@gao.gov.
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    In U.S GAO News
    The Department of Energy (DOE) has retrieved nuclear waste from all the tanks at C-farm—the first of 18 tank farms (i.e., groupings of tanks) at DOE's Hanford site in southeastern Washington State. The waste is a byproduct of decades of nuclear weapons production and research. DOE is obligated under agreements with the state's Department of Ecology (Ecology) and the U.S. Environmental Protection Agency to move waste from older, single-shell tanks to newer, more durable, double-shell tanks and ultimately to dispose of it. Example of a Tank and of Waste in a Tank at Hanford DOE intends to “close” the C-farm by leaving the nearly empty tanks in place and filling them with grout. However, DOE faces challenges, in part because this approach depends on: (1) DOE's determination under its directives that residual tank waste can be managed as a waste type other than high-level waste (HLW) and (2) Ecology's approval. DOE has started the determination process, but as GAO has previously found, DOE is likely to face a lawsuit because of questions about its legal authority. Ecology has raised concerns that the Nuclear Regulatory Commission (NRC) has not independently reviewed DOE's analysis for this determination. By Congress clarifying DOE's authority at Hanford to determine, with NRC involvement, that residual tank waste can be managed as a waste type other than HLW, DOE would be in a better position to move forward. Another challenge DOE faces in closing C-farm is how to address contaminated soil caused by leaks or discharges of waste from the tanks. DOE and Ecology officials do not agree on a process for evaluating contaminated soil at C-farm or on what role NRC should play in this process. They interpret their agreement differently, particularly regarding whether NRC must review DOE's analysis of contaminated soil. If the two parties cannot resolve this issue, Ecology may deny DOE a permit for C-farm closure. By using an independent mediator to help reach agreement with Ecology on how to assess soil contamination, including NRC's role, DOE would be better positioned to avoid future cleanup delays. DOE has not developed a long-term plan for tank-farm closure, in part, because a plan is not required. However, leading practices in program management call for long-term planning. In addition, DOE faces technical challenges that may take years to address as noted by representatives from various entities or tribal governments. For example, an internal DOE document states there is a 95 percent probability DOE will run out of space in its double shell tanks—space needed to continue retrieval operations. Planning for and building new tanks requires years of work. By developing a long-term plan, DOE could better prepare to address technical challenges. The Hanford site in Washington State contains about 54 million gallons of nuclear waste, which is stored in 177 underground storage tanks. In fiscal years 1997 through 2019, DOE spent over $10 billion to maintain Hanford's tanks and retrieve waste from them. DOE expects to spend at least $69 billion more on activities to retrieve tank waste and close tanks, according to a January 2019 DOE report. Senate Report 116-48, accompanying the National Defense Authorization Act for Fiscal Year 2020, included a provision for GAO to review the status of tank closures at Hanford. GAO's report examines the status of DOE's efforts to retrieve tank waste, challenges DOE faces in its effort to close the C-farm, as well as DOE's approach for closing the remaining tank farms. GAO toured the site; reviewed DOE documents, laws, and regulations; and interviewed officials and representatives from local, regional, and national entities and tribal governments. Congress should consider clarifying DOE's authority at Hanford to determine, with NRC involvement, whether residual tank waste can be managed as a waste type other than HLW. GAO is also making three recommendations, including that DOE (1) use an independent mediator to help reach agreement with Ecology on a process for assessing soil contamination, including NRC's role and (2) develop a long-term plan for its tank waste cleanup mission at Hanford. DOE concurred with all three recommendations. For more information, contact David C. Trimble at (202) 512-3841 or trimbled@gao.gov.
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    In U.S GAO News
    Federal law provides certain tax benefits for transactions involving genuine insurance products, including insurance products held offshore. While taxpayers may lawfully hold offshore insurance products, they contain features that make them vulnerable for use in abusive tax schemes. For example, offshore insurance products can be highly technical and individualized, making enforcement challenging, according to Internal Revenue Service (IRS) officials. Furthermore, insurance is not defined by federal statute, potentially making a determination of what constitutes genuine insurance for federal tax purposes unclear. Offshore micro-captive insurance products, which are made by small insurance companies owned by the businesses they insure, may be abused if the corporate taxpayer improperly claims deductions for payments made to a micro-captive for federal tax purposes. Courts have applied certain considerations to determine whether these deductions can be claimed. For example, one consideration is whether the insurance legitimately distributes risk across participating entities. IRS officials said they expend significant resources reviewing these schemes because of the varied ways insurance companies may work. Offshore variable life insurance products, which are insurance policies with investment components over which the insured has certain control, may be abused if the individual taxpayer fails to meet IRS reporting requirements or pay appropriate federal income taxes. Federal regulations require that taxpayers with certain foreign life insurance accounts report this information to IRS and the Financial Crimes Enforcement Network. The structure of life insurance products may vary and taxpayers are required to pay taxes based on the underlying type of financial product the policy represents. The figure below shows how noncompliance may occur when taxpayers use life insurance and micro-captive insurance in abusive tax schemes. Abusive Use of Micro-captive and Life Insurance When structured in abusive ways, insurance products held offshore can be designed to aid in unlawful tax evasion by U.S. taxpayers. Two products that IRS has recently warned have the potential for such abuse include micro-captive insurance and variable life insurance policies. GAO was asked to review how taxpayers may abuse offshore insurance products. This report describes (1) how offshore insurance tax shelters provide opportunities for income tax abuse; (2) how offshore micro-captive insurance is used and how it is used in abusive tax schemes; and (3) how offshore variable life insurance is used and how it is used in abusive tax schemes. GAO reviewed IRS tax and information return forms, relevant U.S. case law and IRS guidance, academic and trade publications, and applicable statutes and regulations. GAO also interviewed IRS officials and professionals in the tax preparation and insurance industries. For more information, contact Jessica Lucas-Judy at (202) 512-9110 or LucasJudyJ@gao.gov.
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    In U.S GAO News
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