[House Hearing, 116 Congress] [From the U.S. Government Publishing Office] DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, EDUCATION, AND RELATED AGENCIES APPROPRIATIONS FOR 2020 _______________________________________________________________________ HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION _________ SUBCOMMITTEE ON LABOR, HEALTH AND HUMAN SERVICES, EDUCATION, AND RELATED AGENCIES ROSA L. DeLAURO, Connecticut, Chairwoman LUCILLE ROYBAL-ALLARD, California TOM COLE, Oklahoma BARBARA LEE, California ANDY HARRIS, Maryland MARK POCAN, Wisconsin JAIME HERRERA BEUTLER, Washington KATHERINE M. CLARK, Massachusetts JOHN R. MOOLENAAR, Michigan LOIS FRANKEL, Florida TOM GRAVES, Georgia CHERI BUSTOS, Illinois BONNIE WATSON COLEMAN, New Jersey NOTE: Under committee rules, Mrs. Lowey, as chairwoman of the full committee, and Ms. Granger, as ranking minority member of the full committee, are authorized to sit as members of all subcommittees. Robin Juliano, Stephen Steigleder, Jared Bass, Jennifer Cama, Jaclyn Kilroy, Laurie Mignone, Philip Tizzani, and Brad Allen Subcommittee Staff _________ PART 6 Page Impact of the Administration's Policies Affecting the Affordable Care Act........................................................ 1 Reviewing the Administration's Unaccompanied Children Program..... 91 Protecting Student Borrowers: Loan Servicing Oversight............ 199 Addressing the Public Health Emergency of Gun Violence............ 283 Oversight of For-Profit Colleges: Protecting Students and Taxpayer Dollars From Predatory Practices................................ 371 Combating Wage Theft: The Critical Role of Wage and Hour Enforcements.................................................... 457 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] _________ Printed for the use of the Committee on Appropriations U.S. GOVERNMENT PUBLISHING OFFICE 37-614 WASHINGTON : 2019 COMMITTEE ON APPROPRIATIONS ---------- NITA M. LOWEY, New York, Chairwoman MARCY KAPTUR, Ohio KAY GRANGER, Texas PETER J. VISCLOSKY, Indiana HAROLD ROGERS, Kentucky JOSE E. SERRANO, New York ROBERT B. ADERHOLT, Alabama ROSA L. DeLAURO, Connecticut MICHAEL K. SIMPSON, Idaho DAVID E. PRICE, North Carolina JOHN R. CARTER, Texas LUCILLE ROYBAL-ALLARD, California KEN CALVERT, California SANFORD D. BISHOP, Jr., Georgia TOM COLE, Oklahoma BARBARA LEE, California MARIO DIAZ-BALART, Florida BETTY McCOLLUM, Minnesota TOM GRAVES, Georgia TIM RYAN, Ohio STEVE WOMACK, Arkansas C. A. DUTCH RUPPERSBERGER, Maryland JEFF FORTENBERRY, Nebraska DEBBIE WASSERMAN SCHULTZ, Florida CHUCK FLEISCHMANN, Tennessee HENRY CUELLAR, Texas JAIME HERRERA BEUTLER, Washington CHELLIE PINGREE, Maine DAVID P. JOYCE, Ohio MIKE QUIGLEY, Illinois ANDY HARRIS, Maryland DEREK KILMER, Washington MARTHA ROBY, Alabama MATT CARTWRIGHT, Pennsylvania MARK E. AMODEI, Nevada GRACE MENG, New York CHRIS STEWART, Utah MARK POCAN, Wisconsin STEVEN M. PALAZZO, Mississippi KATHERINE M. CLARK, Massachusetts DAN NEWHOUSE, Washington PETE AGUILAR, California JOHN R. MOOLENAAR, Michigan LOIS FRANKEL, Florida JOHN H. RUTHERFORD, Florida CHERI BUSTOS, Illinois WILL HURD, Texas BONNIE WATSON COLEMAN, New Jersey BRENDA L. LAWRENCE, Michigan NORMA J. TORRES, California CHARLIE CRIST, Florida ANN KIRKPATRICK, Arizona ED CASE, Hawaii Shalanda Young, Clerk and Staff Director (ii) DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, EDUCATION, AND RELATED AGENCIES APPROPRIATIONS FOR 2020 ---------- Wednesday, February 6, 2019. OVERSIGHT HEARING: IMPACT OF THE ADMINISTRATION'S POLICIES AFFECTING THE AFFORDABLE CARE ACT WITNESSES AVIVA ARON-DINE, VICE PRESIDENT FOR HEALTH POLICY, CENTER ON BUDGET AND POLICY PRIORITIES ED HAISLMAIER, SENIOR RESEARCH FELLOW, THE HERITAGE FOUNDATION PETER MORLEY, PATIENT ADVOCATE JOSHUA PECK, CO-FOUNDER, GET AMERICA COVERED Ms. DeLauro [presiding]. The subcommittee will come to order. It is my pleasure to open the first hearing for Labor HHS. Congressman Cole has heard this story before but I will be very, very quick and anecdotally, I think for me my participation on this committee has come full circle. It was some 24 or 25 years ago I wanted really to be on the--when I was appointed to the Appropriations Committee I wanted to serve on the Labor HHS Subcommittee because of my own health issues or prior health issues, et cetera. So it was very, very important to me. But as the pecking order, you go through the--when we organize by seniority you go through and you make your selections, and I wasn't very senior at that juncture. So that there was one slot left on the Labor HHS Subcommittee and my colleague, Mr. Serrano, was going to go before me and I was sitting there just really praying that what he would do was to decide something else other than Labor HHS, and the Lord heard my prayer because he did. He went to CJS and I got to be able to sit on the Labor HHS Subcommittee of Appropriations. So I feel as if I have come full circle, and the debate this morning comes at what I view as a critical juncture--the changing energy of the country. The changing dynamics of the Congress are intersecting. The country has mandated that elected officials tip the scale for people who deserve so much more. First, I would like to say a thank you to our distinguished panelists for being here and I will introduce each one of them in a few minutes. But I also would like to acknowledge the new members of the subcommittee. On the Democratic side and my colleague, Lois Frankel, from Florida; Representative Cheri Bustos from Illinois, and Representative Bonnie Watson Coleman of New Jersey. On the Republican side is Representative Tom Graves of Georgia. Just as a--in full disclosure, Congresswoman Roybal- Allard, Congresswoman Lee, and my understanding, Tom, is that Congressman Graves are all in a classified briefing for the Conference Committee with regard to the Department of Homeland Security and that appropriations budget. So they will get here as soon as they are able. And I will just repeat introductions of Congresswoman Lois Frankel--delighted that she is part of the committee-- Congresswoman Cheri Bustos. So welcome to the subcommittee. I would also very much like to acknowledge the ranking member of the subcommittee, someone who has become a very good friend and that is Congressman Tom Cole of Oklahoma, and I want to say a personal thank you to you, Tom, for the last 4 years where there has been real cooperation and respect and that we have shared together on this subcommittee. It is my intention to maintain that tradition. I know that we will continue to disagree in some areas, and we have done so firmly and we have done it repeatedly. But we also manage to find common ground and I believe it is because we agree on this one principle--it is how central the work that we do in this committee can be for people and the difference we can make in their lives and that includes health care, which is the subject of today's hearing. This is an oversight hearing. The subcommittee is going to review the impact of the administration's policies on the Affordable Care Act, specifically with regard to affordability, the increasing number of uninsured, and the quality of the benefits available to people. Before the Affordable Care Act became the law of the land in 2010, the cost of health care was rising at an unsustainable rate. Spending was projected to rise to $4,100,000,000,000 by 2017. More importantly, health care costs were taking up a larger and a larger share of the family budget. But since the Affordable Care Act went into effect, its impact has exceeded expectations. As you can see from the slide, national spending on health care is well below pre-ACA expectations--more than $600,000,000,000 lower than projections for 2017. Because of the Affordable Care Act more than 20 million people gained health coverage, many for the first time in their lives. For families, it meant that insurance companies could no longer discriminate against people because of their medical history and just being a woman was no longer a pre-existing condition. Then this administration went to work. The Department of Health and Human Services has written new rules to intentionally increase premiums and out-of-pocket costs for families covered by the ACA health plans. For example, the cost-sharing reduction payments to insurers who provide plans on the exchange were crucial to keeping down costs for families in the exchange. But President Trump spent months threatening to eliminate them, and when Democrats refused to bargain away this important mechanism for affordability, on October 2017 the president eliminated the payments outright, dramatically driving up health care costs. The Congressional Budget Office estimated that doing so would cause premiums to rise 25 percent by 2020. Thankfully, as Dr. Aron-Dine points out in her testimony, state regulators rushed to protect their state's insurance markets and they mitigated the damage. In 2018, repeal of the individual mandate was also responsible for helping to drive up health care costs. Now, let us look at pre-existing conditions. HHS has made a concerted effort to shift consumers to, quote, what have been commonly called ``junk plans.'' Just for a definition of these plans, they impose lifetime and yearly limits. They do not cover maternity care, prescription drugs, mental health care, preventive care, or other essential benefits. They can also retroactively cancel coverage after patients file claims and often won't cover hospital room, board, or nursing services on the weekend. And this allows then insurance companies once again to gauge or deny insurance coverage to Americans with pre-existing conditions and the administration has also urged federal courts to strike down protections for pre-existing conditions. Our witness, Mr. Peter Morley, will share his story and emphasize how important these protections can be. In many cases, it is a matter of life and death. If you look at enrollment, we see the administration's efforts with regards to enrollment and outreach. HHS shortened opened enrollment, reduced the annual budget for outreach and advertising by 90 percent, reduced funding by 80 percent for the Affordable Care Act navigators. These are the people who provide in-person assistance to consumers who need help finding a health plan. In the administration's first week in January 2017 the Department of Health and Human Services announced that it would stop planned advertising for the final week of open enrollment, typically the busiest period. But, in fact, they were following the president's lead. On his first day in office, the president issues an executive order directing the federal agencies to begin dismantling the Affordable Care Act, quote, ``to the maximum extent permitted by law.'' And it goes on, and I will just say that I have here a document that was prepared by the Center on Budget and Policy Priorities. It has been compiled. It is a list from January 2017 and I think up to January and maybe further--January 28-- of the actions that the administration has taken to undermine the Affordable Care Act, and the list runs for about 18 pages. One of today's witnesses, Joshua Peck, will explain that HHS made these decisions with full knowledge of the harm they would cause. Mr. Peck estimates that HHS's decisions to undermine outreach, advertising, enrollment efforts resulted in more than 1 million fewer enrollments in 2017 and a similar shortfall in 2018. In all of these ways the administration has tried to undermine the ACA and I would ask to what end. Due to the administration's actions, costs for families and working people are skyrocketing, and according to the Kaiser Family Foundation, premiums in 2018 rose 30 percent, and according to analysis by the Center for American Progress, a typical family of four will see 2019 premiums increase by more than $3,000. In addition, the uninsured rate is up to 13.7 percent from 10.9 percent. That is the equivalent of 7 million people losing health care coverage, and the uninsured rates have increased the most among women, low-income people, and those under 35, all because of the administration's efforts to undermine the Affordable Care Act. This committee has the responsibility to stop the administration from undermining health care for millions of Americans, to stop it from allowing insurance companies to discriminate again with Trump plans, and to stop it from going after the very mechanisms that would--we have to hold down costs for Americans. We need to bring down the cost of premiums and deductibles. The administration needs to defend the Affordable Care Act in the Texas lawsuit, needs to defend those Americans who rely on the law's protections for pre-existing conditions, and we need to work to close the Medicaid gap. These measures would lower health care costs for families so that they can afford quality coverage. I anticipate today's hearing to be a spirited debate. However, I intend it to be an informative conversation and one that is fact driven and a positive start to what I hope will be a bipartisan effort to strengthen and bolster instead of repeal and replace. And now it is a pleasure for me to turn this over to my good friend from Oklahoma, the ranking member, Mr. Cole, for any opening remarks that he cares to make. Mr. Cole. Thank you very much, Madam Chair, and before I go to my prepared remarks, let me congratulate you on assuming this really quite remarkable jurisdiction and that I always told people that ask about you--I said that she is the best informed member on the committee. She is the most passionate advocate for the things she believes but she knows the bill. And so I look forward to working with you in your leadership. I thank you for your kind words. But, you know, I have worked well with you because you wanted to work together and you did look for areas of common ground. And I am particularly proud that in the last 4 years, while we always started off in different places--and I suspect we will again, in all due disclosure--we always ended up at the same place. All four times when the bill moved across the floor in conjunction with other bills we were voting the same way on final passage, and I want you to know from me that is my goal again. I want us to be able to do that. I want us to be able to find areas that we agree and there are vast areas in this jurisdiction where we do agree, where we have worked together in a bipartisan way and, frankly, in a bicameral way with our partners on the other side of the rotunda as well. So I know under your leadership that is going to continue and I look forward to being your working partner in that--in that process. Ms. DeLauro. Thank you very much. Mr. Cole. You bet. Again, I will congratulate you for holding your very first hearing as well. I look forward to working with you in the coming year on the vital public health, education, job training programs funded in the Labor HHS bill. Today, we have got an outside witness panel to discuss the administration's efforts on implementing the Affordable Care Act. Although the Labor, Health, and Education Appropriations Subcommittee provides some of the administrative funding to the Department of Health and Human Services to carry out parts of the Affordable Care Act, direct jurisdiction of the Affordable Care Act falls squarely outside of this subcommittee. I think we can all agree that improving access to high- quality affordable health care is a worthy and admirable goal. However, I believe the best venue for policy discussions about how to achieve this goal is within the primary committees of jurisdiction: Energy and Commerce and Ways and Means. As I have said before during debates on the American Health Care Act, the current health care system is not working for too many Americans. Premiums see double digit increases year after year. This rate of increase is simply not sustainable. Our nation spends more on health care than any other industrialized country but receives less quality outcomes than most other industrialized nations. Passage of Obamacare did little to change that reality. After nearly a decade, we find ourselves debating the same issue--how to make health care more affordable for every American. Today, we focus on the efforts taken by the administration to fulfill its duty to faithfully execute the law. I wholeheartedly support efforts by the Trump administration to create more affordable options for consumers, protect human life, and respect an individual's right of conscience. I understand my colleagues' opposition to some of these actions but there are consequences for passing vague legislation leaving much to be determined by the executive branch. The Affordable Care Act includes the phrase, quote, ``the secretary shall,'' unquote, more than 900 times. A Democratic-controlled Congress passed hastily-written legislation that gave broad and expansive authority to the secretary of Health of Human Services to determine the best means of implementation. As a direct result of the latitude given to the department by the ACA, my side of the aisle had strong objection to several decisions taken by the previous administration. It's no surprise that decisions taken by a new Republican administration also received objections from the opposing political party. In the last five years, average premiums in the Obamacare market in Oklahoma have increased over 225 percent. My constituents cannot afford an increase of that magnitude on such a short time. For the first time in 3 years, Oklahoma will actually have two insurance companies offering plans. Just two. For the past two years, Oklahoma had just one. One insurance company is not a choice. Two insurance companies is barely a choice and not what I consider progress. Higher premiums and limited options are the daily reality of Obamacare in Oklahoma. I know both Democrats and Republicans believe we can and should do better for the constituents who elected us. I hope, on a bipartisan basis in the appropriate venues, we do deliver on the goal of making health care more affordable for every American. I would like to thank all our witnesses for coming today. I had the opportunity to read your testimony and I look forward now to actually hearing it as well and to the questions we will be able to pose to you and your responses. I know you have dedicated much of your careers to helping consumers have better health care choices. In the coming year, I look forward to a spirited discussion with my chair on funding priorities for this bill. I truly believe the programs in the Labor HHS bill form the backbone of America's public health and social service infrastructure. I am hopeful that we will reach bipartisan support in the final spending package. And with that, Madam Chair, I yield back the balance of my time. Ms. DeLauro. Thank you very much, Congressman Cole. Let me know--indeed, we have a distinguished panel here this morning and let me introduce them. Mr. Joshua Peck, who is co-founder of the Get America Covered, was the chief marketing officer for the health insurance marketplace during the Obama administration. Mr. Peck was in charge of outreach and advertising to populations that were eligible to enroll in the ACA health plans and to help them understand their options and enroll in a health plan that met their needs. Dr. Aviva Aron-Dine is vice president for health policy at the Center on Budget and Policy Priorities. During the Obama administration, Dr. Dine served in several senior roles including acting deputy director of OMB as well as senior counselor at HHS where her portfolio including ACA implementation. Mr. Edward Haislmaier, senior research fellow at the Heritage Foundation, who works closely with state and federal policy makers to design health care reform strategies including alternatives to the Affordable Care Act. Mr. Haislmaier was also a member of the board of directors of the National Center for Public Policy Research. And Mr. Peter Morley is a patient advocate who advocates on behalf of millions of Americans who, like himself, live with chronic and pre-existing conditions. This is Mr. Morley's 227th meeting with policy makers as he advocates to maintain the ACA's strong consumer protections. Our first witness, Mr. Peck. Your full testimony will be included in the record. You are now recognized for 5 minutes for your opening statement. Thank you. Mr. Peck. Chairwoman DeLauro and Ranking Member Cole, thank you for convening today's hearing. My name is Joshua Peck. I am the co-founder of Get America Covered and I was the chief marketing officer for the health insurance marketplace during the Obama administration. I was responsible for marketplace enrollment, retention, and the $100,000,000 outreach and advertising budget that the Trump administration cut by 90 percent. I am here today to testify to the impact that these cuts had on enrollment. Before I get started, it is important to note that these cuts are just a single example of the current administration's efforts to undermine the health insurance marketplace. They have cut navigator funding by 80 percent, shortened the open enrollment period, championed the repeal of the individual mandate, encouraged the introduction of junk plans, didn't engage with the news media to get out the word about the deadline, and much more. For these reasons it is no surprise that state-based marketplaces are reporting an all-time record enrollment, while the Trump administration has overseen three consecutive years of decline. First, it is helpful to understand just how important outreach and advertising are to people who are considering health coverage. Outreach provides the needed reminder to apply before the deadline or to help people understand that coverage may be more affordable than they think. Providing basic information is critical to the marketplace's operation. In mid-November last year, after the start of open enrollment, just one in four people who buy their own insurance knew that December 15 was the deadline to enroll. Outreach and advertising not only increased the number of people who enroll but improve the risk pool by helping younger and healthier people enroll. Healthier enrollees lower prices for all people with coverage as well as the federal government. Cutting outreach and advertising not only hurts the American people but makes government less efficient. It is common for private health insurance companies to spend between $250 and $1,000 per enrollment. During my time at CMS, we were able to enroll or renew people for just $25 each. This kind of efficiency is unheard of. We achieved this not because we had a hip brand but because we were a trusted voice, providing basic information about a comparatively affordable product with strong consumer demand. There is no doubt that marketing is important to increasing the number of people who sign up for coverage. During my time at CMS, we challenged ourselves to do everything we could to make sure people had the information they needed to sign up. But it was vital that we spend every dollar wisely. So not only did we run experiments to determine what works and what didn't, we meticulously measured each tactic. The evidence that marketing directly drives enrollment is overwhelming. There are numerous studies outside the federal government show the correlation between advertising and enrollment. But the best evidence that exists is the multiyear study conducted by CMS. The study demonstrated the causal relationship between advertising and enrollment, telling us how many people enrolled who would not have if they hadn't been exposed to a particular type of outreach. A causal relationship is the gold standard for evaluating impact and something that is not possible in most analyses of marketplace performance, which must rely on correlation. We understand the relationship between outreach and enrollment because a team of government and private sector data scientists spent years developing, executing, and analyzing the impact of outreach using individual and market-level randomized control trials. From these experiments, we were able to establish approximately how many people enrolled or renewed because they saw a TV ad, received a phone call, a piece of mail, an email, saw a Google ad, display advertising, an ad on social media, an outdoor sign, and more. We also know how much we spent on each of those types of outreach. Combining these two numbers, we get a cost per enrollment for each type of outreach--an incredibly powerful tool when designing a marketing budget if your goal is to help people enroll in coverage or, as it turns out, an equally helpful guide to an administration trying to do harm to the marketplace. Thanks to the Freedom of Information Act request submitted by Democracy Forward, we have a window into what information the administration considered before it made key decisions. In the lead up to the 2017 open enrollment period, it is clear from the Democracy Forward FOIA request that the administration started to learn about the positive impact of marketing. They discovered eliminating TV would be especially harmful to enrollment. Thanks to the same FOIA request, we know that CMS Administrator Seema Verma's chief of staff discussed the expansive multiyear study with career staff on August 10th, 2017, and received a PowerPoint deck with these results on August 11th, just three weeks before their August 31st announcement that they were cutting the budget by 90 percent. The same day the administration announced the cut, they released an official fact sheet stating, and I quote, ``no correlation has been seen between Obamacare advertising and either new enrollment or effectuated enrollment,'' end quote. The administration hasn't disagreed with the findings of the study. Instead, they deny that any of the evidence even exists. I respectfully suggest this committee call on CMS to make all the results and underlying data available to the public so it can be reviewed and evaluated. Despite the continued resilience of the marketplace, the impact of the administration's actions have been severe. The harm has been most acute for new enrolment because people who don't currently have coverage or any kind of relationship with the marketplace are much less likely to be aware of the deadline or the availability of affordable coverage without some type of paid outreach. Conservatively, we can estimate that a minimum of 2.3 million new enrollments have been lost on the Trump administration's watch due solely to cuts to outreach and advertising. That is 2.3 million people, some of whom have, unfortunately, gotten sick or unexpectedly had an accident, and without insurance some of these people have gone bankrupt or foregone needed care. Now, the administration would be quick to point out that the federal marketplace enrollment isn't down by 2.3 million people so, surely, the marketing budget didn't matter, and they would be right if marketing was the only factor that impacted enrollment. But it is not. Factors that help enrollment and hurt enrollment can and do happen the same year but that doesn't mean that factors that hurt enrollment didn't happen. Thank you for the opportunity to testify and I look forward to answering your questions. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very much. Dr. Aron-Dine. Ms. Aron-Dine. Thank you. Chairwoman DeLauro, Ranking Member Cole, members of the committee, thank you for the opportunity to testify before you today about the administration's stewardship of the Affordable Care Act. President Trump has been clear from the start of his presidency that his goal is to repeal the ACA. With legislative repeal off the table for now, the administration is trying to achieve a version of repeal through the courts, declining to defend the ACA in the Texas v. Azar lawsuit. It has also continued to pursue some of the major policies of the 2017 repeal bills through administrative actions. Josh spoke to the damage done by HHS's cuts to outreach and enrollment assistance. I would like to call a few other policies to your particular attention. First, where the 2017 repeal bills ended or weakened various protections for people with pre-existing conditions, the administration's short-term plans rule stands up a parallel health insurance market that isn't subject to those protections. Specifically, the rule lets so-called short-term plans, which used to be limited to three months, instead last up to one year and be renewed. These are plans that can and do deny coverage or charge higher premiums based on health status, exclude essential health benefits such as maternity care, substance use treatment, or prescriptions drugs, and impose annual limits on coverage. The first problem with expanding these plans is that the people who buy them could face catastrophic costs if they get sick and need care. Troubling, but unsurprising, new research finds that the plans are being marketed with lots of fine print and without clear warnings or sometimes any warning at all about what they don't cover. The other problem with a parallel insurance market, of course, is the adverse selection it creates. Because non-ACA plans can offer lower premiums to healthy people, they will pull healthier people out of the ACA market. That means premiums for ACA coverage will rise, and to the people who need that coverage but have incomes too high to qualify for subsidies, for example, middle income people with pre-existing health conditions, will pay more. Higher ACA premiums also mean that the federal government will spend more on premium tax credits. That is important because those additional federal dollars could instead have been used to make ACA coverage more affordable for healthy and sick people with incomes too high to qualify for subsidies without the harm that results from expanding non-ACA plans. Turning to a second set of HHS actions, the 2017 repeal bills sharply cut financial assistance for marketplace consumers. Now HHS appears to be looking for ways to advance that objective administratively as well. A few weeks ago, the department issued a proposed rule that tweaks an obscure formula so as to cut premium tax credits for at least 7.3 million people, increasing their premiums. These premium increases are relative modest--about $200 for a moderate income family of four--but they would cause 100,000 people to drop coverage each year, according to the department's own estimates. The same proposal has the effect of raising the ACA's limits on consumers' total out-of-pocket costs. That provision of the ACA protects people with employer plans, too. These cost increases are entirely at HHS' discretion. They are not required by any statute. The proposed rule also notes that HHS considered and could in the future propose additional tax credit cuts, and meanwhile, last fall the department issued guidance and a discussion paper encouraging states to use Section 1332 waivers to much more drastically upend the ACA's whole system of premium tax credits reducing costs for lower income people, older people, and people with pre-existing conditions. The final set of HHS actions I want to highlight are its efforts to reduce the scope of the ACA's Medicaid expansion. After Congress rejected the 2017 ACA repeal bills, which would have effectively ended expansion, HHS started approving waivers which, if they are all implemented, will take coverage away from hundreds of thousands of expansion enrollees. The first of these proposals to take effect, Arkansas' work requirement, took coverage away from more than 18,000 people over seven months. That is more than one in five of the people who were subject to the new policy--a coverage loss rate so high it is nearly certain that working people and people who were supposed to be exempt from the new rules are instead losing coverage due to complex and burdensome reporting requirements. Research finds that because of Medicaid expansion more people are getting primary and preventive care they need, fewer people are burdened with medical debt, hospitals and states are seeing less uncompensated care, and there have been improvements in health outcomes for people with various chronic conditions. Reversing a large share of the coverage gains from expansion means reversing these other gains as well. Given the large risks that HHS actions pose to programs that cover millions of Americans, this committee's oversight role is crucial. Thank you for holding this hearing and I hope you will continue to closely examine the impact of HHS policies toward the Affordable Care Act. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very, very much, Dr. Aron-Dine. Mr. Haislmaier, love to hear from you. Mr. Haislmaier. Thank you. I presented in my written testimony for the committee, Madam Chair, the actual administrative data on enrollment in both the public and the private sectors and the trends and observations about how the law has performed in that regard. So I will reference that if we need to in the Q and A. But at this point, I simply want to highlight a few basic observations. First, I think it is fairly clear from the data I am seeing that enrollment plateaued, starting about 2016. I don't find that particularly surprising. It was interesting. When the law was passed there was kind of a, as often is the case, a disagreement between the Congressional Budget Office and the Office of the Actuary. When the Medicare Modernization Act was passed, there was a disagreement about take-up of Part D. I thought that CBO had the better argument then. In this case, I think CMS has proven to have the better argument. The actuary--CBO sort of assumed that people would come into this over a period of years and year and years. The Office of the Actuary said, well, no, you are going to go out and you are going to basically enrollment screen a lot of people and you are pretty much going to get 80, 90 percent of this within the first 2 years. The data seems to have borne that out not only for the Medicaid expansion, which was explicitly what the Office of the Actuary was referencing, but also for the exchanges. So my second point is I think what we have here today, and I am not terribly surprised by it, is a mature market and when I look at the data what I see not only for the federal exchange but also for the state exchanges and also for Covered California, which basically accounts for half the state exchange enrollments and it provides some of the most detailed data, what you are seeing is that consistently over the last few years new enrollments are declining and returning or renewals are increasing and, again, that is not surprising. I mean, it is kind of like saying, you know, what is the trend of new people who have never bought a cell phone buying a cell phone versus the number of people who own a cell phone buying a new cell phone. I mean, this is--this is classic mature market. So, from here, I think it is unlikely--and this is my third point--that we are going to see much change, plus or minus, and, frankly, I think that is regardless of what this or a subsequent administration does largely because most of this is governed by some forces actually outside the jurisdiction of this committee, which are permanent appropriations. The tax credit subsidies, the Medicaid expansion money is there. It goes out automatically. The people who want and need subsidized insurance are going to show up and they are going to get it and there is very little that, you know, absent Congress changing this or a subsequent administration can do about it. Now, having said that, I think it is important to understand that one of the effects is that the ACA essentially created two markets in one. The traditional customers for individual market were basically self-employed, small business people. There was a certain number of people who are between jobs and looking for that. These are people who were not looking to fund their current medical needs. These were people who were in average health. They just wanted something in case something bad happened down the road. So they wanted coverage, one, that was affordable. They weren't particularly concerned about having lots of additional benefits on the coverage, and three, for the ones who did have health issues, they weren't severe health issues but they were used to seeing certain doctors and hospitals and they wanted plans that were broad network plans that they could go to. What happened is that the ACA subsidy system brought in a new group of customers and created a significant adverse selection against that market. And so the way to understand this is to understand that pre-ACA, about 10 percent of the private market, was individual coverage and 90 percent was employer coverage. With the ACA, when you look at, as any actuary will show you, there is a distribution of population where at any given time 80 percent of people are pretty healthy. Fifteen percent have some illness. Five percent are seriously ill. What happened is a disproportionate number of those 5 percent that are seriously ill wound up being put on a very narrow base of only 10 percent of the market and that is what has driven the cost here. You have tried to merge two very different markets. And so what has happened is because of the subsidies and the changes, the people who really need medical care because they have serious medical conditions they are covered. They show up. They get covered. They stay covered. Their bills get paid. The coverage is comprehensive. But for the people who are the old individual market and are your constituents who are self-employed and things like that, it has become a very unattractive market. They can't get the doctors and hospitals they want. They can't get the coverage they want. They don't have the insurers to choose from. And so that is what needs to be remedied. I think what the administration is trying to do is to try to provide some assistance to those people, some alternative to those people. I would encourage Congress to actually work with the administration to do that. Thank you, Madam Chair. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very much. Mr. Morley. Mr. Morley. Thank you, Chairman DeLauro, Ranking Member Cole, and members of the subcommittee. I am so honored and humbled to speak with you today about the critical importance of the Affordable Care Act and the Trump administration's ongoing efforts to undermine it. My name is Peter Morley, as you know. I live in New York City. In 1997, I had an injury during a lapse of insurance coverage. All treatment and medication costs were paid out of my own pocket. When I later needed surgery, my insurance company considered my injury to be a pre-existing condition and all my claims were denied. It was a financial burden for years, totaling in tens of thousands of dollars. In 2007, I was permanently disabled from an accident. I was spared the costly medical bills of four spinal surgeries because I had continuous health coverage. In 2011, I survived kidney cancer and fought my way into remission after losing part of my right kidney. In 2013, I was diagnosed with lupus, which causes me severe fatigue and most days it is a struggle to get out of bed. I now manage over 10 pre-existing conditions, take 38 different medications, and receive 12 biologic infusions to slow the progression of my disease. I live on the brink of financial ruin and only live modestly, thanks to insurance and the fact that I can't be discriminated against because of a pre-existing condition. Pre-existing conditions are a way of life for me and millions of others. Thanks to advances in science and medicine, most people like me with chronic diseases can live happy and productive lives, but only if we are provided access to health insurance that can't be taken away from us because an insurance company decides it is in their best interest not to cover something, or if Congress decides to repeal my insurance or the single greatest threat I face to my health today, the Trump administration's continual sabotages of the ACA. As someone who spends the majority of my waking time in doctors' offices, the Affordable Care Act has meant focusing on healing, not bankruptcy. I used to be very private about my health. But once President Trump was elected and set to repeal the ACA, I could no longer be silent. In December 2016, I decided to foster awareness for lupus and advocate for health care. My congresswoman, Carolyn Maloney, has taken up my cause and for those of people like me. From day one I witnessed the Trump administration's unrelenting sabotage to the ACA. Short-term plans and association plans are an assault on my protections, allowing insurers to bend the rules of the ACA and create fine print that people like myself just don't have the time to comprehend. When the Trump administration refuses to do appropriate marketing and research to more people, it affects me directly. Fewer people in the risk pool makes my insurance more expensive and the administration's reckless support for lawsuits that tear down the entire ACA--terminating it, as the president just said--is a grave form of subversion. These are just a few examples. In the last two years, I shared stories because I have traveled to DC 14 times to advocate for thousands who have shared their health care stories with me. I have met from--with anyone from Congress, Democrat or Republican alike. My message is simple. If you think people don't get hurt when the administration doesn't implement the ACA to the best of their ability, think again. We do. I do. Millions do. If you think pre-existing conditions aren't important, remember, someone you love can have an accident, be diagnosed with cancer or lupus at any time and that will change how you think about this. I know firsthand that your health care can change in an instant. I appreciate the subcommittee holding this hearing today. If the Trump administration can choose not to implement this in ways that are true to its intent, citizens like me understand that administrations can do that with any law. I enjoy legal protections only Congress can create. I put myself at great risk to travel hear and share these stories with you. I never know if this will be the last time I am healthy enough to come to DC. But I am here today to ask you to protect the Affordable Care Act and to hold the Trump administration accountable for trying to sabotage health insurance for millions of Americans. Thank you for allowing me the opportunity to testify and I am happy to answer your questions. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very, very much. Thank you for your testimony. I thank all of you for your testimony and, you know, I just appreciate the level of knowledge and, as I say, fact-based information that we have the opportunity to listen to today. Let me just mention that we are moved to questions and answers at the moment, and as in the past, we will proceed with five-minute rounds and we will alternate between--back and forth by seniority as members were seated at the beginning of the hearing, and I just--including myself, be respectful of our witnesses and try to give them enough time to respond to your questions. If I can take one more second and wish our colleague, Bonnie Watson Coleman, a happy birthday. Happy birthday, Bonnie. Thank you. That is great, and welcome to the committee. So that is great. I just want to make one quick point. The Labor HHS Subcommittee funds the Centers for Medicare and Medicaid Services, the program management account as well as HHS's Office of the Secretary. What that means is that the subcommittee funds the personnel who drive the administration's policies affecting the Affordable Care Act. So our actions fall squarely under the Subcommittee's purview. So I just want to set the record straight. Yes, Dr. Aron-Dine, your testimony notes that the Trump administration released a new proposed rule for 2020, and you talked about ``100,000 people drop their health coverage each year,'' and that 100,000, as I understand it, comes from the administration's own estimates. You noted the proposed rule would increase families' monthly premiums, out-of-pocket costs without a corresponding benefit. Finally, you state nothing in the law requires HHS to pursue this new policy. I have actually two questions. If it isn't part of the law, why is the administration proposing to increase health care premiums and out-of-pocket costs? Ms. Aron-Dine. The rationale that the administration gives for making this formula change is twofold. Part of it is a technical justification and part of it is saying that it would reduce Federal costs. I think we need to look at that reduction in Federal costs relative to the burden that is imposed on consumers and also juxtaposed with some of the other administration actions. I talked about how the administration also estimates that its short-term plans rule, for example, will increase Federal costs by billions of dollars. And so I think those are funds that could be better spent, first, not increasing people's premiums by cutting their premium tax credits and also by improving affordability. Ms. DeLauro. You also said that the administration is considering two even more harmful changes: ending or limiting automatic reenrollment and attempting to end the silver loading, a practice that lowers premiums and out-of-pocket costs for millions of people. Just--can you just briefly elaborate on those proposals being floated for future years? What is the point of denying someone the chance to reenroll in their existing health plan through the easiest possible process? Ms. Aron-Dine. Sure. So automatic reenrollment is, as you say, an opportunity afforded to people who are already enrolled in coverage. Most returning marketplace consumers do actually come back and actively select a plan. But some, just like people in employer plans, instead rely on being automatically reenrolled, and if we didn't have that backstop for those people, it is likely that a million or more people would lose their coverage and lose that opportunity to remain continuously enrolled. The second change you talked about is eliminating silver loading. As you talked about, silver loading is how the market has managed the elimination of reimbursements for cost-sharing reductions and it has actually had the effect of making coverage more affordable for people and, according to CBO's estimates, increasing coverage by $500,000 to $1,000,000. So that, ironically, the unintended consequence of the administration's action, which seems to have been intended to undermine the market, has counteracted some of the downsides from its other actions. And so eliminating silver loading would make things more expensive for people and likely further reduce coverage. Ms. DeLauro. Well, I am going to--I just--you know, it just seems that tried stabilize the market, refusing to deal with cost-sharing reductions, and now, after states have thwarted those attempts, we are trying to go after their work-around programs is what it appears to me. Let me just move to how would HHS guidance for 1332 waivers subsequent discussion paper outlining the administration's preferred types of proposals affect people with pre-existing conditions and other vulnerable groups. You also talked about people losing their health coverage under types of Medicaid waivers that HHS is now approving. What types of enrollees are at risk of losing their health care coverage and how many people would gain health care coverage if we move to 50 states in Medicaid expansion? Ms. Aron-Dine. Sure. So if the remaining states adopted Medicaid expansion, the Urban Institute estimates that more than 4 million people would gain coverage. So if we are looking for a way to continue the coverage reductions from the ACA, that would certainly be one available option. With respect to the Medicaid waivers, these are waivers that HHS has approved with unprecedented restrictions on eligibility including work requirements. Ironically, some of the people at risk of losing coverage from work requirements are workers--people who have unstable jobs, who have variable hours, who can't meet that monthly requirement. Other people particularly at risk of losing coverage are people with serious illnesses who are supposed to be exempt but often have particular challenges navigating the paperwork, the red tape to claim those exemptions. Older people also seem to be particularly at risk because they may be early retirees who aren't working, even claiming Social Security but relying on Medicaid for their health coverage. Ms. DeLauro. I am going to do something unprecedented and yield back my time. Mr. Cole. [Laughter.] Mr. Cole. Do I get the extra 16 seconds? Ms. DeLauro. No. No. [Laughter.] Mr. Cole. Thank you very much, Madam Chair. Mr. Haislmaier, I am very intrigued by what you have to say about markets really being, as I understand your testimony, the driving factor here. Am I right if I--that in your view, literally we were going to get most of the people we were going to get in this market up front pretty quickly? They were going to understand they needed it. They were going to mostly continue to re-up and would continuous advertising at the same level of the initial rollout of the plans make much difference to coverage after that first two or three years? Mr. Haislmaier. In the--in the individual market, I don't see it making that much difference once you have a mature market. It is a point of diminishing returns. I mean, if you look at the situation the question is do people--does an individual believe that he or she needs coverage or if they don't think they need it do they still want it, and the primary motivators are a medical need would be one. The other thing is, well, I am healthy but I have got assets to protect. I mean, I don't want to lose my house if something happens and I have to pay the bill. Or it might be, hey, I have got dependents--you know, what would happen if something happened to my kids--things like that. Those are the motivators. That is why people buy life insurance, et cetera. So those are the people who are motivated to buy the coverage. Okay. And depending on how motivated they are, you know, nudging them might help. Interestingly enough--and Covered California, again, provides the most detailed breakout of this--they found the most effective thing were, guess what, insurance agents. Consistently, since 2014, if you look at the Covered California data, over half of new enrollments come from insurance agents and another 30 percent are people doing it on their own online. I mean, it is all in the Covered California reports. So that is what you are looking at. So then what you are left with is people who say, well, yeah, do I really need it--nah, I don't think so. You know, or I will be okay if something happens to me. Now, you and I and the others here might think that those people are mistaken, okay, and in fact they might be mistaken. But the problem is that is what they think, and particularly they are looking at other alternatives. So, for example, just to--you are from Oklahoma, sir--an example of that is if somebody is a member of a tribe in your state who has access to the Indian Health Service and is treated by the Indian Health Service, that is technically not insurance. I mean, they are entitled to that. They get--it is free. The government pays for it. But that is technically not insurance. That individual would be uninsured. Now, does that person feel that he or she needs to buy insurance? Well, not until there is a problem with getting access for the Indian Health Service and at that point then, yeah, they will show up on Medicaid or they will buy an exchange plan. So, again, different people in different situations. We may disagree with their choices. But there are people out there who say, you know, I don't need it. I don't--I don't have any assets. I don't have any income. What are they going to do if I show up at the hospital and can't pay the bill? They are going to have to treat me. I don't have anything to come after. So, you know, yeah, I will sign up then but I won't keep the coverage. Mr. Cole. Thank you. Let me squeeze in another one here while I have got a little time. The nonpartisan Congressional Budget Office estimated up to a million people who would otherwise be uninsured would seek health insurance coverage because of the alternative association health plans and short- term limited duration health plan options offered by the Trump administration. Even the Washington Post has noted that several of these association health plan options offered on the market have premiums lower than the ACA marketplace yet comply with the essential health benefit coverage requirements. Can you describe some of the benefits these alternatives have to middle class unsubsidized consumers? Mr. Haislmaier. Yeah. I mean, remember, these are self- employed people by and large. I mean, you know, I had this with a research assistant from--you know, who was from Missouri and whose parents had a small contracting business and as their choices dwindled and the premiums went up they went to self-- they went to, you know, short-term plans because they are not worried that, say, it doesn't cover maternity. I mean, I know self-employed people who say, well, heck, you know, we just paid cash for having our kids. I mean, again, these are not poor people. These are middle class people, by and large. Where I see this going long-term is I think it is more interesting the association plans because that market has dwindled. I mean, prior to the ACA there were about 11 million people who had unsubsidized individual coverage. The number of people with unsubsidized individual coverage is now down to 7\1/2\ million. Now, you have added 7\1/2\ million with subsidized coverage but the unsubsidized has dropped. I mean, that is very clear in the data. We don't know exactly where they went. Some of those people might go to short-term plans. I think for them it is a short- term solution because, hey, they are already on the market. You can just go and get one. Now, longer term I think where that--those people will go like that, you know, family that runs a contracting business is they are going to go once somebody sets up like NFIB or the Chamber sets up an association plan. That is where they are going to go. Mr. Cole. Thank you, Madam Chair. Ms. DeLauro. Mr. Pocan. Mr. Pocan. Thank you, Madam Chair, and thanks to the witnesses for being here today. I guess I want to try to focus I think mostly on pre- existing conditions in the sense that when we do town halls back home this is the issue that comes up the most. You know, I did a lot last year in my district, especially the last two years. I did five in Paul Ryan's district in the last two years, since he was a little busy doing other things, and the No. 1 issue that came up was the pre-existing condition issue. And while I appreciate the conservative free-market theoretical aspects of talking about, you know, what percent are severely ill and what percent aren't, I think the flaw in all of those arguments comes in--I was in that 80 percent healthy category for a long time. I spent a night in the hospital when I was born and then until I was 53 never spent another night in a hospital. Then when I went there I found out I had 70 percent, 90 percent, and 100 percent blockages and I got to spend an overnight in the intensive care part of the hospital, which is why people have insurance, right. So I would be in that healthy category so I wasn't thinking about all the other theoretical--what is the cheapest plan I could possibly have. Also, I was a small business owner for 30 years. So I can tell you how most small business owners we don't buy--we don't look for a cheap package without benefits. You do it because you can't afford something. We want to make sure that you have coverage for your family. In fact, more people don't start small businesses because they can't get real access to health care than otherwise would start businesses and that would have an entrepreneurial push. So that is why I had people--when I go to small towns--when we passed the--the ACA was in place who came to me literally crying about the fact that they now have health care. So I think it is great on paper. It is a really different thing on practice for people, and I am one of those people now who has a pre-existing condition. So I get the great privilege of if this thing falls apart and I am not in Congress figuring out how to get health insurance. So I guess what I would really like to focus on is where HHS very specifically has done some of the measures, and I am talking to Dr. Aron-Dine, about making it harder to have that coverage for people with pre-existing conditions, because that is what real people talk about not inside the Beltway. We don't talk about all the stuff that we talk about around here. Like, they are just worried that they have got a kid who is sick. You know, you are telling your very personal story. Thank you for that. That is what people do at every single town hall we have and I would just like to know where we really have to plug the holes and make sure that people who have pre-existing conditions will never lose coverage. I mean, Donald Trump can say Republicans will really protect pre-existing conditions. Democrats will not. That falls in the category of, you know, obviously, a giant lie. We just want to make sure we are actually dealing with this and fixing it in a way. So, Dr. Aron-Dine, the exact spots where we need to plug the holes to fix this. Ms. Aron-Dine. Let me highlight two. The first is the short-term plans rule that I referenced earlier, and just to talk for a moment about the CBO report that Congressman Cole referenced, it found a few things about these plans. First, it found that the Trump administration's actions will cause a great proliferation in these plans that are not subject to ACA rules, both short-term plans and association health plans, with 80 percent of the people enrolling on those plans being people who would otherwise have had comprehensive coverage. Second, it found that the short-term plans in particular will look a lot like pre-ACA individual market plans. So just so we all remember, those are plans that excluded essential health benefits like maternity, like substance use, like mental health, like prescription drugs, and also imposed annual limits on coverage, which meant that in some sense they weren't really health insurance at all because what you are looking for when you have health insurance is coverage for those very high catastrophic costs. If you have a limit on your plan, you don't really have insurance. The third thing CBO found is that the lower premiums those plans provide for healthier people are coming entirely from two places. One is the more limited benefits, which is zero sum in the sense that people don't have coverage. The other is dividing the risk pool, pulling in the healthy people and then raising premiums for sick people by the same amount in aggregate. So in terms of making like harder for people with serious health conditions, pre-existing conditions, raising premiums for them by that amount. The final thing I would say is that I think that rule creates a little bit of a false dichotomy, a sense that the only choice is to do nothing for healthy middle income people or to split the risk pool and help healthy people at the expense of the sick. I don't think that is the choice we face and, in fact, with the increased federal costs from that rule, one could make a start on subsidizing coverage for middle income people and making it more affordable for the healthy and sick. The second action I would point to, just very quickly, is the 1332 guidance and discussion paper, which really invites states to come in with very dangerous proposals that could undermine their entire ACA market and leave people with pre- existing conditions without any option other than a market that looks like pre-ACA. My hope is that states won't take up those options and fact there are some real legal questions around that guidance. But if any state were to come in with such a waiver, the danger could be very great. Mr. Pocan. Madam Chair, if I can just finish with saying, you know, when we talk about not covering things like prescription drugs it is ridiculous. Those people have to have coverage. I was only on two drugs coming out of the hospital that were $600 a month. Forty percent of the people in the country can't come up with $400 for emergency expense, much less a monthly expense of $600. You know, clearly, that is a necessity in coverage. Thank you. Ms. DeLauro. Thank you. Ms. Beutler. Ms. Herrera Beutler. Thank you, Madam Chair. I had a couple thoughts. You know--I don't know what anybody's preconceived notions are before we get started into this. But we are here because we care about having access to health care for the people we serve. That is the whole purpose. That is why we asked to be on this committee. This is not the easiest committee to be on. We do it because we truly want to get people access to care, and what I hear us debating and what is striking me a little bit is, I mean--I don't think the Trump administration does everything right. We can argue about different things--the different changes that they have made since they have been in office, right, which is, I would argue, mid-way through 2017 they were able to start really making some big changes and moving forward. But there are a few facts we can't escape. The ACA is still the law of the land, and the premiums that my constituents are paying in most of my district--most of my counties, where they have the privilege of paying them--I have had to step in to make sure that a county is even offered a plan on the exchange. I mean, we have had major deserts. Those have gone up and those were set before he took office, right. So right now, I keep hearing because of marketing failures or choices to change, how we are outreaching, you know, that is why premiums are increasing and I have to smile because if you would just look at the timeline, we are paying more as a result of the law of the land, which is the ACA. Now, I wish--I wish that the ACA did everything that we were told it was going to do. I really do. I have pre-existing conditions in my family. I have people that I serve. My goal when I think about this is how do I get them access to care that is worth the paper it is written on. So right now, in my biggest county only 6.5 percent of people are uninsured, which kind of alludes to some of the numbers you were using, Doctor. You know, the numbers are going in the right direction. But when you break that down, you can wait 5 months to get--as a child on Medicaid under the exchange to get in to see a primary care doctor. It is not worth the paper it is written on. I have so many people--it is over half in that county who are on APPLE Health and the major primary care clinics literally stopped taking new Medicaid patients because they can't afford them because there is a problem with reimbursements. Now, this is one of the reasons I think the exchange should not have had the expansion because now we are paying to put able-bodied childless adults ahead of those poor children and those children--those disabled children, those children with pre-existing conditions--that is the whole reason--one of the main reasons Medicaid was created in the first place. But those are the kids who are now waiting to get care. So when we say we care about pre-existing conditions, it is because we see them not getting the care they deserve under the ACA. That is what we are talking about, and I think marketing could change some of that, right. Maybe we can get some more people in. But by and large, your problem is with the ship, not with the deck chairs on the ship. You know, I hear you talking about you need to get rid of the--I think you call them parallel coverage universe. That is so upsetting to me. In Washington State, we have the Association of Health Plans, for example, and I have had to fight to protect those. We have nearly 400,000--people who receive employer- sponsored health care coverage through AHPs in Washington State, many of them union or teachers, small businesses, and historically those folks are coming through the small business plans and they are--they are kind of a lifeline right now for people who are not--they are not--they are not--they are not making--they are not getting the subsidy but it is what is getting them coverage, right. they can afford it. And so in my mind, we have to find a way that allows more choice and more options, not less choice and less options, and that may mean subsidies for certain folks, making sure we are protecting the safety nets in Medicaid Part B. But it may also mean that these--you know, this parallel coverage universe is part of our solution. And to that point, I actually wanted to see if Mr. Haislmaier would speak to that as a solution. Association health plans as part of the solution to what we are talking about. The law of the land isn't working. It is just not working, and if we want to get more people with access to coverage, I was hoping you could--you could maybe elaborate a little bit on that. Mr. Haislmaier. Sure. Essentially, in states that previously tried to do this with the--in some states with what they called a group of one where the question is if you are a self-employed person are you the business owner. Well, yes. Are you the employee? Well, yeah. I guess. You know, and so can you be part of an employer plan that has better tax treatment and better insurance regulatory treatment. Now, that was interesting pre-ACA and this comes back to your colleague's question about pre-ex because there is a lot of misinformation about it. As Mr. Morley actually pointed out, interestingly enough, you know, before the ACA, 90 percent of this market pre-ex was largely not an issue. That is because it was employer coverage and in 1996 they had the Health Insurance Portability Act, which is, as Mr. Morley was saying, you know, if you had coverage and you wanted to switch from employers or switch to another plan, no pre-ex, right? And, in fact, I started working on this back in 2003 with the D.C. commissioner when we had the situation where those rules didn't apply in the individual market and the George Washington health plan--university health plan went away, and now people who had bought insurance for years were suddenly being turned down in pre-ex. So there is a way to solve this. The problem was the ACA went about it in a sort of ham-handed way. But yeah, this was-- this was, A, a relatively small issue. B, it is largely solved. C, we were trying to solve it before the ACA. What happens is if you go into an association plan you can essentially recharacterize as a large business and you have more flexibility in benefit design and you have more choice. I think it is interesting. I did some research before coming here. Your district and actually Mr. Pocan's district are two of the four of you who in your district it is not possible to buy anything other than a narrow network plan on the exchange in your district. That is true of four of you, and you are two of them. And so that is the difference. You get alternatives to that sort of limited choice. Ms. Beutler. Thank you, Madam Chair, for the time. Ms. DeLauro. Thank you. Ms. Frankel. Ms. Frankel. Thank you. Thank you, Madam Chair. It is an honor to be on this committee and I want to thank our presenters today--thank all of you, really enjoying everybody's testimony and I--even--well, I may disagree with some of it. So my questions are going to be out of respect and I will try to be as kind as possible when I say this. I personally think the elimination of the advertising was pure evil and I also want you to know that the cell phone companies spend billions of dollars to advertise, and I can tell you this. I probably get three or four emails every day they want me to change my phone. I just bought a phone. Anyway, I am going to move on to something that is very important to me and that is the effect of these changes or these efforts by the current administration, how it affects women. Here is what I know is that 90 million women ages 18 to 64 have had health insurance due to the ACA. Sixty-seven million women and girls have pre-existing conditions and that the ACA was supposed to require health plans to cover a set of preventative services without out-of-pocket costs including birth control, well-woman visits, and breastfeeding support and supplies, and that the ACA was also supposed to allow for essential health benefits such as pregnancy, maternity, newborn care, pediatric services, prescription drugs, mental health, substance use disorder. Now, so my first question--I am going to have three questions and I am going to give all the questions first. So, you know, my first question is how has the administration's attempt to dismantle the ACA undermined women's access to health, and I think the discussion on the junk policies probably could help us with that, and has it, if you know, shifted more women to Medicaid, especially for the birth of children. My next question, and I don't know--maybe one of you can answer this. There was an administration--in November the administration proposed a rule to require insurers to send separate bills to customers for a portion of their premium that covers abortion and this month the administration proposed to require insurance companies that offer ACA plans covering abortions to also offer an identical plan in the same region that does not cover abortion, and I am curious if you have a comment on how these new administrative burdens impact whether insurance companies continue to offer abortion coverage. And my next question is thanks to the ACA, 62 million women benefit from insurance coverage of birth control without out- of-pocket costs. In fact, I am not going to go into all the effects--good effects of birth control. Yet, the Trump administration has issued rules letting virtually any employer deny workers this essential health care, and curious whether you have a comment on how the Trump changes undermine access to contraception. Who wants to answer? Ms. Aron-Dine. I can address some of the issues that are more in my area of expertise and then leave it to others, because you raised a number of important points. First, on the issue of essential health benefits, I think you are correct that women face some particular risks if they inadvertently find themselves in a plan that doesn't cover these benefits due to aggressively marketing of short-term plans, due to confusion about what is covered. Mr. Haislmaier mentioned people paying for maternity care out of pocket. I will say, I don't know any middle class family that can afford to go into a delivery without insurance and potentially be exposed to the very, very high costs that could accompany a delivery. Second, on the question of Medicaid, certainly Medicaid coverage also in some ways is disproportionately important to women because of coverage for pregnant women, because women sometimes are in the position of caring for their families and have low incomes and are enrolled in Medicaid. So I wanted to just respond to some of the points that were made about Medicaid coverage not providing maybe adequate coverage. Overall, the research on people who have coverage through Medicaid or through the marketplaces find that they are able to access care at rates similar to people in employer coverage. People with marketplace coverage, according to Kaiser surveys, report actually high rates of satisfaction with their access to physicians, both primary care physicians and specialists. And people who have gained coverage through Medicaid see improvements in access to care as well as improvements in various health outcome measures. So not to say that the situation is perfect. But Medicaid offers strong coverage to millions of people including tens of millions of women. Finally, on the contraception rules, as you say, the ACA's preventive services requirements included the requirement that insurers cover contraception without cost. Again, research by Kaiser finds that that has improved, reduced women's out-of- pocket costs and improved access and adherence, which is really important, and the administration's rules, although I am not an expert, have poked holes in that benefit mandate by letting employers who say they have any kind of moral objection opt out with no alternative way for their employees to get that needed coverage. Ms. DeLauro. We are over time. Mr. Haislmaier. Oh, I am sorry. Ms. DeLauro. Mr. Harris. Mr. Harris. Thank you very much, and let me join the ranking member in congratulating you on chairing out of committee because we discuss important topics here and this is one of them. Let me--you know, I have to represent the people in my district. That is who I am elected to represent. In Maryland, I am going to tell you, we had pre-existing coverage before the ACA and it was actually much cheaper than pre-existing coverage under ACA. Now, in fact, in 2014 the ACA--the high-risk policy on our high-risk pool and I think, Ed, you had worked with us in Maryland when I was on the health committee there--the high- risk pooling mechanism did it through a way that I think was what you were alluding to, which is it spread the cost of that high-risk pool over a large population through a hospitalization tax on all, and the problem with the ACA is it concentrated it. Furthermore, it--you know, and they said, well, you know, we did have this 2 percent premium tax or we had the premium tax. But the premium tax in the ACA bought up subsidies, didn't buy down premium and that is why healthy middle class people in my district can't afford ACA policies. It is a fundamental policy flaw. You know, had they--had they just said, okay, we are going to tax all insurance policies and we are going to buy down premiums on the ACA, which actually is what happened in the first years of the policy because what you did is you effectively had high-risk pooling mechanisms. So in Maryland--I am 62 now--60-year-olds--last year, Blue Cross/Blue Shield suggested a $1,600 a month premium for the silver plan. Sixteen hundred dollars a month for a 60-year-old. What healthy 60-year-old would say, yeah, I am going to pay $1,600. No, they would look for some other. The only reason we have got it down is Maryland passed a reinsurance plan allowed under a waiver. We passed a reinsurance plan that kind of looked like a high-risk pooling mechanism. So my first question, Mr. Haislmaier, is isn't that we should be looking for is actually looking for ways to lower the cost on healthy people who are in that ACA individual pool? Mr. Haislmaier. Yes, I would agree with you, Congressman. That--in fact, I did an entire paper looking at Maryland and Oklahoma and seven other states that had done--unfortunately, it was Oregon, not Washington but they--you know, next door-- that have done the 1332 waivers. And essentially the way to understand this is that the ACA--I mean, the thing you have to keep in mind is it wasn't-- there was a lot in the ACA that was just badly thought out and badly designed and, in some cases, badly implemented. What happened is it is all based on income and it is not based on need. And so what the states--from, you know, liberal states like New Jersey and Oregon and Maryland to, you know, more conservative ones like Oklahoma, though they withdrew their waiver because they couldn't get approved in time--have done is to say, well, look, if instead of just allocating the subsidy dollars entirely on income we shift some of those subsidy dollars to focusing on need more. Then we can bring the cost down across the board for everybody on the face premium. And you are correct, Congressman. That was what they did essentially with the temporary reinsurance in the ACA for the first 3 years. I have done some work on that as well. If I could just follow up on the previous question---- Mr. Harris. Let me just ask, I take it you are familiar with the Medicaid work waivers that are being proposed. Mr. Haislmaier. Somewhat. Yeah. Mr. Harris. Somewhat. Because my understanding is that, you know--that first of all, it is 80 hours a month, which by my math is less than 20 hours a week and it is not just work. It is work, job training, job searching training, or volunteering. Mr. Haislmaier. I mean, yes, it is a pretty broad definition. Mr. Harris. I have got to say I just--yeah. I mean, for a nonpregnant nondisabled nonelderly person, I am not sure asking them to volunteer in return for getting a valuable health insurance coverage is asking too much. Mr. Haislmaier. I think--I think the issue with that is that the waivers probably are better for other means tested programs. But you are onto something and that is Medicaid is a poor fit for that population and this was the point that your colleague was making. That is a population that you should really do a different deal with the states. You should say to the states, look, we are going to give you money to help cover that population but we are going to give you a lot of flexibility as to how you do it. These are not the core population that really needs help-- the disabled, the small children, you know. Mr. Harris. It is not the original purpose of the---- Mr. Haislmaier. Right. It is not the original purpose. This is a population--you know, 84 percent of these people have no dependent children. Half of them are between 18 and 30 years old. What you want is a system where, yes, you want to get them off of dependency, into a job that has benefits and things like that. So it is a different path. Mr. Harris. Sure. And finally, you know, making Little Sisters of the Poor going to the Supreme Court for their religious exemption is an atrocity in America. I yield back. Mr. Haislmaier. I don't know if I have time to answer that. [Laughter.] Ms. DeLauro. Ms. Watson Coleman. Ms. Watson Coleman. Thank you, Madam Chairman, and I am very excited to be a part of this subcommittee. I am learning a lot. Even in the few minutes that I have been here I have learned a lot and I recognize just how complex this issue is. I fundamentally believe that access to affordable and comprehensive health care is a right, not a privilege. And so I am interested in what it is that we need to be doing and what we need to be eliminating and what we need to be protecting to ensure that those have the insurance that is necessary to keep them healthy. I believe it is important that we have preventive measures so that individuals stay healthy and ultimately cost the system less. I also think that young healthy people can get cancer any moment and that changes the conditions of their existence. What does that mean for them because they have not been required to have insurance? So they come into the whole equation either facing bankruptcy or trying to find something with pre-existing conditions. I think the education is vitally important. It is vitally important as to what is available, when you need to enroll, what is appropriate for you. I also think it is important for young healthy people to recognize that but for the grace of God you could be unhealthy in the very next day. So I am interested in these junk plans. They really truly concern me. I want to know what is it that they ultimately or fundamentally don't cover. I want to--I want to understand the impact of extending their viability for 3 months to 12 months and I want to understand the impact of taking money out of educating the consumers, who are very busy and who don't read the fine lines and don't really understand what is all covered in their insurance. So I guess I want to hear from Mr. Peck and Ms. Dine. Mr. Peck. So one of the most important things that the Affordable Care Act did was provide a fairly comprehensive set of protections to consumers to make sure that they don't need to be health insurance experts when they sign up for coverage and be surprised when they get sick. The--we have talked about a number of them--you know, protection against discrimination for having a pre-existing condition, annual or lifetime limits, the 10 essential health benefits, which make sure that you have--you are covered if you go to an emergency room, if you need to get prescription drugs. Ms. Watson Coleman. Let me ask you this question about the junk plans. Do they allow for lifetime limits to be include? Mr. Peck. Yeah. So all of these protections are permissible through short-term plans. They have eliminated that requirement and by making short-term plans acceptable--you know, by making them last for 12 months they make them a viable alternative for people looking for coverage because it means you can go from one open enrollment period to the next with a short-term plan. The danger with short-term plans, and one of those things is they don't even have to provide the same information that Affordable--that ACA-compliant plans need to provide. So it is very easy for consumers, particularly, you know, do to a lot of very aggressive marketing tactics by short-term plan insurance companies--it is very, very likely that consumers will sign up for short-term plans and not understand that they are being scammed. And they will one day get in an accident or get a sickness that they weren't expecting and find that the coverage that they thought was going to be there for them wasn't. Ms. Aron-Dine. I would only add to answer your specific question about what these plans look like, researchers at Kaiser took a look at the plans that are currently offered that are short-term plans of which none offered maternity coverage, fewer than half covered substance use treatment, and fewer than a third covered prescription drugs. So it is a concrete problem. Ms. Watson Coleman. The issue of maternity coverage is vitally important to me. I have got a bill called the Healthy Moms Act, which is--allows women who find themselves pregnant to be able to enroll at that time into an insurance plan, and that is very important, particularly in communities of color like African-American communities where the mortality rate is so much higher. I thank you for this--for this hearing, Madam Chair, and I hope we have more discussions about what do we really need to do to ensure that the appropriate health care is accessible and available to all that need it. Thank you. I yield back. Ms. DeLauro. Mr. Moolenaar. Mr. Moolenaar. Thank you, Madam Chair, and it is a pleasure to serve with all of you on this subcommittee and appreciate the opportunity to hear from our witnesses today. I had a couple areas that I wanted to explore and, Mr. Haislmaier, I wanted to especially get your insights on this with the short-term plans. One of the things that seems to me is that we want to provide alternatives--affordable options for people. I was listening to Mr. Morley. There was a point where, you know, you didn't have coverage. You know, obviously, there are people in all different situations in life don't have coverage. To me, it would appear that you would want something that is flexible, affordable, and Mr. Peck, you know, you made some compelling statements about the importance of information for consumers and consumer protection, and I think that is a big part of what we need as well because you don't want people to be a victim to scams. You don't want the small print to be there and then don't find it out until you are in a situation. You know, at the same time, it just seems that we use rhetoric like junk plans or terms like essential benefits, and what strikes me is at some point you want to empower the consumer to decide what is an essential benefit from that consumer rather than the federal government saying it is essential that you have this and you are forced to buy it. In the same way, like, I ought to be able to figure out with the right information what is important and valuable versus what is junk, and to me it seems like we ought to be hitting on that. So I am curious, Mr. Haislmaier, with the short-term plans I understand they are 50 percent less in some cases, which gets to this affordability. So if people aren't buying something and it is too expensive, then they are in that situation where they don't have coverage. But this idea of offering flexibility seems to me to be pretty appealing, and I am just kind of wondering with the administration making more of these plans available are there ways to have safeguards for consumer protection? We have talked a lot about pre-existing conditions. I think that is an important criteria. The president mentioned it last night. As mentioned, the law of the land. Are short-term plans--do they have coverage for pre- existing conditions or is that something we should address? So I want to get your perspective on that. Mr. Haislmaier. Let me--you know, one of the benefits or misfortunes of having been at this as long as I have is I actually remember where all this stuff came from. So let me give a little background here because there has been some discussion today that doesn't, you know, reflect the origin of this. Short-term plans were a category created in the 1996 HIPAA legislation where the legislation said that we are going to impose regulations on the group market and the individual market. They did not impose--they imposed the restrictions on use of pre-existing in the group market, as I said, but they did not do it on the individual market and I think they should have copied the same rules over but they didn't. But what they did say is short-term plans don't count as individual coverage. Then they wrote regulations saying, well, what is a short-term plan--anything of 12 months or less, and that was in place for 20 years--20 years before the Obama administration, in November 2016, said, oh my god, as premiums are going up people are fleeing and they are going into these short-term plans--let us kill off the short-term plans by making them three months, et cetera. So what the Trump administration is just doing is reversing that regulation, going back to where it was for 20 years before. The second thing to point out to your question is that on short-term plans they are required--and this was something the Obama administration added in their revision of the regs that the Trump administration has kept--to have disclosure notices about them. The short-term plans can medically underwrite. They are not subject to pre-existing condition exclusions. That is true. But they are a possible solution for some people, not for everybody. The other point that I would make is as much attention as has been devoted to this, I actually access the insurer market data--all of your states, the insurers, have to file regular reports and that data gets aggregated up by the National Association of Insurance Commissioners. So when you go into the market data you can actually see what is going on. We have 175-plus million people with private insurance coverage between employer, group, individual, et cetera, and I am talking full benefit coverage, not the supplemental Medigap, stuff like that. Of that, about a couple hundred thousand have short-term plans. So it is a really, really small market. As I said, I think it will have maybe a little uptick in the next few years as some people grab it as a life raft until they can get to a bigger boat called association plans. But I don't see it as a major thing. The only other point that I would make, if I could diverge a bit, is on some of the other comments that were made here, the formula change in the subsidies that the administration--that Dr. Aron-Dine referred to, that was the so-called fail-safe provision that was included in Speaker Pelosi's Manager's Amendment in 2009 to the final bill to keep the score below what they thought they were going to get from CBO. So that is the origin of that and the question is when the--when it says that it has to be adjusted for the growth in premium, the previous interpretation had been premiums in the large employer market, not premiums in the market you are talking about subsidizing, which is the individual market. So, you know, the other point is and, again, the history of this--yeah, the other point is simply the aggregation on abortion funding was in the bill. Ms. DeLauro. Thank you. Ms. Clark. Ms. Clark. Thank you very much. A pleasure to be back with all of you and with our new chairwoman. Congratulations, and thank all the panelists for coming. As we talk about short-term plans, junk plans, whatever our moniker for these plans, I think it would be helpful have a little bit more history. I appreciate going back to 1996 and individual markets. But how did pre-existing conditions play out across the country as far as insurance coverage? Ms. Aron-Dine. Ms. Aron-Dine. Yeah, I think that is a very helpful reminder because what short-term plans are taking us back to is a parallel market that would look a lot like the pre-ACA individual market. In that pre-ACA individual market people with serious pre- existing conditions--Kaiser estimates about 50 million people-- were uninsurable if they needed individual market coverage. Others could face rate ups, so higher premiums. And individual market plans often didn't cover basic essential health benefits, and that is because--just to respond to one other point that was made--you can't really have essential health benefits a la carte. If people can decide for themselves whether to buy maternity coverage, for example, men will not buy maternity coverage. But that means that the cost of plans marketed to women will be higher because only they will reflect the cost of maternity coverage. Similarly, if you let only people who need mental health care buy plans that cover mental health care, the cost of those plans will essentially equal, you know, the cost of mental health care. They won't have bought insurance. They will just have to pay for their care in the form of a higher premium. So when it comes to benefits, it is sort of appealing to say that we should just let people choose for themselves what kind of coverage to buy. But insurance just doesn't work that way. If we want robust coverage to be available to anyone at an affordable price, then we need to mandate some level of robust coverage for everyone. Ms. Clark. And, you know, I think that that point also carries into one of the real public health crises that we have in this country, which is the opioid epidemic. Having worked with many, many families in my district and across the country and having worked across the aisle to address this crisis, it doesn't care if you are in a red state or blue state. I have not met the person in the throes of opioid addiction who is saying, now I am going to go out and get a health care policy that is going to give me the coverage that I need. I am very concerned about this and our ability to access health care, and what can be--come under the guise of flexibility can take us right back to why we so needed the ACA. I don't know if Mr. Peck or Mr. Morley want to comment on that patient perspective. Mr. Peck. So, you know, substance abuse services or something, they are one of the 10 essential health benefits that all ACA plans, you know, need to cover. Consumers, when they are applying for a plan and, more importantly, when they are picking between the plans they have to choose from, research shows that that choice is overwhelming. The amount of information somebody needs to know to be able to conceive of every possible thing that could happen in their life, it is impossible and, frankly, even health experts struggle to make the best decisions they can in choosing a plan. Asking normal people to factor all of these sort of crazy hypotheticals is totally unreasonable. So, you know, I think the substance abuse services that ACA-compliant plans are required to provide are, you know, vital much like so many of the other 10 essential health benefits. Ms. Clark. Great. I want to also go back to sort of the shocking statement that was made that zero percent of these short-term plans offer maternity care. And what is the impact, the other sort of on the opposite end of the spectrum, the ACA was able to provide coverage for birth control. What are you seeing under the Trump administration and the impact on the ability of women to access birth control? Ms. Aron-Dine. So I should say this is a little outside my area of expertise. But as I noted, there is evidence that the ACA's requirement to cover contraception as one form of preventive services has improved women's access, has reduced their out-of-pocket costs for contraception and has likely improved adherence. And so I think our expectation would be that if you carve a lot of holes in that mandate some of those gains will be reversed. That said, all of this is still under litigation and so I don't think we have seen it play out as yet. Ms. Clark. Thank you. Ms. DeLauro. Thank you. We will begin a--I want to thank all of you--we will begin a second round of questions, and let me begin. Mr. Peck, Mr. Haislmaier suggested that ongoing advertising would be subject to diminishing returns. You were in charge of advertising for healthcare.gov. What is the value of continuing to advertise and is it important? I also would note and have you answer this question that in your written testimony you say it is no surprise that state- based marketplaces are reporting all-time record enrollment, while the Trump administration has overseen three consecutive years of decline. Can you discuss the enrollment trends in states that are continuing to invest in outreach and advertising? How do the trends compare to the direction of the federal marketplace? Can you walk us through your projections? Do states have access to lessons you learned at CMS about the benefits of different types of outreach? Are states conducting random controlled trials or is it too onerous to do at the state level? And can you walk us through your projections of ACA enrollment if the administration was implementing the law in good faith? I believe you have estimated as many as 2.3 million additional ACA sign-ups. Mr. Peck. Mr. Peck. So Coca-Cola has been selling the same product for over a hundred years---- Ms. DeLauro. Amen. Mr. Peck. [continuing]. And it is one of the most well known brands in the world. They spend about $4,000,000,000 a year on advertising. I am not familiar with any mature market where advertising doesn't play a central role in keeping it healthy. If Coca Cola stopped advertising we wouldn't all forget what Coca Cola was. But we would buy a lot less Coke. And every year that went by without advertising we would buy even less and that is what is happening in the federal marketplace. The ACA was passed to improve people lives and marketing is necessary for it to succeed. You know, I think Mr. Haislmaier he sort of speculated that consumers who hadn't purchased coverage were not going to. They weren't interested in it. And the consumer research simply shows that that is not true. Most consumers in America who don't have coverage want. There are obstacles to coverage. One of them is cost. But every year there is a very substantial portion of the population that is considering whether or not the coverage that is available for them is affordable and right for them, and advertising plays a central role in helping them to consider it and, ultimately, to make a decision by the deadline. So advertising--and we have really seen this play out actually in the state-based marketplaces when we look at their performance versus the federal marketplace. The state-based marketplaces have collectively--their enrollment is at an all-time high while marketplace new enrollment has seen three consecutive years of decline. Again, Mr. Haislmaier suggested that renewal had been increasing. But I think he actually misunderstands the data because retention has increased. If you look at the number of people who are renewing their coverage during open enrollment, the percentage is effectively the same. What is different is the amount of people who stay in the marketplace between the end of open enrollment and the start of the next open enrollment has increased substantially. We believe that is likely due to people being very satisfied with their coverage, not wanting to leave it. So what we--what we are seeing, though, is that new enrollment, which is highly dependent on paid advertising, has been declining. State-based marketplaces, which run their own outreach and education campaigns, have overall taken marketing fairly seriously. In some cases, like in the case of California, they have very substantial budgets. California and New York have very substantial budgets devoted to marketing and we have seen that those states have both easily outperformed the federal marketplace during the--since 2016 when the Trump administration initially cut outreach for federal marketplace enrollment. Ms. DeLauro. [continuing]. With your responsibility safeguards that are built into the ACA system for enrollment in the marketplace. What kind of safeguards are there? Mr. Peck. You know, the most important safeguards are the ones we have discussed. It is the 10 essential benefits, the requirement to disclose information. Those--we could spend the remainder of our time talking about those protections. But they are very substantial. Ms. DeLauro. Let me just interrupt you for one second. With the role of the navigator in this--how can you--assure that that person is going to help you select the right plan? Mr. Peck. Yeah. So under the Obama administration navigators would provide assistance to consumers. They would-- you know, they had to--they were required to give them unbiased information about the plans that are available to them. Under this administration, one change that has been made is that navigators are now being required to also offer short-term plans as options and they are not allowed to tell consumers that this is not a good decision for them even though in most cases it is. Ms. DeLauro. I am going to say this but I want you to think about this. How do we deal with unscrupulous insurance companies that try to fool people into buying junk health plans? With that, let me yield my time to my ranking member. Mr. Cole. Thank you very much, Madam Chair. Mr. Haislmaier, as you know, I am sure, better than me, over half of American counties have just one insurer, and in 2018 eight states had just one exchange insurer for the entire state. Can you explain why so many American counties have just one insurer and why we are seeing so little competition in some of these exchanges? Mr. Haislmaier. Well, the good news, first, is that you have actually seen that flatten out and in 2019 it is sort of returning to 2018--2017 levels, which is, you know, well off the high but it is about a third of counties, not half of counties and, you know, you have gone up from 37 to 40 counties having--percent having two insurers. Essentially, and this was alluded to earlier by a colleague--essentially, the way to think about this is the ACA turned this into a fairly--turned the bulk of this--the ACA turned the market for this coverage into largely a market dominated by low-income people who were heavily subsidized and were thus not sensitized to the price. So and this is--we have seen this with--you know, is that you can raise the price, and that was deliberate. That was the way the bill was designed is that if the premium went up the enrollee didn't pay more. The taxpayer did. And so it achieved what it set out to achieve, which is you got a whole bunch of lower income people with health conditions getting comprehensive insurance at little or no cost to them. And I remember back in when I was first looking at this prior to the first open season in the fall of 2013 and the CEO of Molina, which was--the then CEO, which was a Medicaid managed care company, said, look, we looked at the market and it looks a lot like Medicaid so we went into it. Well, that is essentially what you have seen evolve is you have seen that the plans that are making money, that are working, that are expanding are basically recognizing that this is a lower income Medicaid-like population with health conditions and as long as the government is willing to keep subsidizing the increased premiums they are fine. And, you know, that is what it is. That is the way the law was set up. That is an inevitable consequence. The problem is that you have added that onto a very different market for whom that is not a good solution. The other people are not interested in that sort of a solution. Now, I would simply make the observation I don't understand where Mr. Peck's numbers come from because I looked at the numbers. The total enrollments in state-based exchange from 2016 to 2018--we don't have 2019 data--has declined. The new enrollment declined. The returning enrollment increased. Same thing was true of Covered California. Same thing was true with the feds. Yes, there is an argument that in percentage terms the feds--the federal exchange may have been somewhat larger. But the data shows that that his happening in all of these. And, finally, with respect to the point I was making about advertising, I am not saying that companies aren't going to advertise--whether they shouldn't. I am not saying that at all. What I am saying is you see all sorts, as your colleague said, ads for cell phones, right. What you don't see is somebody say, hey, ever heard of this? It is a cell phone. It is really cool. You can take it with you. You can make calls. You can do all sorts of other stuff. You really ought to get one. You don't need to do that anymore because AT&T and T-Mobile and everybody else will sell the cell phones. So my point is yeah, you are going to have advertising. You have it by, you know, Blue Cross and whoever, and we see it all the time, just like FEHB, the federal employee benefits. You go around DC during open season in November you see all the plans advertising on buses. What you don't see is the need for the Federal Government to send out--they send out some notices to their employees but, you know, everybody knows where to get it. Mr. Cole. Let me ask you one more quick question because I only have about a minute left. Mr. Haislmaier. Sorry. Mr. Cole. No, it is quite all right. It is all very helpful. But I did want to get this one in. I mean, the kind of complaints that I tend to hear the most, and I suspect my colleagues, are not from people that are getting subsidized. They are the people right above it, you know, who have seen their premiums skyrocket, who have seen these incredible deductibles, and it is sort of like--you know, I hear this all the time at town hall meetings. I am working, you know, hard and all of a sudden my deductibles are $5,000 or $10,000 if I am a family. I can't afford this. And it seems like by helping some people we have really hurt a lot of others. Mr. Haislmaier. Exactly. And the other thing that I would point out, because money isn't the solution to everything. The other thing that you probably hear is the only plans I can get don't cover my doctors or my hospital, right. Okay. That you are going to have to do something different. You can't just fix that with more subsidies to more people. Mr. Cole. Thank you very much. Thank you, Madam Chair. Ms. DeLauro. Ms. Clark, Ms. Clark. Thank you. The Trump administration has also been approving Medicaid waivers for states that wish to impose work requirements. Currently, these waivers have been approved in Arizona, in Arkansas, Indiana, Kentucky, Michigan, Maine, and Wisconsin. Only a few have implemented so far and I certainly understand that disabled individuals are supposed to be exempt from Medicaid work requirements. But I noticed in your testimony, Dr. Aron-Dine, that you mentioned the work requirements could still impact the disability community, and I wish you could explain that part of your testimony a little more. Ms. Aron-Dine. Certainly. It is the case that people who qualify for Medicaid by virtue of receiving SSI or other federal disability assistance aren't subject to these policies. But among the people who gained Medicaid coverage under the Affordable Care Act many of those low-income adults have a disability and those people are subject to these policies. States are saying that they are creating exemptions that will mean that those populations will be protected but that is not what we have seen in Arkansas and it is not what we should expect to see in other states because the reality of these policies is they are not just about the requirements. They are also about the additional reporting and paperwork they impose on people, and people with disabilities often face particular challenges in complying with those requirements and, therefore, can be at particular risk of losing coverage. This is somewhat related to another point that came up, which was, you know, is Medicaid coverage the right form of coverage for this population. And I would posit that it is very much--has very much been the right form of coverage for the expansion population partly because many of the people in the expansion population are themselves people who have disabilities, people who have other serious health care needs and have benefitted tremendously from having Medicaid coverage. But also I think all the evidence we have shows that the expansion has improved access to care, has improved financial outcomes, and has improved health outcomes for the broad population of low-income adults who gained coverage. Ms. Clark. Great. I wonder, Mr. Morley, if you had anything to add on that. Mr. Morley. I just want to go on record in saying I have had the chicken pox twice. So if anything could go wrong it would happen to me. [Laughter.] Mr. Morley. So just now that is entered into the Congressional Record. Anyway, thank you. Thank you for the lending of your microphone. I just want to say actually I just--before I say that, I just--I just wanted to just to make a--to what Mr. Haislmaier had said earlier. I was actually--in 1997, I was actually not covered for a pre-existing condition. So I just wanted to make that clear if there was any--like, I just thought about that because--of an injury that I had sustained. But in answer to your question, you know, I hear from people all over the country and, you know, in different parts of the country and I have heard from people in the states that have had Medicaid work requirements imposed on them. I mean, from what I know, from what I have read, in Arkansas people have--17,000 people have actually lost their health insurance because of the work requirements and these are people who, you know, in all good faith have gone out and tried to, you know, find positions. But I think I can speak best to the stress that is caused. I mean, you know, as someone who lives with lupus, stress is a huge factor in my life and stress is a huge factor in the lives of people. I have had the fortunate--you and Chairwoman DeLauro--to work with both of your offices and, you know, there is someone in your district who has a daughter who is chronically ill and he is not able to work because he has to be full time caregiver. His name is Ben Jackson, and, you know, it is really-- people are extremely stressed and when you live with chronic illness or you are a caregiver to somebody with chronic illness, I mean, it is not something that you need to be thinking about. So it just adds that extra layer and it is--I mean, for me it keeps me up at night. For other people it is--you know, as bad as, like, you know, my story is and, you know, bad is relative. But people have--there is always somebody worse. There is always somebody who has--who has more issues and more problems. So it has been quite tortuous, I have to say, for the last two years since the administration has taken over. There has been a lot of sleepless nights. Ms. Clark. Thank you. Ms. DeLauro. Ms. Herrera Beutler. Ms. Herrera Beutler. Thank you, Madam Chair. And I guess I would--I would--just hearing that last piece, for those of us who are on the exchange who have the chronic conditions in our families and the pre-existing conditions, I look around. I am, like, every time you try and choose a plan you do hours to research on the exchange. You have to figure out--you have to read the fine print and then you overlay the prescriptions that you need. You overlay the different diagnostic tools you know you are going to need. You overlay how much it is going to be in premium. You overlay all of that. It is not any--it is not better under the exchange. That is my frustration. I want it to be better. I don't--this is ridiculous that anybody has to do that. That is insane. It is just absolutely asinine. I think about the single mom in my district who has four kids and two or three of them have major, major health needs or behavioral mental health needs. She can't do that. That is insane to ask her to do that, and that is under the exchange. So my hope is that a little bit more--a little bit more realistic assessment of what is currently the law. I know there--politics out of it. You know, you were mentioning--you were citing, Doctor, studies about the overall--you know, how many more people--I think in kind of a response on the Medicaid how many more people are getting coverage and what their coverage looks like and they are generally satisfied. I mean, that may be true. Maybe those are--I don't know what is behind those studies. But I can tell you in Washington State, which is--we used to have a high-risk pool that covered everybody with pre-existing conditions and then we got a basic health plan more for the lower middle income folks that was subsidized. Worked really well. And then we had Medicaid, which was that safety net, and it worked well. As a result of the ACA, all those things got pretty much outlawed. So now what we have, Medicaid reimbursement for pediatric care, which is--so the reason I bring up Medicaid is most of the exchange in our state is Medicaid. It is not people who got private plans. It was a vast majority got pushed onto Medicaid. So here they are thinking, hey, I am going to get a private plan. They got put into waiting lines because we have had at least a 35 percent decrease for pediatric care in terms of reimbursements. In fact, Medicaid pediatric reimbursement is two-thirds of what Medicare is. Medicare in Washington State is pretty crummy. Nearly one in two children in the state relies on Medicaid through this coverage, right. So it is pretty important to use. Waits for appointments on Medicaid in Washington State are one to two months. Currently, since March, 435 children and adolescent clinic patients who live in Vancouver, which is my biggest county, have had to travel outside of the country to Longview for care. That is, like, 40 miles one way, depending on where you are at in the county. Yet, our uninsured number is only 6.5 percent. So it sounds good. But when you drill down, it is not worth the paper it is written on, and I think one of the things that we have to think about is how we substantively change the policy to make sure we are subsidizing that we have to, making sure--shoring up those safety nets. We have to let the marketplace become more robust and open up. That is where it was before, and it wasn't amazing. It has been a blue state for decades, longer than I have been on this earth it has been a blue state. So I am not--I kind of laugh because I think I am pointing back to that same--we actually had a more free market type of proposal that had different offerings for different subsets of people. Like you were saying, you know, 80/20--80 percent of people were in a certain type or need a certain type of coverage. That is how we get them into the system. That is how we get them paying. We don't say we are going to fit every single person into a one-size-fits-all box. That is what I see has been the biggest problem with the ACA. So far, not the Trump administration. They haven't been successful in their number-one claim, which was to get rid of it. It is still the law of the land and it is not working. I welcome any comments you had. Mr. Haislmaier. I would just make one brief on and that is I am always reminded that my instructions are not to bring up a problem unless I have got some kind of a solution to it. One of the things that I suggested, and Dr. Harris may remember this from when he was in the Maryland legislature and I was working with him--though I don't remember, so it has been for a long time--is that insurance agents be paid as buyer's agents, not as seller's agents. You saw that change in the real estate market. And I continue to recommend that to the state level and I think, you know, I don't know if the federal government--if the exchange has the authority to do that. But the data is quite clear. The answer to the point that you just brought up, Congresswoman, is that is what insurance agents do. They help people navigate that. They help them figure it out and they service the policy. By that, you know, when you get some kind of problem with your insurance company they go to bat for you. And so I have been telling them for years--and, in fact, agents were somewhat reluctant to go this way--they should all be paid a flat fee per member per month regardless of what the policy holder picks so that they are not biased to do that. The navigator is really not able to fulfill that role. They don't have the expertise. The navigator is more like a county welfare officer saying, well, based on your income you qualify for this and not this or maybe this. So it is a different role. Ms. Herrera Beutler. Thank you, Madam Chair. Ms. DeLauro. Thank you. I want to just take a moment of personal privilege which has to do, which I think Congresswoman Herrera Beutler has pointed out. It is a very complex effort, you know, to go through this. And I just wanted to ask you, Mr. Peck, because the point is well taken. This issue just came up about the role of individuals and navigators, would you be able to provide that kind of assistance to an individual trying to, in fact, navigate the system. I don't care who you are and I don't care what level of education you have. It is a very difficult process. If you would just take a moment to do that and then we will go to Congressman Harris. Mr. Peck. Yeah. You know, I very much agree that it is--it is a more complicated process than it should be and I support any effort to simplify that process for consumers. I disagree with the idea that it is not easier today and the big difference is---- Ms. DeLauro. Are you on the exchange? I'm sorry. No--no. I am just--sorry, I am asking. Mr. Peck. No, I am not. But I have friends and family who are so--the reason it is easier because there are these safeguards in place. There are guardrails for consumers that protect them from making catastrophic decisions. So it is absolutely true that a consumer might take just as much time as they did previously in evaluating what plan is best for their family and their family's budget and medical needs. But the protections for them are fundamentally different than before the ACA. But to your question on navigators, you know, the--first of all, navigators are just as qualified as agents and brokers to help people navigate the process of selecting a plan. They do incredible work and they literally get no incentive if a consumer, you know, picks a plan or not or certainly which plan they pick. So they are already closer to the model that you are suggesting would be ideal. I think it is really, really important to understand that people who have never had coverage they often really struggle with making such a significant financial commitment without feeling like experts in this very complicated space. So, again, I support changes to simplify it. But I think these people who are helping people enroll are doing really important work and it is very sad that that work is being compromised. Ms. DeLauro. Thank you very much, Mr. Peck. Congressman Harris. Thank you. Mr. Harris. Thank you very much, Madam Chair. Yeah, I think, you know, clearly, health insurance is pretty complicated. But it is not only purchasing. It is actually using it and I think that is Mr.--probably Mr. Haislmaier's point that, you know, the original ACA kind of cut out the agents--the agent acting on behalf of the patient. Now you are--you know, someone had a plan but who acts on their behalf? When you got a problem, you call Blue Cross/Blue Shield and you think they are going to act on your behalf? They are not going to act on your behalf because nobody has a financial interest in acting on your behalf. So that was the real problem with the ACA that won't be dealt with, you know, if you just increase the number of navigators. But, you know, Maryland is one of those state-run plans and I agree the state-run plans have not all seen increases, even though we advertise heavily in Maryland. Fact of the matter is that from 2016 to 2017--I am sorry, 2017 and 2018 we were down 2.6 percent in enrollment despite advertising. Now with the reinsurance bringing down the premiums now we are going to see whether it is advertising or actually making a more consumer-friendly product that is really going to be the--be the determinant. And because, you know, I basically believe in federalism there is certainly nothing--and correct me if I am wrong, Mr. Peck--there is nothing that stops a state from picking up the federal role and advertising the exchange. Is that right? I mean, a state could do it. They don't--where they have a state-run exchange, right? So and there is a reason I am asking the question because, you see, I am already paying for advertising in Maryland. Why should I support advertising in some state that chooses not to advertise? See the question? So nothing stops a state from advertising the healthcare.gov in their state. Mr. Peck. Funds are one thing that that stops. Mr. Harris. Well, yeah. But funds stop us, too. We actually run under a budget, too. So there is nothing that stops it legally, right? The ACA doesn't say a state cannot advertise healthcare.gov plans. So what you are asking me to do is to not only pay for advertising in my state but to pay for advertising in states that choose not to advertise to their citizens. I got to tell you, I am elected to represent the people in Maryland, one, and if I tell people that I voted not only to pay for advertising in my state but to pay for it in other states that choose not to spend their funds, I wouldn't be in office very long. Let me just bring--Mr. Haislmaier, let me just ask a point about the appropriateness of that population--Medicaid expansion--I am sorry, the ACA-subsidized population. Because one thing that has always bothered me, you know, if you create a high-risk pooling mechanism specifically and the state runs it, you can kind of direct it to perform intensive disease management because the way it is now you go on the ACA marketplace you are just buying a commercial policy, and that commercial policy may or may not make disease management as an essential part of that policy. Now, Medicaid in Maryland makes disease management an essential part of Medicaid coverage and if we really want to get costs down, because Mr. Haislmaier said 5 percent of people have, you know, this serious illness--they are the ones that consume a huge amount of money--and the data shows pretty clearly that intensive disease management actually works very well at bringing down the cost for that most expensive part of the population. So is that--I mean, is that kind of what you are indicating how we should tailor--we should look at what that population needs and when we are--when we, the taxpayers, are paying the bill we should insist on the most efficient way of dealing with them, which is good for the--it is win-win. Disease management is good for the patient, good for the taxpayer. Mr. Haislmaier. Yeah. I see evidence that the market is sorting itself out in that direction. One of the interesting things about the insurers going in and out of the exchange is, you know, the big brand name insurers like the Aetnas, Uniteds, Humanas, they are gone. They are not coming back, and the reason is this is a really small piece of their business. Their business is elsewhere. You know, and Cigna--I mean, 80 percent of Cigna is self-insured employer plans like mine. The ones that are going into the exchange--and it is interesting, this year when we saw a number of expansions in states, there are two kinds. One is the sort of more disease management focus--Medicaid managed care insurers. The other kind that we have seen a growth of is the local insurer that is vertically integrated with the hospital system and those are the ones that have gone in. So, yeah, they recognized, I think, sort of what the population is and what they need to do and some insurers are better at that than others and the ones that are better at it, you know, don't lose money and they stay in the marketplace where they actually expand their footprint. So I think you are seeing some signs of that happening already. Mr. Harris. Good. Thank you. Thank you, Madam Chair. Ms. DeLauro. Thank you. What we will do from here is I am going to--I know the ranking member has an additional question. I have an additional question and then I will sum up and then we will bring the hearing to a halt. Mr. Cole. Thank you very much, Madam Chair. And Dr.--Mr. Haislmaier, I want to go back and give you a little more time because I want to focus in again on this population that is not getting subsidized care, that is sort of just above the line, and that is where I think all of us get most of the concerns that we hear from. I have often used the line, look, there is no question in my mind that ACA has helped millions of people. But it has cost millions of people a lot, too. So it is that population. Nobody is trying to take anything from the people that it is helping. It is just how do we do--if you have some suggestions, what would make a difference for that family that is just above--you know, not going to get a subsidy. But they have seen their rates skyrocket. They have seen their deductibles go up and they are really the ones caught in the vice here and, you know, what I haven't seen is much in the way--and, again, I don't pretend to be an expert in this area, but I haven't seen a lot in the way of suggestions. What do we do to help that population so that this stays affordable? What are the kinds of changes? Because we are not going to repeal the ACA anytime soon. So but what would be the sorts of things that would help us reach that population and make sure that health care is affordable for them? Mr. Haislmaier. Well, this is where the experience with other states and the 1332 waivers comes in because, essentially, as I mentioned, what they are doing is they are shifting more of the available subsidy dollars to focusing those on the people with the greatest need. They are also putting in some of their own dollars, by the way. I mean, Maryland, for example, is putting in some of its own dollars. What they are able to do is to concentrate the assistance on where it is needed most and then bring down the premiums who are low income. If you think about it, if--you know, if you put somebody on who has low income and is healthy but the government is paying 100 percent of the premium or 90 percent or 95 percent of the premium, we now have free bronze plans for those people because of the silver loading so it could be 100 percent of the premium. And then that person doesn't use the coverage but those dollars go to subsidize somebody with a major medical condition, well, why go through that rigmarole when you just subsidize the person with the major medical condition and let the other person buy with their own money something much cheaper? So that is kind of what is going on with the 1332 waivers that states have looked at. Now, the advantage of this is states are doing it differently. I mean, most--of the state applications, seven of them, including Oklahoma's, were on a dollar basis. Alaska is interesting, as they do it on a condition basis--a medical condition basis. So, you know, some states might do one way, some states the other. Mr. Cole. Is that something we would need to work on legislatively or is this just something that the market is figuring out? Mr. Haislmaier. Well, this is something the Trump administration is trying to--and this was the Trump administration's guidance is to give them more flexibility on doing this and ways around that. And, again, I think part of this is waking up to the reality and facing the reality that you really have two different markets here and it is not horrible that you would treat them differently. In fact, it is probably a good thing to treat them differently. Mr. Cole. Thank you very much. Thank you, Madam Chair. Ms. DeLauro. Thank you very much. What I want to do is if I can, before I--so I will wind up actually with two questions. I would like to ask Dr. Aron-Dine if you could briefly address Congressman Cole's question about what the next steps might be. Ms. Aron-Dine. Yes. Thank you. And if you don't mind, can I just say a word about premiums because that has been sort of a central issue in this hearing. Ms. DeLauro. Go for it. Ms. Aron-Dine. So I just want to share one fact, which is that in 2017, which is before Trump administration policies that raised premiums, but after premiums came in line with cost for insurers, so after insurers were basically sustainably priced, premiums in the ACA marketplaces were, roughly, in line with premiums for comparable employer coverage. That is according to an Urban Institute study, taking into account the full cost of employer coverage, the part the employee pays out of pocket and the part that their employer is paying. I think that is really important. Not to say that 2017 premiums were affordable for unsubsidized people. But I think it helps us focus on what the challenge actually is, and the challenge is that health care is expensive, not that there is some particular flaw in the ACA marketplaces. Now, the individual market used to sort of mask that fact because since sick people couldn't get coverage and since lots of benefits were carved out, that makes health insurance seem a lot cheaper and so individual market premiums used to look cheaper. But they weren't really delivering better value. They were just shutting some people out of care altogether. Short-term plans and some of the other administration actions take us back in the direction of that pre-ACA market. I think the better place to go to help the unsubsidized people would be first to reverse administration actions that have raised sticker price premiums like short-term plans; second, of course, to keep working to reduce system wide health care costs. But then the third option is just to address some of the gaps in the ACA subsidy structure. One way to do that is reinsurance. I think a better and more targeted way to do that would just be to make premium tax credits available to people above 400 percent of the poverty line so that they also didn't have to pay more than 10 percent of their income for health insurance. And that may seem like an impossible or too expensive proposal. Rand actually analyzed it and found that it would cost $5,000,000,000 a year. CBO, I imagine, would estimate a somewhat higher cost. But for context, the administration estimates that the short-term plans rule is costing about $3,000,000,000 a year. So these are not giant unaffordable policies. This is a realistic way to plug some of those gaps rather than doing it in a way that benefits healthy people only at the expense of sick people. Ms. DeLauro. Thank you. I just want to try to wrap up. The ACA and putting an end to annual and lifetime limits on care---- Mr. Morley. Yes. Ms. DeLauro [continuing]. For someone like yourself. Mr. Morley. Yes. Ms. DeLauro. I am a cancer survivor. What would happen if the health plans would return to those lifetime--annual and lifetime limits? Mr. Morley. Well, I am going to answer your question but I also wanted to--I want to address something after that as well, if that is okay. Something that was brought up earlier. In the short answer is over the last 10 years I have amassed 5 to 10 million in claims. I lost track. I would--I mean, I have-- between lupus and the cancers I have had, the spinal surgeries, I would not be testifying before you right now, and that is the short answer. What I really want to speak about is I want to enter the testimony of a friend of mine named Mina Schultz because I think what has been overlooked here today is the fact that one of the things that the Affordable Care Act has given us is coverage under parents' plan until age 26. My friend, Mina Schultz, developed osteosarcoma when she was 24 years old and she was a graduate student and thought she was one of those healthy people who didn't need insurance, and her mother said, hey, there is this new thing called the ACA and I can cover you under my plan. So she did, and because she did her life was saved because she got the care that she needed and she is here today, and it changed her whole life. She just got her Master's--her MPH and she also was an assister in West Virginia and she helped thousands of people. And there are people in West Virginia who do need that help and there are people in many states who need help navigating the ACA. And whether it is the ACA, whether it is Medicaid, whether it is Medicare, any help is always appreciated. I mean, there are lots of nonprofits that are set up that are not funded by the government that help these people. But she happened to be part of--she was an assister in West Virginia and not only did she--not only was her life spared because of the ACA, not only did it change the course of her life, but she has helped many people save their own lives, and I thought it needed to be heard. Ms. DeLauro. Let me just, before I just--we conclude, I think it has been a very good discussion and I appreciate everyone's testimony and everyone's point of view. I think this is the way we need to move forward in terms of making a determination of how we address the cost of health care and the access to health care. And I think that the issue does stem around a cost and the increases that people are facing--those families that Congressman Cole spoke about. But I think, overall, we are looking at a time here where we are now seeing that costs are increasing. The level of people who are uninsured is increasing and we are looking at diminishing the benefits. We can call them essential or we can call them whatever we want to call them, but the benefits that people need in order to survive and thereby just tampering with the kind of quality of care that we need to try to achieve. I also believe that--concerning the costs that we have heard different points of view. But I think that we have to look at what in fact was happening before the Affordable Care Act, what happened with the Affordable Care Act, and that bending of that cost curve, seeing the drop in people who were uninsured, and now we are seeing absolutely the opposite. And one has to take a very, very hard look at what the administration's policies have been over these last several years in being a driver of increased costs when you take a look at the cost share reduction payments, when you take a look at the individual mandate, when you take a look at what has happened with enrollment and outreach and advertising and getting more people into the thing. You look at waivers and where it is going and what kinds of policies are looking to in fact do what the president said on his first day was to maximize within the confines of the law any way to look at dismantling the Affordable Care Act. That is not the goal of this committee. This committee is to take a look at how we can provide access to health care. So we have got to take a look at those policies that have increased cost and weaken benefits and move forward to look at how we reduce costs for families. We need to look at, in my view, how we want to achieve universal health care and let us stop moving backward and start to work together to ensure every American has access to affordable health care. And with that, I am going to draw this hearing to a close. Thank you all very, very much. Wednesday, February 27, 2019. REVIEWING THE ADMINISTRATION'S UNACCOMPANIED CHILDREN PROGRAM WITNESSES JONATHAN MULLIGAN, CLINICAL FELLOW, UC DAVIS SCHOOL OF LAW--IMMIGRATION LAW CLINIC JENNIFER PODKUL, SENIOR DIRECTOR OF ADVOCACY AND POLICY, KIDS IN NEED OF DEFENSE MICHELLE BRANE, DIRECTOR OF MIGRANT RIGHTS AND JUSTICE PROGRAM, WOMEN'S REFUGEE COMMISSION ANDREW ARTHUR, RESIDENT FELLOW IN LAW AND POLICY, CENTER FOR IMMIGRATION STUDIES ALTHA J. STEWART, M.D., PRESIDENT, AMERICAN PSYCHIATRIC ASSOCIATION Ms. DeLauro. The subcommittee will come to order. Let me just say good morning to everyone, and we would like to welcome you to the Labor, HHS, and Education Appropriations Subcommittee, the oversight hearing on Reviewing the Trump Administration's Unaccompanied Children Program. Before I start my opening remarks, I want to just make sure that we are all working from the same set of facts, which is up in this chart. It is a little small in type, but you may have in front of you a copy of what I am about to say. So as I say, before I start the opening remarks, I was struck by a timeline that KIND assembled to highlight the way the administration has systematically targeted and dismantled protections for children. You will see it up on the screen. I do not think my colleagues are familiar with the timeline. So let me just walk through quickly some of the major elements. March 2017, only 2 months after being in office, the administration publicly discussed separating parents and children as a means of deterring future asylum-seeking children. June 2017, ICE began to target the parents and relatives who came forward to sponsor unaccompanied children. June 2017, Customs and Border Patrol began a pilot of a ``zero-tolerance'' family separation policy. November 2018, the administration terminated the Central American Minors Program. April 2018, ORR finalized a memorandum of agreement with ICE to conduct background checks on potential sponsors of unaccompanied children, including fingerprinting all members of a sponsor's household. May 2018, the Attorney General announced a new official policy to refer all immigrants that were apprehended at the border for criminal charges and to transfer children to HHS custody as unaccompanied children, which led to thousands of children being taken away from their parents. June 2018, the administration opened influx shelters at Homestead and Tornillo. At its height, Tornillo held nearly 3,000 children, while Homestead is currently at 1,600 and has a plan to reach 2,350. By December 2018, the Unaccompanied Children Program had nearly 15,000 children in custody, an all-time high. I share that before I begin the opening remarks because I think it is important to provide an overall framework for the discussion. That way, we understand the scope and the breadth of the administration's actions that are causing harm to unaccompanied children. So, with that, let me just welcome again everyone, and let me just say a thank you to our panelists here this morning. We have J.J. Mulligan of the UC Davis School of Law Immigration Law Clinic, Jennifer Podkul of Kids in Need of Defense, Michelle Brane of the Women's Refugee Commission, Andrew Arthur of the Center for Immigration Studies, and Dr. Alta J. Stewart of the American Psychiatric Association. I will do a brief introduction for each of the panelists before your oral presentations. Thank you so much for offering your testimony this morning and for helping us to identify both the root of the problem and the solutions that we need to be advancing. This morning, we are here to fulfill this committee's oversight responsibility, demanding accountability. That is one of the core components of our work here. The American people deserve answers and actions, not evasion and excuses. There was late-breaking news yesterday about the instances of sexual abuse with regards to unaccompanied children, and all the more reason that--we need to have the ability to look into this. Today, we are here to examine the impact of the administration's policies with respect to unaccompanied children. My view, intentional policies, but in the words of our witness Michelle Brane, and I quote, that are ``exposing children in Government custody to lasting and to irreparable harm.'' This is the question before us, and this ought to be the question that we need to ask ourselves. And I say that with maybe some scripture, et cetera. We need to look into our souls on this issue. Are the actions of the administration producing Government-sanctioned child abuse? And I think that is something that we have to take a look at. For the last 2 years, senior officials in this administration have twisted and perverted the mission of the Department of Health and Human Services, specifically its Unaccompanied Children Program. Statute requires the Office of Refugee Resettlement to ``promptly place children in the least restrictive setting that is in the best interests of the child.'' They are responsible for reunifying them with parents or family in the U.S. as soon as possible. Executing this lawful mission has not been this administration's approach, however. Instead, it has attempted to turn Health and Human Services into an immigration enforcement agency. This is not about administrative agencies going above and beyond to ensure the law is upheld, but it is about senior officials in this administration turning suffering children and overwhelmed caseworkers into pawns in the administration's immigration deterrence policy. And as we know, based on legal precedent, that separation as deterrence policy is illegal. We requested the testimony today of two senior HHS officials who were in charge during the start and execution of the administration's family separation policy. That is the former Acting Assistant Secretary of the Administration for Children and Families and the former Director of the Office of Refugee Resettlement. We wanted to ask them key questions because my colleagues on both sides of the aisle need to assess the treatment of unaccompanied children, the effect of the family separation policy, the costs, and so much more. Unfortunately, the administration declined to make these senior officials available, but we will continue to press for them to appear before the subcommittee. So, yes, we will hold future hearings. We need to question those who directly implemented this policy. As we know, the administration intentionally separated thousands of children from their parents, and just last month, we learned from the Inspector General that the Trump administration's family separation policy began much sooner, as soon as 2017, with the result that thousands more children were separated. And what we are going to do is to demand a full accounting of these children from the administration. Family separation is only one element of this administration's ongoing sustained abuse of these children. As our witnesses can attest, this administration did not prioritize the health and safety of the children in our care. Instead, through a memorandum of agreement, the administration directed HHS to collect immigration information for ICE, which forced tens of thousands of children to spend additional weeks, sometimes months, in Federal custody rather than in safe, supportive homes with family members. What was the result? The average length of time each child spent in Federal custody nearly tripled, from about 35 days during the Obama administration to 60 days last year, to almost 90 days this year. One of today's witnesses, J.J. Mulligan, met several children who had been detained at the Homestead influx facility for over 7 months. As children spent additional weeks and months in Federal custody, the overall number of children in the system swelled to nearly 15,000 in December, a record number. As a result, HHS began to move thousands of children to overflow facilities, or influx shelters. These are under protected, nonpermanent facilities. Since they are on Federal property, they are not licensed by the States, which are normally tasked with overseeing safety and security standards. The 1997 Flores settlement sets national standards for the detention of vulnerable children, and yet, as our witnesses can attest, there have been many instances of violation of Flores. We know of two such influx facilities. The administration detained as many as 2,800 children at Tornillo, again for potentially months at a time. However, there was no education program, and for an alarming period of time, there was not adequate background checks or fingerprinting being conducted on the staff. They had an insufficient number of mental health personnel. Despite this, the administration offered a no-bid contract worth up to $1,000,000,000 to the site operator that would expand Tornillo to 4,000 children--$1,000,000,000. We shined a light on the conditions and the standards at Tornillo, and it has now closed. And I look to my colleague Congresswoman Lucille Roybal-Allard and her efforts in this effort. Yet there are 1,600 children in Homestead, Florida, today that cost taxpayers $775 per child per day for children to stay there. So with the average length of stay around 70 days, this temporary holding facility is costing taxpayers $55,000 per child. Influx shelters and costs will be the subject of a future hearing. Where is the money going? To whom is it going? How much is being wasted? This is why this matters. By law, the administration should be quickly placing children in safe, supportive homes with family members, and HHS's role is to do what is best for the children. Instead, as part of an anti-immigration push, the administration is trying to turn HHS into an extension of ICE, leaving children languishing in Federal custody to their detriment, and they are willing to spend $1,000,000,000 to do it. Studies have repeatedly shown that prolonged detention inflicts serious mental trauma, depression, anxiety, post- traumatic stress disorder, developmental delays, and compounds trauma experience in the home countries, including trauma from gang violence or sexual violence. Now the administration is asking for an additional $220,000,000 for this program. There has been no accountability with the use of these funds. It cannot go on as it currently is. That really is unacceptable. What we have to do is to understand how this happened, why it happened. Who was responsible? What is happening now? What has been the impact on our children? What are its long-term consequences, including mental health and trauma? How do we stop this? How do we fix it, and what resources are necessary? I am happy and I think people on this subcommittee would be happy to provide resources. What we cannot do is condone the policies that put children at grave risk at considerable cost to taxpayers. We cannot throw good dollars after bad. And of course, the failures of this administration as they relate to the Unaccompanied Children Program are not because of an unprecedent surge of children. In fact, the number of unaccompanied children referred to ORR was higher in the Obama administration. 2016, 59,000 children. 2018, 50,000 children. The failures and the trauma we are seeing are a result of this administration's cruel policies. Let me quote Michelle Brane, one of our panelists this morning. ``It is a crisis at the border. It is a crisis of policy.'' And I add this in my own words that this is a manufactured crisis. As the Congress, we have an obligation to ensure the executive branch is fully and faithfully upholding the law of the land. Turning HHS into an immigration enforcement agency and inflicting harm on scared children is neither of those. What happened and what continues to happen is inexcusable. It is indefensible. I am committed to uncovering the truth, but what is more important, what are we going to do about it? I am grateful for the solutions and the recommendations that our panelists have offered. We look forward to working with you, and we look forward to your testimony. Let me now turn this over to my good friend from Oklahoma, the ranking member of the subcommittee, Mr. Cole, for any opening remarks that he cares to make. And I also want to welcome the ranking member of our full committee, Congresswoman Kay Granger of Texas. Thanks for being here this morning. Mr. Cole. Thank you very much, Madam Chair. And I want to first begin by thanking you for, one, holding the brief that we had with the Inspector General last week, which was very helpful--or 2 weeks ago, I suppose now, and for holding this hearing. I think it is an important subject, and I think you are to be commended for bringing it up. You will forgive me if I disagree a little on your timeline because I would start mine in 2014, not 2017. This isn't a new problem, and you mentioned the--and I agree with you, by the way, the inexcusable problems that we had in terms of sexual assaults at centers. The majority of those actually occurred under the last administration, not this one. And I will submit this for the record. Frankly, and it is sad to say, and this would be lack of supervision. Most of them obviously were by other minors that were there themselves, not by members of the staff or caregivers. That was true under President Obama. It is certainly true today under President Trump. So I think we have got a serious problem here that has been festering for a long time, not somehow magically arrived in the last 18 months. I want to thank, too, all of you that are here for the hearing. I read your testimony last night, and it is heartbreaking and compelling and interesting. And I think, you know, in your very different roles really showed a lot of the complexity of the problem that we have got in front of us, and it is going to take some real serious work to try and get this situation to one that we can all find acceptable. Today, we have an outside witness panel to discuss the oversight over the Unaccompanied Alien Children Program operated by the Administration for Children and Families, an agency under the Department of Health and Human Services. I want to start by saying again I take our congressional responsibilities of oversight seriously. Congress' primary function is to serve as the branch of Government responsible for writing and passing legislation, and understanding how the executive branch is implementing that legislation is critical to fulfilling our constitutional duties under Article I. And I want to add parenthetically, I certainly agree with you about the separation of families. That was something I actually condemned at the time and glad to see the administration, I think under public pressure, quite frankly, backed off on. When people think of this subcommittee, they often think of biomedical research, support for public schools, or job programs. Responsibility for the care of unaccompanied children is relatively new. This duty came to HHS as part of the Homeland Security Act of 2002. Federal law requires the Department of Homeland Security transfer to HHS any unauthorized minor not accompanied by a parent or legal guardian. The legal requirement means that when Customs and Border Protection or Immigration and Customs Enforcement apprehend a minor with an uncle, an aunt, a grandmother, grandfather, an older brother or sister, the law defines that minor as unaccompanied and requires the transfer of that child to HHS. HHS and the Office of Refugee Resettlement, which oversees the Unaccompanied Alien Children Program, does not separate children from parents. Let me repeat that. HHS does not separate children from their parents and has not done so in the past. HHS is only responsible for the care of children who are unaccompanied, and this is a statutory responsibility given to them by Congress. I think it is obvious to everyone here that there are significant disagreements between the President and the House majority on matters pertaining to immigration policy. I know my Democratic colleagues are concerned about the administration's actions in this area, and I share in many cases those concerns. But disagreements over the interpretation or implementation of immigration policy frankly falls squarely under the Departments of Justice or Homeland Security. These policy discussions are largely outside the scope of this subcommittee. In 2014, President Barack Obama requested a supplemental appropriation to address ``the urgent humanitarian situation on the Southwest border.'' He went on to request ``a sustained border security surge.'' This year, HHS made that request--the year HHS made that request, 2014, HHS cared for over 57,000 unaccompanied children, an unprecedented number, because I dealt with it as chairman of this committee and trying to make sure that the funds were available. In 2018, last year, the Trump administration cared for nearly 50,000 children. His administration inherited a humanitarian crisis on the Southern border. Numerous reports by the Office of Inspector General have highlighted the challenges administering this program, and these reports have documented concerns under both President Obama and President Trump. I believe oversight is necessary to ensure the program continues to care for children in accordance with the law. Last year, as chairman, I accepted over half of all amendments offered by the minority to address oversight and reporting concerns regarding Unaccompanied Alien Children Program. I continue to work closely with the chair to ensure the final appropriation for fiscal year 2019 addressed those provisions from the House bill and report, and I appreciate the opportunity to evaluate this program through our oversight role as appropriators. Again, I would like to thank our witnesses for being here today, and I yield back the balance of my time, Madam Chairman. Ms. DeLauro. Thank you very much, Congressman Cole. And it is a pleasure to really--once again to welcome the ranking member of the full Appropriations Committee, Congresswoman Kay Granger of Texas. Ms. Granger. Thank you very much. I would like to thank Chairwoman DeLauro and Ranking Member Cole, who also serves as the vice ranking member for the full committee, for holding this hearing today. The treatment of children entering our country unaccompanied by an adult is one that concerns everyone in this room. I have been engaged on this issue since 2014 when our country experienced a really unprecedented surge in the number of unaccompanied children, mostly teenagers, coming across our Southern border. At the time, I was chair of the State and Foreign Operations Subcommittee, and the Speaker of the House asked me to lead a congressional task force to identify the root causes of the problem and recommend solutions. We took several trips to the Southern border, as well as to countries in Central America to talk to their leaders firsthand. Our recommendation at that time was that we should keep these children near the border, determine where they came from, and try to reconnect them with their families. We didn't recommend sending them all across the United States in the care of sponsors. We wanted them reunited with their families as soon as possible. Unfortunately, the violence and hopelessness driving parents to send their children on the dangerous journey to the United States has not disappeared since then, but it also did not begin with this administration. The number of border crossings by Central American youth continues to create tremendous challenges for both border enforcement officials and the Department of Health and Human Services, who have the responsibility for caring for most of the children after they enter the country. It is unfortunate that our Government has not always done right by these children. For example, we learned that officials in the previous administration placed children with sponsors in Central Ohio who were later discovered to be human traffickers using forced child labor. This is terrible. We must work together, all of us, to ensure that every child placed in the custody of the United States Government is treated humanely and with compassion. This hearing should be an opportunity for us to learn the facts, get the data, and help improve program operations in order to better protect our children. We have proven that we can work across the aisle on difficult situations and issues. I know we continue to rise above our partisan divisions, and when we do, we solve most of the difficult problems facing our country. I look forward to hearing from the witnesses today--all of you experience this firsthand--and working with members of the subcommittee on this very important issue. Thank you. I yield back. Ms. DeLauro. Thank you very, very much. Let me again thank our panelists, and let me just do some introductions. J.J. Mulligan is a clinical fellow at the Immigration Law Clinic at UC Davis School of Law; Fulbright Scholar at the University of Granada in Spain, focusing on unaccompanied minors crossing the Mediterranean; and is the author of No Human is Illegal: An Attorney on the Front Lines of the Immigration War. Jennifer Podkul, senior director of advocacy and policy for KIND, Kids in Need of Defense. She is a national expert on issues affecting immigrant children and has published numerous articles, handbooks, and reports on U.S. immigration law. Michelle Brane is director of the Migrant Rights and Justice Program at the Women's Refugee Commission. She is an expert on U.S. asylum protections and detention policies for migrants and in 2012 won the Daniel Levy Memorial Award for Outstanding Achievement in Immigration Law. Andrew Arthur is a resident fellow in law and policy at the Center for Immigration Studies. Before that, he served as an immigration judge at the York Immigration Court in York, Pennsylvania, and served as senior staff for multiple congressional committees. And Dr. Alta Stewart is president of the American Psychiatric Association. Dr. Stewart is an associate professor of psychiatry and director of the Center for Health and Justice involved at the University of Tennessee Health Science Center. Again, thank you all for being here, and we will start with our first witness, J.J. Mulligan. Your full written testimony will be included in the record. You are now recognized for 5 minutes for your opening statement. Thank you. Mr. Mulligan. Chairwoman DeLauro and Ranking Member Cole and members of the committee, thank you for the opportunity to testify before the subcommittee today. I am the clinical fellow at UC Davis School of Law's Immigration Law Clinic, and I am honored to be here. As part of Flores counsel's legal team, we have been granted access to any and all facilities where children are detained. This is important because congressional and media tours of detention facilities rarely reveal the full story. As our co-counsel through National Center for Youth Law Leecia Welch put it, ``We see a very different picture. We see extremely traumatized children, some of whom sit across from us and can't stop crying over what they are experiencing.'' This distinctive insight we obtain is the difference between believing a detention center is a ``summer camp'' and knowing that it is a house of horrors. Throughout the course of these visits to facilities, we have uncovered numerous violations of the Flores settlement agreement through our countless conversations with detained immigrant children. The children also described policies that prolong their detention. These misguided policies that have rapidly expanded the population of detained immigration children, which swelled to a record of 15,000 in late 2018, before a policy change only requiring the fingerprints of the sponsor and not everyone in the home resulted in more than 4,000 children being released from ORR custody within a span of 4 weeks, the largest decrease in the program's history. The change in policy also displayed a clear causal link to ORR policy. Once fingerprints for every household member were no longer required, the Tornillo influx facility was no longer needed and promptly closed. For the unaccompanied minors that we speak with, these are children that have suffered intense trauma and abuse either in their home countries, on the journey here, or both. This is a population that has much in common with the forced child soldiers of civil wars past across the globe, and the Federal Government is responding to their PTSD with steel cages, causing them to act out until they are detained under even harsher conditions, creating a continuum of trauma that these children are ill-equipped to endure. One child told us he was waiting to be reunited with his mother. ``My mom has done everything the Government has asked her to do. My case manager has told me that they are waiting on the fingerprints for my brother to clear because he lives with my mother. It has been a month since the fingerprinting was done.'' A mother told us that her son's caseworker ``kept asking me for more and more documents. Among them, files from doctors to verify that my cancer would not hinder me from taking care of my son. These caused me great sorrow, and they did not seem necessary to have my son. I believe that a mother has the right to take care of her child even though she is incapacitated, although I am not. It occurred to me that they were looking for an excuse to deny me my son.'' In addition to these examples, we have heard from sponsors who were told that children will not be released to their care unless they comply with the following requirements--that they move to a different neighborhood, move to a larger apartment or house, reduce the total number of children living in the house, or produce a photo establishing a prior relationship with the child, despite the fact that many families do not have access to this technology. There is also the memorandum of agreement, which Chairman DeLauro mentioned, between ICE, CBP, and ORR, which provides for the information collected by ORR on potential sponsors to be shared with ICE. This had a chilling effect on sponsors and has serious consequences. I spoke with one youth detained at Homestead whose father was picked up by ICE shortly after being fingerprinted by ORR and whose detention was being prolonged by his father's own ICE detention. I cannot stress enough the courage and selflessness that it takes for an undocumented immigrant to submit to fingerprinting under this administration. In response to its inability to release children to their family members, ORR has established unlicensed temporary ``influx shelters,'' first in Tornillo, Texas, and now in Homestead, Florida. These facilities have held thousands of children. At Homestead, the facility director has told us that capacity there will be 2,350, even though some rooms that we visited already held over 200 children in the same room. Both Tornillo and Homestead are unlicensed facilities that do not meet the standards of care in the States where they are located, nor do they comply with the Flores settlement agreement. These include the failure to perform basic background checks on facility staff, at times leading to cases of sexual abuse, as we learned yesterday. The harm to children, first at Tornillo and now at Homestead, goes further and includes the denial of basic freedoms and the human contact vital to developing children. The treatment of detained immigrant youth at these facilities is not an issue of immigration law or policy, but of human dignity. Deterrence by mistreatment should no longer be the leading immigration policy of this administration. The children I interviewed at Homestead commented on their inability to have any freedom of movement. All youth, including 17-year-olds, have to get escorted to the bathroom. Youth move throughout the campus walking in single-file, military-style lines led by a youth care worker. A girl at Homestead told us, ``I also get huge headaches because I don't feel like I can cry here. I wish I could cry here, but I can't cry comfortably. I have to hold my tears because, if not, they send me to the clinician. I don't want to go to the clinician because they don't want to help my case. I also want to hug my girlfriends when they are crying, but staff won't let me.'' Previous court rulings interpreting the Flores settlement have set the grace period for detaining children in unlicensed facilities at 20 days. According to ORR, the average length of detention at Homestead is 69 days, and as Chairman DeLauro mentioned, I spoke with multiple youth who have been at Homestead for over 7 months. Unlike someone in the criminal justice system who will usually know the length of their sentence and can ``do their time,'' immigrant children detained by ORR have been told they will be released in next week, and that was 3 months ago. The harmful practice of detaining children in huge unlicensed facilities could be ended if ORR would simply abide by the Flores agreement and release children to sponsors without unnecessary delay. The constant calls to revoke the Flores agreement by those within the Trump Administration in order to ``protect children'' are misplaced and disingenuous. We would not tell a soldier in battle that they are safer without armor. The Flores settlement agreement plays a critical role in protecting the safety and welfare of unaccompanied children in Federal immigration custody. While Flores counsel and other legal organizations will continue to investigate conditions of confinement and bring actions to enforce the letter and spirit of the Flores agreement, we urge Congress and it is vital that Congress play its role to ensure that the Government of the United States lives up to its legal and moral obligations to the children in its care. Thank you. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you. The second witness is Jennifer Podkul. Ms. Podkul, you are now recognized for 5 minutes for your opening statement. Ms. Podkul. Thank you, Chairwoman DeLauro, Ranking Member Cole, and members of the subcommittee. I am grateful for your invitation today. I am here to represent Kids in Need of Defense, a national organization dedicated to promoting the rights of child migrants and ensuring that every child has access to high- quality legal representation. KIND serves both children who are in the custody of ORR, as well as children who have been released and reunified with a sponsor while they are going through their immigration process. KIND attorneys work to help children, children who have undergone unimaginable horrors, to explain heartbreakingly difficult and complex stories. They work to gain the trust of children who have been hurt by adults in their country of origin or even at the hands of our own law enforcement agents. Many children have suffered in detention, and some have been separated from the only caregivers they have ever known. This has always been a difficult job, but it has only gotten harder over the last 2 years by changes affecting the way our Government is processing these children. Despite the detention and removal process already being incredibly complex and adversarial, the administration has implemented policies that make it harder for children to be able to tell their stories. Among these is a memorandum of agreement between ORR and DHS that enables the agencies to use information about potential sponsors for immigration enforcement. This policy has led to significant delays in the release of children from ORR and the administration's increased use of large-scale and costly influx facilities. Our Government should be working to find ways to make the process more fair, less expensive, and more efficient. Instead, it is stacking the deck against these children. This does not make our country more safe, it does not make our justice system work better, and it does not further any enforcement goals. These policies not only harm children, but they limit our Government's ability to efficiently and fairly decide which children are in need of humanitarian protection and which children may safely return home. KIND recently represented an 8-year-old. His reunification was needlessly delayed by ORR. The child began engaging in self-harm, and he asked to be returned to his country of origin out of desperation because of the prolonged detention despite his mother's insistence that it was not safe for him to go back. In another case, a KIND attorney watched a 16-year-old girl give up her strong asylum application because she was not able to access an attorney in Tornillo, and she had no reunification option. To stop tragic stories like this and to fulfill its obligation to serve the best interests of unaccompanied children in its care, ORR must immediately end the MOA with DHS to stop sharing status information about potential sponsors for the purposes of immigration enforcement. ORR should focus on finding the best sponsor for a child who will provide a safe home and support that child during the removal proceedings. Permanently ending the MOA will allow ORR to again prioritize child welfare over immigration enforcement. Secondly, ORR must only rely on emergency influx facilities to house unaccompanied children when it is faced with caring for an unexpected influx. ORR should use permanent, small, and State-licensed facilities to house children only as long as needed to approve an appropriate sponsor. Children must not be held any longer than necessary. Should an emergency present itself, ORR must have public standards for its emergency facilities to ensure the provision of legal, medical, and educational services within a reasonable timeframe. There should also be limits on how long ORR can use an emergency facility. Finally, ORR should prioritize children's access to high- quality legal representation. Children are in ORR custody because of the immigration removal proceedings. Everything possible should be done to ensure that children are fairly--can fairly and efficiently tell their story. Having children represented during the removal proceedings not only helps the children access meaningful due process, but increases efficiency in a sorely overwhelmed system. Child protection must be a priority in the enforcement of our immigration laws. Congress assigned responsibility for the care and custody of unaccompanied children to the Office of Refugee Resettlement because of its expertise in child welfare. The basic tenets of child welfare must be reflected in the agency's policies, and the agency must always act in the best interests of the children. I am happy to answer any questions. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you. Thank you very much. And giving back some time as well, thank you. Michelle Brane. Ms. Brane, you are recognized for 5 minutes for your opening statement. Ms. Brane. Good morning, and thank you for the opportunity to present to you today. The Women's Refugee Commission is a nonprofit organization that works to protect the rights of migrant women and children. As the director of the Migrant Rights and Justice Program, I have monitored dozens of immigration detention facilities and ORR children's facilities and interviewed Government officials, children, detainees, service providers, and asylum seekers about policies, practices, conditions of custody, and access to protection. Over the past 2 years, the administration has focused on deterring migrants, especially children, from seeking protection in the United States. Unfortunately, these policies endanger children. My colleagues here today have told you some tragic and heart-wrenching stories about children in custody. I can tell you those in answer to your questions, but now I am going to focus on two policies that jeopardize children's welfare and have obstructed the ability of the Office of Refugee Resettlement to comply with its responsibilities. The first is family separation, and the second the memorandum of understanding--of agreement that Jennifer referred to. Thousands of children migrate to the United States each year. Most of these children are fleeing horrific violence and abuse. In 2003, the Homeland Security Act transferred custody of unaccompanied children to the Office of Refugee Resettlement with the deliberate intention of separating the care and custody of children from enforcement activities in compliance with our child welfare laws and with the Flores settlement agreement. ORR was designed to care for and reunify children who arrived in the United States unaccompanied. Yet we now know that under the administration's family separation policy, thousands of children who were separated from their parents at the border were transferred to ORR custody. By now you have heard a lot about family separation and the brutal manner in which it has been implemented. There was no coordinated effort to track children who were separated or for how to reunite them afterwards. To this day, the Government is unable to give a total number of the families it separated. In addition to causing trauma, separations put multiple burdens on ORR and affects the safety of all the children in its care. These large numbers of separated children in ORR custody required a sudden and immediate increase in bed space. And despite the reality that this had been discussed for over a year by the administration, ORR was unprepared and opened-- scrambled to accommodate these children. The facilities they went to were inappropriate for children, unlicensed, and temporary in nature. Supposed to be temporary in nature. In 2009, I expressed concern in a review of ORR facilities that they were considering the use of facilities that housed over 100 children. Today, that seems quaint as we see that Homestead is housing--will be housing over 2,000 children, and the recently closed Tornillo held almost 4,000 when it closed. No facility of this size is appropriate for children. Yet Homestead is still not licensed, even though it has been open for over a year. At that point, it is no longer an influx or an emergency, especially since, as the chairwoman already commented, this was a manufactured crisis that they knew was going to lead to the need for additional bed space. The repercussions don't end there. The costs, both financially and in terms of manpower, of this policy were and continue to be exponential. Emergency facilities cost up to $750 a day per child. These are resources that could and should be invested in actual services and appropriate care for children, but they have been wasted because of a bad policy intended to harm children and families. In May 2018, ORR implemented a memorandum of understanding with DHS. As you have heard, the very intent--one of the very objectives of this policy was to identify, detain, and remove adults who come forward to sponsor children. The MOA represents a dramatic change in practice, replacing the best interests of children with immigration enforcement. The Women's Commission conducted a survey that found that, indeed, the MOA has succeeded in frightening parents from coming forward, resulting in longer length of stay and, for some children, permanent lengths of stay or, as Jennifer mentioned, withdrawing of their case out of desperation. The MOA and family separation, like other policies of this administration, are using children as bait and undermine family reunification, a fundamental principle of child welfare law, by turning safe placement screenings into a mechanism for immigration enforcement. This runs counter to Flores. It violates the Trafficking Victims Protection Act. It runs counter to child welfare principles and standards, and it is illegal. It is also against the Government's fiscal interests. Let me be clear. Seeking asylum is legal. Flores and TVPRA are not loopholes. They are policies thoughtfully and carefully considered by the court, child welfare professionals, and a bipartisan Congress, designed to ensure basic child welfare standards in Government custody and to protect children from the risks of trafficking. The MOA and family separation have jeopardized the quality of care and compliance with general child welfare standards and practices and, in doing so, has endangered children. Thank you again for the opportunity to speak to you today, and I can take questions later. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you. Our fourth witness is Andrew Arthur, and Mr. Arthur, you are recognized for 5 minutes for your opening statement. Judge Arthur. Thank you. Chairman DeLauro, Ranking Member Cole, and members of the subcommittee, thank you for inviting me to appear today. The demographics of migrants apprehended at the Southwest border has changed significantly over recent years, and it is important to understand that in the context of this hearing. Before fiscal year 2011, 90 percent of all apprehended migrants at the border were single males, mostly male and mostly nationals of Mexico. In just the first 4 months of fiscal year 2019, on the other hand, just less than 60 percent of all apprehended migrants were UACs or aliens traveling in family units, mostly from the so-called Northern Triangle countries of Central America, or NTCA. That is El Salvador, Guatemala, and Honduras. And despite claims to the contrary, the numbers are increasing, with UACs up 40 percent in the first 4 months of fiscal year 2019 compared to a year before, according to Customs and Border Protection, and family units up 290 percent. This has created three resource issues for the U.S. Border Patrol, or USBP. First, Border Patrol processing centers were built to accommodate single adult males, not minors or families traveling with children. The recent influx has strained the physical plant available for processing as groups must be kept separated, especially UACs from unrelated adults. Border Patrol attempts to keep family units together, but space constraints can make that impossible. Second, processing times for family units and UACs from the NTCA are much longer than for Mexican nationals, who could be quickly returned across the border. The relationship between purported parents and children must be established, as must legal guardianship where an adult traveling with the minor is not that minor's parent. Attempts are made to identify family in the United States. In Yuma sector of the Border Patrol, where I traveled late last month, processing times per alien increased from 8 hours in 2005 to, get this, 78 hours in 2018 as a result of these changing demographics. The changing demographics have also increased the cost of care for those migrants. Diapers, formula, food, blankets, and medical care are now staples. Some migrants come into custody sick and injured, some with highly infectious diseases--mumps, measles, resistant tuberculosis. Estimates range as high as $1,200,000,000 this year alone for Border Patrol to provide such humanitarian aid. Further, the journey from the NTCA to the Southwest border is a harrowing one. International smuggling networks from Central America are some of the worst criminal enterprises on the Earth. In 2018, the U.N. put the value of smuggling routes to North America from the Southern border in 2014 to 2015 at between $3,700,000,000 and $4,200,000,000 a year. According to Doctors without Borders, 68.3 percent of those migrants were subjected to violence, and almost one-third of women are sexually abused during that journey. Migrants are at the mercy of smugglers. This does not even account for the physical difficulties of transiting over 1,000 miles, often in hostile desert terrain in the heat without water. Current border policies are intended to deter travel by UACs and families with children because of those hazards. This continues an effort by the Obama administration to dissuade UACs and adults with children from undertaking this dangerous trip. Loopholes in our laws encourage these migrants, however. UACs must be turned over to HHS within 48 hours, usually for release to family in the United States. That is what this hearing is about. This gives an incentive to parents to have their children smuggled into this country by criminals, with the Federal Government a co-conspirator in the smuggling scheme when it delivers those children. Further, even accompanied children must be released within 20 days, Mr. Mulligan will tell you. Migrants know this, and they also know that the U.S. attempts to keep families together, giving those migrants an incentive to bring their children with them to hasten their own release. HHS, which places and finds sponsors for UACs in the United States, faces a daunting task. In fiscal year 2018, it kept UACs in 1 of 100 shelters for an average of 60 days. We discussed that earlier. Most of those UACs were subsequently released to sponsors in the United States. Often their own parents, which is confusing because that appears to be contrary to Section 462 of the Homeland Security Act, but we will discuss that later, I hope. HHS has found suitable sponsors after performing background checks for more than a quarter of a million UACs, as of December 2018. Those UACs are supposed to appear in court, but many don't. In fiscal year 2018, half of all final orders issued for UACs in immigration court, where I serve, were in absentia, meaning the UAC did not appear, twice the in absentia rate for removal cases as a whole. While the total number of in absentias is low compared to the total population of UACs, these numbers are still significant. Thank you for your time, and I look forward to your questions. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very, very much, Mr. Arthur. And let me just have our fifth witness, Dr. Altha Stewart. Dr. Stewart, you are recognized for 5 minutes for your opening statement. Dr. Stewart. Thank you. Chairwoman DeLauro, Ranking Member Cole, and distinguished members of the subcommittee, thank you for inviting me to participate in today's hearing. My name is Dr. Altha Stewart, and my testimony today is on behalf of the American Psychiatric Association, for which I am the current president. The APA was among the first organizations to speak out when it became clear that the zero- tolerance policy would result in widespread separation of children and families. As the physician experts in mental health, we will continue to oppose such family separation policies. From my perspective as a psychiatrist, the APA's position is grounded in an understanding of the brain science that frames the toxic stress caused by these separations. All children separated from family caregivers will experience stress. And according to the work of the Harvard University Center for the Developing Child, the biology that the adversity takes in any individual child is based on three very specific risk factors. First, their age. Younger children are more vulnerable and less able to adapt usually and primarily because of their underdeveloped brain circuitry. Second, the impact of any previous adversity. The piling on or cumulative effect of these types of experiences and traumas shifts the odds away from there being any successful and positive outcome related to their normal development. And finally, the duration of the separation. It is as if there is a ticking clock, and these things increase over time to the point where the child can no longer adapt, adjust, and be able to tolerate the stress. Children depend on their parents or other trusted adults for their comfort, safety, and support. Any forced separation is highly stressful for children and can cause the lifelong trauma, as well as an increased risk of mental illness, such as depression, anxiety, substance use, and post-traumatic stress disorder. As a physician who has dedicated her career to promoting the importance of trauma-informed care, my goal here today is to give you a brief overview of the inherent trauma associated with any forced separation and the potential for lasting negative outcomes. However, for some, the incidence of these traumatic experiences has an even more significant impact on the trajectory of their future life experiences. For children, for example, this impact can be especially profound and usually the result of events over which the child had no control. It is our understanding, as physicians and scientists, that childhood experiences, either good or bad, can determine one's future health status as it relates to a longstanding body of knowledge called Adverse Childhood Experiences. These common examples include physical, sexual, emotional abuse; neglect; and household exposure to a variety of things in parents and caregivers, including incarceration. We also know that children are more susceptible because their brains are still developing. In these situations, although stress may be a common element for all of us in life, when children are exposed to such chronic stress and trauma, their underdeveloped brains remain in a very elevated state, and ultimately, this consistent exposure to this heightened stress and trauma changes their emotional, behavioral, and cognitive functioning. We promote for stress trauma-informed care. It shifts the dialogue from ``What is wrong with you?'' to ``What has happened to you?'' and we do this by first realizing that there is, in fact, something called trauma and understanding how we get from that trauma to a path for recovery. We recognize what the signs and symptoms of trauma are. We respond using the full knowledge that we have of trauma-informed care, this evidence- based practice, so that we can integrate this into our policies, procedures, and practices. And we, most importantly, work to avoid retraumatizing these children. When we fail to incorporate these concepts into the care that we provide for children who are forcibly separated, we are using an outdated approach to addressing the symptoms instead of identifying and addressing the root cause. It is also shortsighted to not embrace the notion that these childhood events are impactful in relation to one's future life experiences. The characterization--and I want to take the opportunity here to note that these are facts that are relevant beyond the specific focus for today's hearing. We need to all ensure that healthcare addressing increasing rates of substance abuse, heightened mental health needs, and criminal justice reform all overlap in the work of this Congress, the administration, an average American, and anyone who seeks to build a better life in this nation. I want to thank you for the opportunity to share these things with you today, and I look forward to answering your questions later. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you all very, very much, and we are really all grateful for your very thoughtful and powerful testimony. We really appreciate the effort in all of your being here. As in the past, what we will do now is proceed to 5-minute rounds, alternating back and forth by seniority as Members were seated at the beginning of the hearing. I would just say, and I have to say this to myself over and over again, we want to be respectful of witnesses, try to give you enough time to respond to questions. And I am told I have to do this housekeeping thing here. To my colleagues, please be sure to turn off your microphone after your remarks. So there we go. Let me just open it up with questions. At the beginning of the hearing, I laid out the timeline of actions taken by the administration to roll back legal protections for children. One of the most egregious actions is the memorandum of agreement between ORR and the Department of Homeland Security. You have demonstrated that the MOA has resulted in children spending additional months in Federal custody, and yet, as HHS finally acknowledged in December, the MOA has not improved the safety of unaccompanied children. For me, it is a crystal-clear example of the administration's effort to keep kids in Federal custody instead of following the law, placing them in the least restrictive setting possible. They may have scaled back fingerprint policy, but in my view, until they rescind the entirety of the MOA and the requirement that HHS share any data with DHS, HHS is still acting as an entity of law enforcement. I am going to read the question. Ms. Brane, can you expand on your remarks about the MOA between ORR and DHS? How did ORR move away from its core mission to care for children and place them with sponsors, instead becoming an extension of ICE? I view this as child abuse but leave you to speak about that. Ms. Podkul, can you talk about the effects on children, specifically effects of being held in Federal custody for prolonged periods that you have encountered in your experience working with kids? Mr. Mulligan, if we can get to you, you have recently worked with kids at Homestead. I would like to hear about what you found in your conversations with children being held there. Does the Flores settlement apply to children at Homestead? Ms. Brane. Ms. Brane. So really quickly, to give my colleagues an opportunity to respond, the memorandum of agreement requires continuous sharing of information that children provide in a private setting without any due process on the part of the child or the parent who may in the end be--bear the consequences of that information sharing. We have seen in a survey that we conducted that it, indeed, did prevent parents from coming forward, and it also led to some parents withdrawing an application for sponsorship. This drives children to either stay, always stay in the ORR custody for longer, sometimes indefinitely throughout their proceedings because nobody else can come forward. Or leads to further, more distant relatives or individuals coming forward to sponsor the child, which also increases risks to that child. And I will say also that while we have seen that effect, the effect of longer detention or custody, we have not seen a decrease in arrivals, right? It has not served as a deterrent because what we have found over and over again is that for people who are fleeing violence, deterrence and discouragement in the form of punishment does not work. Ms. DeLauro. Ms. Podkul. Ms. Podkul. Thank you, Chairwoman. I think, you know, there are two things. I think it affects the child's mental and physical health, which my colleague described so well. But also it really affects the child's ability to move forward with their legal case, right? In some of these facilities, for example, in Tornillo, children were not given attorneys. They didn't have access to attorneys to help represent them in their case. So they couldn't move forward in their case. Prolonged detention has encouraged many children to give up valid claims for protection because of detention fatigue. They can't take it being in detention anymore. And then for some forms of relief, you need to be in a permanent setting, and so they are not able to access, for example, a form of protection called special immigrant juvenile status for children who have been abused, abandoned, or neglected. So it has significant consequences for their physical health as well as their legal case. Ms. DeLauro. J.J. Mr. Mulligan. Yes. So you had two questions. One was what goes on at Homestead? I would like to say that there are some very difficult things that happen there. There are two campuses, the north and south campus. Kids are separated by age from 17-year-olds on the north side and 13 to 16 on the south side. Siblings are separated and can only see each other once a week for an hour and a half. The schools are in tents, where 20 or 30 classrooms all together in one tent. And kids complain about they can't even study because of the noise that goes on. There are so many other things I could share, but I am running out of time on this. As far as the Flores settlement applying in the Homestead facility, it unequivocally does. The Government has said that because it is on Federal land, it does not apply, but it is not exempt simply because of that. Ms. DeLauro. Okay. So it does apply here? Mr. Mulligan. Absolutely. Ms. DeLauro. If you are done, I am just going to yield a second, give a little bit of time to my colleague, Ms. Roybal- Allard, who worked on the Department of Homeland Security bill that recently passed. Ms. Roybal-Allard. Okay. I would just like to point out that in the 2019 Homeland Security bill, in a bipartisan way, we were able to put in language that prohibits ICE from using information provided by the Office of Refugee Resettlement about sponsors or potential sponsors of unaccompanied children to arrest, detain, or remove those individuals unless that information reveals the individual has a dangerous criminal background. So I just wanted you to be aware that we were able to get that language into our bill and hope it--now it is going to be about oversight. Ms. DeLauro. We also referenced in the Labor, HHS bill and the chair at the time, Mr. Cole, accepted the amendment, the committee accepted the amendments. One of them was not to separate siblings so that they could not be in the same facility. So if that continues to happen, that is something that we ought to follow up on. And with that, the ranking member of the committee, Congressman Cole. Mr. Cole. Thank you very much, Madam Chair. If I may, Judge Arthur, in your written testimony, you highlight some of the criminal elements and organizations that participate in trafficking and smuggling across our Southern border. A series of questions, if you would. Just roughly what is the size of the industry? What role do the cartels play? How does immigration policy interact with the criminal element? And do our policies discourage or incentivize the transportation of unaccompanied minors? Judge Arthur. Well, let me start with the cost. Secretary Kirstjen Nielsen last year, I believe in May, talked about $500,000,000, but quite frankly, I think that is a gross underestimation. It is based upon $5,000 per alien from Central America and 100,000 aliens, which just isn't the numbers. As I mentioned, the U.N. had said it is a $3,700,000,000 to $4,200,000,000 a year industry for people coming from the South. That is a huge amount of money. A lot of this is done by small smuggling groups, and in fact, that puts individual migrants in danger because they don't want to cross onto other territory where migrants could pass through more easily. So when I was in Yuma, they were talking about kids being passed under the river, under accordion wire because that was the area of the border they controlled. And these kids would come up lacerated and gasping for breath. And there is no cost to the smugglers because the laws that we have right now, they don't need to enter the United States at all. Thanks to Flores, thanks to TVPRA, thanks to the credible fear standard, they don't need to actually bring these folks into the United States. They could just let them off at the border. They don't run the risk of being prosecuted in the United States, and that is what we have seen happen in Yuma. With respect to the criminal element, are some of these groups tied to the cartels? Probably. Maybe. But the fact is that when they cross cartel territory, they have to pay. In fiscal year 2019, Rio Grande sector saw 8,685 UACs. I was down there a couple of years ago, and I was followed around by Mexican navy in jeeps. The police are too corrupt to actually be allowed to be around anymore because there are two groups of the Gulf Cartel, Los Metros and Los Ciclones, who are fighting for territory down there. You don't cross their territory without paying them. The smugglers have to pay money. That money goes into the pockets of the people who grow the heroin, who make the methamphetamine that flows into the United States. They make the fentanyl that flows into the United States. The smuggling industry cannot be separated from those cartels. Fiscal year 2017, most dangerous year in Mexican history because of cartel violence. That is where the money comes from. And the worst part about all this, and this was something I didn't know, and I only found out when I went to Yuma, that the payment to these criminals doesn't end once they get to our side of the border. I was told about a system of debt bondage in which these individuals actually have to work for another 2 years and send money to their smugglers in the United States. This is happening in this country because of the smuggling, because of the laws. Yes, the laws encourage it. Quite frankly, Flores, you are going to get released after 20 days. You can talk to any Border Patrol agent, and they are going to tell you people are bringing their kids because they know they are going to get out. Because of TVPRA and HSA, Homeland Security Act, if you are a parent in the United States and you want your kid, why not pay a smuggler? Because you know that child is going to be delivered to you in the United States. I mean, I am a father. I want to be united with my child. Dr. Stewart talked exactly about that. So, quite frankly, why wouldn't I pay a smuggler to bring my kid to the United States, and there is no cost to the smugglers, as I mentioned. Mr. Cole. I may--one additional question. Obviously, as you point out in your testimony, we treat Canadians and Mexican nationals differently than we do others. Can you tell me why we do that, and what the impact of that is? Judge Arthur. I wasn't around when the TVPRA was passed, but with respect to Mexicans, we can quickly return them back across the border after a summary screening. The question becomes why we don't use that summary screening for all children that come to the United States? Because again there are three bases for getting immigration relief in the United States. You got a job, you got a relative, or you have a humanitarian claim. We can easily screen for those things. Take them out of the removal proceedings, not have to worry about any of this time, and actually have an administrative officer do this quickly and easily. But we don't. We insist that they go through removal proceedings. I was a judge. And again, thanks to groups like KIND, we get advocates for those kids, but there is no reason that it can't be done administratively, consistent with due process. Mr. Cole. Thank you very much. I am out of time so I will yield back, Madam Chair. Ms. DeLauro. I would now like to yield time to the ranking member of the Appropriations Committee, Congresswoman Granger. Ms. Granger. Thank you all for being here, although your testimony was heartbreaking. You talked about, Mr. Arthur, about the changes in our laws and our rules and how that encourages. Can you go back and talk a little bit about the other thing, the changes--the Northern Triangle. We know those three countries. That is where by far the majority come from. So the changes in those countries, is that encouraging or discouraging? Do you see any change in the most recent years about why they are coming to the United States? Judge Arthur. You actually make a lot of good points. Let me just--you make a lot of good points. Let me just refer to a couple of them. One of my colleagues actually wrote about a study that was done in Guatemala. This was back in 2017. It is captioned 91.1 percent of Guatemalans migrate to the U.S. for economic reasons. Fewer than 1 percent leave because of violence or gangs. Violence and criminality really hasn't changed terribly in any of these countries, and yet we see an influx of people from these countries coming to the United States. So in reality, you know, we can't really attribute it to that. We talk about push factors and pull factors when we talk about immigration. Pull factors are things like the laws that I discussed with Ranking Member Cole. Push factors are factors in the country like crime or, you know, a desire for better economic conditions. By the way, the study was actually done by the International Organization for Migration, not exactly a fairly well-known and nonpartisan organization. So with respects to the push factors, you know, are they there? Case-by-case basis, I was a judge, and I would take the case that I get before me. But we also get a lot of people coming from Honduras, and we saw these caravans coming from San Pedro Sula, which is a town I think in the state of Atlantida, but my knowledge of Honduran states isn't very good. Atlantida is the 26th most dangerous city on the face of the Earth, according to a Mexican NGO a couple of years ago. I live in Baltimore, Maryland. Dr. Harris, I think, represents part of Baltimore, Maryland. It is the 21st most dangerous city on the face of the Earth, and St. Louis, Missouri, is the 14th most dangerous city on the face of the Earth. If a Baltimorean were to go to Canada and make an asylum claim based upon harm from the crime--in fact, we had, what, 12 people shot, 5 killed the other day in the City of Baltimore, and this is commonplace. But if they were to go to Canada and make that claim, they wouldn't be able to. The laws in Mexico as related to asylum are actually more lenient than they are in the United States. But we don't see this population of individuals actually applying in Mexico. The violence, that crime, that insecurity that they have would probably make them eligible under Mexican law for asylum, but they are not--most are not stopping there to apply for asylum. There are five factors for asylum relief in the United States--race, religion, nationality, membership in a particular social group, and political opinion. Very strict standards. And again, I have argued thousands of asylum cases. I have heard thousands of asylum cases. And--at least 1,000 asylum cases. And you know, again, these are pretty strict rules, and yet individuals come to the United States. They make these claims based upon crime, based upon violence, and it doesn't really help. Based upon economics, they are not going to be eligible at the end of the day. But if you stay in custody, your case is going to take about 40 days. If you are released from custody, according to the Associated Press, your case is going to take 8 years. Two years is what you hear about when the case gets scheduled, but the fact is we get numerous continuances. GAO wrote about that last year. And you know, cases get continued. In fact, I can't quite figure out, maybe one of my colleagues could explain this to me. UAC cases are supposed to be expedited, and yet the number of UAC cases that are actually decided is astoundingly low compared to the population. I don't know why that is. So, again, with respect to insecurity in these countries, it really hasn't changed a whole lot. But we have seen the numbers increase. We saw them drop in 2017 when Donald Trump was--just after his inauguration. In fact, I think 25,000 of the 41,000 we saw in 2017 occurred up to January, UACs. And you know, thereafter, it dropped off. And then, when the smugglers realized that there was really nothing the Trump administration could do to talk about the laws we discussed--Flores, TVPRA, credible fear--the numbers started to bump back up again, and now people know that, you know, these laws aren't going to apply. We are on track right now for about 60,000 UACs coming into the United States this year, which is actually going to top our number in fiscal year 2016, which was the previous high, as the chairwoman noted previously. So, anyway, that is sort of a round-about way of answering your question. Ms. Granger. Thank you. Ms. DeLauro. Thank you very much. Thank you. Congresswoman Roybal-Allard. You are recognized. Ms. Roybal-Allard. Well, I am going to deviate a little bit from the questions that I had because all the reports that we have gotten, the travel advisories and others, is that violence has, in fact, increased in the Northern Triangle. And I just want to give an example about why some people are coming here, and it has nothing to do with loopholes or anything else in our immigration laws. In visiting one of the detention centers, I visited with a gentleman whose daughter was separated from him, had no idea where she was. And he had been in detention for some time. And we asked him, is knowing what you know now, that you would be held in detention and that your daughter would be taken away from you and you would not even know where she was at, would you still come to the United States? And his response was, ``Congresswoman, you don't understand. My daughter was threatened with rape and murder if she did not become the girlfriend of this gang member.'' He said, ``Yes, I would come again because at least I know she is alive.'' So we can't put all the different reasons that people come to this country into one basket. So, with that, I was asked by the American Psychological Association to submit their letter for the record, and it talks about the impact of detention on children and need to keep them together. Ms. DeLauro. Without objection. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. Roybal-Allard. Ms. Brane, first of all, thank you for your efforts to reunite children who are suffering from these reprehensible policies and practices of this administration. In June of 2018, the President issued an executive order that shifted its immigration policies from family separation to family detention. Family detention facilities, as you know, lack the support and care that children require in crucial developmental years. And as chair of the Homeland Security Subcommittee on Appropriations, I included funding to expand the Family Case Management Program as an alternative to family detention. Although this is outside the jurisdiction of this committee, can you speak to the benefits of the Family Case Management Program and why detention is never an appropriate option for a child? Ms. Brane. Thank you. Yes, I have done extensive research and monitoring for family detention centers and thought about this for a long time, and I can tell you that we have struggled in finding humane ways to detain families in an effort to keep them together and have not been able to find them. Inevitably, the detention of children is harmful to their development and their physical and mental health. I could go on for a very long time about the problems of family detention. They parallel what you heard today about detention and custody of children generally, but what is really frustrating is that there are options. There are alternatives that work. The Family Case Management Program that you mentioned was implemented under the Obama administration and was very successful by all accounts in ensuring appearance to both court and ICE appointments, but also for removal. So in the period that this program was operational, not very many cases went to the end of their case because of these delays that we all hear about. But in several cases, families, after meeting with attorneys and representatives, decided that they were not going to win their case and actually left voluntarily. Ninety-nine-point-eight percent of the people in that program complied with all of the requirements put on them, and this was a finding consistent with the Office of the Inspector General, ICE's own report on the program, and the contractor's report on the program. So it is a very successful program and much more affordable than detention. Ms. Roybal-Allard. And yet it was ended. Why was it ended? Ms. Brane. The Trump administration ended that program in the summer of 2018. They terminated the contract early. They gave no explanation. But it is very much in synch with their then separation under the claim that they had no option if they wanted to ensure appearance. Ms. DeLauro. Mr. Moolenaar. Mr. Moolenaar. Thank you, Madam Chair. And I appreciate the witnesses' presentation this morning, and you know, it is clear to me that from the testimony we have heard we have got a very untenable situation where men, women, and children are making a dangerous journey to the United States, just from start to finish. And you know, there is a number of circumstances, and I think you have identified a lot of those, and some are escaping dangerous situations in their countries. Some are hoping to join family members here in this country, but all are coming because in this country, we have freedom. We have got the rule of law, and it has made our country a desired location. And you know, right now, our Nation's success and the prospect of being here has also attracted people who would do harm here, have created a whole market for people who are doing harm to the victims who are coming here. And you know, the cartel violence, and I am horrified to hear these stories of families affected by that, that violence can also fall on this side of the border. And the drugs that are coming across, the heroin, meth, fentanyl, I mean record numbers, and I am hearing more and more about that in my own district in Michigan, in the Fourth Congressional District. Over 100 people die across the country every day from opioid overdoses, and that is coming through the ports of entry, through the miles of border between those ports. And for the women and children, it is very clear--who make that journey--it is a perilous trip. It involves drug smugglers, human traffickers, and those who are harming women. You know, the 30 percent number in the journey is incredible. You know, I am not an expert in our legal process of coming to this country, but my understanding is, you know, we would want people to come to the ports of entry to come to the country legally, especially when it comes to asylum claims. You know, I think in this room, we could agree that it is important to have a secure border. At the same time, parents who break the law and enter the country illegally, I think it makes sense that they would remain with their children while the judicial system works. And we have heard a lot about that today, although I do recognize that it is difficult to with certainty identify that they are, indeed, safe even in that situation. You know, my hope is that we can use our resources to make the border a safer place for people coming here, protect the American people from drugs and violence, and use best available technology. You know, I have been talking to border agents in my office. You know, they need the cameras and sensors, more border agents, and they are taxed in terms of their resources at the border. And I do believe that we need a physical barrier. I don't see how anyone could say that that doesn't make sense. But it is really unfortunate that these larger solutions aren't even being discussed. It is like each people are making their point on some issue, and unfortunately, the issue doesn't get solved on a comprehensive way. And so my hope is that we could move forward on this, and this committee could be part of that. My grandfather came to this country as an immigrant, was a laborer, farm laborer across the country, and then saved up money to buy a farm. And that is what I hope, you know, other people who would want to come. But he came legally, and I think we need to improve our system to encourage legal immigration because this truly is a great country, and we want to make it a welcoming country for people. I am very concerned, though, that we are--you know, we have critiqued different policies. One of the policies I think is disastrous is a policy that creates false hope for people, that tells people if you can just get to the border, you are going to be here. And it is creating these caravans and people who are harmed along the way and even at our border. And somehow we need to send a message, whether it is, you know, working with Northern Triangle countries to improve the situation there or somehow work with Mexico, but I just think this is an untenable situation. And I have learned a lot today, and so I appreciate your testimony. I don't have a specific question, but I very much appreciate your testimony today. Thank you, Madam Chair. Ms. DeLauro. Thank you very much, Mr. Moolenaar. Mr. Pocan. Mr. Pocan. Thank you very much, Madam Chair, and thank you to all the witnesses for being here. I do have to admit I am disappointed that ORR is not here. I understand they were invited, and they said they couldn't prepare it in time. I am looking forward to--I would have liked them to have heard from the witnesses here. I think it would have been really powerful for them to have heard from that. Mr. Mulligan, one of the things you said that I really appreciated was, as you mentioned, many of us have tried to go down to the border, and you said a trip to the border isn't going to give us the full knowledge we need. And I totally acknowledge that. I think we visited four facilities when we were down there. One of them was the Super Walmart detention center that, you know, 1,500 kids. They get out 2 hours a day out in the sunlight. The sleeping area they had was 6-by-10 that is allocated for them. A supermax prison cell is 8-by-12. You know, when you are--if you lose your parents in a mall, it is traumatic. If you are there for days or weeks or months, you can fully imagine the type of trauma that is created in a facility like that. We talked to the people. They had just hired 860, I think, new staff for another facility, but they couldn't hire 90 mental health staff they needed that were bilingual for the current facility, and that was part of the experience. But you know, clearly seeing that, it is not a situation that is going to provide any kind of decent environment for the children who are there. And again, we are doing it to ourselves by doing that. And I have to admit, I thought it was a rather strange and false comparison to say the conditions in Baltimore or St. Louis are worse than these countries. Quite honestly, Mr. Arthur, I thought that was s disservice to your testimony. I enjoyed much of your testimony, but that was so bizarre and so not based in reality. I have been to El Salvador and been to these neighborhoods. You know, to try to compare it, you know, I don't think did you a great service. I think my question specifically would be for folks to think about if ORR was here, since you are the professionals who deal with this the most, what would be the question you would have for them? Whether it be a question about policy, a specific case you want to highlight, whatever that specific question is, when they get here, I will be glad to ask your questions because you are the ones dealing with this every single day. And I would just be curious what questions you have. Although just while you are thinking about it, I will add, you know, one of the problems I have with the MOA and why I am glad that we got the language that we got in there, I have been waiting 138 days on a Freedom of Information Act request with ICE, and they won't even tell me about 79 people that were arrested in my district, what they were arrested for. They released 4 of the names of the 83. They were people that should be deported. But I know of people in my district that have done nothing that supposedly is the criminal element they are going after that were apprehended on that. So I could certainly understand the situation why that would be a deterrent for families to want to even go in, knowing how ICE is operating under this President. But let us start with you, Mr. Mulligan, what is a question that you would like to ask ORR that I can ask for you? Mr. Mulligan. Well, I appreciate you bringing it back to ORR because I think we sort of lost track of what we are talking about here. This is the Committee on the Health and Human Services. It has nothing to do with building a wall, with drug smugglers. There is nothing about that that HHS has any jurisdiction over. And so while we are throwing out these red flags about those issues, we are losing sight of the fact that there is over 10,000, 12,000 children detained in this country right now, many of them in facilities. I mean, the Homestead facility is an old Job Corps building that has just been refurbished as a warehouse for kids. Like I said in my testimony, this is about human dignity of the children. Mr. Pocan. So I do appreciate that, and thank you for bringing us back to that. Mr. Mulligan. Yes, right. Mr. Pocan. But I have got about 20 seconds a person, if I can? Mr. Mulligan. All right. So the question I would ask for ORR is why can you not reunite someone with a sponsor, and why are we holding these children in these conditions? Mr. Pocan. Okay. Next, Ms. Podkul. Ms. Podkul. Thank you. I would ask them about prioritizing the resources that you all have given them. You know, they are spending a lot of money on these influx facilities to hold children for very long periods of time, and how can they be better prioritizing how they are spending their resources. You know, reducing detention times, using cheaper facilities, and increasing more services and post release services for the children. Mr. Pocan. Great. Thank you. Ms. Brane. Ms. Brane. Similarly to that regarding prioritization of resources, I would ask them about efforts to license and get into compliance the facilities that are not and why it is taking so long. Why an emergency influx facility is open for over a year, for example. And what is being done about post release services and legal services for children that we know are really critical in both ensuring their appearance for court procedures later and their general well-being? Mr. Pocan. Okay, thank you. Mr. Arthur, you got enough time before. So let me go over to Ms. Stewart since I have 3 seconds. Dr. Stewart. Well, as the person on the panel probably with the least understanding of what their official role is in this process, I cannot give you a specific question, but what I can ask you to think about asking is related to the obvious trauma that children experience in these settings. How trauma-informed is everything that they plan in terms of services and supports, on the reunification aspects, on the what is happening while they are here with us aspects, what kind of staffing, training for that staffing, other resources? What kind of clinical care is available for these children as they are going through whatever their process is? Mr. Pocan. Thank you all very much. Appreciate it. Ms. DeLauro. Mr. Harris. Mr. Harris. Thank you very much, and thank you, Madam Chair, for calling this hearing. Let me just start with just a question about the Women's Refugee Commission. Are you aware that it opposes America's efforts to cut funding to Palestinian agencies that support the rewarding of Palestinian terrorists that killed Jewish children with lifelong pensions, and their families get paid for that? Are you aware that your commission does that? Ms. Brane. That is not part of the area that I am responsible for. So I am not going to get involved in that---- Mr. Harris. Okay. So do you disagree with the commission on that, or do you think that the United States should be funding Palestinian terrorists who kill children just because they are Jewish? Ms. Brane. It is not my area of responsibility and not relevant---- Mr. Harris. Okay. Again, I just find it interesting that you come and testify on children's--you know, the benefit of children, and here you are, you know, with an agency that actually opposes U.S. efforts to stop Palestinians from paying their terrorists who kill children. I just--I just don't get it. Anyway, Judge Arthur, and I do want you to comment on Section 462 because I know you said you might bring it up later. But the unaccompanied children is what bothers me because unaccompanied children by definition are not separated by us at the border anywhere. I mean, the bottom line is they come in unaccompanied. And I assume some of them are sent by a parent to the United States, presumably for a better life, maybe to live with relatives. But that seems like--it seems like that our policy should be actually to discourage as much as we can unaccompanied children coming to our border by whatever means necessary in order to keep them united with their families that they are leaving. Am I missing something here? Judge Arthur. A couple good points there, Dr. Harris. One is with respect to who pays for them. If we are talking about children of tender years, and I think about 72 percent of these people are between 15 and 17, of the UACs, I could pretty safely assume that they are not paying for the journey themselves. So, logically, someone in the United States is, and all the anecdotal information that I have ever seen has indicated that that is exactly what is happening. That the parents are or the relatives are paying the money to bring these people to the United States. There was a big New York Times article about that a few months, talked about an individual and his uncle. But with respect to that, and this sort of goes to the danger that these people--that, you know, are faced in these countries. Imagine, you know, you are a father, I am a father. That we, you know, had a situation so perilous where we lived that we had to escape it. Would we leave our kids behind? I mean, that sort of would indicate, too. You know, it says in the Book of Luke, what father if asked for a fish by his son would give him a snake or if asked for an egg would give a scorpion? If the danger is really that keen, logically, you would bring the child with you, or alternatively, you would not make the journey yourself. And so, you know, it sort of does go to the danger that they face. With respect to, you know, again, money flows from these individuals into the pockets of the smuggling groups, the cartels. It just goes to fund more crime. Mr. Harris. Sure. So, because Dr. Stewart did mention--and it is good to be in a room with another physician--did mention the idea of how traumatic a separation is. And just to, I mean, an unaccompanied child has always been separated from their adult family. Am I correct? That is the definition of a UAC, right? Judge Arthur. Absolutely. And---- Mr. Harris. So our policy objective should be to not encourage separations, I imagine, right, because it is traumatic. So we should pursue policies by whatever means to discourage, and apparently, we didn't do that, right, because we had a surge of unaccompanied children. So I would imagine that that is--you know, that is true. And I was just going to give you the last minute because you said something about Section 462, you hoped we would bring it up. So this is your opportunity. Judge Arthur. Thank you so much. I was actually in the room when we passed this, and I really don't even know why ORR was given the responsibility. There wasn't a whole lot of debate. 6 U.S.C. 279(g)(2) defines unaccompanied alien child as a person not lawfully present in the United States not 18 years of age, with respect to whom there is no parent or legal guardian in the United States or no parent or legal guardian in the United States available to provide care and physical custody. But we know that 58 percent of these kids are reunited with parents and legal guardians. So my question becomes---- Mr. Harris. Let me just interrupt you there for a second. We know that that is the claim made. Because I understand, we can't even test the families to see--and look, as a doctor, I know. You do a swap, you know, 2 days you got a test of whether that person really is a relative or not. My understanding is we can't even test for that. Judge Arthur. Well, one of the most egregious things is we don't fingerprint children under the age of 14 by policy. So, quite frankly, you could recycle the same child over and over again if you want to get to the United States and be released as a family member. I don't really even know why we have that policy. Mr. Harris. Thank you very much. Yield back. Ms. DeLauro. I just might add that the point of this hearing is that by law we take in unaccompanied children. We have to deal with that, and it is about what Mr. Mulligan said, the conditions that these children are being held in and whether or not we believe that those conditions are such that we condone, that we believe are the right way to treat children. It is not about the separation. The separation only added to the list of unaccompanied children by virtue of the policies of this administration. Let us keep our eyes on the focus of the jurisdiction of this committee, which is to protect the welfare, the child welfare of these children that we take in as unaccompanied. No one is talking about immigration law, immigration policy, as Mr. Mulligan pointed out, but we are charged with taking care of these children. Congresswoman Bonnie Watson Coleman. Mrs. Watson Coleman. Thank you, Madam Chairman, and thank you for having this hearing. And let me associate myself with what you said about this being child abuse, and that is exactly what it is. A major concern of mine has been the use of private prisons in our criminal justice system, where private companies make money performing the public function of incarcerating people. And I have introduced legislation to end that practice. So it is even more horrific that there are for-profit companies getting rich off of detaining immigrant children, and that is exactly what is happening in Homestead where Comprehensive Health Services, Inc., charges $750 a day to detain children, which is triple the cost of the typical nonprofit facilities that HHS normally uses. And I am not even speaking to the conditions at the HHS facilities. Seven fifty a day sounds more like the cost of a luxury hotel rather than the detention camp you described, Mr. Mulligan. In fact, they make so much money their parent company cited this administration's immigration policies as reason for ``significant growth.'' Mr. Mulligan, first, I want to thank you for the work that you are doing trying to protect these children. From your visit to the Homestead facility, do you see any evidence that this tremendous amount of money we are spending on this for-profit facility is really going to ensure the best care of these children rather than just making stakeholders rich? And are you also aware of the article that came out about the 4,500 and some sexual abuse allegations that these children have apparently been exposed to? Could you put your mike on? Mr. Mulligan. Yes, thank you for the question, Congresswoman. So the first question, in terms of my visit to Homestead, because it is a temporary facility and it was an old Job Corps site, there was a cost of millions of millions of dollars to do buildouts, to build tents. You see these huge air conditioning units pumping in air conditioning relentlessly. They have told me, and I think the physicians could answer this better, but they said cold temperatures, really cold temperatures stops the spread of germs and bacteria. So the kids are freezing all day, but apparently, they are not getting sick, I guess. I don't know. But I do not see that money going to the kids. I see it going to making what was a Job Corps office building into a place to house children temporarily, but it is not temporary anymore. And I am sorry---- Mrs. Watson Coleman. Because Job Corps tend to be residential in nature, too. Mr. Mulligan. The one half of the campus is residential, and the other half is just the office buildings. Where the 17- year-olds were housed is the office buildings, and that has required buildouts for bathrooms, showers, everything. And I am sorry. Your second question again was? Mrs. Watson Coleman. Yes, there was an article on the news just last night about thousands of allegations of sexual misconduct and sexual abuse of the children that are detained, and I think it highlighted Homestead? Mr. Mulligan. Yes. We have heard of allegations for Homestead as well. We haven't---- Mrs. Watson Coleman. I need to know who--it is very important that we do have the Government officials here to talk to us about what is happening, what they are doing about that. And Dr. Stewart, you discussed how traumatizing family separation can be for these kids. Can you further discuss the importance of proper after care, after they have been separated and how the conditions at Homestead and Mr. Mulligan described exacerbates children's trauma? Dr. Stewart. Thank you. Mrs. Watson Coleman. Would you turn your mike on? Thank you. Dr. Stewart. Thank you for that question, Mrs. Watson Coleman. I think the most important thing is what I suggested earlier, that any facility where children are being housed who have been through these kinds of traumas has to be trauma- informed in the care and support that they provide. That means up and down the chain from the leadership understanding how not to create policies and practices that retraumatize, to the staff being trained and understanding and being aware of how to recognize the symptoms, how to address those problems, how to understand behaviors that are trauma-related but that express themselves in aggression, fighting, reckless behaviors of some kind, challenges to authority. These are manifestations of children who are expressing their traumatic illness. Mrs. Watson Coleman. Excuse me, but does anyone know whether or not there is that kind of personnel on staff all the time at Homestead? Mr. Mulligan. So what we were told was that there is 19 clinicians--or sorry, 19 children for every 1 clinician. And to speak with a clinician or mental health person, you are in a room with 20 other people at the same time. And so--at the same time. So you are not sharing your intimate stories, your traumas in a safe space. You are sharing it in a room, a small room with very basic cubicles. The clinicians have cubicles where someone is sitting next to them, and they are conducting their mental health intakes with them in that way. Mrs. Watson Coleman. There is so much more we need to know. Thank you. Ms. DeLauro. Congresswoman Barbara Lee. Ms. Lee. Thank you very much. I want to thank all of you for being here and just have to say that, first of all, this is the most despicable policy this administration and any administration that I have seen in a long time. Secondly, I am reminded that this is the 400th year of the first slave ships coming to this country from Africa, where children were snatched from their parents only to learn of generational DNA changes which are still with us in many ways. And so this is a violation of children's human rights. It is child abuse, it is kidnapping, and it is downright morally wrong. And it is something that as a mother and a grandmother that it is something that is hard to even fathom, and being an African American. And so--and I am a clinical social worker by profession, Dr. Stewart. So I wanted to drill down just a little bit about this. First of all, we are learning of the sexual assault of these children and the trauma that this adds to the trauma that they have experienced. Secondly, I want to ask you just in terms of treatment modalities, I mean, you know an intake, one or two sessions, just as a clinician, I know this is a going to take a heck of a long time for these children to recover, if ever. And so I wanted to ask you kind of with trauma-informed care, what is the treatment process? Also how does anger fit into this? Because I swear I am concerned about these kids growing up being angry at the United States for doing what they did, for us doing what we have done to them. And so how does anger fit into this, and what does a treatment modality look like in terms of trauma-informed care? Because this is really something that it is another stain on this country. Someone said it was ``a stain.'' It is another stain. And so we have to get to the bottom of this and stop it as soon as we can and take care of these kids and change these policies. Dr. Stewart. Well, thank you for that question, Ms. Lee. Let me start with trauma. It is a specialized area of treatment. Not every mental health professional treats trauma or is trained to recognize and provide treatment for trauma, and not every trauma treatment specialist has the level of criteria--of qualifications that I do as a psychiatrist. The National Center on--the National Center for the Traumatic Stress Network trains hundreds of clinicians and other people around the country specifically to work with children and adults who have been exposed to some level of trauma. What we are talking about in terms of trauma-informed care can run the gamut. It can be along a continuum. There are evidence-based treatments like trauma-focused cognitive behavioral therapy, which is very structured. Twelve weeks of very structured, clearly defined, evidence base of well-researched and studied and validated across multiple populations and with multiple kinds of exposure to trauma that is very effective in working with children of a certain age. There are trauma-informed treatments that have more effectiveness with younger populations. There are treatments that are available to families. The bottom line is that there are a range of treatments that can be made available depending on the need, depending on the severity, depending on the willingness and responsiveness of the individual or the family to engaging in those treatments with the treating professional. The anger that you describe is very often a manifestation of how that trauma in the young child especially can be expressed. Children, while they are adaptive and resilient, do reach a point where enough has gone too far. And when they are at that point, they no longer have the neurological capacity to continue to take in the trauma. It has to come out. It has to be expressed. And what we see often, and I am assuming--I have not made a visit to any of the facilities. But what I would assume is that some of what has been described as aggressive behavior, hostile acting out, crying and being uncontrollably able to stop that, and not being able to be comforted even when comfort might be around, has to do with the level of trauma that they have been exposed to and the fact that there is nowhere to take it. They have no one to comfort them that they are familiar with and can trust. They don't recognize what is going on-- everything from sights and sounds and smells and people approaching you and how they talk can trigger these kinds of behaviors. These are normal responses to abnormal situations. Ms. Lee. And God knows how they are going to react as adults. Dr. Stewart. What we know about trauma and especially about Adverse Childhood Experiences is that as an adult--in fact, the original work to study this was done decades ago by two doctors, Vince Felitti at Kaiser Permanente and Bob Anda at the CDC, who were looking at adults who were recounting experiences from their childhood and began to put the pieces together and say there is a connection here between what happened then and what is going on now. And they connected those things to chronic medical problems, to mental illness, to domestic violence, to a range of things. So we will be able to see the manifestations of untreated, unrecognized and untreated Adverse Childhood Events, serious, intense trauma in these children as they age. Ms. DeLauro. Congresswoman Clark. Ms. Clark. Thank you, Madam Chairwoman, and thank you to the panel for coming today. Mr. Mulligan, I would like to start with just a baseline legal question. Is it a crime to enter this country seeking asylum? Mr. Mulligan. No. Ms. Clark. Anywhere that you enter, seeking asylum? Mr. Mulligan. Well, I believe the Trump administration tried to make it a crime for a while and not allow you to apply for asylum if you were not applying at a point of entry. But that has been an injunction by the courts. Ms. Clark. That is right. So, currently, it is not a crime to enter this country seeking asylum? Mr. Mulligan. That is correct. Ms. Clark. Are you aware that children at Homestead who are staying in this influx center, when they turn 18 are being shackled and sent to Federal prison? Mr. Mulligan. Yes. As we were told, that is their birthday present. Ms. Clark. And that this applies to both, you know, girls, boys, turn 18, you are sent to Federal prison. Why would that be if there is no crime of illegally entering this country? Mr. Mulligan. In my understanding that there is nowhere-- there is no transition facility. When someone turns 18, they are considered an adult under the law, and so they go to an ICE detention center. Ms. Clark. Dr. Stewart, you were just talking about trauma- informed care, and I know that you are not ORR. But do you have any sense of the quality of counseling, given the expertise that is needed to treat these children for the trauma that we have inflicted upon them in these--at Homestead or throughout the ORR system? Dr. Stewart. I have no specific and direct knowledge, only what has been reported from people who have made visits, who-- the American Academy of Pediatrics and who talked about that. The original person who wrote one of the letters identifying the challenges facing these children was--is a psychiatrist in Louisiana, and she--she identified some of the problems with the kinds of services that were being provided. But I have no personal knowledge of that. Ms. Clark. Do you happen to know if ORR in the past was able to manage the unaccompanied children through the use of nonprofits? Has it always been such a private, heavily private industry? Ms. Brane. I can say that, generally, it has been operated by nonprofit or not-for-profit institutions. But the focus has been on locating facilities that are shelter-like, home-like environments in the past. That was the focus, and I think what we have really shifted to now is these large institutional settings that, as you heard, have very large profit margins and are not focused on the well-being of children and are not licensed. I am very concerned about the licensing, including that some of these facilities, ORR does not consider them permanent, and therefore, they don't even fall under the requirement for Prison Rape Elimination Act audits, which goes to this issue of safety. Ms. Clark. And not only is there a startling number of sexual assaults reported from staff members, but also child-on- child assaults, which goes to your very point and the need for licensing and regulation. Do you have any understanding from ORR what they are doing to improve the background checks of the staff at these facilities? Mr. Mulligan. Well, we have talked with people in the FBI, and apparently, background checks do not take 1 month or 2 months or 3 months, as they are taking now. When we visited the Homestead facility, they actually conducted background checks on us before we could talk with the kids, and they finished that within the same morning. So I don't know what ORR is doing in terms of why the background checks take so long. Ms. Clark. Yes. Words fail me at how we are failing these children and these families. And I do want to ask you, just briefly, with the Flores decision, 1997, has been around, what was the point of that--of that decision? Was it to make sure that children were cared for and released as quickly as possible to family members? Mr. Mulligan. To be clear, it is not a decision. It is an agreement between the Federal Government---- Ms. Clark. That is right. Mr. Mulligan [continuing]. And the children detained. So the Federal Government agreed to this. It is not like a court enforced them to it. The Federal Government entered into this contract and said we will treat children in this way, and there has been various court decisions interpreting it since then, but it is still a binding settlement agreement on the Federal Government. Ms. Clark. And do you believe that this agreement is responsible for increase in human and drug trafficking across our Southern border? Mr. Mulligan. I don't. I don't think we can blame legal protections for migration. I mean, if we go down this line, at some point, we are going to be saying the Constitution is attracting people to our country, so let us not apply that to undocumented immigrants. It is a slippery slope, and I hope we don't fall down that. Ms. Clark. Thank you. Thank you, Madam Chairwoman. Ms. DeLauro. Thank you very much. I am going to try to move quickly through some questions. I just want to mention to you that, Dr. Stewart, that the--I have been pleased at really the National Child Traumatic Stress Network is really fantastic. What we did in the last bill was $4,000,000 for the fund specifically to work with children who were separated from their families. And we have tried to increase the funding in that program every year, and we are going to continue to try to do that this time. So thank you very, very much for your comments and your testimony in this area. I have got to tell my friends at Yale Child Study, my God, you guys are great. I want to, just a couple of things. Ms. Brane, Mr. Arthur discussed the dangers of traveling to the U.S. border. Your testimony, you noted the administration's termination of the Central American Minors Program. Was this an opportunity to apply for asylum without undergoing a dangerous trip to the border? Just very briefly, what was the Central American Minors Program? Ms. Brane. So the Central American Minors Program allowed children to apply for relief for entry into the United States from outside of the United States and from their region. So from their home country or close by. And the point of it was exactly to prevent children from having to make this dangerous journey because one thing that has not come up today is that there is really very--there are very few options for children who are fleeing violence to get here. Ms. DeLauro. Is there more violence now in some of these countries? Mr. Arthur doesn't think so. You think so? Ms. Brane. There is. We have seen--since 2012, the Women's Refugee Commission has been looking at this issue, and we have found increases in violence in each of those countries that are very much in synch the increased arrivals. Ms. DeLauro. Well, we know they did away with case management. They did away now with Central American Minors Program. So opportunities to be able to alleviate and relieve the system they have put aside because the issue is about using this as of enforcement. That is it. So you take away and strip away all of the opportunities to create a more efficient way of proceeding, which was being done by the past administration, but to make it much more difficult. Mr. Mulligan, a couple questions here. Is the Trump administration using influx shelters to get around the 20-day maximum mandated in Flores? What other ways is the administration disregarding the protections mandated in the Flores settlement? Should we codify Flores? Mr. Mulligan. Several questions, Congresswoman. First, yes, we have heard several arguments. There is an exception in the Flores settlement agreement for influx or emergency facilities. But there is no exception, importantly, as I say in my written testimony, for self-created emergencies or fabricated influxes. And so they are using the Homestead facility as a way to get around the Flores settlement and saying it doesn't apply to that facility, and it absolutely does. And I am sorry, your second question was? Ms. DeLauro. Does it appear the administration is disregarding the protections mandated in Flores? Mr. Mulligan. Absolutely. And it is not just this administration, but since 2000--we filed a motion to enforce in 2015, 2017, 2018, and the---- Ms. DeLauro. I frankly don't care what administration it was-- Mr. Mulligan. Yes. Ms. DeLauro [continuing]. If we are obligated to abide by Flores. Mr. Mulligan. You are absolutely--yes, the Federal Government is--it is a contract. No matter what President Trump as an individual does with contracts, the Federal Government does abide by contracts, and it needs to. Ms. DeLauro. Should we codify Flores? Mr. Mulligan. The Flores settlement agreement has a stipulation that it will go out of force once there are regulations that are promulgated that are consistent with the letter and the spirit of Flores. The Trump administration last year tried to implement regulations on the Flores settlement agreement that had nothing to do with the Flores settlement agreement. So it should be codified, but with the spirit and letter of the law as it---- Ms. DeLauro. Of the law. Okay. Let me then just ask Ms. Podkul, just briefly, the appearance rates of unaccompanied children who are placed with sponsors. Do most of them show up to the hearings? Ms. Podkul. When children are represented by attorneys, they overwhelmingly are showing up because the attorneys can explain to them what are the requirements? What is it that they have to do? And let me be clear. A question came up about are the courts adjudicating their claims? Are they not showing up? The majority of children are applying for humanitarian protection, and those applications go to USCIS. So the courts are kind of managing the cases to maintain and see what is going on with the children, but it is USCIS who is ultimately oftentimes adjudicating the child's claim for protection. Ms. DeLauro. There is the suggestion that children choose to leave their homes and travel to the U.S. because our policies are too lenient. Are our policies too lenient? Why are people being driven to do what they do? Ms. Podkul. Look, the kids that I have talked to, they know how dangerous the journey is. They know they could die on the journey. They know when they get here, they are going to be thrown in what is called ``an icebox.'' They know they are going to be---- Ms. DeLauro. We have all visited--some of us have visited, and it is freezing cold. Ms. Podkul. Right. I mean, some of these families and these children knew they were going to be torn away from their parents, and they are still coming. So if the risk of death, you know, on the journey is not enough to stop them, no deterrence that we can do is going to be worse than what a lot of them are facing in their home country. Ms. DeLauro. Thank you. Congressman Cole. Mr. Cole. Thanks very much, Madam Chairman, and I want to thank all of you for your testimony, too. Judge Arthur, since, you know, you litigated a lot of these cases, does somebody automatically have the right to come to the United States for economic advancement? Judge Arthur. No. And actually, the question was raised before whether illegal entry into the United States is a crime. Illegal entry into the United States actually is a crime under Section 275(a) of the Immigration and Nationality Act. It is a misdemeanor punishable for up to 6 months. So, no, you don't. Mr. Cole. Okay. And would you automatically have the right to come to the country for family reunification purposes? Judge Arthur. If you get a lawful visa, and we do have a very generous lawful visa program. More than a million people enter the United States as immediate relatives every year. You can take advantage of that and come to the United States. Also with respect to the Central American Minors Program, which I think was raised before, I believe that President Trump had offered to reinstate the Central American Minors Program in exchange for funding for barriers along the border. But in fact, I believe this committee rejected that request. Mr. Cole. And I am not casting aspersions on anybody here, but if I wanted to come to the United States, I would probably try to figure out what are the ways that legally they are going to accept me, as opposed to if I have a motive that is different, I don't think I am going to volunteer that motive and say I am really here. So this idea that these statistics actually reflect what the motive is, I think is a pretty flimsy idea. In your experience, you mentioned you litigated 1,000 of these cases. Are people always honest with why they say they are coming to the United States, or do they try and tailor testimony toward things that they think will give them the legal right of entry? Judge Arthur. Again, the plural of anecdote is not data, but I can tell you right now, Mr. Cole, that in every case that I ever decided, I would make a credibility determination. In many, if not the majority of those cases, that was an adverse credibility determination. I have no recollection of any of those adverse credibility determinations being overturned by another court. Mr. Cole. Okay. Let me ask this, and I will address this more widely to the group. You know, this isn't a new problem, and we did deal with this surge before. And as has been suggested, the demographics of the population have changed, and that has made it difficult to have the appropriate facilities. You know, the last administration confronted this, and then in full disclosure, I worked with Secretary Burwell to try and make sure she had the resources to deal with this. But did they leave anything in the way of permanent facilities, permanent infrastructure, or did they pretty much, as we have seen in the past, create--and I had one of these in my district--create a center for a period of time and then, when the flow came down, because people had either been placed and we were not--just let it all collapse back down again? So we are in the position of sort of constantly reinventing the wheel. Has that--has that been our experience as a country? Ms. Brane. It is hard for me to know exactly. I mean, I will say that ORR has gradually--they have certainly tried to attempt--tried--tried to increase the number of facilities, and they do have more facilities in place now than they used to. But they did open and close some of these large influx facilities. There were several that were open in 2012---- Mr. Cole. Again, and I am not throwing rocks at the last administration. I think this actually gets back to a point that Judge Arthur made. The demographics of this population have changed, and that is straining the physical capacity. It is straining the personnel that you would need. You know, one of our great problems in mental health is we just don't have enough people, period. I mean, the idea that if we were--that we would have these kinds of people available in sufficient numbers here, particularly on an on/off kind of basis. And you know, I think it was a telling point when you said at the beginning of the Trump administration the flow came down. Just largely because you thought you couldn't get in probably, I would assume. And then once it became evident, no, the structures are still in place that make it I wouldn't say attractive to run this risk because I don't think it is attractive for anybody to run the kind of risk of a 2,000-mile journey. I mean, people don't undertake that sort of thing lightly any more than, you know, 300 years ago they undertook lightly traveling across an ocean and coming to the United States. That is a big life gamble for somebody, and you have to feel like there is some big upside at the other end because you are running a risk. So, you know, given that, I mean, it seems to me what are the sorts of things we can do--because we know it is risky-- that would discourage that? It seems to me, Madam Chairman, that is beyond our jurisdiction, and I am certainly not critical of that. But a lot of this gets back to stabilization inside these countries, which I know my friend Ms. Granger worked on, and frankly, which we tried to address recently in the spending package where we put a lot more money again into these three particular countries. Ms. DeLauro. The Central American triangle. Mr. Cole. Yes. Judge Arthur. Mr. Cole, one thing that I would like to correct. Before I think when you were asking me, I said that 2016 was the high year for UACs. It was actually 2014, 68,631. We are on track for about 60,000 this year. But as this graph will show you, we are not actually in prime travel season yet. So I can't guarantee you that we are not going to see many more people come to the United States. Mr. Cole. Yes. I will close just with a quick comment, just because I remember again having this discussion with Secretary Burwell. And literally, each month them wondering how many people were coming in. They don't have a very reliable way to predict that. And so it is extremely difficult for any administration to plan, have the people in place, and the resources. Thank you for your indulgence, Madam Chairman. Ms. DeLauro. Thank you. Ms. Roybal-Allard. Ms. Roybal-Allard. Just very quickly, Ms. Podkul, what challenge do you and your colleagues face when trying to unify a separated child, and what would you recommend to make tracking of children and their families more accurate and efficient? Ms. Podkul. Specifically for the families who have been separated by CBP? Ms. Roybal-Allard. Yes. Because there have been some reports that we have lost track of where the children are and where the parents are. Ms. Podkul. Right. And you know, the Government is reporting that they have made changes to improve the tracking of the separations. I can tell you just a few weeks ago, my colleague met a child who had been separated from his father, and that was not indicated in any of the paperwork that the Government gave us, and the attorney was not notified. The only way we found out was by talking to the child. So I think what we need to do and suggestions that you have offered before in the past of having child welfare professionals in CBP facilities helping decide which children, you know, if a child ever needs to be separated, make sure that it is a child welfare who is making that decision, and that tracking starts in that moment for the reasons why. So both the child and their attorney can understand, but also the parent. Because sometimes, you know, the decision was made in error, and the parent should have the right to challenge that so they can reunify with their child as quickly as possible. Ms. Roybal-Allard. So would you recommend along the lines of a shareable, a family unit tracking number? Ms. Podkul. Absolutely. There should be a family unit tracking number that follows both the child and the parent. And I would suggest that that happens not only just when a child is separated from their parent, but from any family member that they might be traveling with, right? So you could have a child who is being cared for by a grandparent their entire life. And if they are being separated at the border because they don't fall into the definition of family, we need to know, and the child's attorney is going to need to know that. It is often the adult who is going to have the information about the child's case, have contact phone numbers, have documents that are going to be necessary. And so it is really important for that child to always be able to find and have contact with any family member that they have been separated from at the border. Ms. Roybal-Allard. I guess it would also be helpful, it is my understanding there is no standardized protocols or systems between the different agencies that come in contact with these children? Ms. Podkul. Exactly. Exactly, yes, thank you. Ms. Brane. If I can just add finally that they also really need to look at the final piece of that on potential reunification after investigating what the reasons for the separation were, right? There was a story that came out about a woman who--a mother who was separated from her infant child because they thought a criminal conviction had come up on her case. It turned out that that was a mistake. She had no criminal conviction, and nothing was ever done to rectify that situation. If you really are concerned about the welfare of the children, you should be following up on, you know, how to reunify them ultimately or resolve the situation. Ms. Roybal-Allard. I believe there have been several reports about ORR grantees reporting errors and referrals from CBP and ORR, including incorrect gender, age discrepancies. So that also adds to the issue of not being able to identify them. Ms. DeLauro. Will the gentlelady yield for 30 seconds? Ms. Roybal-Allard. Oh, of course. Ms. DeLauro. Are we still separating children and rendering them---- Ms. Podkul. Yes. Ms. DeLauro. We are still separating children, rendering them unaccompanied children, and adding to the system. So even though there has been a court order that says no, it is still happening in contravention of the court order? Ms. Podkul. Yes. Not only is it still happening, but most cases we don't know why it is happening. Ms. Roybal-Allard. That was going to be my question. What reasons is DHS giving? Ms. Podkul. Sometimes we will get vague--there will be vague indications in the file about why. They may say there is a criminal history, but we don't know what that means. Does that mean that was a forged check and that parent poses no danger to the child? Is it a reason because they have a concern about the veracity of the relationship between the child and parent? That is very important information. So whenever a separation happens, we need to know why, and all the information has to go to all parties. Ms. DeLauro. Is it mostly on immigration things, violation of immigration? Ms. Podkul. We don't know. Ms. DeLauro. You don't know. Last on this piece, before--we now know that there was separation happening in 2017. Again, rendering--I want to focus on the jurisdiction of this committee, which is unaccompanied children. However, there has been no accounting. There are thousands of children that the IG--this is not me--that we listened to, thousands of children that were--came into custody, if you will. Some were discharged. But we have no idea who was accompanied and who was separated. And we may--well, we are going to get a full accounting of that effort. So, thank you. Mr. Harris. Mr. Harris. Thank you very much, Madam Chair. Mr. Mulligan, I guess you are an attorney. I am just curious, you said, ``what President Trump does with contracts.'' Do you know something we don't know about contracts? Mr. Mulligan. I think that is a hearing downstairs, Congressman. Mr. Harris. Or just what you read in the fake news? I don't understand. I mean, you are an attorney. Mr. Mulligan. Right. Mr. Harris. I would think you would speak more carefully than that. Unless you have personal knowledge of contracts. Do you have personal knowledge of contracts the President has had that you think may have been violated? Mr. Mulligan. Just what is reported in the news. Mr. Harris. Okay. That is what I thought, okay. Judge Arthur, we got a real problem in Maryland, it is called MS-13. As you know, we are the second most active State for MS-13 only behind California, whose population is, my God, I don't know, 10 times Maryland, whatever it is. A lot more. When you have an unaccompanied child come across, and I mean the ones who cross the border as UACs, not the ones who become, you know, through the fact that something happens that they are UAC, but the ones who cross, you know, I don't--I probably wouldn't be good at guessing age at a carnival. But I have seen some pictures of people who come across claiming they are like 15, 16, may not really be--I imagine some come without any papers, no proof. I mean, look, if I were going to cross the border illegally as an MS-13 member, I sure wouldn't bring my ID card. So that brings up two things. One is how difficult is it? Because I really don't want MS-13 members coming more in Maryland. We have plenty. You know, maybe some other States will take them. God bless them. I don't want any more in Maryland. It has got to be hard to tell who they are, and I would like you to address how difficult it is to determine who is actually a criminal, who is not, who is coming here for nefarious purposes, who is not, and who is not a subject of human trafficking. Because that is another thing I am worried about. And I just want you to address very briefly, you know, the allegation that somehow we are shackling people when they turn 18 with no--with no basis because I am not sure that anybody does that. But what is the basis for someone turning 18 and, in fact, becoming subject to a different set of laws that do require detainment? Judge Arthur. Let me start at the end. The TVPRA and Homeland Security Act both actually talk about minors under the age of 18. And for that reason, you actually enter into the adult system when you turn 18. And so, you know, a different set of laws applies to you, simply. Mr. Harris. Excuse me. And that is not just true with illegal--with immigration. Judge Arthur. Right. Mr. Harris. I mean, when you turn 18, there are things you are charged differently with? Judge Arthur. Absolutely. And---- Mr. Harris. All right. So we are not separating out immigrants saying we only do this to immigrants. We do this to anybody who turns 18, right? Judge Arthur. My son turned 18 not that long ago. I don't have access to his medical records any longer. Mr. Harris. We fight that battle all the time, but go on-- as a parent. Go on. Judge Arthur. Yes, with respect to determining the age of a person, it is actually very difficult. TVPRA does provide some guidelines, some guidance to identifying the age. But the fact is somebody shows up without documents, we don't know who they are unless we can figure out who they--unless we have some record, and we probably don't. With respect to determining the purpose for which they come, we really don't have access to their criminal records back in their home countries. We don't know what their affiliations are. I will note that it was the Obama administration that designated MS-13 as a significant transnational criminal organization, and they noted the fact that one of the things that they do is they raise money in the United States, and they send it back to El Salvador. So we have talked today about the crime that takes place in El Salvador. I know that Ms. Clark I think it was talked about how dangerous--Mr. Pocan talked about how dangerous it was. The funding for that crime actually comes from--some of it comes from here in the United States. We had a horrible incident in Kensington, and we are so gerrymandered, I don't know whether you represent Kensington or not. But involving a young girl who had been sex trafficked to the United States who was beaten with a baseball bat 23 times by MS-13 members because she failed to perform adequately. They didn't hit her in the face because they didn't want to damage the merchandise that they had, but it was a horrible case. Not reported. With respect to MS-13, it is all anecdotal, and in fact, I would note that the White House put out--nope, Homeland Security, unaccompanied alien children and their family units are flooding the border through the catch and release loopholes. But they talked about UACs providing fertile recruiting ground for violent gangs. A 2017 review of UACs in the custody of HHS found 39 of 138, or 28 percent, were involved in gangs, with the vast majority of those involved voluntarily. And again, we know that these gangs recruit unaccompanied alien children in our home State of Maryland. We know that they go--that they do it in the high schools there. But again, there is no bar code that somebody has on them that you can scan that is going to tell you what their intent to come to the United States is. Mr. Harris. Well, my time is up. Just a comment on human trafficking, how hard is it for us to detect when human trafficking is occurring? Judge Arthur. Human trafficking is very difficult, and let me just define the difference between the term. Trafficked people are involuntarily moved. Smuggled are voluntarily moved. But again, identifying human trafficking, and I would see it in my own court, I would see these women who had been picked up, and I would say did anybody tell--did anybody force you to come to the United States? And they wouldn't break. They would not tell me. And I said, look, I could help you if you tell me, and they wouldn't tell me. Mr. Harris. Thank you very much. Ms. DeLauro. Coming to the end of the hearing, and I wanted to say to my colleague, the ranking member, I would love to have you make any final comments or ask any additional questions that you might have. Mr. Cole. I have no additional questions, Madam Chair. I want to thank all of our witnesses. Frankly, both your written and your personal testimony was compelling and extremely helpful, and I appreciate it. Because I think this is such a many-sided problem, and I think it has changed in ways that probably we didn't fully grasp at the beginning of this back in 2014 and 2015, both demographically and what that does in terms of the facilities we need, the personnel we need, frankly, the policies that we need. And you have helped all of us come to a better understanding of that. Madam Chair, I want to thank you, too, obviously again for the IG briefing that we had 2 weeks ago and for assembling this panel and focusing interest on this. Sadly, I think we are going to have this problem for a long, long time, and you are helping us begin to understand the dimensions of it, grapple with it, and see what the appropriate ways to proceed are. And that is a real contribution, but again, my friend the chair is the one that made that possible. We wouldn't be here if she hadn't held the hearing, and so I am again grateful to my friend for that, grateful for your time and your professionalism and your expertise. And with that, Madam Chair, I yield back. Ms. DeLauro. Thank you so much, and thank you very much. We worked together these last several years and will continue to do so because in so many instances, we see the difficulties that are there. And the goal for yourself and for myself is how do we address the issue? How do we try to solve what we can solve? Again, I want to just say thank you to you for what is powerful testimony. As Congressman Cole pointed out, both your written testimony and your presentations here this morning. There are many questions still to be answered. I come away with and I just want to repeat over and over again, we on this subcommittee cannot afford to get sidetracked with issues that people want to bring up which may obfuscate the issue at hand, which is what ORR's mission is. It is a human services agency. That is what its mission is. It is not an immigrant enforcement agency. It is not an extension of ICE, and that is why ORR needs to focus directly on that mission. No one in the past has tried to change that mission in the way over the past 2 years that this administration has tried to change that. I can't make them up. There is a memorandum of agreement on data flowing. There is the hold-up of fingerprinting and which they had to stop because they were so overwhelmed. And we had the largest release of 4,000 detained children to safe havens. That is what we are about here. So that we need ORR to care for children, place them in a safe home with a family. Unfortunately, as I said, that has not happened, and the administration is trying to divert that mission. I have said on many occasions, and I will repeat it, from day one when I got involved in this issue, that I believe what we have looked at over the last 2 years is Government- sponsored child abuse. And we can't have that on our watch in this subcommittee. That is not where we are. Family separation, memorandum of understanding, influx facilities like Tornillo and Homestead, disregarding Flores or trying to upend Flores, children spending months in Federal custody, and we are spending, which comes under our jurisdiction, millions and millions of dollars being spent without any accountability. We have tried. We both have tried to get accountability. We just keep hearing the more resources that you need, and we are not afraid to provide resources. But as I said in my opening statement, we are not going to throw good money after bad for a continued--a failed policy that this administration has engaged in. And it is about keeping children in detention. It is a policy failure. This is a manufactured crisis. We are committed, I am committed, as I said at the outset, to continue to do oversight of this effort. The more you probe into it, the more avenues there are to be able to look at. We will call witnesses from HHS. We will call others to address this because we need to get to the answers because, you know, it can't continue like it is, and we have to fix it. We have to stop what is going on now, and we have to fix it, and there are models all over the country. Most recently, I heard of children who age out, that there is a model for dealing with them. I want to know how many are there? Where are they? In what facilities are they? What is the difference with today I am 17, middle of the night, at midnight, I am 18. I am picked up and taken somewhere else--What is the story about that?--with less services. There are many avenues to probe. We will continue to do that. I want to thank my ranking member for his cooperation, and I just want to say again thank you. Thank you for the great work that you are doing on behalf of the children who come to us seeking help. Thank you very much, and I want to just bring the hearing to a close. Thank you very much. Wednesday, March 6, 2019. PROTECTING STUDENT BORROWERS: LOAN SERVICING OVERSIGHT WITNESSES BRYON GORDON, ASSISTANT INSPECTOR GENERAL FOR AUDIT, DEPARTMENT OF EDUCATION OFFICE OF INSPECTOR GENERAL JOANNA DARCUS, MASSACHUSETTS LEGAL ASSISTANCE CORPORATION RACIAL JUSTICE FELLOW, NATIONAL CONSUMER LAW CENTER SHENNAN KAVANAGH, DEPUTY CHIEF OF CONSUMER PROTECTION DIVISION, OFFICE OF MASSACHUSETTS ATTORNEY GENERAL MAURA HEALY PRESTON COOPER, RESEARCH ANALYST IN HIGHER EDUCATION POLICY, AMERICAN ENTERPRISE INSTITUTE COLLEEN CAMPBELL, DIRECTOR, POSTSECONDARY EDUCATION, CENTER FOR AMERICAN PROGRESS Ms. DeLauro. The subcommittee will come to order. Good morning. Let me welcome everyone to the Labor, HHS, and Education Appropriations Subcommittee, the oversight hearing on student loan servicing. Our ranking member, Congressman Cole, is doing double duty. He is at the Budget Committee, and he will be here shortly. But we can go forward because we have both sides represented, and then you can move forward with the hearing. So it is not out of balance. I want to say a thank you to our distinguished witnesses. We have two excellent panels this morning. The first panel will feature Bryon Gordon, who is Assistant Inspector General for Audit in the Office of the Inspector General at the U.S. Department of Education. The second panel will feature Joanna Darcus, Massachusetts Legal Assistance Corporation Racial Justice Fellow at the National Consumer Law Center; Shennan Kavanagh, Deputy Chief of the Consumer Protection Division, Office of the Massachusetts Attorney General Maura Healy's office; Colleen Campbell, Director of Postsecondary Education at the Center for American Progress; and Preston Cooper, higher education research analyst at American Enterprise Institute. So I thank each of you for offering your testimony this morning. And we will do, obviously, one panel at a time and then call folks up for the second panel. It will surprise no one to say that there is a student debt crisis in our country. Forty-four-point-seven million people owe $1,500,000,000,000 in Federal student loans, more than credit card debt or car loans. But less well known is this. We are facing a student loan servicing crisis. Servicers are a critical link between borrowers and lenders. These intermediary companies manage accounts. They process monthly payments, and they help borrowers who are suffering financial hardship find the right repayment plan. In short, they are paid by the Department of Education to serve our students, but we are increasingly seeing evidence that they do not. A new report by the Inspector General found that these loan servicers are failing, even potentially cheating borrowers, and the Department of Education is asleep at the wheel. According to the Inspector General's report, the servicers fail to tell borrowers about all of their repayment options. They miscalculate how much the students should be paying through income-based repayment. Two servicers, Navient and the Pennsylvania Higher Education Assistance Agency, also known as PHEAA, put borrowers into forbearance without first informing them of other less- costly options, which can possibly put students on a path into default, ruining their credit ratings, and exposing their income to being garnished. Julie Roberts is a 52-year-old woman fighting Stage 4 breast cancer. She owes $80,000 in student loans and asked for a cancer deferment, which the Congress mandated by law through the Labor, HHS bill last year. However, her loan servicer told her no. The servicer said the bill had not passed. It had passed. And that she did not qualify. She did. And it was only after she went to the press did the servicer comply with the law. So this is a serious problem, and as the IG indicated, it is not an isolated incident. The Inspector General found that between 2015 and 2017, most, 61 percent of the recorded interactions were out of compliance with the law. As the subcommittee that provides funding for the Department of Education and student loan servicers, we have a duty to address this issue. Why? In fiscal year 2019, we provided $1,700,000,000 for student aid--for the student aid administration. Of that amount, almost $1,000,000,000 went to servicing contracts, $700,000,000 went to salaries. And that budget has increased by over $500,000,000 in 5 years while other education priorities have been flat or even eliminated. So it is imperative that we get to the bottom of these issues. Of particular concern to me is what the IG deemed to be inconsistent oversight at the Department of Education. According to the Inspector General's report, and I quote, ``FSA management rarely used available contract accountability provisions to hold servicers accountable for instances of noncompliance.'' And secondarily, ``By not holding servicers accountable for instances of noncompliance with Federal loan servicing requirements, FSA, the Federal Student Aid, did not provider servicers with an incentive to take action to mitigate the risk of continued servicer noncompliance that could harm students.'' So as a result, ``Taxpayers might not have been protected from improper payments.'' The Department of Education let servicers off the hook. The worst offenders continue to get loan portfolio. In fact, the Department's performance metrics for these companies does not take compliance with the law into account. They don't have to comply with the law. You could be breaking it and continue to get contracts. I will also note that right now borrowers do not have a choice with regard to their loan servicing company. They have a choice of a college, of their college on the front end, but they do not have options for loan servicers when they leave school. That takes away their leverage and the incentive for servicers to try and keep their business. Now the Department of Education has claimed that they are fixing these problems. However, there is a lack of transparency, so we cannot simply take their word for it. We have an oversight responsibility. Secondarily, the problem goes even further than what the Inspector General has uncovered. That is because Secretary DeVos is preventing States from stepping in to help. States have enacted student loan bills of rights. My home State of Connecticut was the first State to do so. But Secretary DeVos is claiming that the Higher Education Act preempts States from enforcing those consumer protections for students. In a March 2018 statement of interest in the Federal Register, the Secretary said in a quote, ``The servicing of direct loans is an area involving uniquely Federal interests that must be governed exclusively by Federal law.'' In other words, not only do States have no business trying to protect individuals within their boundaries, they are prohibited from doing so by Federal law. Let me just say that is false. Nothing in the Higher Education Act even suggests that Congress intended to curb State law on this issue. Nothing in Federal law gives the Secretary of Education the authority to broadly supersede State law in this area. And I will note it is written into the loan servicer contracts that they uphold State law. I do not believe I need to preach the merits of contract law or federalism to my colleagues. The courts have dismissed Secretary DeVos' interpretation--California, Massachusetts, Washington, Illinois, and Pennsylvania. And the Secretary's actions have drawn bipartisan rebukes from the National Governors Association, State bank regulators, Republican and Democratic Members of Congress, and a large bipartisan coalition of attorneys general, including Colorado, Illinois, Kansas, Kentucky, Montana, Tennessee, Texas, and many more. It is our duty as the subcommittee which funds the Department of Education to ensure that we are supporting Americans in their quest for higher education and solid footing in the middle class. Secondarily, we must ensure that programs that we have in place to do so are serving public, not corporate interests. I am looking forward to hearing from our witnesses on the extent of the problem, how we can make the loan servicing system and the Department's oversight and policies work for our students. I now would like to turn it over to my good friend from Oklahoma, the ranking member of the subcommittee, Mr. Cole, for any opening remarks that he cares to make. Mr. Cole. Thank you very much, Madam Chair. And let me begin by apologizing to you and the committee for being late. Ms. DeLauro. You don't have to apologize. Mr. Cole. I was testifying at the Budget Committee. So I raced here as fast as I could. Ms. DeLauro. A noble cause. Mr. Cole. A noble cause. And an often hopeless endeavor. [Laughter.] Mr. Cole. We are at least trying. Ms. DeLauro. Amen. Amen. Mr. Cole. But again, I want to thank you, Madam Chair. I think this is the first time this subcommittee has held a hearing on the topic before us today, and I want to commend the gentlelady for her interest in oversight on the loan servicing program. I think it is a real contribution, and I am glad this committee is going to take a hard look. The subcommittee provides nearly $1,000,000,000 a year to the Department of Education to pay for servicing of Federal student loans. The policy behind the program is outside our jurisdiction, but I do agree we need to ensure accountability and proper program performance using appropriated funds. Federal student loans are complicated and confusing for many borrowers. They rely on the Department of Education and their loan servicers to help them navigate the system. I understand the Department is currently attempting to modernize and upgrade the way it communicates with borrowers through the NextGen initiative. And frankly, I want to commend the Department for tackling a problem you clearly didn't create, but you inherited. And I think it is important we continue to make progress. I am hopeful that efforts like this can increase borrower satisfaction and choice, as well as make efficient use of taxpayer dollars. I look forward to hearing the testimony, as I enjoyed reading the testimony, quite frankly, and learning about ways we can make the loan servicing system work better for both borrowers and taxpayers. And with that, Madam Chair, I yield back the balance of my time. Ms. DeLauro. Thank you very much. Let me just set some ground rules and a little housekeeping here for the moment. We will be calling on Members based on seniority of the Members that were present when the hearing was called to order. We will alternate between the majority and minority. Each Member is asked to keep their questions to within the 5 minutes per round. We will conduct one round of questions for the first panel and then turn to the second panel, and I am advised to tell witnesses to please turn on the microphone. So, again, let me thank our distinguished panelists for being here. I will introduce the witness for our first panel and then wait and do the introductions for the additional witnesses before we begin panel two. And first, we have Mr. Bryon Gordon, who is Assistant Inspector General for Audit in the Department of Education's Office of the Inspector General. He has more than 15 years' experience in auditing Federal education programs and previously served for 23 years at the Government Accountability Office. Mr. Gordon led the recent audit on student loan servicing that we are here to discuss today. Mr. Gordon, please begin your testimony. Thank you. Mr. Gordon. Chairwoman DeLauro, Ranking Member Cole, members of the subcommittee, thank you for inviting me here today to discuss the U.S. Department of Education Office of Inspector General's recent audit of the Federal Student Aid office's oversight of student loan servicing. The objective of our audit was to determine whether FSA had established policies and procedures to mitigate the risk of servicers not servicing federally held student loans in accordance with Federal requirements. To help manage the over $1,000,000,000,000 Department-owned student loan portfolio, FSA contracted with nine companies called servicers as of September 30, 2017. The servicers collect payments on loans, advise borrowers on resources and benefits to manage their student loans, and respond to customer service inquiries. When performing this work, these nine servicers must comply with all requirements of servicing federally held student loans. At the time of our audit, FSA had several processes in place to oversee the work of the servicers. We examined those activities, as well as FSA's policies and procedures. We found that FSA's oversight policies, procedures, and activities did not collectively provide reasonable assurance that the risk of servicer noncompliance with Federal requirements for servicing student loans was being mitigated or reduced. Specifically, we found that although it regularly identified instances of servicer noncompliance, FSA did not track all instances of noncompliance. In addition, FSA management did not analyze the information it did have to track and identify trends and recurring instances of noncompliance at each servicer and across all servicers. We found that FSA identified servicer noncompliance in 210, or about 61 percent, of the 343 monitoring reports that we analyzed. These monitoring reports disclosed recurring instances of noncompliance primarily in two areas--consumer protection, where representatives were not sufficiently informing borrowers of the available repayment options, and income-driven repayment, where servicers were incorrectly calculating payment amounts. Additionally, we found that FSA management rarely used available contract accountability provisions to hold servicers accountable for instances of noncompliance and did not incorporate a performance metric relevant to servicer compliance into its methodology for assigning loans to servicers. For example, FSA identified just four instances totaling about $181,000 over a 5-year period where it required servicers to return funds for failure to comply with Federal requirements. We also found that FSA employees did not always follow policy when completing their evaluations of the quality of servicer representatives' interactions with borrowers and that FSA did not provide reports of failed calls to servicers during a 10-month period from June 2016 through March 2017. Because FSA's oversight policies, processes, and activities do not collectively provide reasonable assurance that the risk of servicer noncompliance was being mitigated, FSA did not have reasonable assurance that servicers were complying with Federal loan servicing requirements when handling borrowers' inquiries. Borrowers might not have been protected from poor services, and taxpayers may not have been protected from improper payments. Because it was not holding loan servicers accountable for instances of noncompliance, FSA did not provide servicers with an incentive to take action to mitigate the risk of continued servicer noncompliance that could harm students. We made six recommendations to address the weaknesses that we identified. FSA disagreed with parts of our findings but agreed with all of our recommendations and stated that it was already implementing corrective actions. I would like to also mention that we reissued the report yesterday with a few minor corrections, none of which affects the findings or the conclusions of the report. After issuing our report, additional information was brought to our attention regarding an FSA review of Navient that we discussed in our report and the reason that Oklahoma's Student Loan Authority was required to repay funds to FSA. In response, I ordered a full review of the supporting documentation for the entire report, which resulted in the identification of one other minor correction. In closing, the OIG is committed to working with FSA, the Department, this subcommittee, and the Congress to help improve Federal student aid programs and operations so that they meet the needs of America's students and families and ensure that the vital tax dollars that fund these programs are protected from waste, fraud, and abuse. I would be happy to answer any of your questions. Thank you. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very much, Mr. Gordon. We will start with the questioning. Mr. Gordon, Federal Student Aid maintains a database where you track servicer noncompliance. Audit reports said the database may have been incomplete, as FSA chose to leave out evidence of noncompliance as long as the servicer promised to remedy the situation, the problem. Do you think that FSA's approach to essentially take the servicer's word for it is a sound approach to protecting students and taxpayer dollars, and did FSA go back and check to make sure the servicer followed through and implemented the remedy to the noncompliance problem? Mr. Gordon. So as we state in our report, FSA was not tracking all instances of noncompliance. During their reviews, if the servicer corrected the noncompliance, FSA would not track it. FSA would only track the instances that were not addressed during the review. Ms. DeLauro. So that, in fact, it was--we don't know--they didn't lay out the full scope of the problem? Mr. Gordon. Right. Ms. DeLauro. Okay. What is the impact of FSA not thoroughly tracking all compliance--noncompliance issues? Mr. Gordon. So this is a key finding of our report where we feel that FSA should be tracking all instances of noncompliance, analyzing that information, and using that to identify trends in noncompliance either of particular servicers or across all servicers. By not collecting all that information and analyzing that, they did not have the information they needed to hold the servicers accountable. Ms. DeLauro. So, in fact, that puts the borrower at risk and costs the taxpayers for servicers who were potentially not following compliance efforts? Mr. Gordon. Correct. FSA would work to address the individual instances of noncompliance in its reviews, but by not identifying trends and correcting the underlying causes and working to address those, then potentially other borrowers would be affected---- Ms. DeLauro. Be affected. Mr. Gordon [continuing]. If those problems weren't corrected. Ms. DeLauro. Another question. In your testimony on the audit, you highlight examples of FSA's noncompliance with Federal law and how the noncompliance was readily apparent in your review of call monitoring reports. As these reports only review a sample of calls between borrowers and servicers, is it possible that there were other examples of noncompliance that were not captured by FSA? And in addition, are the recorded phone calls that FSA reviews provided by the servicers themselves? Mr. Gordon. Yes, the calls are provided by the servicers to FSA. In terms of correcting additional problems, as I mentioned, FSA typically focused on the individual instances of noncompliance that they found in the reviews. They rarely went beyond those to see if there were additional instances of noncompliance beyond those particular calls that they monitored. Ms. DeLauro. So, in fact, the servicers pass on the calls to FSA. So they make--they decide what to pass on. Is that somehow a conflict of interest here? Mr. Gordon. We do not specifically address that as part of our report. FSA requests a sample and would review a sample of calls. Ms. DeLauro. But in fact, you know, I do the call, and then I pass on the information. There is no additional oversight with regard to that call and that we have no other examples of noncompliance that may not have been captured by what happened. And in terms of performance, as I understand it,--they don't have to deal with requirements of the law in terms of what they are obligated to do. Let me just ask another question. I have got about a minute. Did you want to say something? Mr. Gordon. No, no. Ms. DeLauro. FSA management rarely used available contract accountability provisions to hold servicers accountable for instances of noncompliance. FSA has required servicers to return just $1,700,000 to the Federal Government for noncompliance. This subcommittee most recently--we provided $1,700,000,000 in both fiscal years 2018 and 2019, $1,000,000,000 carved out, as has been pointed out. That means, $1,700,000 penalties servicers had to pay only--that accounts for less than 12 percent of the money that Congress provided. What more can FSA have done to hold servicers accountable for noncompliance? What tools are at their disposal that they are not using? Mr. Gordon. As we pointed out in our report, there are two primary tools. One is they do not have to pay servicers if they are noncompliant in providing the services. So they could request those funds back when they determine that there is noncompliance. The other tool that they do not utilize is they do not factor in compliance into their allocation formula for allocating loans among the servicers. So they do have two tools at their disposal that they could use. Ms. DeLauro. Have they denied payment of any of the servicers? Mr. Gordon. As our report points out, over a 5-year period, FSA was only able to identify 4 instances where they required servicers to return funds for just $181,000 over that 5-year period. Ms. DeLauro. Thank you. My time is up. Congressman Cole. Mr. Cole. Thank you very much, Madam Chairman. Mr. Gordon, could you give us a quick history lesson? When did the system that we have now come into being and whereby we manage this incredibly large portfolio? Ms. DeLauro. 1998? Mr. Gordon. Yes, FSA became a performance-based organization in 1998. Ms. DeLauro. Does he have his mike on? Mr. Gordon. I am pushing the button. It is not going on. Mr. Cole. Could you just pull the other mike over? [Pause.] Mr. Gordon. My apologies. So the current system where FSA relies on servicers, on Title IV Additional Servicers, that started, the initial contracts were let for those in 2009, where FSA primarily uses a performance-based approach to managing those servicer contracts. At the initial time, there were four TIVASs. After then, some not-for-profits were added, and the not-for-profits are--as of the time of our report, there were five not-for-profits for a total of nine servicers. Mr. Cole. Since this system has been in operation since 2009, is your audit the first time we have really gone and looked at it? And again, I want to commend the gentlelady for holding this hearing. Mr. Gordon. No, we have looked at oversight, FSA's oversight of its contractors on multiple occasions. That continues to be an area that we highlight as a management challenge for FSA and have made recommendations. GAO has also done the same. Numerous reports have identified issues with FSA's oversight. Mr. Cole. And how much success have you had in your recommendations being accepted and adopted by FSA? Mr. Gordon. So we have a good track record with FSA accepting and adopting our recommendations. Yet we continue to find instances or evidence where there are problems with oversight on both contractors and program participants. Mr. Cole. Again, we have been told there is a new program being put in place program, this--I always want to say ``NextGen,'' but MyGen program. Have you had a chance to look at that and see whether or not it is making any material difference in some of the concerns you have expressed in the audit? Mr. Gordon. We have not looked at that specifically. They are still early on in the planning for that. They have made indications--in the response to our report, they indicated that they felt that that would enable them, put them in a better position to address some of the issues that our report identifies. Mr. Cole. Can you tell us when you would expect to have another look to see whether or not this has actually made a difference? Mr. Gordon. So we will follow up on the recommendations that we made and work with FSA as they propose specific corrective actions, and then, ultimately, they will be responsible for implementing those corrective actions. Mr. Cole. Okay. In your written testimony, you mentioned that the Federal aid programs are complex and inherently risky because of the numerous entities involved in administering them. Can you elaborate on that? Describe specific complexities and share with us how many different types of entities are actually involved? Mr. Gordon. So the student loan programs that FSA administers, they rely heavily upon the servicers that we are talking about today. They still also have an outstanding portfolio of guaranteed student loans that were left over from the old FFEL program. They are responsible for overseeing the 6,000 institutions that participate in the Title IV programs and administering all the laws and requirements under the Title IV programs. Mr. Cole. Okay. And finally--and this is probably an unfair question--but you look at a lot of different agencies. I am just trying to sort of in the spectrum of things that you look at, where would you rank FSA? I mean, are they worse than most public entities in terms of administering, better, average? Mr. Gordon. I am not really in the position. I am just with the Department of Education OIG. So we primarily focus on the Department and FSA in our audit work. Mr. Cole. Well, that was a tough question. So I certainly understand that. Thank you, Madam Chairman. I yield back the balance of my time. Ms. DeLauro. Mr. Pocan. Mr. Pocan. Thank you, Madam Chairman. And thank you very much for being here today. I appreciate it. I had a question. In the report when you are reviewing servicer noncompliance, mostly oversight was around monitoring phone calls, and presumably, that is the way the servicers are choosing to reach out to folks. With your oversight responsibilities, would it be easier if borrowers were permitted to interact with the servicers over email and they had a written record to review? Specifically, you know, given some of the legal cases and things we have had to deal with, wouldn't that give a record for people trying to be able to address some of these issues? Could you just address that? Mr. Gordon. I believe they can interact by email with the servicers also. Mr. Pocan. But it looks like you exclusively refer to phone calls. Did you also review emails? Mr. Gordon. We did not. We reviewed FSA's tools that they use to monitor the servicers. The call monitoring is one of the key ways that they monitor how servicers are interacting with borrowers. Mr. Pocan. Okay. So they don't--do you know if they actually do a review of the emails as you did your---- Mr. Gordon. So, so we discuss several different kinds of reviews in our report. They also do onsite reviews of the servicers where they review borrower records, the interactions with the borrowers. We also cite findings from those reviews in our report. Mr. Pocan. And do you know, I mean, roughly a percent of what is done via phone versus email by the servicers? Mr. Gordon. I do not know that. Mr. Pocan. Okay. This would be an interesting area to know because, you know, it is a lot harder over a phone call to be able to do that kind of monitoring versus something that you have a paper record, and the actual consumer would have a paper record would certainly be helpful. So you highlighted some pretty interesting examples of some of the abuses, and there has been some talk in some of the media articles about what happened. Could you highlight just a couple to give an example of what kind of abuse has gone on and what we are hoping to address? Mr. Gordon. So in our report, we have highlighted several different types of noncompliance that FSA found during its reviews. In particular, one of the most frequent areas that we highlight was the fact that servicers were not providing information on all the available options when they were working with borrowers on making adjustments to their payment plans, which is a key requirement of the program. And by providing that kind of information, that would allow borrowers to make informed decisions and understand what their options and the consequences of the option that they choose are relative to the other options available to them. Mr. Pocan. Were you able to tell if that was done by omission or by intent? Mr. Gordon. So, no, we do not look at that. We looked at and relied on the reviews that FSA did. Mr. Pocan. Did the FSA do reviews to see if it was by omission or intent? Mr. Gordon. FSA's reviews generally focused on the actual noncompliance and correcting the noncompliance. Again, one of our key recommendations is that we think by analyzing and reviewing all the evidence across servicers, FSA would be better positioned to get at the potential causes behind why that noncompliance is occurring, whether it is on purpose or whether it is just by lack of clarity on what is required. Mr. Pocan. And I am sorry if I am not being clear, but were you able to tell by doing that review that they actually do that, or did they just see if there was noncompliance, or did they see how it occurred? Mr. Gordon. That was one of the key recommendations of our report is that they should do that, yes. Mr. Pocan. They don't--gotcha. And then there is something in the--there is an article in Forbes about the Department of Education's loan default unit is in disarray. Specifically, it addressed the Department's default resolution group and the debt management and collection system. Did you look specifically at those two, and if so, did you make recommendations to the agency to address those? Mr. Gordon. No, we did not look at those issues. What I will say is we are currently about to begin our annual work planning process, and that is an issue that we could take under consideration as we look to develop new audit work for the future. Mr. Pocan. Yes, that would be, I think, great. Just from-- based on the work you have done, sometimes it is nice to find the other areas, and there certainly seems to be a couple areas that would be worth looking at. I yield back, Madam Chairman. Ms. DeLauro. Thank you. Mr. Harris. Mr. Harris. Thank you very much. Let me just ask a question. Before 2010, how big was the portfolio that FSA dealt with? Mr. Gordon. So in---- Mr. Harris. It is now over $1,000,000,000,000. Mr. Gordon. Yes, it is over $1,000,000,000,000. Mr. Harris. What was it then? Mr. Gordon. I believe it was--I believe it has about tripled since that time. Mr. Harris. Tripled, that is a lot. I mean, as you said, it is one of the largest financial institutions in the country. Mr. Gordon. Yes. Mr. Harris. And it grew that way in only 8 years. So unlike the other financial institutions that handle $1,000,000,000,000 worth of things have been around 50, 60, so they had a lot of time to kind of figure out how this thing. And the law has changed since then, right? I mean, we changed it. The regulations changed. So I guess the approach you have is I understand the IG does this audit. And you know, you do an audit of any Government agency, you are going to find some places where they don't--where things don't comply. But my understanding is that the FSA kind of agreed with the six recommendations and said they were going to do it. And that is 5\1/2\ months ago. Is there any data that they haven't been doing it in the past 5\1/ 2\ months? Mr. Gordon. No, we have not reviewed anything specific to the actions that they discussed in the report. Mr. Harris. Okay. So we did the investigation. We found some areas, and by the way, it is not that the current administration hasn't taken any action. My understanding is they have taken action. Even in the report, they have taken some actions to get the money back from these servicers that aren't doing the job. I get it, and we, you know, hire some other servicers to do the job better, or these servicers will figure it out. But, so is there a problem ongoing? I mean, what is your perception? And you might say, look, I don't know. We studied it over 5 months ago was our report. What is your perception now? Mr. Gordon. So I think it is a good thing that FSA agreed with our recommendations and reported back that they will take action. After we issue a report, we will work with the Department to look specifically at what those actions are, and we will review those actions. And then once we are okay with that, then it will be up to them to implement those actions. Mr. Harris. Sure. Mr. Gordon. So, yes, I do think that is a good thing that they were responsive to the recommendations and have agreed and reported back to us that they have already taken action on those. Mr. Harris. That is kind of what they are supposed to do, right? Mr. Gordon. Correct. Mr. Harris. When was the previous audit this extensive, when was it undertaken of FSA? Ever? Mr. Gordon. So we are always looking at various aspects of FSA. Mr. Harris. Do you understand my question? Mr. Gordon. Yes. Mr. Harris. This extensive an audit of FSA, has it occurred since 2010? No, right? Mr. Gordon. I don't think so. I would have to get back to you on that. Mr. Harris. Okay, probably not. So let me see. You have a new program. You triple the size into a $1,000,000,000,000 mechanism. Hopefully, maybe next time we will talk about the increasing cost of college because that is really what is the underlying problem. You found some problems. The agency said they are going to fix it. Why aren't we waiting until your next audit to criticize the agency for noncompliance? I mean, the bottom line, this is the way the Government is supposed to work, right? Mr. Gordon. Yes. Mr. Harris. Okay. I just thought I was missing something. Thank you very much. I yield back. Ms. DeLauro. Ms. Bustos. Mrs. Bustos. Thank you, Madam Chairman. And also I want to thank our chair, Congresswoman DeLauro, for being a truth seeker in everything you do, and I don't think it is our job up here to protect the Secretary of Education. So I just got on the phone before I came here with one of my sons. My husband and I have three children, all college educated at different levels. One is a graduate of community college, one a private college, and one a public university. And one of my sons--and I am not going to say who because he wouldn't be happy if I called him out by name--still has a six- figure debt after graduating in 2010. He started out in a job where he made $30,000 a year. So you think about how that delays your life. So to the other line of questioning. At the end of every single one of these violations that you said the two biggest, consumer protection was one of the biggest violations. Number 2 was the incorrect--you didn't use the word ``deciphering,'' but I will say incorrect deciphering of payment amounts. And so at the end of every single one of those violations is a human being, is one of our kids or grandkids who went to college and now are having to delay their lives. Maybe they can't invest in a home. Maybe they put off getting married, all of that. So this question is kind of a big one, but right now, let us look at the freshmen who will be graduating, let us say, in 4 years. In the next 4 years, what is it going to take to clean up this mess? What do you need from us, and what is the game plan to clean up this mess so our children aren't continuing to be ripped off by the system? Mr. Gordon. Thank you for the question, and I apologize, my mike has gone off again. Mrs. Bustos. I don't think that is your fault. Mr. Gordon. So I think where this committee and Congress can help with this, I think the recommendations that we make in this report are really central to better positioning FSA to address the underlying issues of noncompliance. If they were to do a better job of analyzing the noncompliance and taking actions ultimately to reduce noncompliance, then that should decrease the likelihood that your son or daughter would experience problems in the future. So anything that this committee can do to support the recommendations, either by asking FSA to report on their progress or on the outcomes of what they do in response to our report, I think would be helpful to reinforce that with them. Mrs. Bustos. Well, it is kind of difficult, it seems to me, when we have got Secretary DeVos, who has come forward saying that Federal law trumps State efforts when it comes to oversight of these companies. So I come from Illinois, and we are one of the States that is actually trying to fix this. And I think that is part of the problem when we have basically a Secretary who is overseeing all of education who doesn't seem to want to work with us in making this better for our children. Just another follow-up question. In your testimony, you talked about failed calls, and can you explain what is a ``failed call?'' If you can describe what that means, how that looks to the person on the other end of the line. Mr. Gordon. So FSA would review the calls. They would take into consideration about 25 percent of what they look at is the actual greeting and the information that they provide the servicer on--or provide the borrower on the call. And then the remaining 75 percent of the review would be related to what the servicer works through with that borrower on that call. They would basically score whether they accurately provided the service to the borrower, and any score below 85 percent would be deemed a failed call. So failed calls could be just based on the greeting itself, or it could be--also include compliance issues that FSA found during its review of the call. Mrs. Bustos. Okay. Thank you very much for being here with us today. Thank you for your efforts to make things right. And with that, I yield back the balance of my time. Ms. DeLauro. I thank the gentlelady. And response to Congressman Harris' query and just as a point, the Federal Family Education Loan Program, that is FFEL, that was prior to the Direct Loan Program, was riddled with widespread fraud, waste, and abuse. In fact, the GAO and Education OIG highlighted those issues in a 2003 semiannual report. You should also know that in July 2018, the Government Accountability Office released a report, entitled ``Federal Student Loans: Further Action Is Needed to Implement Recommendations on the Oversight of Loan Servicers.'' The report reviewed the Department of Ed's efforts to implement previous recommendations that it had made improving that. The performance audit was conducted in 2000--April 2018 to July 2018. And in that report, GAO stated the Department of Education had only implemented two of the six recommendations GAO made to the Department improving its oversight of student loan servicers in both 2015 and 2016, which means that FSA had over 2 years to implement GAO's recommendation, but in fact, it chose not to. Mr. Moolenaar. Mr. Moolenaar. Thank you, Madam Chair. Thank you for your testimony today and for your overview of what you learned in this process. I wanted to understand how was the objective of the audit determined, and what prompted that back in what year was it that it started? Ms. DeLauro. 1998. Mr. Gordon. This audit? Mr. Moolenaar. Was it 2015? Mr. Gordon. Yes. Mr. Moolenaar. Okay. So 2015, in January of 2015. And what prompted the audit, and what determined the objective of the audit? Mr. Gordon. So as I have mentioned, oversight by FSA has been a management challenge area for us. That is always an area of focus. The actual objective itself was derived to take a broad look at FSA's overall system of controls over noncompliance, what they were doing to ensure that servicers were complying with the requirements. Mr. Moolenaar. So, in 2015, you determined there was a management challenge at FSA or that---- Mr. Gordon. It has been a management challenge for years, going back a little over a decade, yes. Mr. Moolenaar. Okay. So who at the time was the Secretary of Education in 2015? Mr. Gordon. That would be the prior administration. Mr. Moolenaar. Do you remember who that was? Mr. Gordon. There was some change. I would have to double check, yes. Mr. Moolenaar. So there was some transitioning going on in the prior administration, and at that time, you felt it was worthy of this investigation because there were problems that were being identified? Mr. Gordon. Yes. These problems span multiple administrations. As we point out in our management challenge report, these are large, complex programs. FSA has a lot of responsibility, oversight, and this is an area that we continue to focus on in our audit work. Mr. Moolenaar. Okay. So then with the transfer and into a new administration, you presented the findings of your report, and then the new administration, I understand there were some disagreements on maybe whether the policies were in place or not. Is that correct? Mr. Gordon. They disagreed with the overall conclusion of the report. Mr. Moolenaar. Okay. Mr. Gordon. The main finding that they did not have adequate controls to ensure that servicers were complying, they disagreed with that. However, they did agree with all the recommendations and did report back to us the actions that they either had taken or were planning to take. Mr. Moolenaar. Okay. So I guess that gets to the point that Dr. Harris was raising, too, is so this was brought to the attention of the Secretary or the Director of the FSA. They agreed with the recommendations and now are in the process of implementing those. Is that your understanding? Mr. Gordon. Correct, correct. Yes, we will work with them on their actual corrective actions. They will present to us formal corrective actions in response to our recommendations. And once we are okay with that, then it is up to them to actually implement and address the issues that we found. Mr. Moolenaar. Okay. And will you come back to the committee and report on that at some point? Mr. Gordon. I would be happy to. Mr. Moolenaar. Okay. I am assuming that the chair would permit that? I would be interested in hearing that. Ms. DeLauro. I would be absolutely willing to do that. There was also, I guess, some disagreement with some of the recommendations, but that you are taking into consideration. They did disagree with some of your recommendations? Mr. Gordon. They disagreed with the overall conclusion of the report. Ms. DeLauro. Conclusions, okay. Mr. Gordon. The recommendations themselves, they did agree on. Ms. DeLauro. Okay. Fine, thank you for that clarification. Mr. Moolenaar. Were there areas where your conclusion was that there needed to be a policy in place, they may have disagreed and said that there was a policy in place? Is that the kind of---- Mr. Gordon. Our conclusion was that they did not have procedures in place to provide reasonable assurance to ensure that there was not noncompliance by the servicers. Mr. Moolenaar. Okay. Mr. Gordon. They felt that all the oversight mechanisms that they had in place did provide them with that. But we felt it was really important, not just the oversight that they were doing, but making use of the information on noncompliance, analyzing that, and using that to reduce noncompliance in the future. That was really the disagreement that we had with them. Mr. Moolenaar. Okay. And then just so I understand, when there is noncompliance, is there consequences for noncompliance, and is that part of the policy you are referring to that---- Mr. Gordon. So under the contract that FSA has with the servicers, they can take action against the servicers if there is noncompliance. They do not have to pay the servicers for servicing the loans that are noncompliant. Mr. Moolenaar. And has there been action taken on any-- with respect to any servicer? Mr. Gordon. So as we highlight in our report, there were only 4 instances in the 5 years prior to the end of our audit. What they reported back to us is that they had assessed about $2,000,000 in penalties subsequent to our audit. Mr. Moolenaar. Okay. Thank you, Madam Chair. Ms. DeLauro. Thank you. Ms. Lee. Ms. Lee. Thank you very much, Madam Chair, and thank you for giving us a chance to drill down on this really outrageous action that these servicers are taking. And the report, of course, not surprising, it is shocking. But this lack of transparency and accountability is really unacceptable. And what is worse, when you look at the fact that borrowers of color disproportionately take on more debt and owe more on their Federal student loans. I am looking at, what, 77 percent of African-American students, nearly 50 percent of African- American students the borrowers defaulted and 75 percent of those who dropped out of the for-profit colleges. Now your report, I believe, covered a sample of the abuses only that the servicers commit. So I am wondering if we looked at the rest of the data from the student loan borrowers, would there be more examples of the Department's lack of oversight and servicer error or not? Or do you use these samples to kind of estimate what types of errors are there? And then, secondly, let me just ask you about, and you can answer all in one response, who are these servicers? How do they get these contracts? You said in your testimony there are 4 servicers responsible for 93 percent of the $1,000,000,000,000. Do you have any minority-owned contractors who are doing this? I mean, what is going on with this business, and how are they allowed to do this if it is a contractual arrangement? And who are they? Mr. Gordon. So in terms of your first question on the sampling, we reviewed the reviews that FSA did, both call monitoring reviews and other reviews that they did of the servicers. During those reviews, FSA would rely on sampling to assess compliance. We did not go beyond that. FSA, as we say in our report, generally did not go beyond the noncompliance that they found in those samples, which could be as few as 30 students during--30 borrowers during those reviews. In terms of the servicers---- Ms. Lee. Wait a minute. Mr. Gordon. Sure. Ms. Lee. Are there any statistical formulas that could give us a better picture of what the real deal is? Mr. Gordon. So we did not look at that specifically as part of our review. FSA does rely on a sampling approach to test compliance as they do the reviews. We were focused more on what they did once they identified noncompliance and how they addressed that and, again, how they used the information that they had on noncompliance. Ms. Lee. Well, do you believe you have enough data to make these conclusions and recommendations off of their sample? Mr. Gordon. In our report, yes. Yes. Yes, we believe based--the conclusions that we draw in our report, we believe we have enough information to do that. As far as the servicers themselves, we provide that information in the report. The four main TIVAS servicers, which I was referring to earlier, they were brought in---- Ms. Lee. Who is that again? Mr. Gordon. The Title IV Additional Servicers. Ms. Lee. Okay. Mr. Gordon. There is four of them--Nelnet, Navient, PHEAA, and Great Lakes. They are the ones that account for over 90 percent of the servicer fees, and then there are five additional not-for-profit servicers that also participate in the program. The number of not-for-profit servicers has varied over the years. Current, as of the end of our audit, there was an additional five. Ms. Lee. Are any minority owned? Are any--and then, secondly, are they penalized for these errors? Mr. Gordon. Generally, no, they are not penalized. Ms. Lee. Well, why not? This is taxpayer money. I mean, come on. I had a business for 11 years, and if I didn't comply with my requirements, I would get penalized. Mr. Gordon. And that was a key recommendation of our report is that FSA does have the authority to take action in instances of noncompliance and that they should make more use of the authority that they have to hold the servicers accountable. Ms. Lee. Yes, but that is prospectively. What about retrospectively? Are they going to be penalized, fined, kicked out of the program? Why are they still there? Mr. Gordon. We did not get into that. Ms. Lee. Well, could you get into it for us, please? I mean, this is outrageous. And they shouldn't be there. And then I want to know how many are minority owned, too. Mr. Gordon. I don't believe---- Ms. Lee. With so many minority students being affected by this lack of accountability and transparency and rip-offs, I mean, come on. I would think some minority vendors could maybe help these other--help FSA understand. Mr. Gordon. I am not aware if any are minority owned. I could get back to you on that. Just---- Ms. Lee. Would you get back to us and find out why there are no minority-owned servicers, given the fact that African- American and Latino students are 75, 80 percent of the borrowers? Mr. Gordon. Yes. Ms. Lee. Okay. Thank you. Ms. DeLauro. Ms. Frankel. Ms. Frankel. Thank you, Madam Chair. And thank you for your testimony. I am new to the committee. So I just have really some very basic questions. Can you, first of all, explain how are these service providers, how are they selected, and what is their main purpose? Mr. Gordon. So the main purpose of the servicers is to basically service the loans for the borrowers. So they provide information, collect payments from the borrowers, advise the borrowers on alternative payment options, help them through periods where they have difficulty making payments by, again, discussing the options that they have available. So they are basically--they are the face that deals with all the borrowers, all the student loan borrowers. Ms. Frankel. And how are they selected? Mr. Gordon. So the initial four contractors, the TIVASs were awarded in 2009. The not-for-profits, when they were brought into the program, that was mandated under law. When that mandate was removed, FSA still continued to include some of the not-for-profit as part of the program. Ms. Frankel. Were they permanently selected, or is there a contract? Mr. Gordon. There is a contract. The initial contract in 2009 was a 5-year contract, and they were re-awarded in 2014. Ms. Frankel. So it will be up this year? Mr. Gordon. It was a competition. I believe, yes, the contract--the contract should be up this year. Ms. Frankel. So is there going to be, do you know, any consideration as to compliance whether they will be reselected? Mr. Gordon. The FSA is currently going through, as was discussed earlier, a major new initiative, the Next Generation, where they are planning to basically revamp how they provide servicers and how they work with the loan servicers. Ms. Frankel. Can you give specific examples of how noncompliance actually affects the borrower? Mr. Gordon. So in the examples that we talk about in our report where a servicer does not provide a full set of information when a borrower comes in and seeks an alternative repayment, that borrower may select a payment plan that may not be in their best interest. They may not understand the consequences of that plan or the alternatives that would be available. The other, in terms of the income-driven repayment options, if those payments are miscalculated, the borrower could either be over or under assessed payments. Ms. Frankel. Are the service providers given specific information on how to answer questions, or is it left to their own devices? Mr. Gordon. The provision in the contract requires the servicers to comply with Federal requirements. In some instances, FSA gives very specific directions. In other instances, they may not. That is one of the areas of feedback that we have received from servicers related to our report is they may not have received specific information on what they need to do. Ms. Frankel. Okay. Ms. DeLauro. Will the gentlelady yield for one second? Ms. Frankel. Yes. Ms. DeLauro. Because to follow your line of questioning, I think in terms of noncompliance and the effect on the borrower, I think you need to let Congresswoman Frankel know about the issue of forbearance and moving borrowers into forbearance and what that means. And that, in fact, that is the basis of a suit against one of the servicers, which is Navient. Mr. Gordon. Sure. If they are improperly moved into forbearance or make that decision based on being provided incomplete information, they would continue to accrue interest and ultimately end up with a larger loan debt as a result of the period that they spend in forbearance. So, yes, it can have a direct financial consequence on the borrower. Ms. Frankel. Are there any incentives for the providers to be in compliance, number one? And number two, is there any competition? Do borrowers have any options who they can work with? Mr. Gordon. So the borrowers are assigned to a specific servicer. So, currently, no on that. As far as competition among the servicers, the loans are allocated based on a formula that is primarily driven by the extent to which they keep borrowers in a current payment status. Ms. Frankel. And are some doing better than others? Mr. Gordon. Yes. Ms. Frankel. Yes, okay. And are there any incentives for compliance? Mr. Gordon. So that is actually the key part of our report is that this loan allocation formula, because it does not include compliance, does not really provide incentive to increase compliance on the part of servicers. Ms. Frankel. Thank you. I yield back. Ms. DeLauro. Thank you. Mr. Graves, it is my understanding that you have no questions. So what we will do is to complete this panel but say a very big thank you to you, Mr. Gordon, for the work that you do, for the impartiality of the work that you do and the independence. Because, in fact, the work of the Inspector General across departments and the Federal agencies provide us with important information. And as you pointed out that your recommendations, which were laid out, and we would, you know, want to see those and obviously see whether or not they are being--there are changes, corrective actions being made. But our job is to take a look at the data, the material that you put forth and then take it from there. So we are very, very grateful for your testimony this morning. Thank you so much. Mr. Gordon. And thank you. Ms. DeLauro. Now the second panel to move forward, and we are going to--we are sorry about the microphones, Mr. Gordon. But they are going to take just a very few minutes to please come on up, but they are going to fix the microphones so we won't run into this again. Thank you. [Pause.] Ms. DeLauro. Thank you. I will do brief introductions for the witnesses who are on this second panel. We have first Ms. Joanna Darcus, who is the Massachusetts Legal Assistance Corporation Racial Justice Fellow at the National Consumer Law Center. Joanna represents low-income student borrowers of color using advocacy and litigation to address predatory education and lending practices. Next we have Ms. Shennan Kavanagh, Deputy Director of the Consumer Protection Division at the Massachusetts Attorney General's office, where she oversees a variety of consumer protection matters relating to student loans, auto finance, mortgages, and debt collection. She is also the head of the AG office's enforcement initiative on student loan servicing. Then we will hear from Preston Cooper, research analyst in higher education policy at American Enterprise Institute, who focuses on the economics of higher education with a particular emphasis on higher education policy at the Federal level. And last, we will hear from Ms. Colleen Campbell, Director of Postsecondary Education at the Center for American Progress. Her work focuses on providing accessible, affordable postsecondary options for underrepresented communities and adult learning. Please everyone note that your full testimony will be read into the record, and we will deal with 5-minute presentations. Ms. Darcus. Ms. Darcus. Chairwoman DeLauro, Ranking Member Cole, and members of the committee, the National Consumer Law Center thanks you for this opportunity to testify before you today. For the past several years, I provided free legal help to student loan borrowers, first as a civil legal aid attorney in Philadelphia and now from Boston with the National Consumer Law Center as a member of our Student Loan Borrower Assistance Project. I offer this testimony on behalf of our low-income clients. It is based on our experience representing them, as well as our work providing technical assistance and training to other advocates and attorneys who are also assisting student loan clients nationwide. Often, their clients' experiences mirror those of my clients. Simply put, when servicers fail to provide effective service, borrowers suffer. When the Department of Education's Office of Federal Student Aid fails to identify and correct servicing errors or fails to hold servicers accountable, more borrowers suffer. Currently, borrowers are the only ones being held accountable when something goes wrong. Servicers have been systematically failing to keep borrowers current. People routinely fall behind because of lost or improperly processed paperwork. Borrowers struggle to make unaffordable payments because servicers routinely fail to inform them about income-driven repayment, and borrowers miss out on program benefits like public service loan forgiveness as a result. Servicers compete for the task of shepherding borrowers through repayment. They seek out this responsibility and assert that they are capable. We pay student loan servicing companies handsomely to advise borrowers of their options and help them understand the features of their student loans. We desperately need that investment to pay off for borrowers and for other taxpayers. My low-income clients, the distinct majority of whom are people of color, took out student loans because it was their best option to fund an education that promised to put them on a path to financial security. Borrowing was supposed to make higher education not just accessible, but affordable. Yet many of my clients worry about how they will repay their loans and how long it will take. They are doing the math and wondering when education will equal opportunity for them. Yet servicers' errors, delays, and misinformation tack on additional costs and time in repayment for many of them. Because there is no statute of limitations on the collection of student loans, fear and anxiety often mount along with interest and fees. The vast majority of my clients have not only experienced delinquency but have fallen into default. Occasionally, I will work with a borrower who is still current or who is delinquent. As we review their National Student Loan Data System report or I decode it for my clients, I help them understand what it means and often find that there have been serial forbearances and other red flags. For instance, last month I met with a 2017 graduate, a college graduate, first in her family to go to school, who is pursuing a public service career but on a graduated repayment plan. Those two things will never work out for her. That plan will not get her where she wants to go, which is forgiveness. There is more we can do before default, but that doesn't mean that borrowers who haven't experienced default haven't also been harmed. But unfortunately, for my clients, they need an attorney to help them access the features and benefits of the program. But no one should need an attorney to help them manage their student loans. The demand for student loan legal assistance far outstrips the supply right now, and in addition to the services offered by legitimate companies, student loan attorneys, nonprofit financial organizations, a vast debt relief industry has cropped up, taking advantage of these borrowers in distress. Servicing failure and Federal Student Aid's failure to address those issues contributed to the explosive growth of this market. Corrective action and system change is imperative. Anything less would continue to do a disservice to the student loan borrowers who should be able to rely on the servicers they pay for, both as student loan borrowers and as taxpayers. Since it is tax season, the story I shared about a tax offset, a single father raising twins who lost $7,000, including the earned income tax credit, is far from an anomaly. We need to make these stories a thing of the past. Borrowers can't wait for change. Just like Ms. H, the retiree, who needed her Social Security to pay her mortgage so she could save her house. Thank you for your attention to these issues and the opportunity to testify today. Borrowers need your attention, and they need change now. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you. I might note, and my colleague Congresswoman Lee noted this, that student loans can't be discharged in bankruptcy as well. So they face additional pressure there. Ms. Kavanagh. Ms. Kavanagh. Chair DeLauro, Ranking Member Cole, and members of the subcommittee, thank you for inviting me to testify today on the issue of protecting student borrowers by oversight of loan servicers. On behalf of Attorney General Maura Healy, I appreciate the opportunity to speak on this issue and to share our work advocating for student borrowers in Massachusetts through enforcement actions, investigations, and direct borrower assistance. I am here today to reinforce the serious concerns expressed by the Department of Education's Inspector General and to urge this committee to hold the Department accountable to the students and families we all serve. Loan servicers are a key player in the student loan system. They perform the day-to-day management of loan accounts and are borrowers' primary point of contact for information about their loans. Notably, despite the critical role that loan servicers play in borrowers' financial lives usually over the course of decades, borrowers do not get to choose which company services their loans. This reality impedes borrowers' ability to effectively advocate for themselves in the face of servicer misconduct and provides a disincentive for servicers to hold themselves to high standards of borrower service. There is widespread misconduct in the student loan servicing industry undermining borrowers' ability to repay their debts and to pursue careers of their choice. Every day, our office hears directly from student borrowers seeking help from us when their loan servicers have failed them. A single instance of servicing noncompliance with State or Federal law can have a ripple effect for borrowers, permanently getting them off track with successful loan repayment. Everyone has an interest in ensuring this does not happen--the students, their families, their schools, and the taxpayers. This is a national problem with a significant local impact. When students cannot afford to repay their student loans, they cannot make long-term investments in their local communities, such as buying homes. When graduates who wish to pursue public service careers as police officers, nurses, teachers, or social workers, are improperly denied access to Federal programs enacted to enable them to manage their student loan debt, communities lose highly skilled and educated public servants. It is, therefore, imperative that the Federal Government perform strict oversight of its loan servicers. The Department of Education must enforce the obligations to which servicers agreed and hold them accountable when they violate State laws and Federal laws and regulations that govern the programs in which borrowers' loans are made. This problem will continue indefinitely if left unchecked. State agencies like attorney general's offices are playing a crucial role in filling the gap and protecting borrowers when their servicers fail to comply with the law. Attorney General Healy is a leader in this effort and has devoted a significant amount of resources to advocacy and enforcement initiatives. Through our work, we have uncovered many instances of systemic noncompliance with State and Federal law by loan servicers and have obtained significant relief for borrowers. For example, our office has obtained refunds for thousands of borrowers nationally who were overcharged by their servicer. Notably, the servicer refused to refund the overcharges for over a year, despite knowing that it had improperly billed the borrowers. We secured a $2,400,000 payment from one servicer for a variety of violations of State and Federal law, including failing to properly grant eligible military members an interest rate cap to which they are entitled under the Service Members Civil Relief Act; overcharging late fees to borrowers on Federal income-driven repayment plans; misreporting the status of borrowers' loan accounts to the credit reporting bureaus; and failing to timely process borrowers' applications for income-driven repayment plans. In addition to our enforcement work, our office created a designated Student Loan Assistance Unit to assist individual borrowers by bridging the communication gap with their servicers. In 2018 alone, the Student Loan Assistance Unit fielded over 3,000 telephone calls to its hotline and generated over $1,000,000 in savings and recoveries for student loan borrowers in Massachusetts. The volume of borrowers the Student Loan Assistance Unit assists and the breadth of the issues the unit handles exhibits the significant need for local resources to help borrowers. These are just some examples of the work the Massachusetts Attorney General Maura Healy is doing to protect student borrowers. They illustrate the need for loan servicer oversight at both the State and Federal levels. Thank you very much. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you. Mr. Cooper. Mr. Cooper. Good morning, Chairwoman DeLauro, Ranking Member Cole, and members of the subcommittee. Thank you for the opportunity to testify today on servicing the Federal student loan portfolio. My name is Preston Cooper, and I am a research analyst in higher education policy at the American Enterprise Institute, a nonprofit, nonpartisan research organization based here in Washington, DC. My comments today are my own and do not reflect the views of AEI, which does not take institutional positions on issues. Federal student loans are one of the most complex consumer financial products that exist in the United States. The loan program has several different repayment plans, ranging from the 10-year standard plan with level payments to extended plans, to income-based repayment plans. There are also multiple and overlapping loan forgiveness programs, each with different requirements and timelines, as well as numerous opportunities for borrowers to avoid paying their loans. It is no wonder that student loan borrowers, staring down all this complexity, are confused. To manage its $1,200,000,000,000 student loan portfolio, the Department of Education contracts nine servicers, which have received plenty of blame for the loan program's problems. But while there is always room for servicers and the Department of Education to improve, the best way to help borrowers navigate our complex student loan program is to simplify the system. I will discuss two aspects of Federal student loans where complexity has led to suboptimal loan outcomes and borrower frustration, forbearance and public service loan forgiveness. A recent Consumer Financial Protection Bureau lawsuit alleges that loan servicer Navient improperly steered its borrowers into a loan status called forbearance. Forbearance allows borrowers to pause payments on their loans for any reason for up to 3 consecutive years. Interest accrues during that time, with the typical borrower who stays in forbearance for 3 years racking up $4,500 in additional interest costs. Without question, the use of forbearance is excessive. Sixty-eight percent of borrowers who entered repayment in 2013 used a forbearance at least once, up from just 39 percent from the 2009 cohort, despite an improving economy. This is well above what we would expect if borrowers were only using forbearance to get through temporary hardships as intended. Many put the blame for this on servicers, but the more important question is why the Federal Government allows student loan borrowers to stop making payments for up to 3 consecutive years with no questions asked in the first place. The complexity of the Federal student loan program has also led to considerable confusion among borrowers regarding what they need to do to earn public service loan forgiveness, or PSLF. As of September 2018, over 41,000 unique borrowers had submitted an application for PSLF, despite Federal data showing that fewer than 1,800 were even close to making the required number of qualifying payments. While some claim that servicers or the Departments are blocking borrowers from PSLF, these statistics show that tens of thousands of borrowers believe they qualify for forgiveness when they actually do not. This is because there is a long list of stipulations regarding what counts as a qualifying payment, which borrowers do not always fully understand. Borrowers must have the right kind of loans, must be in the right repayment plan, and cannot be in deferment or forbearance when they make their payments, among other things. A simpler student loan program would improve borrowers' experiences and reduce the chance that borrower or servicer error leads to a suboptimal outcome. For example, one potential simplifying reform would limit discretionary forbearances to 3 consecutive months, down from the current limit of 3 years. Even if the servicer does improperly steer a borrower into forbearance, the consequences of that mistake will be minimal if the maximum forbearance is only 3 months. Since its beginning in 1958, the Federal role in student loans has grown ever more expansive and complex. Decades of accumulating reforms have led to a sprawling program, which is very difficult for either the Federal Government or servicers to administer effectively. The path to a better loan program is simplification. That concludes my testimony, and I look forward to answering your questions. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you, Mr. Cooper. Ms. Campbell. Ms. Campbell. Thank you for having me here today. I want to begin on a positive note. Starting in the Obama administration and continuing over the last 5 years, FSA has been pursuing a complete re-imagining of the servicing system. It is now called the Next Generation Financial Services Environment, or NextGen, and it modernizes FSA's infrastructure, allows for better performance monitoring, and most importantly, promises borrowers a single website through which they can manage their loans. It is a sure win for borrowers. But it has been stuck in limbo, thanks to never-ending protests and lawsuits brought by servicers and debt collectors who want to protect their bottom lines and the status quo. While we wait, borrowers are also stuck with a complex system that consistently lets them down. It is time to reform the repayment system, and Congress can take steps now to fix the mess that we are in. First, Congress can provide FSA with additional oversight. Too often, FSA prioritizes efficiency over outcomes. Efficiency means funneling borrowers into less labor-intensive benefits. It means cutting corners on compliance monitoring because more findings mean more work. It means giving up on severely delinquent borrowers because compensation is too low. This is not what borrowers deserve. FSA has shown that it is unable to balance its priorities, and Congress must make clear that borrowers come first. To ensure FSA refocuses on its true mission, Congress can mandate that the Consumer Financial Protection Bureau reclaim its past supervisory and enforcement roles. These duties were stripped from the CFPB by Secretary of Education Betsy DeVos, who severed the memorandum of understanding that gave the Bureau this authority. The CFPB wouldn't merely be a cop on the beat but would be a resource and partner for FSA, alleviating some of the cost and burden of contractor oversight. Second, this committee can restructure how a servicer's performance is measured. Currently, servicers are ranked in comparison to one another, then allocated a share of new accounts based on their rank. Instead, servicers should be expected to meet a high standardized baseline of performance so that all borrowers can expect the same quality of service. And servicers should be measured on more than borrower outcomes. Performance metrics should include other objective metrics, such as rates of enrolling delinquent borrowers into an income-driven repayment plan, providing appropriate and accurate counseling, correctly calculating repayment and interest amounts, and processing benefits and paperwork in a correct and timely manner. Federal law should also prohibit specialty servicing, a practice in which FSA allocates all accounts of a single type to one servicer. For example, FedLoan Servicing or PHEAA receives the account of every borrower who indicates interest in the Public Service Loan Forgiveness Program, even though PHEAA has performed worse than every other servicer in FSA's most recent evaluation. Specialty servicing ensures that poor performers continue to receive accounts and discourages other servicers from directing borrowers toward benefits that will cause them to lose an account and, therefore, revenue. Finally, Congress can provide FSA with flexibility around default. As my written testimony details, I recommend that Congress puts an end to student loan default. I realize that default is defined in the Higher Education Act and is, therefore, beyond the jurisdiction of this committee. But you do have the opportunity to take the first steps in turning the system around. There is not currently a hard line between servicing and collections. Though HEA defines default at 270 days of nonpayment, servicers are not required to transfer those accounts to debt collectors until 360 days of delinquency. Congress could open up some authority for servicers during that 90-day period, such as allowing them to automatically enroll borrowers into an income-driven, excuse me, repayment plan. This could help prevent the lowest income borrowers from facing default. Automatic IDR enrollment would require additional data sharing between the Departments of Treasury and Education. Thankfully, the authority to share these data already exists. It was clarified during the Obama administration and has remained a priority for the current administration, even showing up in last year's executive office budget. Improving FSA oversight, amending servicers' performance metrics, and building flexibility into late-stage delinquency would be a terrific start to moving the repayment system in the right direction. Though NextGen should help improve things for borrowers, it is by no means a silver bullet. The new system will take years to get off the ground. It has already been 5 years since we embarked on this process. We cannot afford to wait any longer. Borrowers are being harmed right now, and it is up to Congress, and in particular this committee, to provide FSA with the necessary direction and resources to get things off the ground. I look forward to discussing these proposals and your questions during the Q&A. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you all very, very much for your testimony. Let me begin the questioning, and let me begin with you, Ms. Campbell. You know FSA is a performance-based organization tasked with achieving certain goals and efficiencies for students and taxpayers. It was established as a PBO in 1998. It was the first one, as I understand it, and it granted FSA great flexibility in the administration of student aid programs. In light of the testimony heard today by Mr. Gordon about the failures of FSA in managing and overseeing student loan services, do you believe that FSA is fulfilling its statutory mandates as a PBO? And there is a section, Section 141, in the Higher Education Act, which lays out the performance-based organization for the delivery of Federal student financial purposes, why it was established, what its purposes are, and it lists a number of those purposes, (a) through (g). I won't go through all of them, but my question is, are they fulfilling the statutory mandate of a PBO? Are they adhering to principles, which ones maybe they are and which ones are not? Ms. Campbell. Sure. So in the HEA, it lists a number of priorities, as you mentioned, and the first one is borrower and student satisfaction with the aid programs. However, it also discusses managing costs of the programs. Now when costs are balanced with students' well-being and priorities, those are often at odds, and especially in an agency and especially in the times that we are in where kind of Federal agencies are expected to be cutting costs and running as efficiently as possible, what often happens is that FSA acts in the interest of saving money and kind of efficient--most efficiently operating rather than putting the needs of borrowers first. So when the PBO was initially put into place, I think that it did a lot to improve Federal student aid, but I think that it is time that we re-evaluate how FSA has complied with that edict in the first place. Ms. DeLauro. Let me also ask you, the Congress provided $9,000,000,000 in student aid administration from 2014 to 2019. Other programs were zeroed out, flat funded, while students defaulted on loans. The FSA saw an increase of over $500,000,000. In 2019 alone, Congress gave $1,700,000,000 to FSA. You testified here about the mismanagement and the abuses of the servicers. If we know that servicers are doing a poor job in helping our students, this was something that Ms. Lee was talking about, why do they continue to receive lucrative contracts? Ms. Campbell. I think one of the really important aspects of this is transparency. There is very little transparency into how FSA puts together its contracts, the policies it makes kind of behind the scenes. And often, these policies are made in conjunction with servicers and debt collectors themselves. Because of the way that FSA is structured with the performance-based organization system, what ends up happening is that a lot of--FSA is given a lot of authority to do things on its own. It can put out contract procurements in order to kind of get into these situations with servicers in the first place. When that ends up happening, you are leaving the public out of the decision-making process, and you know, you frequently hear from folks that we need more data on student loan borrowing and on kind of what is going into these contracts and into compliance, and that is absolutely right. I think if the public had more say in these processes and if there was more data available so that we could better evaluate these programs, then we would be able to consistently shed light on what is going on at FSA rather than kind of relying on audits and kind of oversight activities in order for these things to come out and then try to fix them retroactively. Ms. DeLauro. Will money alone fix the process? Ms. Campbell. I think that money alone will not fix the process. Ms. DeLauro. I am going to yield back my time. I know the ranking member has to be somewhere. Mr. Cole. Thank you very much. I appreciate that, Madam Chair. Let me begin just--and this is a little off topic, but I am just curious about your opinion. We have appropriately focused on the FSA and on servicers and the Department of Education. What about, you know, how many, in your opinion, of these loans should have never been made in the first place? That is, students up front didn't get the appropriate advice that either this career path won't take you where you can repay this, or this is the wrong thing? And it seems to me a lot of--they are not getting very much help in making initial decisions from the colleges and universities or trade schools or what have you. Is that a fair assumption to make? And if you have a solution, I would love to hear that, too. Yes, please. Ms. Darcus. It is certainly the case that many students would be better served by grant aid instead of loans. Because this program is designed to make college affordable, we really have to look at what affordable means and whether folks will ultimately have the ability to repay loans. So when we are thinking about our investments in higher education and future generations of workers of all kinds and citizens, we should really think about prioritizing grant aid so that we don't wind up saddling folks with debt that they can't afford to repay. The other thing we need to do and another area where there is an intense need for oversight is of the schools that are program participants with the Department of Education. We have seen predatory for-profit schools who are essentially fueling-- siphoning taxpayer dollars through students to their investors while students are suffering without being able to complete their credentials because of poor education or high costs. And also without the kind of credential then that would enable them to get employed in a way that would free them to repay their loans while still feeding their families. Mr. Cole. Same question to everybody. So---- Ms. Kavanagh. Yes, I agree with what Ms. Darcus has said. Oversight of the education industry in general to make sure that when students are making decisions about higher education, they are getting the opportunities to go to schools that are going to provide them with the opportunities to get the degrees they need in order to be able to repay their loans. My office has been very active in enforcement initiatives over for-profit schools, the predatory for-profit schools who defrauded students or who closed, and is also continuing to be very active with students in obtaining group discharges of their loans when they have the ability to do so and individual discharges on a daily basis. Mr. Cooper. So the Department of Education estimates that in fiscal year 2018, 25 percent of the loans made to undergraduates will end up in default at some point. And the strongest predictor of default or one of the strongest is whether the student actually finishes college and actually gets a degree or credential. And it makes sense that if you go to college either you get ripped off or you can't finish, you say why should I pay this if I didn't get anything out of it? So I would definitely say while this is a problem that is not easy to solve, it can start with stronger accountability for colleges to make sure that they are not taking in students who are not prepared for college and will drop out and then default on their loans. Mr. Cole. Thank you. Ms. Campbell. Ms. Campbell. And to the point that Mr. Cooper made earlier about simplification in the system, I think that regardless of if a student finishes college or not, they should have the opportunity to repay their debt, that the system shouldn't be so complex that it is difficult to figure out how to repay. I also think that we can't really be thinking about this in terms of students not feeling like they shouldn't have to repay their loans if they didn't finish college. I think that when they are not receiving the benefits of a credential, those earnings kind of benefits, it can make it really difficult to live and to pay for other expenses, and a student loan will often come last kind of on their list of priorities. I will absolutely say that allowing students to go to school debt free is a huge priority, and that it would prevent a lot of the outcomes that we see, particularly for borrowers of color and low-income students who are disproportionately affected by default. Mr. Cole. Well, I thank all of you for your comments. I am going to have to leave, but just to wrap up my time here, you know, what concerns me the most is it is almost as if nobody is thinking about what is best for the students. And that includes the colleges, profit and nonprofit alike. There is a big difference between your chances of repaying the cost being a 16th century French major and a petroleum engineer. I mean, one I would go into debt for. The other one, I would like to do, but I probably wouldn't go into debt for. And students need to know that kind of thing up front. I don't think the colleges do a very good job, nor do I think--I mean, all of your testimony has been very persuasive about the problems we are having with the servicers. And particularly this idea that a number of you mentioned that students get an opportunity to choose what college they want to go to or what they want to do, but they have no choice in the provider. And we have no way of interjecting some competition there where the student might have an opportunity to go with somebody that is going to service them better. So, again, I commend you, Madam Chairman, for holding the hearing. It has been a very good one, and I thank all of our witnesses. Ms. DeLauro. Thank you very much, and I thank you. I know you have to be off to manage a bill. So, and I want to say a thank you to Congresswoman Frankel for hanging in there. Congresswoman Frankel. Ms. Frankel. That is what I am here for. Thank you. First of all, I want to thank you. You all answered my original questions, Mr. Gordon. So thanks for that. There is another basic question, though. How do these service providers make their money? Ms. Campbell. So they are compensated based on the borrower's status in repayment. So they are paid the most for a borrower who is in a current repayment status and the least for a borrower who is in kind of a late-stage delinquency. The amount that they are paid per month for a current borrower is $2.85. Ms. Frankel. And how many borrowers do each of them have? Ms. Campbell. So I have those numbers here. The servicers, the largest services have in excess of 6 million accounts. So that is, for example, Navient, and then the not-for-profits end up being much, much smaller. Ms. Frankel. Okay. So I think someone is here from Massachusetts, right? Okay. Now I think I read or somebody said that there is a new rule that doesn't allow the State to be involved with this. What is the status of that? Ms. Kavanagh. There isn't any rule or new rule that preempts State consumer protection laws. There has been an effort over the last several years to argue in various litigations in various courtrooms that the States don't have authority under their consumer protection statutes to hold servicers accountable for various violations of State law. So far, those efforts, the servicers have lost on those legal arguments in the various cases that are out there like the ones against Navient and our office's case against PHEAA. Ms. Frankel. Okay. I am going to ask two questions, and you can all take a shot at it. The first question, the next question I have is apparently women--I don't know if this is true, but it is written here. So maybe it is. That women hold two-thirds of the outstanding student loan debt in the United States. I would like you to comment on that, if you have a-- know why. And secondly, I think some of you have not--could you give me your recommendations on what kinds of things we can do to make this whole situation better that we have been talking about? Ms. Campbell. Sure. So women tend to hold more student loan debt because women enroll in college at higher rates. Your staff did a good job at pulling those numbers for you. And you know, what we end up seeing is that---- Ms. Frankel. That is right because more women are in college. Ms. Campbell. Exactly. Exactly. Ms. Frankel. Okay. All right. Ms. Campbell. And so because women enroll at higher rates, they tend to, you know, enroll in school and borrow more. Women are also disproportionately those who are students enrolling in college who have children, and so those students are also ones that borrow a lot. In fact, about 25 percent of undergraduate defaulters have a child when they enroll in college. So this is really a problem that is affecting families, not just people. In terms of recommendations for the entire system, I think that one of the most important things that this committee can do is to require a consistent set of servicing standards across the board. I also think that this committee can require that the Office of Federal Student Aid implement some of these actions before the NextGen system is rolled out. That process has been going on for years now and will continue to be delayed, I am sure, if servicers and debt collectors have any say in it. And so I think that we can't wait for these changes, that they have to happen now and that you can compel the Department of Education to do them right at this moment. Ms. Frankel. We will just go down the line. Mr. Cooper. So one of the, I think, most important things that Congress can do is we currently have 7.2 million borrowers in default, and barring a radical transformation of our loan system, I think that a number like that is going to remain the case for the foreseeable future. So I would say what can the Department of Education do to help those borrowers get out of default, and how can they make the process for getting out of default clear, make sure that the fees are not punitive and that the fees are transparent, and make sure that borrowers, once that they are in this hole, they could climb out of it. Ms. Kavanagh. We agree with the recommendations that the Inspector General's office made in its audit report. And in particular the one where to require servicers to track issues of noncompliance and also to do--when they discover an issue of noncompliance, to do a deep dive and see if that is systemic and affects a large group of borrowers versus just being a one- off situation. We have learned in our enforcement work, oftentimes we will get a complaint from an individual borrower, and we have the tools to dig down deep and find out whether that has happened to more people. And oftentimes, we do find out that it is a systemic issue. So without that pressure on servicers to take everything is something to take serious and do a deep dive, then there is going to be a lot of noncompliance and consumer protection issues that affect large groups of people that either go unnoticed or unremediated. And in addition, holding servicers accountable by penalizing them in using whatever the tools the Inspector General's office has with respect to making them pay back money or not giving them loans, but in addition, from the State's perspective, enforcing our right to get civil penalties against servicers when there is widespread and intentional and knowing misconduct. And also from the State's perspective, not having the servicers have the ability to challenge our authority or the support from the Department to consistently challenge our authority to enforce our State consumer protection laws, which are historically our laws to enforce and are not preempted by the Higher Education Act. And lastly, not being prevented from obtaining information from loan servicers. There has been a lot of problems with loan servicers hiding behind the Department of Education and not sharing information that we would be entitled to get either through our subpoena power or civil discovery or otherwise in a collaborative relationship that we could use to assist borrowers and identify problems and get them corrected quickly. Ms. Frankel. Madam Chairman, I just had one more minute. Ms. DeLauro. Okay. Go ahead. Ms. Frankel. Before our next witness, I want to just ask you a question. Because you are recommending more of a deep dive by the service providers in terms of helping--getting compliance from the borrowers, if the service providers are only getting, what did you say, $2---- Ms. Campbell. It is $2.85 a month for---- Ms. Frankel. A month. So what is really the incentive to do a deep dive if you are only getting $2.85? I mean, they might as well just say, no, I will go on to the next one. Ms. Kavanagh. Well, the incentive would be to keep their contract in order to be able to continue, you know, making money doing this business. Because the alternative would be to lose their contract. But you know, whether or not the servicers are making an enormous amount of profit or enough profit to keep everybody in business isn't an excuse for them to fall down and fail to do their job. Ms. Frankel. No, I am not giving an excuse. I am just saying maybe the system is not right because the incentive doesn't sound too good. That is only because there is not, I guess, compliance. There is not enforcement. So either you have to have a system, I think, where there is maybe a better way to incentivize compliance before you have to actually penalize. I don't know. I am just throwing that out there, but what is your next--what is your suggestions? Ms. Darcus. I share your desire to ensure that it is not just borrowers who face penalties. That it is imperative that this committee continue to do the work of ensuring that the taxpayer dollars are spent well, whether that is by our investment in servicers who are responsible for helping borrowers succeed in repayment or the money that we are spending on private collection agencies that Federal Student Aid also oversees, or on other kinds of investments, like end for-profit schools. And one of the things that you have heard is that default is a critical problem for borrowers, and we have got to prevent it from happening. If servicers can't do the job, then we also need to look at redefining default, removing acceleration, ensuring that people can still live full lives, and by full lives, I mean keep the roof over their head, get to work, and take care of keeping the utilities on. And I will just note that this is the first year in which borrowers are facing offsets of their Social Security retirement and Social Security disability benefits because they are in default, are left with fewer dollars than recipients of Supplemental Security Income. These borrowers live on $750 a month now. SSI recipients get $771. We need to do something about the consequences of default, and I hope that you all will work with your colleagues to reauthorize the Higher Education Act in a way that ensures that borrowers who are not well served by our system, while our system is still being revamped, are not unfairly penalized. Ms. Frankel. I just have one more follow-up, which is I think one of you, well, more than one of you said that one of the biggest problems is defaults. Then I guess they get ignored. Is there anything in the system where there is another entity that looks at the defaults and goes in and tries to help? Ms. Campbell. When loan borrowers default, they are taken from the servicer by the Department of Education and assigned to a private collection agency. Ms. Frankel. That is it? Ms. Campbell. And that is it. So, essentially, the goal of those private collection agencies is to collect dollars. And typically, the way that they do that is through wage garnishment, tax garnishment, Social Security, things like that. We pay almost the same amount for debt collectors as we do for them to basically manage 7 million borrowers--it is about $1,000,000,000 a year to manage 7 million borrowers--as we do for loan servicers, which manage 34 million borrowers. So, clearly, there is a little bit of a cost discrepancy there. Debt collectors receive about $1,700 per borrower that they get out of defaults through one method. That is compared to, you know, that $2.85 a month that servicers receive for keeping a borrower current. And so there is definitely a disconnect between collections and servicing, and I think that that is something that would be very important for Congress to look at. Ms. Frankel. So, Madam Chair, maybe there is a--maybe there is a--maybe there is something, there is a gap is missing. You have servicing, and then you have debt collection. But it doesn't sound like anybody is really trying to help see if there is a way to help these folks who are going into default. Ms. Darcus. I think that is right. There is a point at which you have heard servicers do the math, and they decide whether it is worth it to spend resources trying to make-- trying to help delinquent borrowers stay out of default. Even though that is their job, they have to--they make that financial decision about whether they are going to help that borrower. And then once that borrower does transition to a private collection agency, that is usually when they come into my office. Nobody wants calls from debt collectors, and they don't know whether to trust that debt collector who started contacting them. The other thing that happens is the accounts once placed with a PCA, they stay at one PCA for a little while, then they move on to the next one. They move on to the next one. So you might get contacted within a relatively short amount of time by multiple entities, and you never know whether they are contacting you about the same thing. You don't know it is about your student loan. It is very, very confusing, and I do hope that you all will take a look at post-default collection activity and at the way that we use private collection agencies. The National Consumer Law Center, we have called for an end to the use of private collection agencies because of the unfortunate--the unfortunate way in which borrowers are increasingly harmed by the debt collection activity they face and the inability of the private collection agencies to help them resolve their defaults. Borrowers also need more chances to get out of default, and you all can give them more opportunities to do that through reauthorization of the Higher Education Act. Ms. DeLauro. Thank you. But addressing one comment to my colleague, it is $2.84, but you are multiplying that by millions. So they are doing--they are doing well. They are doing very, very well. The incentives are---- Ms. Frankel. But they don't have any incentive to help somebody. Ms. DeLauro. Well, and they are not--they do not get overseen by anyone. They are pretty much independent based on the way that they have been determined as a PBO. They are there. I also might just add that it would be useful in terms of what financial instruments people are being told to take on that the CFPB be brought back into the picture here in order to be able to oversee that and take a look at whether or not people are being--they are being steered in the wrong direction and how they can be steered in the right direction. Let me just ask Ms. Kavanagh, let me--there are several attorneys general now who are suing the student loan servicers over violations of State consumer protection law. Why do States, you know, have an interest in protecting borrowers from servicers? What work is your office doing, the AG's office done to deal with, you know, the harms that are the result of poor servicing? Ms. Kavanagh. So the States have a unique interest in ensuring that their student residents are able to repay their debt and to take advantage of Federal programs available to them in order to pursue careers, if they so choose, in public service. It is a great benefit to the general welfare of the States to have residents that are participating in their local communities and that are able to manage their debt, buy homes, and raise families. So we saw in Massachusetts, and I think based on the activity in other States as well, a big hole in between students being able to successfully repay their debts and access Federal programs and the actual ability to do so because the student loan servicers were not performing their jobs and giving borrowers information, either accurate information or any information at all about the plans that are available to them. So we got active, and we have our consumer protection statute, which is the one of the strongest statutes in the country, and the tools at our office's disposal to investigate and to enforce our consumer protection laws for the benefit of students. And we opened up a Student Loan Assistance Unit, and when we did that, we heard from thousands and thousands of borrowers. We have been fielding calls and questions and complaints from borrowers, and we have worked with student loan servicers. And when we are unable to get results or we see problems that are systemic, then we have used the tools to go forward and enforce our laws against them and hold them accountable for it. Ms. DeLauro. It would appear that more and more States attorneys general are reflecting the kind of work that you are doing, and it is also my understanding that Secretary DeVos has been thwarted in a number of courts on the reinterpretation of what the statute says or the false interpretation of what the statute says. I wanted to make a comment. I have a couple more questions for people, and then--we will wrap it up. But now on the Public Service Loan Forgiveness Program, which has been mentioned,--it would appear that there are 423 applications who have been approved by servicers, and there are 206 borrowers who had their loans discharged. So that our efforts in this area to--we provided $700,000,000. That $350,000,000 in 2018 and 2019 to help borrowers put in the wrong repayment plan, but who paid no less than they would have under the correct plan. In other words, we are not utilizing the funds that we have. And I don't know if it is slow walking. I think it is an area to find slow walking, people who are eligible for public service loan forgiveness, which is something that I think think that we ought to try to explore as well. I have a question from Congresswoman Lee, if I might? And let me just--and this is for anyone on the panel. A 2016 report from United Negro College Fund found students at historically black colleges and universities, HBCUs, borrowed loans at greater amounts and encountered more obstacles in repaying loans despite HBCUs having lower tuition costs. Students of color are forced to take on more debt due to lack of household resources, lack of adequate grant aid, and lack of adequate State investment in higher education. What suggestions would you provide to help borrowers better finance their education and repay their loans? What more can we do to help this group? So anyone who wants to---- Ms. Darcus. I will start. I will mention again that grant aid is a really vital way to make higher education affordable for low-income groups and people of color who do have fewer resources to draw on due to historic discrimination and its legacy that persist to this day. I will also add that institutions that have historically served people of color, like HBCUs, have suffered the same disadvantage. They are underfunded chronically, and also they have smaller endowments that leave them with fewer institutional resources to help defray the cost of the education, the investment that their students then have to make. Those are systemic problems. They are the legacy of racism and discrimination in this country. If you are serving folks who don't have a lot of money, then they don't have a lot of money to give you at the end of the day to make higher education more affordable for the next generation. So I know that HBCUs are calling for more fair funding, more Federal investment in HBCUs so that those institutions have the resources that they can pour back into students so that students aren't on the hook for debt when they are going to schools that serve them best. And I will also add this is another place where holding for-profit schools accountable is really important because enrollment is a challenge at every school. And there are schools that have historically served students of color, and they have done it well. Those are HBCUs and others. There are for-profit schools who claim to serve students of color, but the statistics don't bear that out. Students of color who attend for-profit schools disproportionately experience defaults and also are less likely to complete their education. So many students of color would be better served by going to a school like an HBCU. So we have got to make sure that those predatory schools like predatory for- profits are not getting access to Title IV funds anymore and that we give more money to the HBCUs. Ms. DeLauro. Well, you will be happy to know that next week on the 12th, we are doing an oversight hearing on the predatory for-profit schools. So anyone else on this question that Ms. Lee--go ahead. Ms. Campbell. Yes. Just briefly, we have responded to the Senate's request for some information on how to assist borrowers of color. So this is something that I know that they are looking at addressing in the Higher Education Act. But I also think that it is important to note here that what little information that we do have about the outcomes of borrowers of color has only been--come to light recently, and that is because of some work that is done by the National Center for Education Statistics in publishing sample surveys. The Department of Education doesn't currently collect any information related to the race of borrowers, and so the Department of Education is really unable to assess the outcomes of the portfolio in this sense, and so, you know, I think that it is worth considering if there is a way for the Department of Education to collect this information and to evaluate how borrowers of color may be differentially affected by programs. And that way, outreach can be better targeted for those communities. Ms. DeLauro. I have a quick question for you, Ms. Darcus. You talk about Federal Student Aid's response to service area abuse or deception hurts borrowers. You talk about how they deserve to be made whole. In your experience, are your clients ever made whole? Ms. Darcus. The short answer is no. They are made better, though when errors are found, it is very important that they be corrected. That takes a whole lot of time and energy, but the Department can't retroactively adjust balances and give credit for months of--toward forgiveness that borrowers lost out on, although they claim that is very difficult. So the angst, the anxiety, and the juggling of budgets and expenses and the management of time, that can't be given back to my clients. So we need to make sure that they don't experience delinquency, default, and servicing errors along their way to repay their loans. Ms. DeLauro. I am going to--I want to say really thank you from all of us for the testimony, there is clarity, there is a description of the difficulties and the complexity, and I hope that we can continue to be in touch with you about as this committee to take some opportunity for redressing some of these issues and what the Inspector General spoke about. So if you don't mind, we will be back in touch with your remedies. I can't guarantee we can do it all, but I can guarantee you that you can help to set us on a road to addressing what is a very, very serious problem. And I also want to be clear in closing that everyone has described this system as complex. It is very complex, and the servicing system has had its difficulty from the outset. This is not about pointing fingers. But there was, I might add, after several years, there was a formidable plan to correct this in the waning days of the last administration. And that was the Mitchell--the Ted Mitchell memo, which I have read, and I will want to reread because it seems that there was the understanding that there were serious consequences that had to be addressed. And it also appears that at the behest of the loan servicers that what Secretary DeVos did or she thought she had to do was to scrap the Mitchell memo, jettison it and its recommendations. Just recently, what the Department has done is they have awarded a $577,000,000 contract to Accenture for its NextGen--it is a digital portal to streamline student loan interactions. And you know, people want to take a hard look at that. There may be some good things. But I also may--and this is--I have had experience with Accenture in the past. It is known for its use of tax shelters, for its outsourcing practices, and a long list of failures with Federal contracts. But even then, the servicers are in court with the NextGen solution that the Department has. This is astounding. And in the meantime--so the Secretary felt that she had to accept what they said about the Mitchell memo. They have now proposed this NextGen. The servicers don't like NextGen, and they are suing the Department for this effort. And in the meantime, in the meantime, it is the borrowers who are on the hook. They suffer countless violations of consumer protections. And you know what I found, and my colleague Ms. Frankel will find this outrageous as well, as the self-assessment of the servicers, the COOs, the Chief Operating Officers, they get bonuses. They reward themselves on a self-assessment basis that they are doing a good job and they should then be rewarded financially through the agency's own internal assessment. So I think what you have demonstrated, what the Inspector General has demonstrated, that this is an issue that needs continued and vigorous oversight. We owe it to students. We owe it to the taxpayers. It falls under our jurisdiction, and we are going to continue that. And we are going to follow up with the Inspector General both on whether or not there are corrective actions at the FSA, in addition to which the new directions that they are going on and their investigatory work on what may be some violations. So, with that, I want to say thank you to you very, very much for your testimony, and also I want to thank my colleague Ms. Frankel for hanging in there all this time. Thank you. [Laughter.] Ms. DeLauro. Thank you all very, very much, and we will call this hearing to a close. Thank you. [Material submitted for inclusion in the record follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Thursday, March 7, 2019. ADDRESSING THE PUBLIC HEALTH EMERGENCY OF GUN VIOLENCE WITNESSES ANDREW MORRAL, PH.D., SENIOR BEHAVIORAL SCIENTIST, RAND CORPORATION DANIEL WEBSTER, SC.D., DIRECTOR, JOHNS HOPKINS CENTER FOR GUN POLICY AND RESEARCH RONALD STEWART, M.D., FACS, DIRECTOR OF TRAUMA PROGRAMS, AMERICAN COLLEGE OF SURGEONS COMMITTEE ON TRAUMA JOHN LOTT, PH.D., PRESIDENT, CRIME PREVENTION RESEARCH CENTER Ms. DeLauro. The subcommittee will come to order. Good morning. Glad to be joined by my colleagues and our ranking Member, Congressman Cole, and by our chair of the Appropriations Committee, Congresswoman Nita Lowey. So I want to welcome everyone to the Labor, HHS, Education Appropriations Subcommittee and this is a hearing this morning to address the public health emergency of gun violence. Let me say a thank you to our distinguished panelists for being here: Dr. Andrew Morral of the RAND Corporation, Dr. Daniel Webster of Johns Hopkins, Dr. Ronald Stewart of the American College of Surgeons, and Dr. John Lott of the Crime Prevention Research Center. I will introduce each of them before their remarks. Gun violence is a public health emergency. Since 1968, more Americans have died by gun violence than in every American war combined. In 2017 alone, guns killed nearly 40,000 Americans. That same year, opioid overdoses killed 47,000 Americans. We have dedicated immense public dollars, especially in this subcommittee, to addressing and examining one and not the other. It is time that we support public research of gun violence as well. We did, until the Dickey Amendment in the 1990s. It did not ban the Centers for Disease Control and Prevention from researching. However, it had a chilling result, severely discouraging it. Congressman Jay Dickey, with whom I served, came to regret his actions in this regard. Later in his life he worked closely with Dr. Mark Rosenberg, the former director of the CDC Center for Injury Prevention and Control, with whom he clashed in the 1990s. They subsequently worked together to address gun violence. Congressman Dickey passed away in 2017. But as his ex-wife, Betty Dickey, and his friend, Dr. Rosenberg, said in their statement to this subcommittee today, and I quote, ``Jay Dickey evolved his thinking as a former Congressman, member of this subcommittee, and sponsor of the Dickey Amendment, to ardently believe that research can make a difference.'' And also, and I quote, ``If Jay were alive he would want to appear as a witness at this hearing to tell you in his own words that Congress should appropriate funding for this important research that has the potential to save lives and to reduce disability.'' And I ask unanimous consent to insert their full statement into the record. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Jay Dickey came to believe that research can make a difference. Certainly this Congress must as well. We know that the Centers for Disease Control and Prevention can do this research. As HHS secretary, Alex Azar said last year, and I quote, ``My understanding is that the rider does not in any way impede our ability to conduct our research mission. We are in the science business and the evidence-generating business and so I will have our agency certainly working in this field as they do across the broad spectrum of disease control and prevention.'' CDC Director Robert Redfield agrees. Last year, he said, quote, ``We don't have any restrictions to do the research. We just need a funding mechanism. We are poised to research in this area if Congress chooses to give us additional funding.'' There is so much more that we need to know, and as our witnesses will attest, the 20-year gap in CDC research has left a vast void in our understanding of how to prevent gun violence. CDC is the nation's public health agency and, therefore, it must be involved. For example, we need to increase research intervention to reduce suicide by firearms. Suicide by firearms account for nearly 24,000 deaths in 2017 and firearms suicide rates have risen steadily since 2006. We need to be looking into this, and comprehensively, especially with regards to our veterans. They are twice as likely to die by suicide as the general public and two-thirds of those veterans who died used a gun. Earlier this week, President Trump announced an executive order--a roadmap to empower veterans and end a national tragedy of suicide. It establishes a task force that includes Veterans Administration, Defense, Health and Human Services, and Homeland Security. Let me just read what Secretary of the Veterans Administration Robert Wilkie said: ``We will bring the best medicine, the best social science, in addition to going to the Congress and asking for grants and money to give our states and localities so that they can help us in this fight.'' A senior administration official said that the order will also task agencies with developing a national research strategy in coordination with public and private stakeholders in order to have a more complete picture of the challenges facing veterans once they exit the service. This committee has jurisdiction over the CDC. The CDC must be involved. And also, we have jurisdiction over the research dollars and where the research dollars go. We need to better understand the correlation between domestic violence and gun violence. The initial evidence is alarming and it happens to relate to incidents of stalking as well. As one of our witnesses notes in his written testimony, more than half of intimate partners homicides involve the use of firearms. We need to help those Americans who choose to own guns to do so in a way that helps them keep their family safe. Research has indicated that safe storage is effective in reducing the number of children harmed by guns. We could be examining other common sense measures to do so. Those are just a few examples but there are so many areas we need to be examining and we need public dollars to do so. Let me quote from one of our witnesses, Andrew Morral, who said about this, and I quote, ``Many critical questions require national data collection over many years. A concerted research program of basic and descriptive research on gun use and violence and applied--and policy research. Resources for a research program of this magnitude would almost certainly require a long-term commitment of support by the federal government.'' Pre the Dickey Amendment we had only $2,600,000 for CDC research. Given the magnitude of this public health emergency, the federal research agenda must be bigger and it cannot just rely on private money. We need the CDC to be looking into this and the National Institutes of Health. The NIH had a three-year initiative from 2014 to 2016 looking into the epidemic of gun violence. They funded 14 projects. But they chose not to extend it. We will direct the NIH to restore that initiative because, again, we need public research. To make strides with regards to Alzheimer's or cancer, what we do is to dedicate public dollars to research. We do it for opioid addiction. There are a lot of different entities that are looking into opioids. We certainly are, with millions of dollars. Public dollars, we understand, in this area are critical. We can all agree to that. Sepsis kills about as many people as gun violence, according to a review in the peer-reviewed journal of the American Medical Association of CDC mortality statistics. Yes, despite similar rates of mortality, sepsis received 150 times the research funding that gun violence has. Also in the Journal of American Medicine, compared with other leading causes of death, gun violence was associated with less funding and fewer publications than predicted, based on mortality rates. Hernia, peptic ulcer, anemia, viral hepatitis, asphyxia, Parkinson's disease all have a lower mortality rate but received significantly more funding. In relation to mortality rates, gun violence research was the least researched cause of death and the second least funded cause of death after falls. Drowning, asphyxia, nephritis, aspiration, penetrating wounds, heart disease, fires, hernia, and malnutrition are all more researched than gun violence. We need to be providing public dollars for gun violence research because, as Richard Berk, a professor of criminology at the University of Pennsylvania, put it, and I quote, there is, quote, ``no upside to ignorance.'' So to close, let me say this is about the burden and the benefits--the burden of gun violence in our communities and its public health implications and we need to acknowledge the benefits of the research that we can be gathering to mitigate it. This is a public health emergency and it demands research. Now let me turn it over to my good friend from Oklahoma, the ranking member, Mr. Cole, for any opening remarks that he chooses to make. Mr. Cole. Thank you very much, Madam Chairman. Today, we have got a distinguished witness panel to discuss the topic of gun-related deaths. I want to begin by thanking all of you. I have read your works last night and extremely valuable papers and I look forward to your testimony here today. I want to begin for myself by recognizing that for many people the right of gun ownership is fundamental, rooted in the United States Constitution. I support that view. Our Founders knew that true freedom from despotism requires ordinary citizens to have the means to defend themselves. Of all the rights found in the U.S. Constitution, only one--the right to bear arms--is included to ensure that all other rights are upheld. However, I fully recognize that the use of this right comes with great responsibility. Like all Americans, I am disheartened when I see the loss experienced by a family because of a gun-related death but not assign exclusive blame to the gun, let alone to millions of law-abiding gun owners. We have in recent years seen where some of the true culprits lie--a mental health system woefully inadequate to meet the needs of the population, a loss of a sense of community and family in too many American homes, a sense of animosity towards people with opposing views, and an unwillingness by some to accept the reality of diversity in terms of race, ethnicity, and gender identification. A variety of factors leads a person seeing--leads to a person seeing the commission of a horrific crime as a viable means of addressing his or her situation. More funding for the Centers of Disease Control and Prevention will not by itself solve our systemic problems. Our response must be broader and more inclusive and it must be a response that unites rather than divides the American people. Looking for quick fixes or simple solutions will not solve a problem of gun violence. But it will exacerbate our political difference and poison the important public discussion that needs to occur across partisan lines and cultural divides. During my tenure as chairman of this committee and working, frankly, with my good friend, the current chairman, my then- ranking member, we were able to substantially increase funding for the NIH, the CDC, and a host of related entities that have made it--made it clear--excuse me, and we made it clear that nothing prevents these entities from pursuing research related to gun violence. And, again, as my good friend, the chairman--the chair pointed out, Secretary Azar has made that same thing crystal clear in his capacity as Secretary of Health and Human Services. But we also looked at a variety of other ways to deal with the problem we enacted a near 50 percent increase in the mental health block grant program. This funding goes to states and territories and lets them fund a range of services for their communities, especially support services for those suffering from serious mental illnesses. Starting in fiscal year 2018, we supported funding for certified community behavioral health clinics. These clinics serve individuals suffering from serious mental health and help these individuals get the help they need to improve the quality of their lives. As chairman, I also supported significant funding investments in substance use disorder prevention treatment and recovery. Too often we find people using addictive and dangerous substances as a way to cope with an untreated mental illness. I believe funding in these areas is essential to addressing the issue of gun violence. I do not expect everyone to share my views on responsible gun ownership and I am proud to serve in a body that represents all Americans and many viewpoints. We need to proceed in ways that generate broad congressional support for scientific research and we need to be careful stewards of our limited resources. The money we spend needs to make a difference as opposed to making a political point. I believe this bill has a number of programs that have proven potential--to improve the lives of everyday Americans and these programs come with broad bipartisan support. I have always said let us spend money on places we all agree have the most value and see how much is left. Using that approach, we have never had any money left on the table. I know our chair cares deeply about these issues and I look forward to working with her in fiscal year 2020, Labor H appropriations bills to find common ground. I would like to thank all our witnesses again for coming and I yield back the balance of my time. Ms. DeLauro. Thank you very much. It is now a pleasure for me to introduce the chair of the full Appropriations Committee, Congresswoman Nita Lowey, who has a very, very long and committed history to wanting to increase and provide funding for research--public health research in the face of a public health crisis. We are talking about funding research. Congresswoman Lowey. The Chairwoman. Thank you very much, Madam Chair. It is certainly a pleasure for me to be here today and I really want to thank my good friends, Chairman--Chairwoman DeLauro and Ranking Member Cole for hosting this very important hearing. And before I begin, I want to thank all those wonderful people in the audience who are here who took time out of their private lives and students, some moms, some dads who are traveling the country. We see groups of people everywhere who are tired of seeing death from guns and they are saying, let us do something about it. So thank you all for being with us today. By my count, this is the first time gun injury prevention will take a leading role in a hearing before this subcommittee since 1996, Madam Chair, when I sat at this dais with former Representative Jay Dickey and when Dr. Mark Rosenberg, then the director of the Center for Injury Prevention and Control, was part of a panel testifying on CDC appropriations. So I want to thank you, and I want to thank all those who are testifying before us today. This is so important. I didn't know, frankly--I didn't know then what I have, sadly, learned since--that that hearing was part of a coordinated effort to dismantle federal research in gun violence prevention. Soon thereafter, Republicans eliminated funding for the very research that Dr. Rosenberg had been conducting. Since then, the federal government has sat on the sidelines, relinquishing our role in protecting the public health while hundreds of thousands of Americans have lost their lives. In December, the CDC released data showing that 2017 had the highest number of gun deaths--nearly 40,000 in almost four decades. Forty thousand. Adjusted for age fluctuations, gun deaths have jumped by nearly 20 percent in the past two decades. So, my friends, it is our duty--it is our responsibility to investigate why. As a nation, we invested in research that inspired seatbelts and airbags and, as a result, thousands of lives have been saved. As Members of Congress, particularly those tasked with funding public health research, it is well past time that we fund research to identify what leads to these gun deaths and, more importantly, how to prevent them. It is clear that the United States faces a public health emergency, one that is breaking apart families, eroding the safety of communities, threatening our shared future. Only by conducting scientific research on gun injury prevention can we better understand the causes of this crisis and develop and implement a public health response to reduce injuries and death. Yet, without dedicated funding from Congress, the CDC, which should lead these efforts, cannot move forward with this vital work. So, again, to our panelists, thank you very much for joining us. For our chair, thank you so much for putting this hearing together. I look forward to discussing the tools and resources needed to improve our understanding of the causes, impacts, and scope of gun violence. Together, we can enhance our capabilities, improve public health, and save lives. Thank you. Ms. DeLauro. Thank you very much, Madam Chair. It now gives me great pleasure to introduce our distinguished panelists and, again, thank them for being here. Dr. Morral is a senior behavioral scientist at the RAND Corporation and leader of gun policy in America--a RAND initiative to understand the effects of gun policies. Dr. Morral has published dozens of peer-reviewed reports in leading scientific and policy journals and has served as a science advisor to the Department of Homeland Security. Dr. Daniel Webster is a professor of American health at the Johns Hopkins Bloomberg School of Public Health where he directs the Center for Gun Policy and Research. Dr. Webster has published over 120 peer-reviewed articles in scientific journals on topics including gun policy, violence prevention, youth violence, intimate partner violence, and suicide. Dr. Ronald Stewart is the medical director of trauma programs at the American College of Surgeons. For the past 20 years, Dr. Stewart has served on the American College of Surgeons Committee on Trauma, serving as the chair of the Committee on Trauma from 2014 to 2018 and over the past three decades Dr. Stewart has led the development of an integrated civilian military trauma system that serves all of south Texas. And John Lott, the founder and the president of the Crime Prevention Research Center. Dr. Lott has held research or teaching positions at several academic institutions and was the chief economist at the United States Sentencing Commission during the 1988-1989--during 1988 and 1989. Dr. Lott is a frequent op-ed writer and a contributor to Fox News. If I can take a personal privilege for a moment, I want to recognize Dr. Stewart. I believe your family is here and your son, Jackson, is here. I don't know where--where are you Jackson? There you are. Okay. It is really great to see you, and let me offer our congratulations to you. Jackson has just graduated from the Basic School at Quantico, which is where Marine Corps officers complete six months of training. And so this is really a wonderful achievement and thanks so much for being here, and my understanding is that you are on your way to flight school at Pensacola. So, again, and to the entire family who is here as well so and thank you for letting us borrow your father for this hearing. Okay. Dr. Morral, go ahead. Mr. Morral. Thank you, Chairwoman DeLauro, Ranking Member Cole, and distinguished members of this subcommittee for the opportunity to speak with you today. My testimony is based on a series of peer-reviewed reports published by RAND as part of its internally-funded Gun Policy in America Project, a multi-year effort to better understand what is known about gun policy in order to improve public discussion and support the development of fair and effective gun laws. My remarks are also informed by having over the last month reviewed almost 250 gun policy research proposals from social scientists across the country as part of my responsibilities as director of the National Collaborative on Gun Policy--Gun Violence Research, a private philanthropy staffed by RAND. Today, I want to make three points. First, we know too little about gun violence and its prevention. One of the clearest findings from our Gun Policy in America Project was just how little research has been done to understand the effects of gun policies. We searched the research literature to try to find evidence that met rigorous methodological criteria for more than a hundred types of gun policy effects. We concluded that, at best, there was relatively good evidence for just one policy we investigated and that was child access prevention laws appear to reduce childhood injuries and deaths. We also found more limited evidence that background checks may reduce firearm suicides and homicides, that prohibiting gun ownership by individuals with certain mental health histories may reduce violent crime, and that ``stand your ground'' laws may increase homicide rates. Importantly, though, all these findings are based on just a handful of studies, nothing like the quality and depth of evidence that had accumulated on the link between smoking and cancer, for instance, by the time states started prohibiting indoor smoking. My second point is that we need more high-quality research on gun policy and gun violence prevention, including on suicide prevention, intimate partner homicide, defensive gun use, illegal gun markets, prosecution of gun crime, and other topics. A lack of investment in gun policy research means we do not have compelling answers to very basic questions like do gun- free zones deter gun violence or do they invite them--do they invite. How do child access prevention laws affect gun owners' ability to defend themselves and their homes? These are the kinds of questions for which there is strong disagreement between policy analysts on opposing sides of the debate. Importantly, these are disagreements about facts--facts that are knowable in principle but that require careful study. When there has been such longstanding disagreement about facts that go to the heart of what constitutes an effective or even a fair gun law, we should be investing in careful and objective research to discover the truth. With minimal federal investments, a small number of investigators have continued to make progress on important research questions with support usually from their universities, rare philanthropic or state grants, and occasional short-term funding opportunities like the NIH program that the chairwoman mentioned during the last administration. But large-scale progress may require national data collection over many years, a concerted research program of basic and descriptive research applied in policy analysis research. A research program of this magnitude would almost certainly require a long-term commitment by the federal government. Finally, I will conclude by discussing three steps Congress and the federal government could take to help improve gun policy research. First, Congress should consider funding a dedicated research portfolio to support gun policy research. In 2016, opiate overdose deaths exceeded firearm deaths for the first time. In 2018, recognizing the urgency of the public health crisis, Congress appropriate $3,300,000,000 in response, including $500,000,000 for research. An appropriation for gun policy research even a fraction this size could lead to dramatic improvements in our understanding of gun policy and violence prevention. My second recommendation is to reintroduce and expand firearm ownership and use questions to the CDC's Behavioral Risk Factor Surveillance System. Doing so could provide low- cost--a low-cost approach to developing vastly superior data on state differences and trends in firearms access compared with the approximations that researchers currently have to use. Third, the CDC could make an important contribution to gun policy research by improving the reliability of its existing injury surveillance system and expanding its data collection to allow for state-level estimates of firearms injuries. Thank you for this opportunity to testify and I look forward to your questions. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very much, Mr. Morral. I was to tell you that your written testimony will be included in the record and you were recognized for 5 minutes. But you came in under 5 minutes. So I thank you very, very much for that. I am also supposed to tell everyone, the witnesses, to please turn your mic on here so when you speak. So, with that, our second witness is Dr. Webster. You are recognized for 5 minutes for your opening statement. Mr. Webster. Thank you, Chairwoman, and Ranking Member Cole and members of the committee. I appreciate the opportunity to speak at this hearing about the importance of need for federal funding to research gun violence, one of our nation's most important public health and safety challenges. I want to note for the record that while I am affiliated with Johns Hopkins, my remarks today are my own and do not necessarily reflect that of Johns Hopkins University. Suicides by firearms account for nearly 24,000 deaths in 2017 and firearm suicide rates have risen steadily since 2006. In 2017, 75 percent of homicides in the United States were committed by firearms. That is a greater share of homicides committed with firearms since at least 1981 and, I believe, going much further back from that. Because homicide rates are highest among young Americans, firearm homicide represents a leading cause of premature mortality in our nation. It is estimated that 133,895 individuals were treated for nonfatal gunshot wounds in 2017 and more than 456,000 nonfatal firearm crimes reported in the National Crime Victimization Survey. Yet, the impact of firearm crimes--firearm violence on public health cannot be fully captured by data on deaths or physical woundings. Countless individuals throughout our nation including many young children have been mentally scarred by their own victimization with a firearm or witnessing others who have been shot. I have been studying gun violence as a public health problem for about 30 years and conducted research on virtually every form of gun violence. I evaluated a broad range of strategies to reduce gun violence. I have led several studies of policy and programmatic interventions designed to prevent gun violence, some of which were funded by the CDC through grants through the Johns Hopkins Center for the Prevention of Youth Violence. Each of these studies were after the Dickey Amendment. But while I studied gun violence and efforts to prevent it with CDC funding, these studies did not really examine if or how access to firearms played a role in violence nor how firearms were acquired by individuals who used them to harm themselves or others. Although firearms were used in 90 percent of homicides of young victims ages 15 to 24 years and most suicides and intimate partner homicides involve firearms, CDC funding of research on youth violence, intimate partner violence and suicide has not focused on critical questions relevant to access to firearms for more than two decades. It is clear the CDC's reluctance to support research examining the role of firearms in violence and strategies that focus on firearm access has been driven by actions taken and not taken by Congress, to the cut to the CDC's budget in the mid-1990s by the amount that it allocated to firearms violence. I hope you and your congressional colleagues will set a new course by investing much-needed federal funding for research to inform efforts to prevent gun violence. Debates over what policies to enact to reduce gun violence center around questions that rigorous science can help settle. These include how do those who commit violent crimes obtain their firearms; do various firearm laws affect ability of individuals who might be prone to violence to obtain or use them; do policies or programs directed at firearm access affect suicidal behavior or the outcomes; do certain policies negatively impact the safety of law-abiding citizens by keeping them from accessing firearms to defend themselves. I served as editor for two special issues of public health journals that were devoted to firearm violence including epidemiological reviews. There is a lot to draw from available research to guide current prevention efforts. For example, there is good evidence that the impact of state firearm policies on intimate partner homicides depend on the breadth of firearm prohibitions for violent individuals and that handgun purchaser licensing or permit to purchase laws reduce homicides and suicides. But most studies designed to estimate the effects of these firearm policies have important weaknesses, as was alluded to a moment ago. I believe that those weaknesses are often due to the modest levels of funding that limit the amount and type of data that are collected and analyzed. To build evidence that supports causal inferences between firearm policies and violence, researchers would ideally want to know whether perpetrators of firearm violence were prohibited from possessing the firearms they used and, as much as possible, they would want to know whether the paths that firearms take to the perpetrators were disrupted. But both of these types of data are either difficult or impossible to obtain. Collecting data on criminal history of perpetrators is a very labor intensive process that takes financial resources. With rare exceptions, researchers do not have access to granular level crime gun trace data from the ATF that indicate whether each criminal gun possessor was the legal purchaser of the firearm involved in crime, whether the purchaser of the gun was--that was later used in crime purchased other guns that had been used in crime or how crime guns that are diverted for criminal use shortly after retail sale are distributed across retail gun sellers within an area. Prior to congressional actions taken in 2003--okay. I want to note, just to conclude, that the TR restrictions in 2003 have limited access to this data. When I was available to--able to get data from Milwaukee Police Department we were able to discern that a problematic gun dealer in Milwaukee, the rate of guns coming from that gun shop into the criminal use went up by 200 percent after those data were no longer available. So, in addition to--and---- Ms. DeLauro. You have to conclude. Mr. Webster. I am sorry. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. I have to turn the mic on. Dr. Stewart, I ask you to make your 5-minute opening. Dr. Stewart. Chairwoman DeLauro, Ranking Member Cole, members of the subcommittee, thank you for inviting the ACS to participate. I am a trauma surgeon from San Antonio, Texas. I am also a slow-talking west Texan so I will do my best to stay on time. I am a trauma surgeon and serve as the medical director for the Committee on Trauma for the American College of Surgeons. For 96 years, the Committee on Trauma has worked to comprehensively improve the care of injured patients in areas such as EMS, trauma centers, and disaster response system and this has resulted in dramatic improvements in care. While we work on all these issues related to treatment, we also--it is important to focus on prevention. For the past--for the past five years, we have focused a large effort on implementing a public health approach to reducing firearm violence in order to improve the health of our patients and the resilience of our country. In light of the pervasiveness of firearm violence and increasing frequency of mass casualty shootings, we believe a comprehensive solution is necessary. We did not come to this opinion based on our personal beliefs or political affiliations. We came to this recommendation following decades of study and five years of collective effort and inclusive dialogue regarding firearm injury. Over the past five years we have used three guiding principles: one, address the problem as a public health and medical problem, not a political problem; two, implement evidence-based violence prevention programs through our network--implement evidence-based violence prevention programs through our network of over 500 trauma centers; principle number three, foster and provide a forum for a collegial civil dialogue centered on reducing unnecessary firearm injury, death, and suffering. This is the right thing to do for our patient and for our colleagues. I am going to describe each of these in a bit more detail. At its most basic level, what does a public health and medical approach mean? It means a commitment to the service of humanity in basing our actions on objective scientific truth as best we can determine it. At its core, this approach requires research. We need research to get it right. We need research to make firearm ownership safer while preserving or even enhancing personal liberty. We need research to understand the root causes of violence and how best to intervene to prevent the cycle of violence and how to break the cycle of violence once it is established. So following principle two, what do we mean by implementing evidence-based violence prevention programs? Is it possible to prevent or cure violence? Well, yes, it is. This may seem a stretch for some but it is definitely not harder than managing a complex viral epidemic. It is possible to prevent and cure violence, but to get this right requires the full commitment--the full commitment--of all medicine along with partnerships of the governmental research agencies. One of the most important of these is the CDC. Following the third principle of making ourselves a forum for a civil collegial professional dialogue center, what is the right thing to do for patients in our communities has led us to realize that achieving the goals of the first two principles are not as difficult as we thought in the beginning. I am grateful to be able to meet with you and I am grateful for what you do--all of what you do. All of what you do. Before I tell you about the hardest thing about my job, I want to acknowledge that your job is also difficult because your bosses, we, the voters, send you mixed messages. But I have learned the message is not as mixed as many may guess. Personally, following the third principle, I have probably talked to more people in medicine on both sides of this debate than anyone. I presented our approach in west Texas and in New England. I have presented our approach in Chicago and Little Rock, Arkansas, and I have gone out of my way to solicit all points of view. We have surveyed ourselves. We have surveyed other medical organizations. We have held town halls and I can tell you that research directed at how to reduce firearm violence is strongly supported by a large majority and is one of the least controversial topics. Through many discussion I have learned that all people across the political spectrum agree on one thing: reducing or eliminating needless death and suffering. All agree on that. We are asking you to make eliminating needless death and suffering a major priority and we are asking you to do it together, to do it together. We are asking you to do this in a bipartisan way. So, in summary, firearm violence is a major public health problem in the U.S. It is a public health emergency and it requires research, not just allowing research in an emergency. In a critical situation in my team if there is such a thing it requires me to both--to direct someone what to do, not just to say I allow you to do it. The American College of Surgery represents surgeons who care for patients who suffer, who die, and who are survivors of firearm injuries. The hardest thing I have to do is try to explain to a mother of a child the very embodiment of that family, the very embodiment of that family who was completely normal at breakfast is now dead. It is awful. It is painful and it is the worst. It makes me physically ill. We can do better and we can work together. We understand there is no simple solution to these problems and the issues are complex. But we also know if we use the power of medical science, technology, inclusion, and partnership, these complex problems are completely manageable and, yes, even curable. We are totally committed to working with you. Thank you very much. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Dr. Lott. Mr. Lott. Thank you very much, Chairwoman DeLauro and Ranking Member Cole and the other members of the committee. There is already massive resources that the federal government is giving to these types of issues. If you look on the four years from 2015 to 2018, over $42,000,000 was given in grants to go and study firearms research type issues. Over from--and there is many other resources. Tens of millions of dollars from Michael Bloomberg. You have George Soros and others have put together the Fund for a Safer Future with--starting off with $16,000,000. You have places like RAND, which are talking about having up to $50,000,000. You have many other areas. Plus, it kind of ignores how money comes from other areas. Professors--one of their main jobs is to go and do research. If you look over the period of time, only about 3 percent of medical journal articles were funded by federal grants. Only 15 percent got funding from any type of outside grant. The other 85 percent were done as part of your job--their jobs as academics. There is a couple claims out there that I think are quite misleading. One is that research was decimated after the Dickey Amendment. That is simply not true. That claim comes from a report put out by Michael Bloomberg's--one of his gun control groups where they claimed that in the years afterwards there was a 60 percent drop in research. What they actually measured was firearms research in medical journals as a percent of all medical journal research. Research on firearms actually increased. What happened was that there was a massive explosion in medical research in other areas. Whole new areas of medicine were started. Whole new journals were started that didn't exist previously. So its share fell but the absolute number of papers actually went up over that period of time. You know, another claim that we have heard frequently from the Journal of the American Medical Association is that if you look at federal resources being put into research on firearms, it pales in comparisons to mortality when you compare it to other things. There are multiple problems with that. One is it ignores all this other funding. It ignores that for many areas of medical research the primary way that research is done is through federal funding, for cancer and other things. Those are very costly things to go and do. That is not necessary for most firearms-related research. And not only that, but you have--the other way they measure it is papers published in medical journals. The problem is that is only a tiny fraction of the research on firearms. That completely ignores economists who have written on it. It completely ignores the entire area of criminology and all the journals that are there. I mean, you have dozens of criminality journals. Well, those aren't counted in those numbers. It ignores work done by law professors. And so those types of claims that we are under investing in firearms research only gets those numbers by completely missing massive areas of research that just--are conveniently not counted in those types of numbers. The other problem that you have is simply the quality of public health research and, unfortunately, it is very poorly done. One of the most famous studies in public health is done by a person named Arthur Kellermann where he has famously talked about the risks of having guns in the home. The problem is that, one, there was a simple data problem. He simply assumed that if a gun death was--owned in the home and somebody died from a gun death it was that gun. In fact, about 86 percent of the deaths were from a weapon brought in from the outside, not the gun in the home. Fixing that one error reversed the results. The second problem that you have is just, and this goes throughout public health research, is they use a technique that is useful for studying drug efficacy and apply it to social phenomena and it just doesn't apply because you can't control randomness in trials like you can in a drug trial. And so, for example, you know, you go--I guess I have a discussion in my written research. You can look at that. But, you know, you look at so many other areas of public health research and they are, like, 30 years behind the time in terms of statistics. The types of controls that they make are just not up to par with other areas of research and so much money is wasted in this. I could go and point out--you see grants for $300,000 to go and put together a database on mass public shootings. Do you know how many databases are already out there on mass public shootings? I don't even know how you spend money on something like that. Or $600,000 to go and look at state laws and correlate that with homicides or suicides. I mean, this is trivial. You have an eight-page paper that comes out of a $600,000 grant. I mean, it is almost criminal the way federal resources are wasted and thrown away. I mean, and, you know, that just is only part of the problem that is there. But I greatly appreciate the time that you have there. This is an important problem. Lives are at stake and it is important that we don't waste resources--valuable resources--on studies that don't add anything to our knowledge. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very much. As in the past, what we will do is to proceed with 5-minute rounds. We will alternate back and forth by seniority as members were seated at the beginning of the hearing and I just ask everyone to be respectful of our witnesses, to try to give them enough time to respond to the questions. Let me begin, and this is--these are question to Dr. Morral and Dr. Stewart. 2013 the Institute of Medicine published a list of priority research questions related to firearm violence. Several of IOM's proposed research questions related to self-inflicted fatal injury, or suicide. Dr. Morral, in your testimony you ask a similar question. If we could prevent 100 percent firearm suicides, what percentage of those people will still die by suicide using another lethal means? Zero? Fifty? A hundred? Can you expand on this research question, what can we do to better understand how to prevent suicide? Dr. Stewart, we spoke to a colleague of yours at the American College of Surgeons, Dr. John Fildes, who talked about successful interventions to reduce homicides in Nevada. He noted that many people were surprised at their success. They simply assumed that suicide was not preventable. Can you talk about some of these interventions, how important it is to expand research in this area so we better understand how to prevent suicide? Dr. Morral. Mr. Morral. Thank you, Madam Chairwoman. We have done research on this. We have done a survey of policy experts and analysts asking them if you could prevent a hundred suicides--firearm suicides--how many of those people would go on to die by suicide using another lethal means, and what we find is that there is a huge divide in belief about this factual matter between policy analysts who prefer restrictive gun laws and policy analysts who prefer permissive gun laws. So the permissive group believes that about 90 percent of people who are prevented from killing themselves with a firearm will go on to kill themselves with another lethal means. Experts who favor restrictive gun laws think that number is just 20 percent. Ninety percent versus 20 percent. It is a huge difference in belief about what is in fact a factual matter that could be studied better and it really matters for what you think about gun policies that could reduce firearm suicides. Ms. DeLauro. So it is something that we need to try to take a look at? Mr. Morral. We do. Ms. DeLauro. Dr. Stewart. Dr. Stewart. I totally agree with Mr. Morral. The--so with respect to the public health approach to--let us talk suicide-- about suicide, is we should--we should direct our efforts to the--to the problems based on magnitude and suicide is the leading--the leading cause of deaths--leading cause of death from firearms and we should--the public health approach also involved engagement of stakeholders. And so we--and we have done those things--engaging firearm owners as a part of the solution rather than a part of the problem, and there is terrific work currently ongoing with respect to--with respect to people doing that work. It is possible. It is doable. It is very important. Ms. DeLauro. Let me just be--if I can put a fine point on it. This--what was this--the intervention in Nevada and what kinds of interventions begin to work? That is helpful to us in terms as we go forward. Dr. Stewart. So I think--I think Dr. Fildes is referring to Kathy Barber's work with respect to--she calls it friends helping friends. Friends don't let friends drive drunk. Well, so firearm owners don't let firearm owners harm themselves. And so they have partnered with gun retailers and to develop programs around suicide prevention. This is a common ground thing that could really make a difference in the lives of America--of Americans. And I know some people do not--do not consider suicide as violent as homicide. It is every bit as violent and it leads to horrible consequences. Ms. DeLauro. I will try to see if I can get another question in here. This is--we have research published in the American Journal of Public Health. The presence of a gun in domestic violence situations increases the risk of homicides against women by 500 percent. FBI supplemental homicide data--36 percent of murders of young women between the ages of 15 and 29 were committed by an intimate partner, family member. Of those murders, more than half were committed with a gun. I may not get all three of you into this and we can pick up after. But, Dr. Webster, Dr. Morral, Dr. Stewart, what do we know about domestic violence and this effort? What kind of research or policies would we need to protect women, and men as well, from gun violence from an intimate partner? Dr. Webster. Mr. Webster. Thank you. I think that is an excellent question. The majority of intimate partner homicides involve a firearm. The study you referred to I was a co-author on. It identified--if you look at among women who are in physically abusive relationships or recently out of those relationships, when you control for basically anything you could imagine and measure, availability of a firearm elevated risk fivefold above situations when there was no firearm. But I think what we are beginning to learn is that some of the policies do matter, as I alluded to in my testimony. They do appear when they are adequately strong and I think that is the critical question. Because of a range of policies across our different states and in federal government of how broad those restrictions are, the evidence we have looked at and published most recently suggests that covering as many violent people as possible does lead to more prevention of domestic homicides. But there is other critical things that are important to learn. Ms. DeLauro. Thank you, Doctor. I will come back to you on that. My time has run out and I have gone over. But I think it is important for us to know what kinds of research, what kinds of policies can work. Ranking Member Cole. Mr. Cole. Thank you very much, Madam Chair. And I want to thank all of you just, again, for your testimony and what you presented. I found it very interesting. Now, you, obviously, don't always agree. I mean, I happened to read back to back, Dr. Lott, your paper and then, Dr. Morral, your paper and you guys have very different views on the amount of available research. And so I want to give you both an opportunity to address that. How much research do we have in the private arena out there? How readily available is it and how robust is it, going forward? So I will go first with you, Dr. Morral, and then Dr. Lott. Mr. Morral. Thank you, Ranking Chairman--Ranking Member Cole. We just completed a review of a huge amount of literature trying to--trying to look at what--you know, what evidence is available. High-quality evidence we were looking for in particular, meaning evidence that can really say something about the causal effect of the policies we were looking at. And the big takeaway from our study was that there is--you know, the vast majority of the effects we were looking for evidence on we couldn't find research on. So I think that that is some evidence that there is more work to be done for sure and I think that Dr. Lott's own research that he reported, which says that only 3 percent of the--of the firearms research he was able to identify had any federal funding, you know, you could look at that and say, great, we don't have to have federal funding for any research. But I think the other side of it is the real--the real story there is that the only research that can get done is research that doesn't cost anything--you know, doesn't cost much. Mr. Cole. Dr. Lott. Mr. Lott. I have done some of largest studies--I have done some of the largest studies that have been done on crime and I think my book, ``More Guns, Less Crime'' from the University of Chicago Press--I don't know of any other one that has looked at city, county, state-level in the many different ways that I have looked at even come close. But, you know, he talks about the lack of studies. You look at his work on--on right to carry laws. They literally ignored dozens of peer-reviewed studies that had been published on concealed carry laws. You know, I suppose if you ignore a lot of the work that is there it will make it look like in fact there is not as much done. They do that in other areas such as on background checks and on other things that are mentioned. So, you know, I look at it and there is a tremendous amount of work that is being done. You got to count criminology and others. I mean, these claims about--that have been made about not enough research--looking at the Journal of American Medical Association article--you have to count all the other funding sources. And I, you know, I have never had to go--even though I have done the largest studies I have never had to go and ask for federal money. You have a lot of data there. You can go and hire people on your own through grants through the university that you are working at. I have been at Stanford, the Wharton Business School, Yale University, University of Chicago, and I never had any problem getting money to go and do the research that I wanted to do and without a dime, not even a penny, of federal money that is there. The problem that you have with federal money is that it is often political in terms of who they give it out to. Politicians and the people who make those decisions I just don't think can divorce politics from it. And beyond that, the money is just tremendously wasted. I mean, I look at studies. There is funding for $600,000 that just got out to look at mass public shootings. Mr. Cole. If I can, I am going to hold you there. Mr. Lott. Sure. I am sorry. Mr. Cole. No. No. I wish I had more time. But I wanted to go back. You made a very interesting point. I think it was you, Dr. Webster, and I wanted to ask you to elaborate on it. You mentioned, if I got it right, and that literally in some cases the views of the researchers, clearly, influence their research product. That is, people that already sort of believed in strong firearms control were more likely to think, okay, suicides are--we could really cut this down 90 percent. So could you talk about--I mean, that is a real challenge for all kinds of research and I say this as a guy that used to be a professional historian. I mean, values really do shape the research sometimes and it is something you really have to guard against. So what is your---- Mr. Webster. So it was actually Dr. Morral who made that comment. Mr. Cole. Oh, okay. Mr. Webster. So I am going to let him respond and---- Mr. Cole. Thank you. I am sorry. I got confused. Mr. Morral. Actually, the research I was referring to is not research on how social scientists skew their findings. It was really on what do social scientists believe and policy analysts believe about things for which there is not good research yet, questions like do gun-free zones make us safer or less safe. There just is not good causal research on that question, but we still asked policy analysts, and I am talking about analysts at the NRA and analysts at Every Town for Gun Safety, as well as researchers, and what we find is that there is a huge divide on what they believe the truth probably is, but it has not been studied yet. Mr. Cole. Okay. Thank you very much. Thank you for allowing me to go a little bit long. Ms. DeLauro. Thank you. I wanted to--and I checked with the Chair of the full committee. Dr. Morral, Dr. Lott challenged some of your research, so I want to give you an opportunity to respond, if you would like. If you would like to do that, I would like to give you that opportunity. And secondly, I would just make a comment that I am concerned that if we do not need any Federal funding in this area, that maybe we should, in fact, take all Federal funding away from the National Institutes of Health and not provide any Federal funding. Let folks go out and do it through universities or through private philanthropies. But if you would care to respond, please do. Mr. Morral. Our research had certain inclusion criteria. There were certain kinds of studies that we were looking for that had to do with the recency of the work and the quality of the work. Actually, we included a lot of Dr. Lott's work because it met our inclusion criteria. But there were other studies that were excluded because they did not meet the criteria. Ms. DeLauro. Congresswoman Lowey. The Chairwoman. I do want to say, Madam Chair, that this testimony is so interesting. I almost feel you would like to have a debate here into---- Ms. DeLauro. We can hardly hear you. The Chairwoman. Oh. I was just going to say that I think this discussion is so very interesting. I would almost like to, rather than ask another question, just let Dr. Lott and Dr. Morral just keep debating this issue. But in any event, there are many of us here that I know have questions to ask. So I think I will go back to Dr. Webster with my time. I would really like to know, because this is an extraordinary panel--and I want to thank you, Madam Chair, for putting this together. Could you really tell us--and I should say as the Chair that I have been working on this issue so long that I sat here with Congressman Dickey, and then he withdrew his comments; you know that whole episode. Could you really, Dr. Webster, give us additional information, provide examples of the types of research that would give policymakers better data to address the kind of terrible death? Why don't we just let you start, and then at times someone else can challenge you, because for those of us who have been working on this a long time, I would really like to get the best advice possible. Thank you. Mr. Webster. Thank you. I think that is really a central and important question. What I would have this committee concentrate on in thinking about this is that we know so little about really the central questions relevant to the background of individuals who commit violent crime with guns and how they obtained their firearms. Dr. Lott alluded to, well, you can do all kinds of statistical analyses with available data and you do not need a dime, and so on and so on. I do not believe that, but I also think that really to get to the heart of these questions and to move us in the direction where we can make cause and effect inferences, you really need better, more complete data on those critical questions about backgrounds of individuals, how they got their guns. And the last thing I will say here in terms of the huge data gap is--and I think Dr. Morral mentioned this--we really don't have good non-fatal wounding data at a state level. Almost all of our analyses available, we can tell you about lethal outcomes and their association with different policies and interventions. We really don't know much at all about non- fatal woundings. So those are just among the most central and important questions that I believe have been under-invested with respect to research. The Chairwoman. Let me say, in the past--and we have been talking about this for a while, some of us--some of my friends on the other side allege that CDC is currently able to conduct gun violence prevention research. Yet CDC Director Redfield, former Director Friedman, and Secretary Azar have said that CDC needs dedicated funding from Congress before it can commence this life-saving work. Maybe, Dr. Morral, can you set the record straight? Is it clear that CDC has done very little research into this issue area and that direct funding is needed to reengage on the initiative? You are going to clarify this for us, I know. Mr. Morral. My written testimony suggests that we do need dedicated research funding for this, but I note that there are those who have suggested that dedicated research funding is not inconsistent with retaining the Dickey Amendment. You could continue to have the Dickey Amendment as a kind of---- The Chairwoman. But he said he didn't believe it anymore, by the way. He withdrew it. But go ahead. So we can continue the Dickey Amendment. Go ahead. Mr. Morral. So Mark Rosenberg and Victor Dzau, the head of the American Medical Association, have suggested this, that we keep the Dickey Amendment as a kind of guardrail on any research program, but that we have dedicated research funding, an appropriation for firearms violence research so that we can do the non-policy advocacy research. The Chairwoman. Thank you. Did you want to comment on that, Dr. Webster? Mr. Webster. Yes, briefly. I do think that, yes, technically CDC could choose to use some of its resources to better understand firearm violence, and I wish they would. CDC has been punished for funding things that might be sensitive that are critical to what I was raising of how do people get these guns, where do they come from. So I think if we really want to see this work done, Congress needs to send a very clear message with resources to CDC, and I am fairly confident that they will use those resources wisely. The Chairwoman. Well, I appreciate, Madam Chair, both of these responses because I hate to think that science should be sensitive. When we appropriate money for science, you really try to the best of your ability to get at the facts. So, thank you very much. Thank you, Madam Chair. Ms. DeLauro. Thank you. Mr. Harris. Mr. Harris. Thank you very much. I thank everyone for being here. Clearly, we know this is a problem we have to deal with, especially on the suicide level, because the Pareto diagram is that suicides are the bulk of the handgun violence that occurs. Dr. Webster, I assume, because you mentioned suicide, how they got their guns is not that much of a question in suicides. I imagine that most are legally obtained. Is that right? Mr. Webster. Actually, there is not a lot of data on that. I would assume you are probably correct. Mr. Harris. Okay. Mr. Webster. But really, we could use better data. Thank you. Mr. Harris. And gathering that data would not be--because the whole question is we could earmark funds to go for this, but that is kind of the purpose of the CDC and the NIH, is to look at the broad overview of public health in CDC, and science, medical science at the NIH, and decide where funds are necessary. Now, NIH is obviously funded in gun research, in handgun violence research. I mean, millions and millions of dollars. So that is a decision at NIH and CDC. I mean, we could kind of force them to spend money on it, but that is an unusual approach to take, to kind of force one of the institutes to actually go down a path, because they are the experts and I think they should decide what is spent. You are right, Dickey is a guardrail; that is all. If they are reticent to do it over at CDC and NIH, I think the omnibus bill last year provided clarification to them that, in fact, it only is a guardrail. Let me talk about some specific testimony here, Dr. Morral, because there are three things in your written testimony that I have a question about. The first one is you say that you believe the lack of research is due to a lack of investment in scientific research by the Federal Government. But, in fact, we don't restrict the NIH from a certain amount of research, do we? I mean, our Appropriations bill does not say, well, you are limited to $5 million or $10 million. They could spend a billion dollars on it, couldn't they? With the guardrails of the Dickey Amendment, your reading of it and understanding how NIH works. Mr. Morral. You are right, I understand that they can direct---- Mr. Harris. That is what I thought. So they could spend a billion dollars. They just choose not to. You also say on page 4, ``I would never suggest that scientific studies need to be conducted before it is possible to implement good policy.'' How do you know it is good policy without a study? I mean, gun-free zones are a perfect example. We have gun-free zones. We don't know if they are right or wrong. Do you consider gun-free zones a good policy? Do you personally consider gun-free zones a good policy? Mr. Morral. We have looked at this, and there is no evidence. There is no evidence of whether it is good policy or not. Mr. Harris. So you don't think it is good policy. Mr. Morral. I am not saying it is bad policy. I am saying there is no evidence. Mr. Harris. So you won't answer me whether you personally think it is a good policy. If you were the king, would you institute gun-free zones? Mr. Morral. I am not a policymaker. I am a social scientist, and my research suggests that there is no good evidence on this. Mr. Harris. Okay. Let me go to page 5. You make a comment from the National Academy of Science Report. ``No single database captures the number, locations, and types of firearms and firearm owners in the United States.'' Do you think we should have a single database that captures that information? Mr. Morral. Let me just clarify one thing. I am not suggesting any kind of gun registry. I am talking about a voluntary survey, which is the Behavioral Risk Factor Surveillance Survey. This is a random sample---- Mr. Harris. A voluntary survey that the government collects. Mr. Morral. Yes. Mr. Harris. That you are expected to answer truthfully whether or not you have a firearm, maybe how you got it, to the government. Mr. Morral. You are welcome to not answer it. It is a voluntary survey. Mr. Harris. But if you don't answer it, then the data is not good. You are a scientist. I am a scientist. You know that non-responsiveness affects the quality of the data. Dr. Webster, I am going to ask you the question. Do you think we should have a single database for all this? Do you personally think that we should have a single database in the country of all firearm owners and types of firearms, number and location? Mr. Webster. No. Mr. Harris. Good. I am glad to hear that, because there are people who do think that, and I think that is the crux of the problem. There are some researchers who think that should be true. I have done research. Many of you have done research. You know you guide your research toward the blinders you have on in terms of what is done and what is not. Now, Dr. Lott, I am just going to, very briefly, ask you, do you know--because you make a statement that ``given the scope of the problem and the desperate need for solutions that do not rely on aggressive policing or wide-scale incarceration.'' You do think, though, that aggressive policing and incarceration of people who have committed a gun-related crime is a good thing, I hope. Mr. Lott. I think incarcerating someone who has committed a gun crime is a good thing. Mr. Harris. Okay. Are you aware of the 2012 Department of Justice study that looked at the number of times when someone lied on a background check, a felon lied on the 4433 NICS form? By the way, there were 1,100 people that year who lied on it. Eight were prosecuted and pled guilty. Do you think a good start might be to take the other 1,100 felons who actually tried to get a gun, lied on the form, committed perjury, committed a Federal crime, do you think we ought to start prosecuting some of those people? Mr. Lott. Absolutely. Mr. Harris. Thank you very much. I yield back. Ms. DeLauro. Ms. Roybal-Allard. Ms. Roybal-Allard. Drs. Morral and Stewart, according to the National Physicians Alliance, the United States has made remarkable progress in other areas of injury prevention, such as reducing death and injuries in car accidents. However, over the same period, we have not seen parallel implementation of safety efforts to reduce the number of deaths from gun violence. Dr. Lott contends that there is already ample research being done on gun violence in general. However, my focus today is on prevention, and public health scientists are clear that the cost of this research paralysis on one of our country's major public health crises has been staggering for American communities. Can you expand upon what data gaps currently exist in firearm-related injury research? And given the important role that CDC plays in public health, how could Federal funding promote public health approaches to injury prevention? Mr. Morral. Thank you, Congresswoman. One of the recommendations I make in my written testimony is that we need to improve--the CDC could improve its collection of firearms injury data nationwide and at the state level. Right now, almost all the research we reviewed did not have injuries as an outcome because we don't have good injury data. So we are limited to studying fatalities. Of course, non-fatal injuries are the vast majority of firearms injuries. If we could be studying both fatalities and injuries, I think we would have much better leverage on some of these causal questions about what the effects of different policies are. Ms. Roybal-Allard. And you are saying that that would be an area of research that CDC could provide? Mr. Morral. That would be an area of data collection that I think CDC would be able to really help expand the infrastructure for research. Ms. Roybal-Allard. Also, Dr. Morral, as you know, according to the CDC, 83 children are injured or killed every day by firearms. Addressing the child health impact of firearm-related injuries and deaths will need to be a major component of any research CDC conducts in this area. We know unintentional injuries and fatalities occur when young children find a loaded firearm. We also know by research initially begun at CDC that witnessing violence can have significant detrimental effects on children and their long-term health and development. My questions are what research do you think CDC could support that would help us better understand how to effectively promote safe firearm storage to prevent unintentional firearm injuries and deaths for children? And do you think CDC research could help us better understand and respond to the trauma and developmental impacts that occur when children witness firearm violence in their communities? Mr. Morral. May I defer this question to Dr. Webster? Ms. Roybal-Allard. Yes. Dr. Webster, of course. Mr. Webster. So, I think one way that the CDC could advance our understanding about childhood-related victimization, particularly unsafe access, is to gather robust data about where the guns came from, what were the situations and conditions; in school shootings, how many of those incidents involve individuals, young people who got their guns from their own home, or are they getting it in some other way. So again, I go back to this is a really central, important question that could be added to the CDC's National Violent Death Reporting system, systematic collection of the source of the gun, where did the gun come from, and this could also be supported with some demonstration projects to see the value and validity and robustness of the data that could be collected on those questions. Dr. Stewart. I think with respect to the issue of comparing progress made in other injury prevention endeavors, the same approach should be applied to firearm injury. That approach goes something like this. First of all, if it is a really critical problem, you have to name it and you have to direct funding to do something about it. There are structural problems. In the National Institutes of Health, there is no institute for trauma and emergency health care. But you name it, and you direct the funding. With respect to how to frame that research, I am going to speak in very broad terms. I think you could frame that research that could be supported by a wide portion of Americans, and that would be to focus the efforts on addressing the underlying factors that lead to violence, so addressing violence, and violence is a bigger problem than just firearms. There are 100 people who die from violent intentional injury a day in the U.S. There are 75 other people who die from other violent intentional injury. So it gets closer to the root of the problem. And the second thing would be to fund research that would make firearm ownership as safe as reasonably possible. That is exactly what we do for automobile safety. It is what we do for bicycle safety. It is what we do for all those injury prevention things. We say let's make the activity as safe as reasonably possible, and we do that through that public health approach which involves engaging the stakeholders who are bicycle riders and who drive a car to help be part of the solution. Ms. DeLauro. Congressman Moolenaar. Mr. Moolenaar. Thank you, Madam Chair. I want to follow up a little bit with Dr. Stewart on some of the comments you were just making. I thought you made some very insightful comments, because I have been listening to the debate, and when we talk about a public health emergency, I think of things like opioids. I see sort of the medical public health aspect. Ebola, when that is overseas, you think about that. You see measles going on, you think of anti-microbial resistance, you think of infectious diseases. When you think of surgery, you think about how do we keep the place clean so that people aren't going to get infected. I think of mental health. Then we start getting into some of these areas, whether it is murder, whether it is suicide, whether it is accidents, and it seems to me that you start a bit of a mission creep from where the Centers for Disease Control would be. So I know what you were just talking about, making a connection between injury control--and I think there is a good point you make where we ought to think about how people can handle things safely and how that can work. I worry a little bit because you made the point of naming it. You know, if you name these issues, like if someone said they died in a suicide from a gun, one person would say gun violence, right? They would say gun violence. Now, if it was through hanging, would they say rope violence? They would not. In the same way, if you said there was someone who died in a car accident, you would say that is a car accident. If it was an accident involving a gun, that is categorized as gun violence. These kinds of things, I think they are important when we talk about what kind of research we really need that would actually add to the knowledge base, because I think you have all made a point where we want to make policy decisions on relevant statistics, you want to have access to data. I would encourage all four of you to tell the committee what kinds of data are needed, and I don't know that that is the CDC's job because I think of some of these areas where they are taxed already. It may be other parts of the Federal Government that need to find these statistics. It may be in the criminal justice area; it could be other areas. But I think I have learned a lot from the discussion today. Dr. Stewart, I just want to say as a trauma person, I am sure you have dealt with these kinds of things on a first-hand basis, and you shared a little bit, and I think all of us are concerned. But I appreciated what your approach was where you talked about let's find ways to build common ground because it is a very divisive political topic, but I think all of us would want to have our Second Amendment rights protected, and I think we would want anyone who is using firearms to use them responsibly and safely, and anyone who commits crimes and breaks laws using firearms should be prosecuted to the fullest extent. But the question of where we are in policy, what kinds of laws help promote that, even to the question of gun-free zones, whether they are effective, whether they are not effective, I hope we can add light rather than just heat to this discussion. So, Dr. Stewart, let me just go back to you because I thought you made an interesting comment early on about looking for ways to prevent violence, looking for ways that may enhance personal liberty but also restrict people who would do violence. I don't know if you have any final thoughts on that. Dr. Stewart. Yes, sir, I do. Thank you. Thank you very much. There are several questions. I will try to just answer the issue of naming. I do hear you. There are things that do get named, though. For example, suicide, it gets named as an opioid overdose. So there are certain things that we name, and it tends to have to do with the magnitude of it. But I think I could frame the way the American College of Surgeons has done this work. I can frame it in a way, what I call the common narrative, that honestly I don't think requires compromise from anyone on this panel, which goes something like this: firearm ownership is a constitutionally protected liberty in the United States, but we have a significant, large violence problem, and we can address that problem by working together to make firearm ownership as safe as reasonably possible and address the underlying root causes of violence. Now, with respect to the issue of an emergency, my family is here, and they think of me as a boring person. I don't over- use--I don't speak in hyperbole often. Mr. Moolenaar. They are nodding their heads. [Laughter.] Dr. Stewart. Well, that is what they tell me. [Laughter.] So, is it an emergency or not? It is true, all those conditions that you talked about. When I consider it is an emergency is when you are in the trauma center and there are 50 people, more or less, in a rural church in south Texas at a worship service, and 46 of them are shot, and 26 of them die. That is an emergency from my standpoint. And when you look at the context of it, a great trauma system there--I am biased--a great trauma system, and a good Samaritan interrupted the attack, okay? So you would say, well, how did all that work, Dr. Stewart? Well, my community has a few simple aphorisms. We let no one suffer or die in vain. And when you honestly look at that, you say we have got to do more. We have got to address the upstream factors that lead to violence, and we have to get serious about enforcing laws, and also about keeping firearms out of the hands of people who shouldn't have them. It is an emergency from my standpoint. Mr. Moolenaar. Fair point. Thank you very much, Dr. Stewart. Ms. DeLauro. Thank you. Congresswoman Lee. Ms. Lee. Thank you very much, Madam Chair. I want to thank yourself and the Ranking Member for this very important hearing, because in my community, like in many communities, it has been a public health emergency for years and years and years. Let me take a moment to acknowledge, of course, our young people who are here, because they are bearing witness and are here on behalf of those who have been killed or injured by gun violence, and also for using your voice and your presence to prevent future senseless acts of gun violence and tragedy. So thank you all very much for being here. Let me say a couple of things. First of all, gun violence disproportionately impacts communities of color, people of color. A couple of statistics. In 2017, 50 percent of gun-related deaths in our country were African American men, even though African American men make up about 6 percent of the country's population. Four in 10 African Americans have been personally affected by gun violence, including my own family. But the majority of African Americans do not feel as though their calls to end gun violence and formally study the impacts are being heard by the public. In my own district, for example, I hear from constituents every day about the effects of gun violence. Four hundred people in my district were killed in the last five years alone. There have been three weekends this year where three or more people were killed by guns in my district. Unfortunately, we don't hear about what is taking place in many communities and what we are dealing with on a daily basis. Now, I wanted to ask you--and probably, Dr. Stewart, you may be the appropriate witness, and I thank all of you for being here to respond to this. But I am a psychiatric social worker by profession. I understand PTSD. I know the signs of PTSD. I go into a variety of communities in my district and talk to individuals in the community who have been affected by gun violence. The signs of PTSD, not only from individuals but from the community, there is a community PTSD crisis. I am wondering how we are addressing PTSD with individuals and with communities. I mean, I can cite Census tracts where everybody has been affected by PTSD because of the gun violence that takes place over and over and over again. I know we have done a lot of research on PTSD in the military, but I am wondering in terms of funding, a dedicated stream of funding, Federal funding to better understand the public health epidemic of gun violence, how we can factor in and what do you think we need to do about PTSD that is rampant in so many communities across the country? Dr. Stewart. So, I very much appreciate your comments. Thank you. I think the reason why I am passionate about this is that the data you show is accurate in that we have to do better with respect to it. I have no doubt that PTSD is rampant in communities, and it is probably, honestly, to some degree rampant in trauma providers as well, to be totally honest about it. So when I talk, when we talk, not just me, when we talk about violence prevention, we are talking about we need research to understand what we can do that would make a difference in those communities in a way that engages those communities as well. Whenever I talk about engaging firearm owners as part of the solution, engaging communities who are under-served, communities of color as a part of the solution rather than as a part of the problem. There are very hopeful programs with respect to this. There is the National Network of Hospital-Based Violence Prevention Programs. There is Cure Violence. There are researchers and practitioners in places all around the country who are making headway. But funding for those projects, to understand and to achieve the right results, is absolutely critical, and it is something that I believe could really make a difference in under-served communities. Ms. Lee. The long-term trauma impact, Dr. Lott. Mr. Lott. I really appreciate your question. To me, too much is focused on the guns, per se, and not on what is underlying it and causing it. Over 50 percent of the murders in the United States occur in 2 percent of the counties. If you look in those counties, 10 blocks in those counties account for most of the murders in those areas. It is gang violence. It is basically drug gang violence. What you have to do is figure out a way of taking away the incentives for people to go and join those gangs that are there. Just to focus on guns, you are going to be as successful in stopping these gangs from getting guns as we have been in stopping them from getting drugs, okay? I mean, you look at Mexico, they have one gun store in the country since 1972. The most powerful guns you can legally buy or own are 22 short-run rifles. And yet they have a murder rate that is five times higher than what we have because the gangs, the drug gangs bring it in. What you have to do is think of ways of taking away the profits that the drug gangs have, and we can talk about that, but that is a completely different conversation than---- Ms. Lee. Sure. But this is still a public health emergency, and what we need to do is figure out how we can do the research to document that this is a public health emergency and then develop strategies on how to get the guns off the street. Mr. Lott. But the point is you are going to be most successful in thinking of ways of taking away the profits from the gangs, and that will reduce the incentive for bringing in the guns to protect their valuable drugs and other things they have. Ms. Lee. Thank you. Ms. DeLauro. Congresswoman Frankel. Ms. Frankel. Thank you, Madam Chair, for this hearing. Thank you all for your testimony today. So, I know we have a lot of policy issues that we debate on both sides, and what I would like to ask each of you is if you were going to have this opportunity to research, which some of you are doing already, what are some of the most prominent questions? If you each would tell me five questions you would like to see answered. Mr. Morral. Okay. Thank you, Congresswoman, for the question. Well, we have done some research on where the biggest disagreements are between people on opposite sides of this debate about factual matters, and I think that is a sweet spot for where you could do some good research. What we found is that there are three policies--of the ones we looked at, there are three policies where there is a large difference in agreement about facts. One is permit-less carry; one is gun-free zones; and the other is stand-your-ground laws. One group of experts think these things can make us safer, the others think it makes us less safe. I would recommend that we study that more and better. Ms. Frankel. Just go down the line. Mr. Webster. Sure. I think where I would start as a priority is focusing on the source of guns used in violent crime, and I think there are at least two different dimensions to that where we need better research. One has to do with the role of problematic licensed gun dealers and how their practices affect the underground gun market and relevant violence. I think more broadly, we really need to collect systematic data across the variety of the policy environments we have in the United States to better understand the connections between firearm policies and underground gun market conditions. I mean, anecdotally, you find evidence that, for example, in New York City, where gun laws are quite restrictive, the street price for a relatively cheap gun might be $700 or so. The same gun in, say, Louisville or Atlanta might be $100. But we don't have that systematic kind of data to understand these connections between what the policies are and--you know, I focus a lot on mechanisms of diversion. There are a lot of important questions and debates that we could help settle with better data and more rigorous research. Dr. Stewart. So I think you would probably guess that I would say violence prevention research is key. I am going to just mention some key points on that. I think addressing structural factors--and by structural violence what I mean is the way populations get put in harm's way. If you think about it, that gets to actually the intersection of both homicide and suicide, because when you get to the root of those causes, we need data, we need research to understand it. But it gets to poverty, inequity, social isolation, stigmatization, previous trauma, and what that leads to is a sense of hopelessness. It leads to hopelessness, which then leads to violence. But I don't know how much you have thought about it. That is an intersection of both suicide and homicide. It gets to some of those things, and it needs to be done in a non- partisan, correct way, but I think that is an important part of this. The second thing, though, would be to use the same general approach that we have used for automobile safety and for bicycle safety, and that is research, really good-quality research that involves the firearm-owning community, that actually engages them as a part of the solution to develop technology. I believe in technology. I believe in science that could make products safer. But that involves the full participation of firearm owners. Mr. Lott. Thank you very much for your question. There are two general points I would make. One is I think we need to move a little bit away from the focus on firearms and talk about what creates the incentives for people to go and use them the way they do, and to talk about what can you do to eliminate the profits that are involved in gang violence and in drug gangs. If you focus on the guns, you are going to be as successful in stopping these drug gangs from getting ahold of guns as you have been in stopping them from getting ahold of drugs. We have spent huge amounts of resources to try to stop these drug gangs from getting ahold of drugs. It is not like a drug gang can go to the police and say this other gang stole our drugs, can you help us get them back? They have to set up their own military. If I could click my fingers today and cause all illegal drugs to disappear from the United States, and all guns, how long would it take for illegal drugs to start coming back into the United States? If you are in El Paso, 20 minutes. How long would it take for them to bring the weapons in to go and protect that valuable property that is there? They would be bringing them in exactly at the same time. Just look at Mexico, as I was saying. It is no more difficult for them to go and bring in the drugs or the guns. So to me, the big focus is what creates the incentives for them to engage in this violence, which is so heavily concentrated in the urban areas, in these small areas within our country. Ms. Frankel. I yield back. Mrs. Watson Coleman. Thank you, Chairwoman. And thank you to the Ranking Member for holding this very important hearing today. With our passage in the House of the two bipartisan bills last week that would expand background checks and ensure that guns are not transferred until a check is completed, it is now more important than ever to empower our public health agencies to research the epidemic of gun violence. We know that nearly 40,000 Americans die from gun violence every year. In 2017, more Americans died from gun violence than car crashes. This is a public health crisis. In my district, there have been more than 1,000 incidents of gun violence since 2014. Today, I just want to share this photo of young Trey Lane, a constituent of mine who was gunned down because he was simply trying to shield his friends from a drive-by shooting. His life was taken too early by gun violence, before he could realize his dreams and aspirations. His mother has taken her grief and turned it into organizing and talking to other mothers. In the richest country in the world with cutting-edge technology and research capabilities, there is no reason why we cannot focus our public health pools on addressing gun violence. So let me get to some of my questions. I am particularly concerned with the disproportionate experience of this violence in our communities of color, and the research that has taken into account the intersectionality of our people of color and gun violence. Dr. Webster, we know that gun violence has ravaged communities of color for decades, but what shocked me was a 2017 analysis by the CDC of data on child deaths that found that black children were 10 times more likely than their white peers to die from gun-related homicides. I am a mother and a grandmother, so you know what that means to me. Based on your research and experience, how can Congress and this committee better support studies to address the disproportionate amount of gun violence in these communities of color? Mr. Webster. Thank you. I think that is a great question. There are a couple of different directions I guess I would go with this. One is when we try to address problems like violence, or any other public health emergency, we want evidence-based solutions. The truth of the matter is that there has been relatively modest investment in actually developing innovations to test. We have Cure Violence; it was alluded to before. There have been studies looking at cleaning and greening, a variety of things that seem to have some beneficial effects. But honestly, it is a much bigger, more complex problem, and very modest levels of investment in innovations. I think what we need to do is--and we do this to some degree on the law enforcement side. We develop partnerships with researchers and law enforcement officials to systematically study the problem, develop innovative solutions---- Mrs. Watson Coleman. So you agree that we need better data and better research specifically in this area? Mr. Webster. Yes, and I guess what I am getting to is that it should be directed towards developing innovative solutions that are not wholly dependent upon over-aggressive policing. So I think communities and researchers can develop innovations with adequate resources. Mrs. Watson Coleman. Thank you. For those of you who don't know, I am a co-founder of a caucus on black women and girls, specifically looking at the intersection of race and sex with regard to certain policies. Our goal is to give voice to those issues. Research into interventions against gun violence is incredibly important because women of color are nearly three times as likely to be murdered with guns than white women. They are also more likely to experience death or harm as a result of an intimate relationship. Dr. Morral, what is it that we should be doing with the Centers for Disease Control and Prevention, the NIH, and the National Institute of Justice to address the intersectionality of these deaths and these injuries and color and race? Mr. Morral. Thank you, excellent question. These are problems that are not well researched right now. I think that we do need to do a lot of basic descriptive research to understand who is being harmed by whom and how the weapon was obtained, in addition to the basic descriptive research. Then we have to move into research on programs and interventions to address that. Mrs. Watson Coleman. Thank you. I see that my time has expired. I am very interested in this area. I think there has been an under-utilization of information, caring, and response, and I look forward to having further discussions and to hearing from other researchers as well, including those who look like me who research my issues. So, thank you. I yield back. Ms. DeLauro. Congresswoman Clark. Ms. Clark. Thank you, Madam Chairwoman, and many thanks to the panel for being here today. Again, I want to thank members of this audience. I know you are just the tip of the huge advocacy iceberg, and we appreciate you being here and all your work. I can't think of another public health crisis where we have said there is no role for Federal research dollars. Can any of you? It is a yes or no question, Dr. Lott. Mr. Lott. There is a lot of money going in here now. Ms. Clark. We are here looking at how we can prevent gun violence, how we can prevent deaths from guns, and we know that that is a range, from suicides to mass shootings, and we need to have the data to look at all of this. I have been listening to the questions from the members of Congress, and I do think, Mr. Morral, that your analogy to the national traffic safety is a good one. Cars don't kill people, and I know when I was a state representative and we were looking at mandatory seat belt laws, my phone lit up from people saying they wanted the freedom to drive their car without it. We certainly have a large cultural difference in how we look at guns. I get it. They are inanimate objects designed to kill things, people, animals, but they are inanimate. Can you explain that analogy a little bit and tell me how you think we could best constitute a similar Federal agency for addressing gun violence? Mr. Morral. Yes, thank you for the question. The National Highway Traffic Safety Administration was set up in 1970, and it has since then been collecting this incredible data set on all traffic crashes that have happened in the U.S. This has been super-valuable for doing research and designing new strategies for reducing traffic fatalities in the U.S. As a result, today, deaths per vehicle mile traveled are a quarter of what they were when the National Highway Traffic Safety Administration was set up. We have similar tremendous benefit from all the Federal investment and research on smoking. Today, smoking and the associated disease is much less than it was when these research programs began. These are success stories that suggest that Federal research programs, when they are devoted to doing this kind of work over a long term and really focusing on a problem, can have great benefits. There is no guarantee--to Dr. Lott's point, there is no guarantee that if we were to do the same thing with firearms violence that we would have the same benefits, but we haven't tried it yet, so we don't know. And I think it is worth trying because of how many people are being injured by firearms. Mr. Lott. Can I respond to that? Ms. Clark. No. I wondered, if you were looking at setting up a similar agency, where would you look? What other Federal agencies besides the CDC would you include? By agency, I am referring back to NHTSA. Mr. Morral. Right. What my testimony suggests is that there is a role for the CDC, obviously, but also for NIH, for the National Institute of Justice, possibly for the National Science Foundation. I think that each of them could approach the problem of firearms violence prevention and firearms policy from a different and important angle. So I think there is potentially a role for all of them. Mr. Lott. I just have to say one thing, please. Ms. Clark. Thank you. This is my time, Mr. Lott, not yours. Mr. Lott. He misstated facts. Ms. Clark. I would like to also ask a question of Dr. Webster and Dr. Stewart. One of my concerns as I have talked to parents and community members, advocates, is the impact on childhood trauma by bearing witness to gun violence. We know that childhood trauma over years has the potential to even change the DNA of people in response. Can you address that and steps that we can take to help with this problem? Mr. Webster. You are absolutely correct that trauma, such as witnessing acts of gun violence, can very directly and physiologically affect your brain and your body. There is really growing research to that fact, and this is part of the public health emergency for gun violence. While I agree with Dr. Stewart and some of the other remarks about the importance of addressing trauma, the post part of the PTSD suggests something that happened before and the trauma is gone. What we have right now is too many children are living in communities where people get shot on a regular basis, and we have to certainly address their trauma, but the reason they have so much trauma is there is an abundance of guns readily available through a variety of means, and that is where I think we could have very valuable contributions to understanding that better and how we prevent it. Ms. Clark. Thank you very much. Ms. DeLauro. Thank you. Maybe we can get Congresswoman Bustos in. Mrs. Bustos. Thank you, Madam Chair, and thank you to our panel for being here. I was across the hall at another hearing, and that is why I came in late. And the reason I came over here was because I got a text to me saying that right now, as we sit here, there is an active shooter in my part of the State of Illinois, in Rockford, Illinois. I share the representation of this town and the county, Winnebago County, with Congressman Adam Kinzinger, and we are in constant communication right now. But I wanted to come over here knowing what the topic of this conversation is. Let me just tell you what happened. This is in the northern part of the State of Illinois. It is the farthest northeast part of the congressional district that I serve, and there is an active shooter right now. What happened was a law enforcement officer went to serve a warrant, and the initial reports are this man who was armed shot through the door and shot the law enforcement officer. I don't know how the law enforcement officer is doing right now. We have some preliminary reports, but it would be irresponsible of me to say exactly what his condition is. So, this shooter is now on the loose. Everybody in our community is being warned about how he is armed and dangerous. These kinds of stories, everybody is sitting up here, everybody sitting out there knows of these kinds of stories, and just the imminent threat, and you just never know when these things are going to hit. I just cannot imagine the fact that the Centers for Disease Control and Prevention has not invested more resources to get to the bottom of this. Congresswoman Clark hit on those issues and the importance, and I appreciate you drilling down. Dr. Morral, I appreciate your answer to that. But I am going to be going home to my congressional district to meet with folks, and I am just wondering, as we sit here and this is going on, and things are going on, I am sure, in other communities right now as well, but it just is really hitting home right now. Your message to people who I represent in Illinois? And any one of you can address this. Mr. Webster. I would like to respond. I am very sorry about that incident. One thing I want to underscore here in terms of thinking about gun violence as a public health problem, much of the science of public health is studying risk, right? And active shooters is one element of risk that we can study. The Consortium for Risk-Based Firearm Policy, which I am a part of, has analyzed the data, recognizing that quite often there are situations where people will give some warning signs, so to speak, that something of this nature may occur. That was the impetus for extreme risk protection order laws. So I think an area of research that we really need more of is understanding those risks, how do we gather the best available data and study different responses to those risks. I think this, again, underscores the value of the public health science approach to a very complex problem. Mr. Lott. If I could comment? God forbid that the officer ends up dying in this tragedy. But one thing that is interesting is that 90 percent of the people who commit murder have a past violent criminal history. This is not something that your typical person goes and does. That obviously suggests certain responses. But the notion of mental health, I wish it was that simple. Over half the mass public shooters in the last 20 years were actually seeing mental health care professionals in the year prior to their attack, and in not one single case were those individuals identified as either a danger to themselves or others. So the question becomes--you know, I am all for trying to treat mental health and things like that, but the notion that somehow you are going to be able to go and identify these individuals beforehand, people with mental health issues are significantly less violent on average than the general population, and people with mental health issues are also much more likely to be victims of violence than the general population. So you are talking about people who engage in violence at such low rates. There is a whole academic literature about the inability for mental health care professionals to go and identify people who are a danger to others. They realize themselves in the profession the difficulties that they have. If the issue here turns out to be a criminal who was being served a warrant there, unfortunately, as I say, the vast majority of murders are people who already have a violent criminal history, and it probably was illegal for the individual to own a gun to begin with. Mrs. Bustos. Thank you, Madam Chair. I yield back. Ms. DeLauro. What we are going to do is look toward closing comments. I am going to ask Ranking Member Cole if he has any further comments to make before we close, and then I will make some closing comments, and then we will draw the hearing to a close. Mr. Cole. Thank you very much, Madam Chair. I want to again thank all of the witnesses here. I really found the discussion exceptionally useful, and the materials that you all produced extremely useful as well as sort of prep for this. It has been a good discussion. It has been robust. I suppose one of the concerns I have here--and I am going to draw from a memo that was prepared for me, not by these gentlemen coming in, and it says that the public health push for banning guns goes back to the late 1980s. In a 1989 issue of the Journal of the American Medical Association, the Centers for Disease Control official, Patrick O'Carroll, stated ``We are going to systematically build a case that owning firearms causes death. We are doing the most we can do given the political realities.'' I would suspect that that probably did more damage to the cause of legitimate gun violence research than probably any single statement in modern history, and it goes back to a point that Mr. Morral made. In some cases, the predisposition of the researcher can impact at least the conclusions, and you would hope an honest researcher--and I know all of you are, and I think most researchers are--just follows the data to where it takes him, as opposed to saying I already have my conclusion, now we are going to build a case to support my conclusion, the exact opposite of what good science ought to be. But I think you have shown a lot of areas where we could move ahead, I think, on common ground. I frankly like the idea of sort of keeping the Dickey Amendment as a guardrail because, again, it doesn't prohibit research. I would hope, frankly, the people at NIH and CDC who have been giving a lot of signals, both in report language and in statements by the Secretary--you know, if you have some legitimate ideas, go out there and do it. We are not trying to stop you from researching. Certainly this subcommittee has not done anything to try and discourage that, quite the opposite. This subcommittee, for the first time in a dozen years, started putting significant resources back into NIH and back into CDC. We were flat funded for 12 years under both Republicans and Democrats, and that has not been the case in the last four years, and I am pretty certain it won't be the case going forward. We have a bipartisan commitment here. So resources are available. We will have our discussion over whether or not we should direct it. I think that is a legitimate discussion, and there are some dangers there. We are pretty careful about trying to let researchers decide what the areas of research are that make sense, and let scientists decide which avenues of inquiry are important. We don't want to impede them, quite the opposite. Again, that is why the statements were made in the record, because I do think there has been some confusion here that hopefully the Secretary has cleared up, hopefully this subcommittee, working in a bipartisan fashion, has cleared up, and we will continue to work on that going forward. But there are persistent concerns--and this doesn't just apply to this politically sensitive area--as to do you adopt policies that seem on their surface to make sense and then get the opposite direction. There was a time in our country's history when drinking was a really bad thing, and it is, and over-drinking is terrible, and it is. So let's try prohibition, and we did, and it didn't work very well. It didn't solve the problem. It exacerbated the problem. I think Dr. Lott made a very good point when he talked about the strength of gun laws in Mexico, the laws and what you could buy, and then what the reality on the ground is. We know that, frankly, we have a great deal of responsibility, in my view, there because we are the market. I have talked to the president of Mexico before about violence inside his country and all the thousands of deaths, and he said maybe you should legalize drugs in your country. I would never do that here, and this was a previous president, by the way, not the one that is there now. He said your inability to control your consumption is killing us down here, because we don't have the resources to police as robustly as you do, so the production comes down here, smuggled across your border, and you have some responsibility for that. I thought that was a very fair point to make. But it also pointed out that the problems, for cultural or economic reasons, they were complex. They had to do with addiction and all sorts of behavior that is inappropriate. Again, Dr. Lott's point about 50 percent of the murders in 2 percent of the counties is pretty staggering, and probably usually in counties that have pretty strict gun control laws. So we clearly have a whole complex of problems here that demand research, and hopefully this subcommittee will be in a position to robustly fund that research and widen it out in ways that help us get answers, and hopefully we don't jump to policy conclusions before that research is actually completed. So again, I want to thank all of you. I thought this was a terrific, terrific session. I want to thank you for the expertise and the passion. I used to be in academics. This is almost like being back on a college campus again, because we had some great debate too, particularly at both ends of the table over some of these things, but it was helpful debate, it was good debate, and it was civil debate. So, Madam Chairwoman, thank you very much. I enjoyed being here and enjoyed hearing our witnesses and look forward to working on this issue with you as we go forward. Ms. DeLauro. Thank you very, very much, Congressman Cole. I have to ask for a unanimous consent to enter into the record two statements, one by the American College of Physicians, and another by the American Academy of Child and Adolescent Psychiatry. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. I am also sorry that Dr. Stewart, if we had gone further, I wanted to address a project which was really-- Project Longevity, which exists in my community. A small investment in intervention programs have a tremendous impact. It was launched in 2012 as high rates of violence in several cities--New Haven, Connecticut; Hartford, Connecticut; Bridgeport, Connecticut. Connecticut spent less than a million dollars of its $30 billion budget to fund Project Longevity, a modest investment. The number of fatal and non-fatal shootings were cut in half between 2011 and 2016. Researchers from Yale University directly attributed the 73 percent drop in the number of group or gang-related shootings per month to Project Longevity. On Monday I am going to have an event in my district where Project Longevity will be there, focused on research and the public health emergency with regard to gun violence. I would hope we might be in touch with others as well to get your views about more of these violence reduction strategies in which we can move forward, whether there is evidence of the results. If you do have those examples, I would ask you to share those examples with us and with the committee as we move forward to try to address this issue. If I might add, I think we have to not be fearful of research and where it takes us. That is what researchers do every day. When we research a particular illness or disease, we find that potentially the properties of one drug or of a therapy lead us to how it can help. That is the wonder of research and of science and of where we spend the millions of dollars every single year to plumb the new discoveries. We should not be afraid of research. Gun violence is a public health emergency. Anything that kills 40,000 Americans every year is a crisis. It is a public health crisis. The CDC, the Centers for Disease Control and Prevention, is the nation's foremost public health agency. And yet, it has been absent from this research agenda for more than 20 years. I have in front of me--it has been said here that we do not direct research. We say, ``CDC, you go ahead; NIH, you go ahead.'' We were going to count the lines here of directed research that we say to the CDC, this is what you get to do. I am not going to go through all of these, but I have three pages, three pages of directed research. We can direct the CDC, the NIH to sit here and say--today we say here is the money, you go to it. We have directed millions to cancer research, to Alzheimer's, to brain research. We are earmarking. Yes, we are, to these areas. A moonshot effort. We talked here about opioids. We cannot keep track, and I am for spending money on the problems that we have and the crisis that we have in opioids nationwide. But we don't hesitate for a moment to say we need to do something about it. And yet for 20 years we have been unable, as Federal dollars, to look at research into gun violence prevention. Dr. Redfield, I might add, is the CDC director, has told us flat out, we just need a funding mechanism. We are poised to research in this area if Congress chooses to give us additional funding, if Congress chooses to do all of this research at the CDC and the NIH, if Congress chooses. Well, I am going to close with this. I think it was you, Dr. Stewart, who said we need to focus on needless deaths and suffering. If our research that we do at the Federal level--and I applaud the research that is done outside, and we have had collaborative partnerships outside of the government, and we do this every day with the NIH and the FDA, et cetera, and looking at these issues that are major challenges that we face in this country. Needless death and suffering. And if gun violence prevention research can lead us to trying to mitigate against needless death and suffering, then I believe it is our responsibility, and a moral responsibility, for us to fund at the Federal level gun violence research. I want to say thank you. It has been a great discussion, a robust discussion. And, you know, it is wonderful to get different perspectives. That is the way we move the ball forward, not shutting our minds to any kind of a direction that this kind of research will take us. Thank you all very, very much. I appreciate it. This concludes the hearing. Thank you. Tuesday, March 12, 2019. OVERSIGHT OF FOR-PROFIT COLLEGES: PROTECTING STUDENTS AND TAXPAYER DOLLARS FROM PREDATORY PRACTICES WITNESSES HON. RICHARD J. DURBIN, U.S. SENATOR KEVIN CAREY, VICE PRESIDENT, EDUCATION POLICY AND KNOWLEDGE MANAGEMENT, NEW AMERICA MARC JEROME, PRESIDENT, MONROE COLLEGE ERIC LUONGO, FORMER FOR-PROFIT COLLEGE STUDENT ROBERT SHIREMAN, DIRECTOR OF HIGHER EDUCATION EXCELLENCE AND SENIOR FELLOW, THE CENTURY FOUNDATION Ms. DeLauro. The hearing will come to order. My apologies for being late, but they pay us to vote. And I understand that Senator Durbin has to vote and he will be back. And we will, when he comes, give him an opportunity to be able to speak up. I would like to welcome everyone to the Labor, HHS, and Education Appropriations Subcommittee for our oversight hearing on predatory for-profit colleges. We were going to have two panels, with Senator Durbin first and then a second panel. I will introduce each of you before your remarks. But I want to say a thank you to you, Eric Luongo, who was formerly a student at a for-profit college, Marc Jerome of Monroe College, Kevin Carey of New America, and Robert Shireman of The Century Foundation. At the signing of the Higher Education Act in 1965 President Lyndon Johnson said the law would, quote, ``swing open a new door for the young people of America.'' For them and for this entire land of ours it is the most important door that will ever open, the door to education. We have a duty to be examining predatory for-profit colleges, one, because this subcommittee is charged with oversight of the Department of Education; two, because we fund the Pell Grant Program, and for-profit colleges receive nearly 14 percent of all Pell grant funding. Last year, the University of Phoenix was the largest recipient of Pell grants, not just among for-profits, but all colleges and universities. They received more than $200,000,000. Phoenix has committed a number of violations, including deceptive or unfair targeting of military veterans in the advertising, marketing, or sale of products or services. As a result, at one point the Department of Defense suspended the University of Phoenix's ability to recruit on U.S. military bases and restricted its access to Title IV eligibility. I have a list which I will submit for the record of all of the infractions by Phoenix University. And I also have a document of for-profit infractions 2005 to 2019, several pages in length, which I will submit for the record as well. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. So it is our responsibility in this arena to be sure we shine a light on those bad actors who seek to scam students and taxpayers and thereby block the door to education. I would note that our colleagues on the other side of the aisle agree on jurisdiction, on this jurisdiction, having pushed for riders to remove accountability measures with regard to for-profit colleges. So this is in our purview, it is an area that we must address, because predatory for-profit colleges are scamming students and taxpayers out of millions of dollars, and Secretary Betsy DeVos is helping them get away with it. Predatory for-profit schools have lower graduation rates and higher default rates than public and nonprofit schools. According to the Department of Education, the 6-year graduation rate is 59 percent for public institutions, 66 percent for private nonprofit institutions, but only 26 percent at private for-profit institutions. And while accounting for only 9 percent of all students enrolled in postsecondary education, they account for more than a third of all defaults, 34 percent. Corinthian was an example of the worst kind of predatory for-profit school. Corinthian engaged in deceptive marketing, lied to the government about its graduation rate, and folded almost immediately when the Federal Government turned off the spigot--a for-profit private business that could not survive for 3 weeks without Federal assistance. The collapse of Corinthian Colleges has wrecked the lives of tens of thousands of students, leaving them with high debt and useless degrees. Dawn Thompson attended undergraduate and graduate programs through a Corinthian subsidiary, Everest. Less than a year after completing her online MBA Corinthian closed. Dawn was left with $250,000 in loans for degrees from a defunct college. Particularly alarming is how predatory for-profit colleges built their business model on targeting those who they deemed to be particularly vulnerable. The Senate Committee on Health, Education, Labor and Pensions, chaired by then Senator Tom Harkin, investigated for- profit colleges in 2012. They uncovered internal recruiting documents from the institutions, including lists of those they targeted. And I quote, ``welfare moms with kids, pregnant ladies, military, active and retired, those who experienced a recent death, and those who were physically and mentally abused.'' And the list goes on. And there again this is the student profile of the people that they were looking for and what they laid out in terms of the most vulnerable. This is not, I might add, a new issue. It is not a new issue. And what I would just see here is I have here the key decisions to protect student borrowers during Republican administrations, going back to Dwight Eisenhower. President Eisenhower, 1956, there were major abuses of the original GI Bill after World War II. His Bradley Commission produced a final report in 1956 that indicated for-profit institutions enrolling former servicemembers on the government's dime and concluded that, I quote, ``Much of the training in profit schools was of poor quality.'' In 1957 the National Defense Education Act passes creating the National Student Defense Loan Program, prohibiting funding to for-profit schools. President Nixon in 1974, Federal Trade Commission creates rule for proprietary schools to document job placement rates. President Reagan 1987 and 1988, Bill Bennett proposed new regulations under which more than 2,000 postsecondary institutions would immediately face a hearing to limit, suspend, or terminate their participation in PHEAA, in Federal student aid programs if their default rate on Federal loans exceeded 20 percent. In 1988 Bennett delivered a blistering attack: Kids are left without an education, and no job, and the taxpayer ends upholding the bag for a kid who gets cheated. President George H.W. Bush, 1991, Secretary of Education Lamar Alexander suggests States implement Federal benchmarks for vocational programs that include graduation, job placement, and default rate. So not a new issue. And it is not just who they target, but how. They train their employees on something called a ``Pain Funnel.'' It is a technique to wear down prospective students and coerce them into sham programs at these institutions. And that includes our veterans. Under current law, for- profits are only allowed to receive up to 90 percent of their revenue from Federal financial aid through the Department of Education. However, through what is called the ``90-10'' loophole, DOD and the GI Bill benefits do not count. As a result, schools aggressively recruit veterans, servicemembers, and their families to get around this accountability provision and to extract more public dollars. A Department of Education analysis found that 200 for-profit colleges received between 90 and 100 percent of their revenue from taxpayers when DOD and VA benefits were counted as Federal assistance. Our witness this afternoon, Eric Luongo, will share his story. After being honorably discharged from the Navy, Eric attended DeVry for web graphic design. They promised he could make $80,000 a year. But as he will testify, they scammed him, repeatedly misleading him in order to get him to enroll, to take out loans, despite their promises to the contrary. He now owes $101,000 and the DeVry degree is worthless. Eric searched for a job unsuccessfully for a year because the DeVry program did not prepare him for a career in web graphic design. Now he is back in school and looking at a bachelor's in business administration. The 90-10 loophole gives predatory for-profit colleges a perverse incentive to target veterans and servicemembers like Eric, which is why groups such as the Iraq and Afghanistan Veterans of America, Student Veterans of America, Paralyzed Veterans of America, and Vietnam Vets of America support closing the 90-10 loophole. The behavior of predatory and for-profit colleges is egregious. They are private companies that can subsist entirely on Federal dollars. I would think that my colleagues who decry crony capitalism would particularly object to this, especially since it comes at the expense of veterans, students, families, and taxpayers. In addition, they are now creating other schemes to change their tax status from profit to nonprofit to avoid regulatory structure or, if you will, rules to protect students and taxpayers. Yet, the Trump administration and Secretary DeVos have rushed to let these predatory programs off the hook. In particular, Secretary DeVos is working to roll back two protections, the Gainful Employment rule and the Borrower Defense rule. The Higher Education Act requires all career-oriented and for-profit programs receiving Federal student aid to, quote, ``prepare students for gainful employment in a recognized occupation.'' The Gainful Employment rule expanded accountability and transparency to fulfill that requirement, thereby protecting students from programs that charged too much and delivered too little. The Education Department itself estimated that eliminating the GE rule would cost $4,700,000,000. Supporters of the Gainful Employment rule includes 33 military and veteran organizations, State attorneys general, and student, consumer, and civil rights groups. Secretary DeVos missed her deadline for rolling back the strong rule, but we expect the Department of Education to finalize their effort in 2019. Meanwhile, the Secretary is also refusing to follow loan forgiveness started under the Obama administration. Students attending these worthless institutions should not be required to bear the burden of this student loan debt. The Obama administration's Borrower Defense rule created a process for students to apply for relief. The Department of Education's own inspector general found the Borrower Defense rule would improve the Department's procedures for, quote, ``mitigating harm to students and taxpayers.'' Supporters of the rule include State attorneys general, veteran and servicemember groups, and organizations dedicated to fighting for students, consumers, civil rights, faculty, staff, and college access. Yet, as of December 2018, more than 139,000 loan forgiveness claims were still awaiting action, including Dawn Thompson, who I mentioned earlier, and our witness Eric. And Secretary DeVos is siding with the predatory for-profit colleges at the staff level. She has hired more than a half dozen staff who worked for for-profit colleges who have had oversight of them at the Department. This includes the former dean of DeVry University to lead the Department's Student Aid Enforcement Unit. And the senior political appointee behind her efforts to deregulate higher education is a former employee of for-profit colleges. You want to talk about the fox guarding the hen house. Our Nation's students strive to improve their lives. It is our responsibility to ensure that they do not have to worry about being taken advantage of while they seek to invest in their own skills. So we will continue to fight for students and taxpayers and demand the Trump administration enforce the strong Gainful Employment and Borrower Defense rules. I look forward to hearing from our witnesses today about the oversight that we must be conducting because we need to protect students and taxpayers from predatory for-profit colleges. We must ensure that door to education which President Johnson cited all those years ago is not sealed shut by the for-profit colleges who seek to profit at the expense of students' education. With that, please let me turn this over to my good friend and ranking member of the subcommittee, the gentleman from Oklahoma, Mr. Cole, for any open remarks he cares to make. Mr. Cole. Thank you very much, Madam Chair. I would like to thank all our witnesses for their testimony and sharing their time with the committee, especially those who traveled here. We really appreciated your efforts. I would particularly like to recognize Senator Durbin. I am honored to have the senior Senator from Illinois come and share his views on this topic before this subcommittee. So welcome. Not only somebody I admire as legislator, but I still think the best interview on ``Morning Joe'' out there, without a doubt. So I enjoy seeing you in all your many forms. This hearing season has addressed a number of difficult and challenging topics. This is certainly one of them today. And today we will learn more about proprietary institutions of higher education, sometimes referred to as for-profit colleges. I have enjoyed reading all the testimony, which I did last night and this morning, and look forward to our discussion today on helping students find the best option. I want to start by expressing my ardent support for programs helping young people to access quality higher education. This commitment to increasing opportunities can be seen in the strong support shown by this committee for programs like TRIO and GEAR UP over the last 4 years. These programs target low-income, first generation students by providing support, encouragement, and structure needed to attain a college degree. In the past 4 years these two programs have seen a combined increase of over 20 percent and I hope such robust bipartisan support for those programs continues under our new chair. I also recognize the value of having options in higher education. A 4-year college degree right after high school does not fit every individual or family situation. For a variety of reasons our higher education system offers a range of options to students. Many options come with benefits. Schools have found ways to serve working adults, students with special needs in different ways of teaching, both online and in the classroom. For example, proprietary institutions were some of the first schools offer online instruction. Now nearly every institution of higher education incorporates this method of learning. Proprietary institutions can serve as innovators, trying out methods that may not be possible in more rigid State university systems. And they can also serve populations that may have barriers to accessing higher education, such as working parents who do not find the typical in-classroom semester easy to accommodate the demands of a full-time job and a family. I do not want an overactive Federal Government closing off options and stifling innovation by forcing one-size-fits-all rules that can force good schools to close their doors. Yet I also recognize, and some of our witnesses made this abundantly clear in their testimony, that there are some unscrupulous institutions that have preyed on prospective students, including veterans, with egregious marketing tactics and in some cases outright lying. Clearly, such behavior by any school is abhorrent and the government has a role to intervene. Thankfully, I believe we can balance the interests of having multiple options in higher education while ensuring access to information and reasonable safeguards to prohibit predatory practices. Let's not throw out the baby with the bathwater. Efforts to include more information for students about outcomes attained by graduates of all school types seems like a reasonable first step. Today, I hope we can learn more about how to stop bad actors while still preserving the unique role proprietary schools can play. So I look forward, Madam Chair, to the hearing and the testimony today and learning ways we can ensure that the higher education system provides options for all student types, yet still ensures that we spend taxpayer dollars wisely. I yield back my time. Ms. DeLauro. Thank you very much. Now it really gives me great pleasure to welcome to the House side of the Capitol a dear, dear, wonderful friend, but more than that a tireless leader and someone who has spent a lifetime in promoting public education, affordable access to higher education. A fellow appropriator, I have had the opportunity really to work with the Senator over the years side by side on a number of oversight issues at the time, particularly on the Agriculture Subcommittee with the Food and Drug Administration and with a single food safety agency, which we keep pursuing. But we have worked on issues with respect to the Department of Education. We co-led a letter in February about an Office of Inspector General report about the potential waste, fraud, and abuse at for-profit colleges, including various Art Institute programs. I said we partnered on a food safety agency and other issues. So it give me great, great pleasure to introduce the Senator from Illinois, Senator Durbin. Senator Durbin. Thanks, Madam Chair. It is an honor to be with you and with your colleagues. And I know this is an oversight or investigative hearing, and the first thing you should investigate is how the ranking member would admit publicly he watches ``Morning Joe.'' He is going to answer for that. Ms. DeLauro. He has to answer for that. Senator Durbin. I am sure he will. Thanks, everybody, for allowing me to come over here. These hearings on this industry are so few and far between, and it is a darn shame, because what I am about to tell you is really a sad story, a tragic story for students and for taxpayers. So let me say at this point, if you forget everything else I am about to say, I want to ask you to remember two numbers, remember these two numbers when it comes to this industry. The numbers are 9 and 34. Nine percent of high school graduates in the United States of America go to for-profit colleges and universities; 34 percent of all the student loan defaults are students who attended for-profit colleges and universities. Why? Why would almost four times the percentage of students end up in default? The answers are obvious. These schools charge too much for tuition. They leave the students with too much debt. Discouraged students leave school with debt and not even a diploma. And those who end up with you a graduation certificate or diploma find that the inflated promises of employment and earnings just don't materialize and they ultimately default on their debts. Students graduating with all this debt then face a life that is compromised in terms of what they can do next. And then they learn the sad reality, that if they are not going back to that for-profit school that led nowhere, virtually none of the hours that they took at those schools are transferrable anywhere. This isn't like your community colleges and city colleges across the United States. These schools have been accredited by themselves. And shame on us. You can't fault the families that send kids to these schools. How would they know any better? These schools qualify for Pell grants, they qualify for government loans. They look like they are the real thing. And students coming from families with limited experience with college look at this and say, well, this must be a real college. And it may have that name on the door, but it turns out it isn't even close. John Murphy is a famous individual when it comes to this industry. He was the cofounder of the University of Phoenix, the big daddy of them all. He put it this way in Deseret News in 2015, referring to these for-profit colleges: ``They are not educators and they are looking to manipulate this model to make money. There is nothing wrong with making money, but I think anyone making money in an educational activity has a higher standard of accountability.'' Murphy explained that quickly after its founding the focus of University of Phoenix became tapping into what he called the ``open spigot'' of Federal student aid, what he also described as the ``juice'' of the industry. For-profit schools are one of the most heavily subsidized industries in America. Many for- profit colleges receive 80, 90, close to 100 percent of all of their revenue straight out of the Treasury. Now, a lot of people have criticized me and say, ``Durbin, you are just angry because it is a business as opposed to the traditional means of higher education.'' I am not opposed to businesses. Frankly, I think they are fine. But to call this an exercise in the free market is to overlook the obvious: They exist because of massive subsidies. I have tried it to imagine, Madam Chairman, any other company or industry in America, I went through defense contractors, the big aggies, and all the rest of it, nobody takes the money out of the Treasury the way this industry does. This isn't a matter of attracting customers to a business, it is a matter of attracting students to a heavily subsidized industry. Murphy went on to say, Phoenix was the one that got it rolling and then all the others followed. Let's talk about them. Corinthian, collapsed in 2014. How many students were left in the lurch? Seventy thousand students nationwide. For years, Corinthian had inflated their job placement numbers and lied to the students, just flat out lied to them, and lured them into high cost programs that turned out to be worthless. In the decade that followed leading up to its collapse, Corinthian brought in more than $10,000,000,000 in Federal student aid funds. Its CEO, Jack Massimino, took home more than $20,000,000 in that 10-year period of time, personally took home more than $20,000,000. And on the other hand, nearly 40 percent of Corinthian College's students, who should have begun to pay off their student loans in 2008, had defaulted by 2010. Now, who loses when that happens? Well, we know the students lose. They have got this on the record. They defaulted on their student loan. We know it is tough for them to continue their education or almost anything else. I have met a lot of them who have moved into their parents' basement, there was no place else to turn. But who know who else lost? The American taxpayers lost, because these students can't pay back their loans. These are tax dollars. Corinthian and it is fraud was not unique. It was the canary in the coal mine. Nearly every major for-profit college company has faced and continues to face investigation or lawsuits by State and Federal agencies. In 2016, ITT Tech--boy, doesn't that sound like a winner, wouldn't you like a diploma from that place?--in 2016, it collapsed, again leaving tens of thousands of students scrambling. In 2018, the Education Corporation of America--how about these names?--and Vatterott colleges disappeared. And we are currently in the midst of a collapse of another for-profit enterprise, schools owned by Dream Center Education Holdings, including Argosy University. I used to go to the Chicago Sun-Times editorial offices and I would get on the elevator and there were all these fancy looking offices and big names, Argosy University, and I thought it is a fraud. The poor students who are walking into this place think this is a real college. It is not. Argosy is gone. Do you know how many students it left behind in my State? Seven hundred holding the bag. That is the kind of situation which can be repeated in almost every State represented here. In this case, in addition to an ongoing collapse that has left students scrambling, millions of dollars in Federal student aid funds have gone missing. Chairwoman DeLauro and I have called on the Department of Education inspector general to investigate. Incidentally a former Department of Education inspector general, Kathleen Tighe, warned Congress that for-profit colleges represent a disproportionate risk to students and taxpayers to this day. There were some that who said Corinthian and ITT Tech were outliers in the industry and that it was the Obama administration hounding these poor institutions. But the collapse and practices of Education Corporation of America, Vatterott, Dream Center under Secretary DeVos and the Trump administration prove that the rot in this industry runs much deeper than Corinthian and ITT Tech. As appropriators in the House and Senate, we are responsible for ensuring that critical investments and Federal student aid don't become the juice that we were told earlier. Unfortunately, many of the key protections for students and taxpayers that the Obama administration advanced are under attack by this administration and the former for-profit college executives which have been hired by the Department of Education to keep an eye on the industry. In May 2018, The New York Times chronicled the DeVos Department's unwinding of the enforcement unit set up in the aftermath of Corinthian. Secretary DeVos has also attacked and refused to enforce the Gainful Employment rule, which cuts off Title IV funding for programs where graduates' ratio of student debt is too high. Secretary DeVos has taken steps to reinstate Federal recognition for the Accrediting Council of Independent Colleges and Universities, which maintained the accreditation of Corinthian and ITT Tech to their dying day in bankruptcy. Madam Chair, you have been patient. I know you have other witnesses coming before you. But let me just say this. If you have ever sat down with one of these students and got a feeling for where they are in life after they have been defrauded by one of these colleges and universities, I think you would rise to the same level of emotion as I have on this issue. This is unfair, and it is fundamentally unfair the American taxpayers have to subsidize it. And the collapse of these schools tell you they are not even good economic and financial models. They take all the money they can and then run for the border, and the taxpayers end up holding the bag for student loans that are defaulted on. Is that how we are going to educate or children? Nine and 34. Thank you, Madam Chair. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very, very much, Senator. Thank you for being here today and for your continued passion on this issue, not so much on the issue but what is happening to students in this country and their dreams and aspirations being dashed by these for-profit colleges. Thank you very, very much for being here this afternoon. Senator Durbin. Thank you. Ms. DeLauro. Let me please invite the second panel up. And I will introduce everyone and then we will move toward testimony. And introducing our witnesses, our second panel. Eric Luongo. Eric served in the United States Navy, was honorably discharged in 2003. He will provide the subcommittee testimony on his experiences enrolling and attending DeVry University. Marc Jerome, who is president of Monroe College in New York. And welcome, Jerome. Kevin Carey, vice president for education policy and knowledge management at New America. And finally Bob Shireman, director of higher education excellence and senior fellow at The Century Foundation. Following your presentations--and I will tell you that your entire testimony will be put into the record, submitted to the record, and so I will ask you to speak for about 5 minutes. And then we will proceed to 5-minute rounds for questions. We will go back and forth in order of arrival. If you will, Mr. Luongo, begin when you are ready. And I am told, housekeeping, put the mike on. Mr. Luongo. My name is Eric Luongo. I am here today to tell my story in the hopes that what happened to me isn't going to happen to anyone else. I enlisted in the Navy in September 1999. I served as an assistant LAN administrator on board the USS Wadsworth and served as the LAN administrator and the communications officer on board the Coastal Mine Hunter Heron. I was honorably discharged in 2003, and after taking a couple of years for myself I decided I needed to go to school again, earn an associate's degree in web graphics design, because I felt that is where I wanted my career. After looking around for schools, I picked DeVry University because I was told by the DeVry representative that their graduates were making $80,000 and more a year working in the field of web graphic design. So I started there in 2007. Before I enrolled, I told the DeVry representative that I did not want to have to pay for school and I wanted to use the GI Bill and grants so that I could go to school for free. In response she told me I would not have to pay for school and that my classes would be covered by my GI Bill and grants. So I signed up for classes. Then the DeVry representative told me I needed to fill out FAFSA. At the time I had no idea what FAFSA was, but they told me that I needed to complete it in order to receive grants. So I completed my FAFSA and I was approved for Pell grant, Stafford loan, and Perkins loan. I was asked to complete a master promissory note as well. The fact that I was approved for loans, combined with the language in the master promissory note, made me very suspicious. I thought it was very strange that it said I was signing for a loan, since I was told I would be going to school for free. So I called the DeVry representative and started asking questions. When I said to the DeVry representative I thought I was going to not have to pay for this, I was told that I wasn't because I fell under a veterans program and because of that I had the grants and the GI Bill and I didn't need to worry, I wasn't going to be charged for any loans. This led me to believe that I was not actually taking out the loans per se, that I was just approved for them. Every year I had to complete the FAFSA again, because I was told I was just recertifying to receive my grants. Then, after I graduated in June 2011, I started getting letters in the mail from loan service providers that said I owed money for student loans. I had no idea that I had these loans because I had used my GI Bill and the Pell grants to earn this associate's and was told that because of my veteran status I wouldn't have to pay for school at all. So here it is, years later, because of interest and whatnot I have over $101,000 for an associate's degree from DeVry University. The interest keeps accruing. I was never able to find a job working in web graphic design. I spent over a year looking for a job. At one point I ended up settling for a job working with the developmentally disabled. And later I became an immigration services assistant with USCIS under the Department of Homeland Security, where I work to this day. And I still never ended up working in web graphic design. A couple of years ago I made the decision that I need doing to go back to school and get something of substance. This time I am going for my bachelor's in business administration information systems. Because of the loans that I unknowingly took at DeVry, my financial aid has been maxed out and I was lucky enough to be able to get into the vocational rehabilitation program through the VA, because I am a disabled veteran. I am now attending Medaille University and working full- time as an ISA with Department of Homeland Security. My time at Medaille has been like night and day compared to my experience with DeVry. Medaille has set up a department to specialize in veterans' affairs and work directly with the VA. Voc rehab works with DeVry and I have to pay nothing. I can even speak to the representatives at Medaille whenever I need. The professors and quality of classes are night and day. Medaille ensures that the students have the tools they need to succeed. Since being at Medaille I have been able to maintain a 3.77 GPA. I am set to graduate in June with my bachelor's degree. And I never thought that I would be the subject of such predatory acts like those I experienced with DeVry. It just kind of shows that this really can happen to anybody. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very, very much for your testimony. Mr. Jerome. Mr. Jerome. Good afternoon. My name is Marc Jerome and I am the president of Monroe College in the Bronx. Thank you for allowing me to share my perspective today, which of course is a little bit different. I absolutely abhor the unethical behavior we have just heard about, but the current policies do not adequately address these problems. They unfairly penalize too many ethical institutions like mine and don't do enough to protect low- income students wherever they attend. If you take one thing away from my comments today, it is this: Higher education as a whole is failing low-income students, especially minority students. Whether we look at graduation rates, loan default, or debt to earnings, shockingly weak outcomes for these students do demand accountability across the board. Eighty-six years ago my grandfather and great aunt founded Monroe College. I am the third generation of my family to lead the institution and I am passionate about what we do. Significantly, our Bronx campus is located in the poorest congressional district in the country, but has some of the best outcomes for low-income students of any institution across all sectors. Given the title of the hearing it was actually very hard for me to decide to be here today. I am respectfully asking for a lowering of the inflammatory rhetoric to describe every institution in the for-profit sector. The word ``predatory'' is unfair as a blanket statement and it immediately stifles thoughtful discussion. Students and families absolutely deserve accurate, easy to understand, and consistent information on the programs or schools they want to attend. Yet the current regulatory framework only requires for-profit institutions to provide relevant information and warnings. All students should be able to compare information about similar programs and be warned if outcomes are weak. Students should absolutely have a reasonable expectation that they will graduate from the college they want to attend. All colleges should be held accountable if too few students graduate. But in too many schools, across all sectors, this is not happening. In fact, there are 816 colleges with on-time graduation rates below 10 percent, and this is for full-time students. There seems to be no accountability for these unacceptable results, whether it be from accreditors, the Federal Government, or boards of trustees. Students also should have a reasonable expectation that if they take a student loan, their earnings will be enough to pay the debt, and colleges should be held accountable if doubt is too high and salaries are too low. Yet this is not happening. The data is clear that if a debt-to-earnings metric was applied across all sectors, huge swaths of higher education would fare poorly. Yet only for-profit students are deemed worthy of protection. Millions of students attend public and nonprofit and nonprofit schools with high debt and low earnings. They should be protected, too. There are 334 degree-granting institutions that have default rates above 20 percent, three-quarters of which are public and nonprofit. These institutions should also be held accountable to improve their results. The Department of Education recently announced that only 24 percent of all borrowers are currently paying down interest and principal. Repayment rates are also low at community colleges and Historically Black Colleges and Universities. I don't believe this should be a punitive measure. Once again, the current regulations only hold for-profit colleges accountable. The notion that the difference in sector oversight justifies separate protections for students just does not withstand scrutiny. Public and nonprofit boards do provide oversight, but not always effective outcomes to oversight. If the oversight was effective, there would not be so many public and nonprofit institutions with such poor outcomes for low- income students. Just think about this: High school principals would lose their jobs if their on-time graduation rates were below 10 percent. Accountability and consumer protection should be extended to all institutions and to all students. To do anything else is to abandon the 18 million college students who do not attend for-profit institutions. On the other hand, some accountability metrics, such as the Gainful Employment rule, which I have been intimately involved with for many, many years, are so overbroad and imprecise that they have the exact opposite effect from what was intended. Rather than punish poorly performing programs, the rules actually close some of the best performing programs in the country while leaving the same programs at other institutions unaccountable, simply because they have a different tax status. This cannot be what was intended. Students deserve better. And I really think we all could do better. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you. Mr. Carey. Mr. Carey. Thank you, Madam Chair, Ranking Member Cole, members of the committee. Senator Durbin mentioned this difference between 9 percent of students enrolling from high school and 34 percent of defaults. What accounts for this enormous imbalance? Well, to start, for-profit programs are often much more expensive than public programs, making for-profit students much more likely to borrow. A recent National Bureau of Economic Research study comparing students enrolled in certificate programs found that 83 percent of for-profit enrollees borrowed compared with 24 percent of comparable students at public community colleges. For-profit students are also much more likely to default on their loans or have trouble paying them down. Three years after for-profit borrowers left college in 2011 and 2012, only one- third had paid down even $1 in principal on their loans compared with nearly half at community colleges and two-thirds at 4-year public and private nonprofit institutions. Why can't many for-profit students pay their loans back? Well, because their loans are larger because the degrees those loans finance are often worth very little in the labor market. The same study found that even though average for-profit tuition was more than 10 times greater than at community colleges, for-profit students actually earned less money in the labor market. The authors found that, and here I am quoting, ``Weak performance of the for-profit sector is not limited to a few poor-performing institutions, rather the majority of schools appear to have negligible average earnings effects.'' The burden of this failure falls disproportionally on students of color, particularly Black students. A Brookings Institution study projects that 58 percent of Black borrowers who ever attend a for-profit college will default on their loans. A Center for American Progress study found that among Black borrowers who dropped out of a for-profit college the default rate is 75 percent. Unsurprisingly, given how much debt their students take on, for-profit colleges are unusually dependent on Federal financial aid, and as a result, when they go bankrupt the cost to the taxpayer is enormous. As of last September, the Department of Education had received over 200,000 claims under the Borrower Defense provision of the Higher Education Act, which allows students who have been deceived by their college to have their debts discharged. The vast majority of these claims, which amount to billions of dollars, are against for-profit schools. It will be the taxpayers, not the schools' owners, who pay those bill. Fraud and discharge claims against for-profits are common in part because for-profit and nonprofit colleges behalf very differently when they experience financial distress. We have seen just in the last week that the for-profit Art Institute of Seattle gave students 2 days notice last Wednesday that they would be closing on Friday, 2 weeks before the end of the winter term, leaving hundreds of students in the lurch. Meanwhile, for-profit Argosy University is currently embroiled in litigation over the unknown whereabouts of over $16 million in Federal aid that it ununaccountably failed to disperse to students while it, too, was in the process of shutting down. When for-profit colleges close, the financial interests of their owners come first. I would also note for the committee that the premise of this hearing is that we can identify for-profit colleges as for-profit colleges. That is increasingly not true. Both the collapsing Art Institutes and Argosy chains are technically owned by a nonprofit foundation. This is a new trend in for- profit higher education. Let me give you an example. During the last academic year, Grand Canyon University received over $750,000,000 from Federal student loan programs, more than any other college in America. Grand Canyon University is a publicly traded corporation with a market capitalization of over $5,000,000,000 run by a former University of Phoenix executive named Brian Mueller. Grand Canyon University is also an IRS-approved tax-exempt nonprofit organization run by a former University of Phoenix executive named Brian Mueller. Now, how can both of those things be true at the same time? Because Grand Canyon University the for-profit set up Grand Canyon University the nonprofit as a conduit through which Federal financial aid now flows, immunizing the corporation from Federal rules governing for-profit colleges. Other for- profit colleges have completed or are contemplating such so- called conversions. The Federal Government has been providing student financial aid in different forms since the end of World War II. There are lessons in that history. For-profit colleges work from a fundamentally different sent of incentives and imperatives than do public and nonprofit schools. Without strong guardrails protecting students and taxpayers, there is a high likelihood of waste and exploitation. Thank you. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you. Mr. Shireman. Mr. Shireman. Thank you for the opportunity to testify today. The United States experience with government funding of for-profit colleges is not a pretty one. While they theoretically can bring efficiencies to education, their financial structure rewards shortchanging students and taxpayers. And even when the government puts up guardrails to protect against that problem, the industry has repeatedly lobbied to eliminate those protections, leading to mass harms to veterans and low-income students. Rampant abuses emerged with the first GI Bill, then again in the 1970s, in the 1980s, and in the 2000s. Now we are hearing from for-profit lobbyists that the bad days are over. But those same promises were made before and lawmakers fell for it as if they thought that because it is dry under the umbrella, the umbrella can be ditched. The chair mentioned the Nixon administration. After the Nixon administration identified the problems, they instituted an 85 percent cap on the proportion of students that can be funded by any kind of Federal aid. It was something that they had learned had worked well in the Korean-era GI Bill. But when weakened abuses, those did not survive, when those weakened abuses led to abuses in the 1980s, we heard from William Bennett, who was outraged that some of the most disadvantaged, the most vulnerable members of society are left without an education, with no job, with the taxpayer ending up holding the bag for a kid who gets cheated by a for-profit college. New reforms were then adopted by Congress in 1992, leading to the closure of more than 1,200 schools. After just a few years, the head of for-profit college association declared that the industry had been purified, arguing that Congress should ease up. Congress weakened the 85-15 rule that had been adopted in 1992 and adopted some other weakening of the laws. Later, President Bush's Secretary of Education created several loopholes in the ban on commission-paid recruiting, insisting that abuses in student aid programs were, quote, ``no longer possible.'' None other than the CEO of Corinthian Colleges assured Congress in 2004 that, quote, ``Fraud and abuse perpetrated by certain for-profit institutions was in the past.'' An amendment included in a budget bill then opened the door to rapid unchecked growth in Federal funding of online education programs. Congress should have known better. Combined with the other weakened protections, the result was a disaster that we are still grappling with. This is the part of the testimony where some will expect me to say that the problem is bad actors and we need to get those bad actors and extract them from the student aid programs. But that is not the way this usually happens. Most predatory schools did not start out with people who are aiming to be predatory. Instead, they are business people who launch a plan to do good by doing well, following market indicators like the number of new customers and the stock value. In many industries those signposts lead to a quality product at a fair price. But in education these simplistic and narrow indicators of business success are not adequate, especially when the customer is a third party, like the government, that is not able to check quality, the value for the money. Without the direct oversight of trustees or public appointees prohibited from taking the money for themselves, the for-profit navigation systems cause the schools to trample students' interests, not always, but frequently and unpredictably, and often without the school owners being able to admit to themselves that they have strayed far from their original intentions. My colleague on today's panel says that regulation should neutral with regard to a college's sector. This is a favorite refrain of for-profit advocates, like the tweet I saw recently that said all schools from all sectors should be held to these same accountability standards. That bumper sticker is nonsensical. The very definitions of each sector about their accountability the way each is regulated. Ignoring the fact that a school a run by investors is sector ignorant, not sector neutral. As the chart in my testimony shows, there are major regulatory requirements that apply to nonprofit and public entities that do not apply to for-profits, and those need to be enforced also. The sectors are very different beasts and the for-profits are more hazardous. The consumer protection afforded by nonprofit accountability is obvious when you examine school closures, which are sudden and calamitous at for-profits but generally not at nonprofits. I would be happy to expand on any of these points during the question period. Thank you very much for the opportunity. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very much. Thank you all for your testimony. We will now proceed to questions. Mr. Shireman, thank you for being here today and for your testimony. Given that overall enrollment in the for-profit industry has declined and that efforts by the Obama administration have led to a crackdown on for-profit abuses, why can't we take our foot off the gas peddle when it comes to the oversight of the industry? Mr. Shireman. I think there is a huge danger here that we will be lulled into the sense that, oh, well, Corinthian closed and Vatterott closed and Argosy closed and the other colleges are gone, but that is exactly the same mistake that previous Congresses have made. We are now about at the level of enrollment in for-profit colleges that we were in 2005, just before the last ramp-up in massive, quick expansion of colleges. So we need to be on the watch more than ever, especially with two major for-profit colleges, including Grand Canyon that Mr. Carey just mentioned, announcing big profits, which will cause all of the rest of the industry to have investors clamoring for more. They want in on the money. They see that the gravy train is coming again, just like before. And they want in early because that is how you make the big money, and that is how taxpayers and students will be ripped off again. Ms. DeLauro. My hope is that we will be able to talk in a subsequent round about the kinds of things that we might be able to do and the committee might be able to do. Mr. Carey, having looked at the public and private nonprofit sectors of higher education, is there reason for alarm with respect to the for-profit industry? What is it about this industry that is so concerning? Mr. Carey. Fundamentally all colleges and universities are financed through enrollment, but there is no limit on the financial ambitions of a for-profit college. And if you look historically, often the worst abuses are not in the education that is provided, although often we find that the courses don't lead to degrees, as we heard from our other witness today, it is abuses in recruitment and marketing, where you have large numbers of salespeople who are financially motivated to enroll anyone possible because, as a friend of mine said to me, what other business is there where you can get someone to buy something for $50,000 by calling them on the phone? Really just higher education, because these are things that can be with a few signatures on a piece of paper transfer over large amount of government money and take out large amounts of debt, no questions asked. So I think the combination of that easily available money and the extremely lucrative nature when it is successful presents a constant risk for the taxpayer and for students. Ms. DeLauro. And I will just add that I think the recruiting tactics of these institutions. We have to pay very, very close attention to that. Mr. Shireman, 2017-2018 largest recipient of Pell grant dollars was University of Phoenix, a for-profit college. Second largest recipient was Miami-Dade College, a public college. The third largest was Grand Canyon, a for-profit college that converted to a nonprofit college. Should we be concerned as a committee that the University of Phoenix and Grand Canyon University were two of the top three recipients of Pell grant dollars? Mr. Shireman. Given the tendency of for-profit colleges to collapse somewhat unpredictably, the size of those institutions and the amount of Federal money that they are getting should be of great concern. I also would recommend that the subcommittee pay attention to some of the funding streams that are in other subcommittees. For example, University of Phoenix is also the number one recipient of GI Bill dollars. Grand Canyon is about number 15, I think. Another subcommittee oversees the IRS, and IRS funding was cut for oversight of charitable organizations. The IRS is now basically rubber stamping applications for tax-exempt status. The denial rate has gone down 90 percent because Congress cut funding for the oversight of tax-exempt entities. That is what has allowed this very strange for-profit/nonprofit Grand Canyon beast. Ms. DeLauro. Thank you. I just have a few seconds left so I will yield back my time. Mr. Cole. Mr. Cole. Thank you very much, Madam Chair. I am just going to ask you all quickly, I am just curious, I will start with you if I may, Mr. Shireman, do you think that, frankly, for-profit colleges ought to just simply be done away with? Mr. Shireman. No, I think it is really important. I think for-profit colleges have provided that there are many very good ones. It is hopeful to note that some of the best ones actually get no Federal funding at all. And I think a good test of whether a for-profit college is just taking advantage of government funding or actually serving a marketplace need is the extent to which it has employers, for example, financing some of its students' education. John Murphy, in fact, the cofounder of University of Phoenix, who later was very concerned about what had happened there, he said that the first number of years what kept them on track was that they were accountable to employers. Those employers saw that this was a valuable education to their employees and it was worth the money, and that kept them anchored to a market indicator. Mr. Cole. Thank you. Same question to you Mr. Carey. Mr. Carey. No, I don't believe that for-profits should be categorically excluded from Title IV. I think it is perfectly possible to run a for-profit college that does a great job by its students. In fact, I think President Jerome the president of one of those colleges. The outcomes of Monroe College are quite good. So it can be done. It just isn't too often. And I think we need substantially higher standards of outcomes with a special scrutiny on institutions that are operating from a profit motive. And we ought to apply those standards vigorously across the industry to protect students and taxpayers. Mr. Cole. Thank you. I think I probably know the answer, but I want to give you an opportunity to respond. Mr. Jerome. Well, I actually agree with a lot of my colleagues. What I offer is a nuance. If you come to New York there are no publicly traded colleges. We have 12 family-owned institutions that have an average life of 90 years. And essentially, because we keep coming back year after year, I feel comfortable that the regulatory framework that is out there now isn't working. It actually doesn't address the marketing and the recruitment aggressiveness. It addresses outcomes. And what I would ask all of you to look at is, because this is what I look at and I have looked at it for 10 years, outcomes are very weak across all institutions. And the dilemma we face is that the rules that are proposed for for-profit colleges, they would not--independent and public institutions would not pass them. And that then brings up hypocrisy in higher education and should you be protecting a student. All of you can just go to the College Scorecard and look at the debt and the earnings of students and the institutions, and across all sectors there are places with very high debt and very low earnings. Similarly, to think that aggressive recruiting just is in the for-profit sector is just false. We are starting to see, and I am very upset about it, the abuses you saw only in the for-profit sector migrating to the real nonprofit and public sector with the growth of large, multi-State, fast-growing online institutions, whether they are public or private. My last comment on this is I think now the largest advertisers in the country are either nonprofit or publics. The world is changing. As Mr. Carey said, you can no longer tell the difference between a public, a nonprofit, and a for-profit, and especially because so many nonprofits and some publics contract out education to very aggressive for-profit companies and it is all hidden. So I hope that is enough. Mr. Cole. Mr. Luongo, I want to give you a chance to answer that question, too. Mr. Luongo. I am not necessarily qualified to answer the question, but I do have an opinion on it. And my opinion is that colleges, like people, are all individual. There is no set mold that everybody fits into. And like I have had negative experiences at DeVry, there are people out there who have had fantastic experiences. I have had fantastic experiences at Medaille. There are people who have had horrible experiences there. I don't think that--I don't know, I don't think there is any one mold that everybody fits into. I don't think that all for-profits fit into this mold and I don't think all nonprofits fit into this mold. Mr. Cole. I would just say as a guy who earned a doctorate and began my career as a college professor, I agree very much with that, that there is a lot of variety in this marketplace. We actually had a situation in my State where, I am sad to say, a public institution was sort of rapped pretty severely by the Department of Defense, they are located near a military facility, for just basically being a degree mill, if you will. They had to reform and refund money and do some things like that. So we clearly have a problem in the industry in the whole. Mr. Jerome, and I don't have a lot of time, but you have obviously done this successfully and thought a lot about this. Again, tell us the things we ought to be doing to make sure that all these taxpayer funds are put to good use and that all of our students have the best chance for success, because we want them all to succeed. Mr. Jerome. I don't want to have to keep coming back to Washington to testify on this. I would really love to find the policies that stop the really abusive practices. I would say for this committee you should look at growth, and that is a big issue, and you may find that both in the for- profit and the nonprofit sector. Last thing is, I would look at return on investment. How much Pell dollars go to each institution and how many Pell students do they graduate? As far as I know, no one has ever looked at it. I haven't looked at it. I think I will. But I think that is an interesting way to see how the money is being spent. Mr. Cole. Madam Chair, I would yield back my time, but maybe that is something we should look at and the Department of Education should take a look at. It seems to me to be a reasonable metric. Ms. DeLauro. Thank you. Mr. Pocan. Mr. Pocan. Thank you, Madam Chair. And thanks to the witnesses. So the question series that Mr. Cole asked about was interesting about the for-profit colleges in the sense that there was a for-profit that became a nonprofit in my State, Herzing University, that has an excellent reputation. I have toured multiple locations. They work for a lot of the employers, one of the very things that you said I think is important, around looking how they are working. But at the same time, I can't help but recognize the extremely large percent of the for-profit colleges that are in the failed category. I guess maybe a question first for you, Mr. Jerome. You started to talk about growth and you didn't really say much more on the return on investment for where we should be going. But just in the recognition that we do seem to have this much larger percent that are failing, I mean, what are the things that you are saying that you think should be looked at specifically that we should be addressing to try to solve this? Mr. Jerome. I mean, a couple of things. Number one, actually in the State of New York the two largest closures were two independent colleges, Dowling College and last week, as a shame, College of New Rochelle announced its closure after, like, 200 years. But I think, whether it is enrollment or revenue growth, it is a fair thing to look at. Higher education is highly regulatory. I am an attorney, I am at my institution 25 years, it is very difficult to keep up. For me to imagine doing this growing and in many, many States at the same time I think leads to difficulty. So I would say that. I also think it is fair to come up with one or two metrics that should cause an audit, whether it is low completion rates or a high default rate or a high debt-to-earnings rate. And it should be a rebuttable presumption, but there are certain metrics either Congress or the Department of Ed could implement that could cause much more accountability. Mr. Pocan. Just to the question of the high number that is there. I mean, what do you think has been the cause of that up to this point? Mr. Jerome. I think the answer is unchecked growth without proper regulation. I mean, I absolutely remember speaking to a high level Department of Ed person who said: We sit on investor calls and we hear different institutions have different ethics. They knew who to go after. In my mind, they just didn't enforce the rules on the books or there wasn't just enough institutional will to identify and go after those places. In New York, even if it is a for-profit college, we recommend our Department of Education regulate effectively and close. But we look at that at all institutions. Mr. Pocan. So this is a question for everyone. I know that Secretary DeVos overturned an Obama-era decision that terminated recognition of ACICS, which was around when we had failed Corinthian and FAST TRAIN. What do people think of that decision? Is that something that--was it a good idea, bad idea? I am just trying to get some input on that. Mr. Shireman. The decision to reverse on ACICS was not well-founded at all. The staff recommendation was that ACICS should not be re-recognized. I talked to some of the other accreditors where some of the schools--so ACICS had become known as the place where you could get cheap and easy accreditation. Right before the action by the Obama administration a number of the Kaplan campuses had decided to go over there. And they said, oh, wait a second, ACICS is in trouble. I talked to some of the accreditors where some of those schools applied to become accredited and they were shocked at how bad some of those colleges were that had been approved by ACICS. So it has now sent a message to accreditors that it actually doesn't matter whether you are a strong accreditor because you can muscle your way back in and get re-recognized by the Secretary of Education. Mr. Pocan. Mr. Carey. Mr. Carey. In addition, I would note a couple of things. A number of the colleges that had been accredited by ACICS when it was shut down tried to find another accreditor and couldn't, which gives you a sense of what the standards were at ACICS, that one else would take those institutions. And I think it is worth noting that the Department of Education official who decided and approved the reinstatments was a former lobbyist for a university that was accredited by ACICS. The Department issued a statement claiming that, I believe, nine other accreditors had endorsed the move. That turned out to be a false statement. The accreditors quickly clarified that was not true, they had not endorsed it. So there appears to be no basis for reinstating an organization that was really disproportionately responsible for overseeing a number of the very worst collapses of the for- profit industry. Mr. Pocan. Mr. Jerome, 2 seconds. That is all I have left. Mr. Jerome. On the difference. All accreditors should be held accountable to make sure their institutions have good outcomes. I mean the two institutions--while we exist, the two public institutions next to us have had below 3 percent graduation rates for 10 years in a row. Nothing happens, there seems to be no accountability, and I watch the students. Ms. DeLauro. Congressman Harris. Mr. Harris. Thank you very much. And thank you all for being here. Clearly, education is something we have to get right, and I am not sure we are getting it right in the United States right now. Mr. Luongo, let me ask you, I was a Navy person, too, did the VA or the DOD, do you think, give you adequate information once you separated from service or were separating from service about how to go about getting an education that is actually paid for instead of with loans? Do you think they gave you enough information? Mr. Luongo. None, I was given none, no information whatsoever. Mr. Harris. That is what I suspected. I suspected that was the answer. Because part of problem is that is one of the checks in the systems. I mean, obviously, it should have been very easy for you to--we should have made it easy for you to figure out whether you were being told the true by DeVry University. And I mean even prospective so that you know what the--because we owe that to our veterans. But I hear it all the time, that we just don't educate our veterans enough upon separation about what the benefits are and how to get them and how to avoid being taken advantage of. So I appreciate that answer. Mr. Shireman, you started off by saying the government funding of these for-profits doesn't have such good results. But I will tell you, government funding of the not-for-profits doesn't have such a good result either. The bottom line is we are not educating a workforce to what is needed in the United States. My wife will think terribly of me, but she was an art history major. You can graduate from a very prestigious institution with an art history degree and end up doing something totally unrelated and graduate with hundreds of thousands of dollars' worth of debt. And I know it happens because it happens to a lot of people. You know, the for-profit sector, I will tell you, I remember when I took my business degree, that they said, you know, we say nonprofit, but it is really just excess revenues over expenses. That is the difference. And the bottom line is, I just looked up the 10 highest paid presidents, and Mr. Jerome's name wasn't on it. At least 8 of the 10 were either private or not for-profit, including-- because I think someone, maybe it was the Senator testified, well, the president wanted these profits made, $40,000,000 over 10 years. Well, actually, the highest paid president was a public university president last year, University of Louisville, over $4,000,000. I won't even talk about what basketball coaches get. Mr. Jerome, do you have anyone on your faculty or in your university who earns $9,000,000 a year? Mr. Jerome. No. Mr. Harris. Okay. $8,000,000 a year? Mr. Jerome. No. Mr. Harris. $7,100,000 a year? Mr. Jerome. No. Mr. Harris. Because those are the salaries of just the three highest paid basketball coaches. I have got to tell you, I love basketball, like anybody who is 6'4'' loves basketball. It doesn't add a nothing to preparing our workforce. If you don't think that that is a for- profit sector in our public-slash-private universities, think again. It is. Mr. Jerome, I have got to ask, because I looked quickly up, I should have remembered, I was a New Yorker way back when, you have got a nursing program. What is the percent of your BSNs who get employed? Mr. Jerome. 100 percent. Mr. Harris. 100 percent. So you are actually providing a very important--because I know, look, I work in a hospital, we don't have enough nurses. You are providing something very valuable. I do want to ask you the question, why does someone choose your college over a community college? Because we heard the community college--and I know the community college more--but we also send a lot of money to community colleges. Why would they choose yours over a community college? Mr. Jerome. The first thing, our community college system is a wonderful system. It has open access, it has a different mission. But in reality today's students are looking for completion, they are looking for completion quickly, and they are looking for it to lead employment. And the thing we are missing is it is not all about academic expense, they are actually looking for support. So in my institution the minute the student arrives, there is a mentor. It is very expensive. On the area of student loans, I think we have one of the largest, most experienced team that helps all these low--some of the low-income students who get loans make sure they don't default and they handle it well. But when you have been doing this for 85 years and graduate 3,000 students a year in one borough, people know. Mr. Harris. I appreciate that. And I will tell you that I don't understand why we would not ask for the rules to be uniform. Basically the outcome, employment outcome versus debt for someone who is a liberal arts major at a large university and graduates $150,000 in debt and can't get a job in their field, why we wouldn't hold that private not-for-profit up to the exact same standard. Because I think that is the way to make education better for everyone and more cost effective. I yield back, Madam Chair. Ms. DeLauro. Thank you very much. Just if I may take as a point of privilege, I just want to mention a couple of things. This is an independent analysis of default data. When you talk into account certificates and degrees, the number of institutions with default rates above 20 percent is as follows: 197 public institutions, 59 nonprofit, 232 for-profit. I also might add, and, President Jerome, I would just say I appreciate no one makes $9,000,000 at your institution, but I think it is also important to taking a look at average annual costs, and this is four Bronx colleges. Monroe costs more than CUNY Lehman College, CUNY Bronx Community College, CUNY Hostos Community College. Monroe was $11,831 on average. The others were $8,000, $7,000, $6,000 and $5,000. Students receiving Federal loans, 77 percent of students at Monroe College received Federal student loans, 8 percent at CUNY Hostos, 11 percent at CUNY Bronx, and 22 percent at CUNY Lehman. Debt after graduation, Monroe was $21,000, the others were below $10,000. Salary after attending, a range, $43,000 at CUNY Lehman, CUNY Bronx $34,800, CUNY Hostos $31,200, at Monroe it was $30,200. Financial aid and debt, 31 percent of students at Monroe College were paying down their debt, 39 percent at CUNY Hostos, 32 percent at CUNY Bronx, and 51 percent of students at CUNY Lehman College. So I will just introduce that for the record. Congresswoman. Ms. Clark. Thank you, Mr. Chairwoman. And thank you to the panelists for being here. I am interested in the status of the Borrower Defense rule. As you know, this was put forward by the Obama administration that allows students to have their Federal student loan discharged if their school misled or defrauded them and it prohibits the use of forced arbitration. In July of 2018, Secretary DeVos tried to undermine this and rewrite it but was stopped by the courts. According to the information we have, as of September of 2018, more than 139,000 claims were awaiting action, including more than 45,000 former students from Corinthian and thousands from former students of ITT, Argosy, and the Art Institute. Do you have any current information about is DOE still refusing to process these claims? And do you have any estimation on the impact on students and their risk of default? Mr. Shireman or Mr. Carey. Mr. Shireman. I don't know whether Mr. Luongo is still awaiting payment. Ms. Clark. Yes, Mr. Luongo, I did want to ask about your personal experience with this. Mr. Luongo. I applied and was told since my dealings were over the phone there is no record, there is no proof, and that was it. There is nothing that can be done. Ms. Clark. Have you found that this is a typical situation for our students? Mr. Shireman. This Department of Education has made the decision to require the kind of documentation that, frankly, the college recruiters make sure that a student does not have. Students feel that they have been told a lie, but it is not on paper. They are provided with assurances by somebody who has befriended them and acted as an adviser, portrayed themselves as an adviser, providing them with advice about how they can better their lives and this Department of Education has decided that that is just too bad for the student. And this is a tragedy, hundreds of thousands of students who were misled, manipulated. We have the documentation of the systematic manipulation by the schools, the strategies that they would implement, very similar across different chains, which should result in a group discharges for students that were enrolled in many of these programs. But instead the Department of Education is requiring each student to go in and go through a third degree kind of review that has caused this to go on for far too long. Ms. Clark. Yeah. Mr. Luongo, where does that leave you? Where does that leave you with your claim? Mr. Luongo. As far as I know, it leaves me on the hook for $101,000 that, quite frankly, I will never be able to pay off based on my salary. Ms. Clark. Yeah. And what have you heard from DOE on your claim, anything? Mr. Luongo. That was the last thing I heard, is that the school responded, that here are our emails and that is it, it is not mentioned. And it is not mentioned in emails because 99 percent of my dealings were over the phone. Ms. Clark. Yeah. And do you feel that was on purpose and specific to not have a paper trail? Mr. Luongo. I didn't think anything of it at the time and now I feel 100 percent they knew what they were doing, they knew exactly what they were doing. Ms. Clark. Yeah. This brings me to another question, the way we can evaluate. Mr. Shireman, your testimony mentions the 85-15 rule that was from earlier under the Clinton administration. Can that be something that we should be looking at in response to the 90-10 with the loophole for our veterans and GI beneficiaries? Mr. Shireman. Absolutely. I think it would help to address this rapid growth problem, to check rapid growth, because a school would need to make sure that they are not just relying on the ability to sell a student on taking Federal loans, Federal grants and loans that feels like a free education, but instead have a responsibility and a need to make sure that there are employers, for example, or private scholarship programs that are helping to enroll students. Ms. Clark. And I almost--I am out of time, but, Mr. Jerome, do you agree? Do you think the 85-15? I can let you expand later. Mr. Jerome. I actually have a substantive policy suggestion on this. So in my mind I understand the reason for 85-15, but an institution like mine in the Bronx, even if it received 100 percent of money from the government, if the outcomes are excellent, I think you should not be upset. And what is not happening is there is no credit for programs that use Federal aid, not loans, that help students. So at my institution, you gave some data about the students who borrow, 3 years ago we implemented a program for a thousand New York City Public School kids to go for free, no student loans. I would want an 85--if there ever was a change, to have some portion of it incentivized good behavior. And in my mind good behavior is graduating students with no student debt. So I would like to you think about that, because it is a way, instead of everything being punitive, I am imploring you to think about ways to make the policies help the students and make the institutions help the students. Ms. DeLauro. Ms. Lee. Ms. Lee. Thank you very much. I want to thank all of you for being here. And I want to, of course, thank Mr. Shireman for being here. I know you go back and forth between Washington and Berkeley. And so welcome. Good to see you. Mr. Shireman. Thank you so much. Ms. Lee. Yes. And thank you for all of your work. Let me ask you about one very timely issue with regard to-- and you may know about this Mr. Shireman--Argosy University. Okay, it closed its campuses on Friday. I believe it has put about 10,000 students at 22 campuses--one is in my district, in Alameda--quite frankly, in jeopardy. Now, I am not clear on what took place, but I do know it is alleged that they stole, quite frankly, $16,300,000 in Federal funds which were meant for students and instead used it for payroll and for other expenses. Now, the Secretary of Education, Betsy DeVos, failed to take critical action to address this issue before cutting off access to Federal aid. Even though the administration--and I know that they were fully aware of this--the Department was derelict in its oversight duty. They also did not keep students informed of the financial issues. The Department could have stopped marketing for this University knowing that they were under severe financial stress and they did not do so. Students were not warned that they would not be receiving financial aid disbursements and only found out because their refunds never arrived. So could you kind of explain what will happen now? This is a recent closing. How in the world do some of these institutions continue to receive taxpayer dollars and public financing given these kinds of examples? And what is going to happen to this missing money from Argosy? Will it be paid back to the taxpayers? Will the students get refunds? What is going to happen? Mr. Shireman. Yeah, I will do my best to untangle this, though it will take probably years for this mess to really be untangled. This it was a completely avoidable situation. Dream Center, which had no experience running an institution of higher education, actually came to the Obama administration in its final year and asked to buy ITT Tech and the administration said, no, you don't have the qualifications to run this struggling school. This administration said yes to the offer to buy the EDMC properties, Argosy and the Art Institutes, and we have seen the results of Dream Center, which apparently was then contracting with for-profit entities to do some of work. And when you insert that for-profit entity--and this is where we see when schools collapse there is a big difference between for-profit and nonprofit. In the for-profit space, which Dream Center was really more in that territory, the people who are in control of what is going on in the school look at all of the accumulated assets, including money that has come from the Department of Education, they see the ship is going down, and they want to know, what can we take for ourselves. At a nonprofit, a genuine nonprofit organization, they look at all of the accumulated assets and they say--and they don't-- do not--it would be illegal for them to take it for themselves. And so they are looking for a good landing for the students and the institution overall. What has happened at Dream Center seems to be somewhere, it is still a mystery what happened to these funds. Obviously, one of the creditors felt that they wanted to have access to these funds. Whether they broke laws or not, it was the ability of folks in control of the school to decide to even put money in the direction that helps--into their own pockets that drove them to this situation where we have schools precipitously closing. Now students may be able to get closed school discharges, depends on the situation, students that stuck it out. Students that left earlier maybe won't be able to. The Department of Education needs to open up as far as possible the window for students to get discharges on their funds. Ms. Lee. Okay. Now, let me ask you--and I said stole the $16,300,000--are there criminal charges being filed or what type of criminal investigation---- Mr. Shireman. I don't think there are yet, but it does seem like it is possible. Ms. Lee. Do criminal investigations follow in instances where it could warrant that? Mr. Shireman. I suspect that they will in this case. Ms. Lee. And one more question I would like to ask. With regard to now this 90-10 rule, okay, it is my understanding that the 90-10 rule bars for-profit colleges from receiving more than 90 percent of their revenues from student loans and grants. But also it is my understanding that at least half of the all-profit schools actually get over 70 percent of their revenue from student loans and grants. Is that accurate? And if it is, how do they get around that? Or if it is not, what is the deal? Mr. Shireman. Well, what happens with 90-10 is that a lot of the schools get GI Bill money on top of Federal student aid from the Department of Education. And that loophole allows them to basically defeat the purpose of the 90-10 rule. Ms. Lee. Okay. The 85-15 rule that we just talked about, could you explain that, the difference between that and the 90- 10 rule? Mr. Shireman. So the 90-10 rule, used to be an 85 percent cap. Ms. Lee. The same rule. Mr. Shireman. There is also for the GI Bill an 85 percent cap on the proportion of students who can get GI Bill aid. Ms. Lee. I see. Okay. Thank you very much for clarifying that. Thank you. Ms. DeLauro. Thank you. I want to, just for the record, we haven't talked about the Gainful Employment rule, but sometimes there is a mistake about the Gainful Employment rule and who it applies to. It does not just apply to for-profit schools, it applies to nondegree programs at nonprofit and public institutions. As well, 61 percent of programs that are covered by the Gainful Employment rule are offered by public colleges, community colleges. Repealing the Gainful Employment rule would cost taxpayers roughly $5,000,000,000 over 10 years, according to the Department of Education's own analysis, and part of this cost would be charged to the Pell Grant Program plus student loans. So that repeal of this rule would serve to hurt students and helps institutions, quite frankly, that peddle low quality education. Mr. Carey, in your testimony you highlight programs, that for-profit institutions tend to cost more than programs at public institutions. Given the poor student outcomes at the majority of these for-profit schools, do you believe that the increased cost to students is justified? What accounts for the higher cost? Mr. Carey. I don't believe they are justified. And one thing people will note is that public universities get public subsidies to bring their costs down, that is true. But actually there have been some good academic studies of this issue. And even if you account for the public subsidies that public institutions get, they are still substantially less expensive than for-profit institutions and I think there are two reasons for that. One, for-profit institutions divert some of their revenues to profits. That is what their business is, they are designed for that, either to shareholders or executives or some combination of the two. Second, much of for-profit industry, and this is becoming more so, is very competitive, very marketing, very marketing driven, very recruitment driven, particularly in the fast growing online higher education space. It is enormously expensive to go through and compete online. If you look at the data that the colleges themselves submit to the U.S. Department of Education, you will see that the typical for-profit college spends more money on marketing and recruitment than it does on faculty salaries. So I think it is a combination of the profits and the marketing and recruitment that account for the difference. Ms. DeLauro. Do you know whether or not the marketing or the advertising is tax deductible? Mr. Carey. I imagine it is all tax deductible in the sense that it is a business expense that therefore reduces your taxable profits. Ms. DeLauro. We will pursue that at the some point. Mr. Shireman, what happens to the profit at a nonprofit or a public university? And what happens to the profits at a for- profit institution? Mr. Shireman. So all of the excess of revenue over expenses at a nonprofit are required to be reinvested into the institution or saved for the future, which is part of the reason that we see endowments at nonprofit colleges and universities. Surely the people who are running, who are overseeing the college, the trustees, if they could take that money for themselves they probably would. And that is the way it works at a for-profit college and university. They behave differently because they know that any excess of revenue over expenses that they generate becomes money that can go in their pocket. In fact, I once figured out that over about a decade period if all of the profits at University of Phoenix had been instead put into a savings account that they would have an endowment that would be second only to Harvard's endowment, which, frankly, could pay off a lot of ripped-off students that we have out there. Ms. DeLauro. Mr. Carey, after President Trump was elected several for-profit institutions saw a bump in their stock prices. Are there any publicly traded nonprofit or public colleges or universities? Can you buy stock in any of these colleges? Mr. Carey. You can't buy stock in a nonprofit university. Ms. DeLauro. Is it true that you can only purchase stock in publicly traded for-profit institutions? Mr. Carey. Yes. Ms. DeLauro. Well, let me ask you, Mr. Carey, about conversions. Predatory for-profit institution converts to a nonprofit, does it somehow shed its predatory nature? Also, why is the trend of for-profit conversions so alarming? Is there concern for students? Mr. Carey. I would urge the committee to not even take the word conversion at face value. Conversion implies that you were something and then you became something else. The example I gave was Grand Canyon University, which has been widely reported as having converted to being nonprofit. And yet, Grand Canyon Education, the publicly traded corporation, still exists. It exists right now. It has a market capitalization of over $5,000,000,000, which has actually gone up quite a bit during the process of so-called conversion. Because it didn't really convert to being a nonprofit at all. What it did was set up a new nonprofit organization that is run by the same person who runs the for-profit corporation. It essentially lends money to the nonprofit, which then handed it right back to the for-profit company, creating an annual interest payment debt, and then signed a contract in which 60 percent of all tuition revenues that go to the nonprofit, which is now the legal face of the college, 60 percent of the revenues and the interest payments go back to the for-profit, which is a pretty good business to be in, at least by the judgment of the market, which again has bid up the value of Grand Canyon Education the corporation. Because it is officially a nonprofit for government purposes, it doesn't pay property taxes and it can advertise as a nonprofit. And if the Gainful Employment regulations were to be reinstated, it would not be subject to them. Ms. DeLauro. Thank you. I apologize to my colleague. Congressman Cole. Mr. Cole. No problem, Madam Chair. I just want to go back to an issue that has been raised a couple of times, and that is standards and measurements. I know when we have discussed metrics I have been lobbied as hard by public institutions as by private institutions, that they didn't want to be measured, that I had to understand all the various sophistications and the various goods they were doing and they were doing research. It just goes on and on. So, number one, I want to ask you each in turn, just quickly moving down the aisle, I will start with you, Mr. Shireman, is a common set of measurements that we could literally compare, is there merit in that? Is that a bad idea? I understand we are comparing very different institutions, I understand we are comparing very different student bodies, in many cases sort of like the idea that Mr. Jerome suggested of Pell grant loans versus Pell grant graduates. If you were to pick out some things that would really be helpful for us in measuring the effectiveness of all institutions, what would you focus on if you think that is even an achievable objective. Mr. Shireman. No, I think that debt to earnings measures are very useful. I think market indicators, like students who are paying without aid so that the value for the price is what is being analyzed in that situation, is a very useful measure. Those are probably the top two that I would pick. And I would not put graduate rates there for exactly the reason that you stated when you noted that public institution that turned out to be a diploma mill. Graduation, giving a diploma, is completely determined by the college. So using it as a--I think it is really important for people to know graduation rates, for them to be reported as a consumer information tool, but when you tie an accountability measure to a strict--to a graduate rate, you will drive diploma mills. Mr. Cole. Same question. Mr. Carey. I think all colleges, public, nonprofit, and for-profit, should be held accountable. I actually think it would be a great idea if we could get more information about the earnings and debt income for programs at public and nonprofit universities. We don't have that now. I think there is the question of what information do we get and how do we regulate around that information. I do think that short-term job-focused programs, it is more appropriate to take the earnings and debt information and make very quick judgments about how successful they are, because those programs are designed to lead to an immediate employment outcome. Whereas a bachelor's degree in a liberal arts field--long-term people with bachelor's degrees in liberal arts actually have good success, but it can take longer. You go to graduate school. It is a different career path. And so you wouldn't want to regulate on the information in exactly the same way. Mr. Cole. Believe me, as a guy who has a Ph.D. In Victorian history, I am very well aware of that point. Mr. Carey. There we go. Mr. Jerome. So on this area I actually disagree with my colleague, Mr. Shireman. I actually think completion is one of the most important areas you could look at. All the academic studies show that the people who drop out of college have the worst outcomes with everything. And right now if you go and look at completion rates across the country, they are miserably low, and they are much too low for the most vulnerable people, students of color. Number 2, I actually like cohort default rates, even though everyone doesn't like them. I think they can be changed so they can't be manipulated. But the thing about cohort default rates is if an institution puts resources towards counseling students, there are plenty of options to make sure they avoid default that are good options. And then the last thing is I like debt to earnings. I just don't like the debt-to-earnings rule that exists now. I think it was rigged. And you can see it in the results. You are right, community college certificates were subject to it. Ninety percent, something like 40,000 of the 50,000, weren't measured because they didn't graduate enough students. The other thing is all the institutions with the worst default rates, worst graduation rates, highest number of defaulters passed the debt-to-earnings rule. And so I think it can be jiggered around to make it really right. Mr. Cole. Let me change it a little bit for you, Mr. Luongo. What information would have helped you the most when you were making these decisions? What as a potential student did you need to go that wasn't provided for you? Mr. Luongo. It was provided for me, but it was provided inaccurately, and that is what an employer thinks of that degree from that university. Because otherwise it is just a worthless piece of paper. And I was told 80 percent of people were hired at that degree making $80,000 a year, so that puts a lot of value on that little piece of paper. It turned out that was a boldfaced lie. So that is my opinion, is that unless the marketplace puts value on that degree from that university, the whole thing is a waste of time anyways. Mr. Cole. Thank you very much. I yield back, Madam Chair. Ms. DeLauro. Congresswoman Watson Coleman. Mrs. Watson Coleman. Thank you, Madam Chair, for holding this. And I apologize, having been pulled out to another meeting. So if some of my questions are redundant, excuse me. I have one overarching question and then I have some questions regarding disparities regarding Black students. My one question is that if a college shuts down and students have paid their tuition or Pell grants or something has paid their tuition, I understand the forgiveness to the student, I understand that there have been some agreements that students are not liable, but what should we be able to do as the Federal Government, as Congress, to recoup that money, which is indeed taxpayer money? Mr.--I am sorry, I can't see your name, but since you are shaking your head. Mr. Shireman. Well, there were some provisions in the Borrower Defense rule that the Obama administration adopted that attempted to get at clawing back, as we say, from executive stockholders, et cetera, in situations where essentially a school, when it was on its way down, folks grabbed the money that was there. But it is very difficult, which is why public institutions, which are usually backed by the full faith and credit of the State, they end up not usually behaving in the predatory ways because they have deep pockets. Mrs. Watson Coleman. What is the status of that clawing back rule? Mr. Shireman. Well, so it is in effect for now, but this administration has proposed essentially repealing the Borrower Defense rule as well as the Gainful Employment rule. So it may not last for long. Mrs. Watson Coleman. Thank you. Mr. Carey, I am sorry I missed your testimony, but my understanding is that you did mention three studies, two from the Brookings Institute, one from the Center for American Progress, which found that students who default on loans are disproportionately Black. Can you tell us why this might be the case and what can this committee do to address this chronic issue? Mr. Carey. I think there are several reasons, Congresswoman. First of all, as we all know, there is a very large wealth gap in this country between African American households and White households as a result of current and historical racism and discrimination. And so Black households don't have as much money to pay for college so they have to borrow more. Second of all, I think there is a pattern of for-profit colleges in particular that market themselves to first generation college students, lower income college students, disproportionately women of color, in fields like health and cosmetology, often nonlicensed fields. So these are not programs, high quality programs that get people into, say, a good nursing jobs, but rather programs that might induce someone to borrow $20,000 for a medical assisting certificate with no value in the labor market. Often these are women of color who take these programs. Mrs. Watson Coleman. That is a statement of the problem. What is it that you think we should or could do about that? Mr. Shireman. I think we should reinstate the regulations of for-profit colleges that were implemented by the Obama administration that have been suspended by Betsy DeVos. Mrs. Watson Coleman. Like which ones? Mr. Shireman. I think we should set new or higher standards. I don't think that even those regulations went far enough. And I think a tighter regulatory environment is the best protection for those students. Mrs. Watson Coleman. Okay. Forced arbitration is a bipartisan issue that Members on both sides of the aisle oppose because we agree everyone deserves a day in court. The Department of Education recently proposed allowing for for-profit universities to force students into arbitration, a process that is one-sided, secretive, and binding. Do you think this will further allow predatory universities to continue to deceive students at the school's expense? Mr. Carey. I am sorry. Mr. Carey. I think forced arbitration is for all kinds of reasons a bad idea. Students are not sophisticated business people who kind of come in with their eyes open. They trust their colleges. It never occurs to them that they might up in some kind of financial dispute or be deceived by their college. They don't see their colleges as used car salespeople. And so they don't, as we heard today, go into the process gathering the kind of information that would ever give them a leg up in a process like that. Mrs. Watson Coleman. So my time is just about up, but I would like to ask for information that could be furnished to us. And it has to do with, what reform should Congress consider to protect both students' and taxpayers' hard-earned money? What should this committee pursue to that end? And if, Mr. Shireman and Mr. Carey, if they would be able to send us that information, Madam Chair, through you, I would be grateful. Thank you, and I yield back. Ms. DeLauro. I thank the gentlelady. And in fact we will try to draw on the panel for giving us information as we move forward to try to see how we address this problem. So we would love to have your recommendations. Congressman Harris. Mr. Harris. Thank you very much. Let me just, Mr. Carey, let me follow up on what you said. Which standards are you talking about that were suspended? Are you talking about the GE standard? Mr. Carey. Both the Gainful Employment standards, yes, and also the Borrower Defense regulations had some additional regulatory standards that were also essentially suspended. Mr. Harris. Right. And let me just go to the Gainful Employment, because I think in response to another question you said basically you think all colleges should be subjected earnings-debt analysis. Is that right? Mr. Carey. Analysis, yes. Regulation not in the same way. So we should know for all college programs. Mr. Harris. Okay. Why would you make it different for analysis and regulation? Because my understanding is the Department of Education says, look, we are going to eliminate GE, but we are going to put it on the College Scorecard. So I am kind puzzled, why--so, why? Mr. Carey. Because there is a huge variety of programs in our higher education system. Some of them, like the ones currently being regulated under the existing rules, are designed for--only designed for immediate short-term employment outcomes. You don't get a certificate in cosmetology in order to build lifelong learning skills, understand the world better, et cetera, et cetera, in the same way that you might with a longer undergraduate degree. So for a program that has only a short-term outcome, I think a short-term measure of debt to earnings is completely appropriate to regulate around. I think for programs that have longer term outcomes, we would benefit by providing that information to students and parents choosing colleges, but I would not regulate with that information in the same way. Mr. Harris. But my understanding is that before that rule was suspended, that if you were a for-profit college offering a degree, so not a certificate, you were subjected to GE. Mr. Carey. Yes. Mr. Harris. But if you were a community college offering a degree you were not subjected to GE. Mr. Carey. Yes. Mr. Harris. So you disagree with that. You think that we should have made--it is all--I mean---- Mr. Carey. Again---- Mr. Harris. So you think we should reapply the GE to for- profits that give a degree but not to not-for-profits. Mr. Carey. I think the Gainful Employment regulations were in part an attempt to recognize the very different set of organizational incentives that for-profit colleges operate under, that we have heard ample evidence of today in this hearing, and that the additional scrutiny of degree programs at for-profits under Gainful Employment more than anything recognizes that. Mr. Harris. I guess I just didn't hear your answer. Do you think that we should subject--when Mr. Jerome offers a bachelor of nursing in his program, and down the block the community college or a private not-for-profit offers that same degree program, why shouldn't both be subjected to a debt-earnings ratio? They are both going to have 100 percent employment when they are done. Mr. Carey. I think we should know the debt-earnings ratio for both of them. I think for-profit colleges should be regulated with more scrutiny. Mr. Harris. So you think we should regulate his, but not the not-for-profit down the road that graduates someone, both of whom are going to be 100 percent employed. So if that for- profit--that not for-profit down the road charges twice the tuition of his, they both earn--because I know nurses get the same thing no matter where, you got BSN you are golden--you think that shouldn't be something we regulate, that other nonprofit? Mr. Carey. Well, the nonprofit almost surely charges half as much, not twice as much. I mean, that almost never happens. Mr. Harris. Really? You think that, for instance, the Ivy League schools, with schools of nursing, you think charge--I don't know, Mr. Jerome, you have a few Ivy League schools in the neighborhood. Do you think your tuition for your nursing program is twice as much as the top tier nonprofit schools? Mr. Jerome. So we know it is not twice as much. Mr. Harris. Okay. Mr. Jerome. And generally community colleges are more affordable than for-profit---- Mr. Harris. I am not talking about community college, because they get public subsidies. Mr. Jerome. No, no, but independent colleges are more expensive than proprietary. Mr. Harris. Thank you very much. That is exactly what I--so in essence, so you think that even though those independents can charge more, they shouldn't be subjected to a debt-earnings regulation? Mr. Carey. Again, Congressman, I think that for-profit colleges should be regulated with more scrutiny than nonprofit colleges. Mr. Harris. Okay. And why won't the College Scorecard be adequate? Do we not trust students to actually--if we make that College Scorecard available and if the Department says it now puts debt-earnings on there, why isn't that adequate? I mean, these are college-level students, these are people with--I would hope that our public education system graduating a high school senior can point them to an information--I mean, look every other decision we make as Americans is based on information we get. If we make that information very widely available, why should we take the college, the degree-granting programs at a not-for-profit and not subject them to regulation, but their private competitor, their private for-profit competitor we subject to regulation? Which, Mr. Jerome, I have got to imagine that costs you money, the regulation. I have got to imagine you have people who comply with regulation. Mr. Jerome. It costs money and it is very hard competitively. Mr. Harris. That is what I thought. It was kind of a rhetorical question. Thank you. I yield back. Ms. DeLauro. Ms. Lee. Ms. Lee. Thank you very much. Let me follow up on the issue as it relates to African American students, because we know that they are more likely to attend a for-profit college than White students. And we also know that they typically borrow at a much higher rate than their White peers. And we also know this is extremely--this is especially true at the predatory for-profit colleges. Now, according to the data that we have, 75 percent of African American students default on their student loans. And what is worse, as you mentioned, Mr. Carey, these institutions provide degree programs that may or may not lead to a good- paying job. A couple of things I want to ask you about that. One is this administration continues to put onerous work requirements as it relates to eligibility, for example, for housing, for food stamps, for whatever it takes to live a decent life and as a bridge over troubled water. These students who receive these bogus degrees, who can't get a good-paying job, and then still work requirements are imposed on them, is that fair, is that right, first of all? Secondly, would these students who default on their student loans, they can't get a job and they can't file for bankruptcy either. Now if it is the institution that is the majority of problem, which it looks like it is with the majority of African American students, then shouldn't we do something to repair the damage that these institutions have caused? And shouldn't we try to let in no uncertain terms these institutions know that this is racist, it is discriminatory, it is continues the institutional racism that we have been addressing for decades, for centuries in this country? Mr. Carey. I agree, it is not fair. I would recommend to the committee the work of Dr. Tressie McMillan Cottom, who is a sociologist at Virginia Commonwealth University, who has written a whole book that looks at the intersection between for-profit higher education and particularly--there it is right there, Madam Chair. It is a great read and really worth reading. No, it is not fair. And, frankly, as we have heard today, for many, many, many hundreds of thousands of victims of for- profit colleges there is no reparation in sight. There is no money coming back from the Federal Government. There is no loan forgiveness. Ms. Lee. As you said, reparation, good example of why we need to repair the damage. Mr. Carey. I agree. Ms. Lee. Mr. Shireman. Mr. Shireman. Yeah, the purpose of the Borrower Defense rule was to provide that relief where it is called for, and this administration needs to get on the ball and provide those students with that help. I will say on the work requirements around support, they partly do drive students. So school is work. Doing well in school is work. And one of the ways that for-profit colleges, especially online, lure students in is they promise it won't be too much work so you can continue working in that job. What we need is the kind of support so that students can focus on their studies, get a high quality education, get that degree, and get a job, and recognize that being a full-time student requires that time and they need the support to do that. Ms. Lee. And then when they get these degrees, though, that may or may not lead to a job, which many--and I know a lot of these students, they have a degree or a certificate that is worth absolutely nothing. So what happens when they go through school, they have these student loans, they try to get a job from these predatory colleges, and they can't get a job because it is a bogus certificate that leads to nowhere? So shouldn't they be given some kind of reparations and compensation or assistance to get through these difficult times? Mr. Shireman. First, we need to prevent that from happening in the first place. But in the instances when it has happened, if they have been misled in any way, if there is any evidence that the school had these boiler room operation with these manipulative tactics going on, then their loan should be forgiven. Other than that there is some help for borrowers who are low-income relative to their debt, but the first place to go should be to forgive the loans of people who were misled, manipulated into programs that were really not what they said they were. Ms. Lee. Thank you very much, Madam Chair. Ms. DeLauro. Thank you. We are going to wrap up. And I will ask the ranking member to make any closing comments that he cares to make. Mr. Cole. I want to thank my friend the chair for the hearing. I want to particularly thank each you for coming down and sharing both your professional opinions and your personal experiences. It has been extraordinarily helpful, it really has. And I appreciate the written testimony very much as well. I know we have made it tough on you in terms of the timing today, we all apologize for that, but as the chair said, we get paid to vote around here. So every now and then we do have to show up and do that. And, again, I particularly thank those of you who have come there some distance. I thank all of you, quite frankly. But we know it takes a big chunk of your time and a commitment to come down here to help this committee grapple with this really important issue and see if we can do a little bit better than we have been doing. So thank you again for coming. And, Madam Chair, thank you for holding the hearing. Ms. DeLauro. Thank you so much. Just in terms of just I need to get this put into the record. We have received complaints from Argosy doctoral students who are facing dire circumstances as a result of the mismanagement and the closure of Argosy. So without objection, I would enter those into the record. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Let me also express my thanks to all of you for being here. And, again, pardon us for the delay in starting, and appreciate your patience with all of us. This is an area where public policy, it is my view, can make a big difference. That is what we need to do here. And my hope is that we can draw on your expertise in order to look at the kinds of recommendations to move forward. Because the stakes are high. The stakes are very high. People are trying to better themselves. They are trying to better their families and their family's lives through education. We know that education is the great equalizer and that it should pay no attention to your gender, to your religion, your socioeconomic group, your political party. It is about your God-given talent that ought to let you be able to move forward and to be able to succeed, and that is what education is all about. So we can't sit idly by. And I would just say to you, President Jerome, you are, I would just put it this way, you are a drop of success and we applaud you for that. But it is in a, if you will, it is in a bucket of failures of for-profit colleges who have really hurt students, put them at a great disadvantage, and taken advantage of them. And we can't sit idly by and allow these individuals attending for-profits to be targeted, to be taken advantage of on the government's dime. So not a new problem. And I might add that, except for, I will be flat out, we are looking at--I went back and talked about Eisenhower and Nixon and George H.W. Bush that recognized what was happening and they said we have to change. The Obama administration recognized that we need to have changes. Quite honestly, it is this administration and it is the current Secretary of Education who refuses to acknowledge that we have to do something and who is rolling back, rolling back any protections. We need to enforce the Gainful Employment rule, we need to enforce the Borrower's Defense rule, and weed out the folks here who are misrepresenting and hurting people, because some of these institutions are nimble, very, very nimble in coming around the protections that we put in place, because profit is a strong motive. So we see the aftermath of Corinthian. Living through Argosy right now and those students and their comments. So this subcommittee, we have oversight over Federal aid and the grants, the Pell grants, and we have a duty to stand guard over this. So we heard last week at the loan servicing hearing how borrowers are being taken advantage of as well. So what we are trying to do with these hearings is to start in a direction of how we assist those who are vulnerable and how we give them a voice. So I look forward to the continuing debate and discussion. And, President Jerome, you asked, and I understand your question, but it is, why does predatory often precede the for- profits? Well, I won't go through the litany. You have got when a for-profit steals over $16,000,000 in student aid, I think the label is appropriate. When they shut their doors with 2 days' notice, I think the label is appropriate. When the largest recipient of Pell grant dollars is for a for-profit institution that has been engaged in harmful practice, that label is appropriate. I say to you, you are a success in this bucket of failures, and, again, we applaud you for that. But we have to go cognizant of what is happening overall in this industry. And as a subcommittee it is to take it on and do something to turn it around. I thank you all for being here today. Thanks very, very much. And I call this hearing to a close. Tuesday, April 9, 2019. COMBATTING WAGE THEFT: THE CRITICAL ROLE OF WAGE AND HOUR ENFORCEMENT WITNESSES PAUL DECAMP, EPSTEIN, BECKER & GREEN LAURA HUIZAR, NATIONAL EMPLOYMENT LAW PROJECT DANIEL KATZ, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS HON. KWAME RAOUL, ATTORNEY GENERAL, STATE OF ILLINOIS Ms. DeLauro. Good morning. The subcommittee will come to order. Let me welcome everyone here this morning, and a particular shout-out to the high school students from Herndon High School. Where are you, guys? Okay. [Applause.] Ms. DeLauro. Congratulations, Virginia. All right. I hope every--well, I don't know. I watched the game last night. It was terrific. It was a great game, right? God. Just to tell you this anecdote, and my colleagues will appreciate this. When I played basketball, which I did for a girls' high school in Milford, Connecticut, but at that time women could only play half court. That is how old I am, guys, so, you know, you don't even remember that. Anyway. Again, good morning. Welcome, everyone, to the Labor, HHS, and Education Appropriations Subcommittee. Today's oversight hearing will examine wage theft and the critical role of the Department of Labor's Wage and Hour Division in combatting it. I will introduce them again before their remarks but let me thank our distinguished panelists for being here today--Daniel Katz, senior counsel with the Washington Lawyer's Committee for Civil Rights and Urban Affairs; Paul DeCamp, member, Epstein, Becker & Green; the Honorable Kwame Raoul, Attorney General of the State of Illinois; and Laura Huizar, senior staff attorney with the National Employment Law Project. Today we are focused on combatting wage theft and the critical role of the Wage and Hour Division. The National Interfaith Committee for Worker Justice is a grassroots organization. It was founded to spotlight and combat wage theft. They defined wage theft as a violation of the Fair Labor Standards Act, which provides for a federal minimum wage and allows states to set their own higher minimum wage, if that is what they would like to do. It requires employers to pay time and a half for all hours worked above 40 hours per week. When employers violate those requirements in Federal law, and thus fail to pay working people the full wages that they have earned and are legally entitled to, those companies are committing wage theft. We need to call it for what it is, which is wage theft, and we have an agency responsible for investigating all forms of wage theft, the Wage and Hour Division of the Department of Labor. Its mission is to, and I quote, ``promote and achieve compliance with labor standards to protect and enhance the welfare of the nation's workforce.'' This is so important because the single biggest economic challenge of our time is that people are in jobs that do not pay them enough to live on. They are struggling. It is even more difficult for people to survive if they are not being paid the wages they have earned. It creates that much more of an economic burden. The Wage and Hour Division, under the Trump administration, has itself recognized the fact--has recognized the problem of wage theft, and on its website, under Data, it champions that the Wage and Hour Division has recovered $304,000,000 in, quote, ``wages owed to workers in fiscal year 2018, more than $1,300,000,000 in the last five years.'' And it has outlined--I have a document here that outlines all of the cases in which they have really moved to address the issue of wage theft. Unfortunately, these amounts are just a drop in the bucket when we look at what workers are owed. According to informed analysis by the Economic Policy Institute, the Federal Government, states, and private action in the U.S. has recovered only $2,000,000,000 in 2015 and 2016. Yet, that is not even 10 percent of the total cost of wage theft, which EPI estimates to be as much as $50,000,000,000 a year. For context, motor vehicle thefts cost to the U.S. $5,900,000,000 in 2016, and that is according to the FBI. Working people are losing nine times that. It is not just fly-by-night businesses. In fact, a 2018 report by Good Jobs First found more than half of wage theft cases involved Fortune 500 companies or Fortune Global 500 companies. Nor are these just small violations. A 2014 study by the Department of Labor found minimum wage workers in California, quote, ``experienced violations equal to 49 percent of the earnings they took home.'' Nearly half. It is egregious and it is inexcusable. Again, with informed analysis, those who can least afford it are most affected. The National Employment Labor Project conducted a groundbreaking survey in 2009, of more than 4,000 low-wage workers in New York, Los Angeles, and Chicago. It found that women, immigrants, and minorities were disproportionately affected. There is a significant and severe problem taking place that is hurting working people and middle-class Americans. We must be doing more to address wage theft, to prevent it, to combat it, to ensure working people receive the pay they earned and are legally entitled to. Some states are stepping up, and I look forward to hearing from the Attorney General of the State of Illinois, Kwame Raoul, later this morning. He and other witnesses will share what efforts states are taking to protect workers. California, Illinois, Massachusetts, my home state of Connecticut, to name a few, are states that are leaders in this fight. Many state attorneys general have established units to combat wage theft by targeting high-impact violators through investigations and legal action. Yet we cannot leave this to the states. For example, Georgia, Alabama, Florida, Louisiana, Mississippi--there is no state-level enforcement. Claims of wage theft must be filed directly with the U.S. Department of Labor. So I believe firmly that the Federal Government has a central role to play in addressing and combating wage theft. I have introduced legislation, the Wage Theft Prevention and Wage Recovery Act, that is comprehensive legislation that will strengthen current Federal law, empower employees to recover their lost wages. Whether it is compensation for a day's work or overtime, employees should be paid what they earn. This legislation not only protects workers but it will help our economy grow. That is a legislator reform that I believe is warranted, but as the title of our hearing should indicate, we need more enforcement at the Department of Labor and at Wage and Hour, in particular. Wage and Hour is the cop on the beat. We need to be helping them to leverage their resources in smart ways, because right now they are having to do less with less. In fact, Wage and Hour employs less investigators today than it did in 1948, despite the workforce having grown significantly in that time, and, as a result, the number of cases investigated by Wage and Hour decreased by 63 percent between 1980 and 2015. I believe it is part of an alarming trend with this Administration. Last week I laid out the unacceptable rollbacks of the Department of Labor under the Trump administration. The department is moving away from being a tough cop on the beat for workers to being an ally of industry. But we need more enforcement and investing in enforcement at Wage and Hour Division is a smart use of Federal funds. As we know, not all companies are bad actors, but we can identify where the greatest risks are. That is why Wage and Hour should pursue, quote, ``strategic enforcement.'' Former Wage and Hour Administrator David Weil has written, quote, ``Strategic enforcement seeks to use the limited enforcement resources available to regulatory agency to protect workers as prescribed by laws by changing employer behavior in a sustainable way. Just to quote David Weil, ``Strategic enforcement represents a proactive approach to using limited enforcement resources available to a regulatory agency to protect workers as required by the law. It does so by using enforcement tools, outreach, collaboration with other government agencies, worker advocates, businesses, and the public, to change employer behavior in a sustainable way,'' and it deals with both outreach to workers and to employers. The idea is to make excellent use of the data, to identify industries and employers most likely to be violating wage and hour laws and those types of workers more likely to be exploited, and it then prioritizes precious resources there. Sounds like a common-sense approach. I hope the subcommittee can come together on a bipartisan basis to increase our investment in the Wage and Hour Division and in a strategic enforcement approach. We certainly should not be taking away from their enforcement work, which is why I challenge the Secretary's efforts to expand the Payroll Audit Independent Determination Program, which lacks any evidence of its success. And that is why I oppose the President's budget proposal for the Wage and Hour Division. It fails to increase funding for Wage and Hour Division's enforcement, only a 1.6 percent increase, and that is mainly for IT. Kim Bobo is a worker rights advocate and author. She has said, and I quote, ``If you steal from your employer, you are going to be hauled out of the workplace in handcuffs. But if your employer steals from you, you will be lucky to get your money back.'' This subcommittee has as duty to understand the breadth and the depth of wage theft and to help combat it. We must. Working people cannot afford to have us stand pat. And with that now let me turn to my dear friend from Oklahoma, the ranking member of the subcommittee, Congressman Cole, for any opening remarks that he may have. Mr. Cole. Thank you very much, Madam Chair, and I want to thank all of our witnesses for being here today. I had the opportunity to read your testimony last night so it will be great to have the opportunity to visit with you today. We learned last week that our economy created 196,000 jobs in the month of March, beating economic forecasts by almost 20,000 jobs. The unemployment rate of 3.8 percent is one of the lowest in almost 50 years. The economy-boosting policies of the Administration are raising household incomes, helping small businesses succeed, and supporting the American worker. The Wage and Hour Division, Department of Labor, is responsible for the enforcement of the nation's Federal labor laws, including minimum wage, overtime pay, family and medical leave, and migrant and seasonal worker protections. Collectively, these laws cover most private, state, and local government employment, protecting over 143 million workers in nearly 10 million establishments nationwide. Last year, the agency recovered more than $300,000,000 for more than 265,000 workers. This represents more recovered back wages than in any other year of the agency's history. The amount translates to more than $800,000 in back wages for workers every day and averages more than $1,150 for each worker found to be due back wages. In addition to this impressive amount of back wages recovered, the agency has also assessed more than $6,500,000 in civil monetary penalties for violations of the child labor regulations, the second-highest amount ever assessed in the agency's history. The Wage and Hour Division has also increased the proportion of agency initiative investigations to 53 percent, surpassing 46 percent in the previous administration. In addition to its enforcement responsibilities, a critical function of the Wage and Hour Division is compliance assistance. Last year alone, the agency conducted a record- breaking 3,600 outreach events for thousands of employees, employers, and industry associations. Compliance assistance is a critical component because Federal labor laws can be complex and therefore time-consuming and confusing for small businesses. The Department of Labor announced a proposed overtime rule that would make more than 1 million additional American workers eligible for overtime. The department estimates average transfer to employees to be more than $425,000,000 per year over the first 10 years. The efforts by this Administration represent a strong commitment to ensuring the rights of both the employee and the employer while preserving economic growth. By all accounts, the agency appears to be meetings its statutory responsibility and fulfilling the mission given to it by Congress. I look forward, Madam Chair, to hearing the testimony today and learning ways that we can ensure the rights of workers and employers are respected and adhered to. I yield back the balance of my time. Ms. DeLauro. Thank you very much, Congressman Cole. Let me once again thank all of our panelists for being here. Again, we have Daniel Katz, Senior Staff Attorney at the Washington Lawyers' Committee for Civil Rights and Urban Affairs; we have Paul DeCamp, member of the firm Epstein, Becker & Green; we also have Laura Huizar, Senior Staff Attorney at the National Employment Law Project; and let me yield to my colleague from Illinois, Congresswoman Bustos, to introduce the Illinois attorney general. Mrs. Bustos. All right. Very good. Thank you, Madam Chair, and once again you are demonstrating, Congresswoman DeLauro, how every single day you are fighting for the people. I think with our high school students out there today this is democracy in action, and welcome to our hearing. It is my distinct honor to be able to introduce Attorney General Kwame Raoul, who serves in my home state of Illinois. From his time as a young attorney handling labor and employment issues, to his career in the Illinois state legislature, spearheading workers' compensation reform, Mr. Raoul has been a tireless advocate for men and women who are in the workforce. As attorney general, Mr. Raoul's tenure has been dedicated to bettering the lives of Illinois workers. Due in part to Mr. Raoul's advocacy with other attorneys general, four large fast- food franchises will no longer use ``no poach agreements.'' He is also pushing to create a worker protection unit within the Attorney General's Office, and amen, Mr. Raoul, for fighting for working men and women. I would like to thank Mr. Raoul for joining us today and we look forward to hearing your testimony. With that, Madam Chair, I yield back. Ms. DeLauro. Thank you very much, and to our panelists this morning please understand that your full testimony will be entered into the record, and you will be recognized for 5 minutes. And then what we will do, when we conclude the witness testimony, we will proceed to 5-minute rounds for questions, and I will recognize members in order of their seniority at the time that we gaveled down. And then after that I will call on members in order of their appearance. And I guess I am told as housekeeping to make sure the mike is on when you are speaking and off when you are not speaking. Thank you. Mr. Katz, please begin when you are ready. Mr. Katz. Thank you very much, Chairwoman DeLauro, Ranking Member Cole, and members of the subcommittee. Thank you for the opportunity to testify today. My name is Daniel Katz. I am senior counsel at the Washington Lawyers' Committee for Civil Rights and Urban Affairs. The Lawyers' Committee labors to defend the rights of working people and address poverty, racism, and other forms of discrimination. In order to serve low-wage workers we host weekly workers' rights clinics which monthly assist over 100 low-wage workers who face wage theft and other violations of their rights, as well as we litigate claims on behalf of employees who suffer wage theft and discrimination. My testimony is informed by these experiences as well as the 25 years' experience I have litigating claims on behalf of low-wage workers and counseling many hundreds in regard to wage theft issues. Each day we speak with individuals who work on construction sites and restaurants, hotels and daycare centers, nursing homes and elsewhere, who do not receive the minimum wage, do not receive overtime pay, who get paid for only a percentage of the hours that they work, tipped employees who are forced to perform unpaid hourly work, and others who work and simply do not get paid at all. Wage theft impacts every aspect of a worker's life, whether she can pay for her family's housing, her ability to provide clothing and food for her children, whether her kids get medical care, and even her ability to get a job in the first place. This is what wage theft is. I would like to spend a couple of minutes talking about the ``who'' of wage theft. Who are the victims? A small subcontractor working on luxury apartments in Foggy Bottom hired six workers to hang drywall for 3 weeks. When they tried to collect their wages the subcontractor was nowhere to be found. When they brought their plea to the general contractor, who was onsite and helped supervise them, the general contractor claimed it had no responsibility to pay them since it had not directly hired them. They received nothing for their work. A young mother worked 50 hours per week in a pizza restaurant in a tiny indoor market. The restaurant paid her for only 40 hours' work. When she complained, the employer told her she was lucky. After all, he had paid her minimum wage for all of those 40 hours. She received nothing for those overtime hours--not straight time, not time and a half. Six back-of-the-house restaurant workers were not paid for 4 weeks of work at the time that their Connecticut Avenue restaurant changed owners. The new owner told them they could keep their job but had no obligation to pay them their back wages, and they could not figure out who the old owners were because their pay stubs referred only to an LLC which was then defunct. Over 300 janitors worked for a tristate custodial company, some for up to 15 years, earning just over the Federal minimum wage. Their paychecks for the last half of August 2018 did not arrive, and as their paychecks for the first half of September became due they found out the company had closed. This has been ruinous for their families. A server regularly worked a 12-hour shift at a DC bar. She made only tips. The employer did not even pay her the $3.89 per hour that an employer must pay a tipped employee. When she complained, they gave her two options--keep serving or leave. Thirty workers performed electrical work constructing a public hospital. They were hired by a labor broker and worked side-by-side with individuals performing the same work who were hired directly by the electrical contractor. But they were paid less than half the wage of those directly hired and did not receive overtime pay. When they sought the wages owed to them the labor contractor was nowhere to be found and the general contractor disclaimed any responsibility. I realize that time is tight, and I want to just address one more issue. The protections of the FLSA would be seriously undermined by a pernicious Department of Labor proposal that would gut a core protection for low-wage workers. For vulnerable workers such as those I have described, the current FLSA joint employment rules provide the only hope that when the labor broker or the fly-by-night contractor or subcontractor disappears the workers still might recover the wages she had earned. However, last week the DOL proposed a new four-part test for determining joint employment under the FLSA. This test would insulate general contractors and others in the employer chain from the consequences of wage theft from which they directly benefit. The DOL proposal would upend decades of court precedent and ignore the reality of the subcontracting and outsourcing structure of employment today. This change would leave thousands of workers who are unpaid without any potential relief from wage theft. I urge the committee to consider any step it may take to ensure that the DOL never implements this proposal. Thank you. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you. Mr. DeCamp. Mr. DeCamp. Good morning, Chairwoman DeLauro, Ranking Member Cole, and distinguished members of the subcommittee. My name is Paul DeCamp and I am a member of the law firm of Epstein, Becker & Green here in Washington. Thank you for allowing me to present my testimony today. The phrase ``wage theft'' is not a concept recognized under Federal wage and hour law, nor should it be. Instead, wage theft represents an amorphous cluster of notions, some of which involve violations of Federal law and some of which do not. That being said, because the phrase has worked its way into the title of this hearing, it is worth defining the terms we use. The concept of theft has a well-settled legal meaning. Black's Law Dictionary defines theft as, quote, ``the felonious taking and removing of another's personal property with the intent of depriving the true owner of it, larceny,'' unquote. In short, a perpetrator intending to steal property knowing that it is not his or hers to take. Theft is a serious crime. In the context of wages, it is exceeding rare for an employer to pay an employee wages and then to steal some or all of that money back from the employee. In legal terms, true theft of wages is almost nonexistent. When it occurs, state criminal and civil laws already provide a robust penal and remedial structure, as with theft of non-wage property. The much more common scenario is that an employer fails to pay wages allegedly owed. Sometimes the employer clearly owes wages, understands that it owes the money, and has the ability to pay, yet chooses not to pay. There is a broad consensus among businesses and workers alike that such an employer is a bad actor who needs to compensate the workers and face punishment. This type of situation may constitute fraud or theft of services under State law, or even theft itself. Under Federal law, assuming the Fair Labor Standards Act applies, this conduct would amount to a woeful violation, subjecting the employer to civil money penalties and an additional year of liability. The FLSA also provides for criminal liability for certain willful violations with fines as well as imprisonment. This type of knowing, willful, intentional refusal to pay wages that are indisputably due is the image that most naturally comes to mind when one hears a vague and loaded term like ``wage theft.'' This conduct is already illegal and often criminal under State law, and when this type of violation involves wages owed in the FLSA the result can be a Federal crime as well. For purposes of Federal wage and hour enforcement it is misleading and inappropriate to label anything other than the willful, intentional nonpayment of wages indisputably owed under the FLSA or another Federal statute as wage theft. The FLSA does not federalize all facets of wage payment. Instead, it establishes a floor relating to minimum wage, overtime, and child labor. It is simply wrong to use a term like ``wage theft'' when describing circumstances where conduct is not willful or intentional. The FLSA can be so confusing that even the Department of Labor itself has repeated violated it over the years, certainly through no desire to steal wages. The Wage and Hour Division misclassified its entire nationwide cadre of investigators as exempt from overtime for the first three decades-plus of its existence until another agency took a closer look during the 1970s, forcing a reclassification. And in 2016, the department paid $7,000,000 to settle a claim that it had misclassified thousands of employees as exempt. If even the Federal agency with the most experience and expertise dealing with the FLSA has significant trouble complying, we should all pause before assuming bad motives on the part of other employers. Where the facts are reasonably in dispute, the law is sufficiently ambiguous that the obligation to pay is unclear or an employer was not aware that it owed the wages at issue there may well be an FLSA violation in which case the law provides make-whole remedies for the workers plus costs and reasonable attorney's fees, as well as a presumption of double damages. But this type of situation has virtually nothing in common with felonious theft. These non-purposeful errors are qualitatively different form the category of worst-of-the-worst violations discussed earlier. Lumping all of these scenarios together under a broad heading of wage theft obscures critical differences and leads policy astray. In short, it is fundamentally unfair to impose criminal or quasi-criminal punishment where an employer was not on clear notice of what the law requires and did not act with criminal intent. In my experience, all but a small percentage of wage hour violations fall into this non-willful category. By all means, protect workers and make them whole but do not treat unintentional FLSA violators like felons. The best safeguard for workers is clear, understandable, easily enforced legal standards. The vast majority of employers consist of decent people who care about their workers and want to do right by them. Federal wage and hour law should help make that happen rather than falsely trying to brand millions of honest people as thieves. Madam Chairwoman, that concludes my prepared remarks. I will be happy to answer any questions you or the members of the subcommittee may have. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very much, and now let me recognize Attorney General Raoul. Mr. Raoul. Thank you. Good morning, Chairwoman DeLauro, Ranking Member Cole, and members of the subcommittee. My name is Kwame Raoul and I am the Attorney General for the State of Illinois. I thank you for the opportunity to talk with you today about the ways in which I and other state leaders are responding to the crisis of wage theft by engaging in more strategic wage law enforcement and the critical importance of the Federal Government as a partner in these efforts. For decades, state attorneys general have been at the forefront of enforcing the rights of the residents of our states in areas such as civil rights, criminal prosecution, consumer rights, and environmental protections. Until relatively recently, few state attorneys general have engaged in much workplace rights enforcement. However, more and more state attorneys general have come to believe that we must help address rampant violations of wage and hour laws. For example, a comprehensive survey of low-wage workers in Chicago found that a full 26 percent of workers had been paid less than the minimum wage in the week before. Of workers who had worked more 40 hours in the preceding week, a full 67 percent were not paid overtime. These statistics are echoed in what we hear from constituents every day. From home health workers to security guards to truck drivers to restaurant employees, every day my office hears from people who don't know how they will pay their rent or feed their kids because they have not been paid all of their wages that they have earned. Not only is this unfair to workers, it harms other businesses that do comply with the wage laws by making them less able to compete. It is an unfair business advantage for bad actors. In 2015, my office established the Workplace Rights Bureau to fight wage theft and to protect workers. Mo recently, the attorneys general of the District of Columbia and Pennsylvania have also started dedicated units in their offices, and other states have started getting more active on labor issues. These efforts join established labor bureaus in New York, Massachusetts, California, and the state of Washington. This small group of state attorneys general has taken significant actions to protect the working people of our respective states. For example, in Illinois, we investigated wage violations in the Chinese-style buffet restaurant industry. We found evidence that workers were working around 11 hours a day, 6 days a week, and paid less than $5 an hour. Workers were housed by their employers in deplorable conditions and transported to and from work by their bosses. Those cases resulted in four Federal consent decrees, shutting down employment agencies that had enabled this exploit, and requiring payment of back wages of up to $15,000 for some of the kitchen workers. We reached a $1,000,000 settlement with a construction employer that had systematically falsified payroll records for a period of years to make it look as though employees were being paid legally required wages. While I am proud of our accomplishments in this area, my office has done this work with limited statutory authority. That is why, as a State senator, I sponsored a bill to give the attorney general authority to enforce state wage laws. Although the bill passed, it was vetoed by our former governor. It has now been introduced again with bipartisan support and it passed out of committee unanimously two weeks ago, and I anticipate it will pass out of the Senate this week. The bill does not take any enforcement away from the Illinois Department of Labor. It simply gives the attorney general supplemental authority to investigate and file suit to enjoin violations of State wage laws. It will also allow us to strategically partner with local prosecutors, labor, business and community organizations. But we do need the Department of Labor as a partner. From research to worksite investigations to detailed employer compliance assistance, the U.S. Department of Labor performs critical tasks that benefit employees, employers, and state enforcers. The department is also the only public enforcer that can investigate wage compliance issues across state lines. The importance of the Department of Labor, if anything, has increased as mandatory arbitration provisions and class action waivers prevent more employees from pursuing private wage law actions. In short, we are doing the best we can at the state level to address the issues of wage theft affirmatively and strategically, with limited resources. I thank you for the opportunity to speak with you today. I would be happy to answer any questions. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you very much. Ms. Huizar. Ms. Huizar. Thank you. Good morning, Chairwoman DeLauro, Ranking Member Cole, and distinguished members of the subcommittee. Thank you for the opportunity to testify today. The National Employment Law Project, or NELP, is a nonprofit, nonpartisan organization focused on research and advocacy. We specialize in employment policy, including labor standards enforcement. Today I hope that my testimony will shed light on the problem of wage theft and also the importance of ensuring that the U.S. Department of Labor has the resources that it needs in order to adequately enforce our basic labor protections. Unfortunately, for many workers across the country and across industries, the Fair Labor Standards Act exists only in theory. A groundbreaking study in 2009 surveyed over 4,000 workers. Twenty-six percent were paid less than the required minimum wage in the previous work week and nearly two-thirds have experienced some kind of pay-related violation in that period. Dozens of studies have found similar high rates of wage theft. For example, another recent NELP study highlighted that nearly 90 percent of fast-food workers experienced some kind of wage theft, in the warehouse and logistics industry, 25 percent suffer minimum wage violations, and we know that overtime violations are significantly higher. About 80 percent of port truck drivers are classified as independent contractors but we estimate that about 80 percent of them are actually employees and misclassified, and they suffer persistent wage theft. A 2017 study by the Economic Policy Institute, or EPI, looked at the 10 most populous states, and they found that 2.4 million workers in those states lose about $8,000,000,000 annually to unpaid minimum wages, and nationally, as I think it has been mentioned before, EPI estimates that workers lose about $15,000,000,000 per year to minimum wage violations alone. Good Jobs First also analyzed more than 4,000 wage and hour cases and more than half of those cases involved Fortune 500 companies or Fortune Global 500 companies. So we know that this is not just a problem about small, fly-by-night corporations or businesses. Wage theft is a racial and gender justice issue. Women are significantly more likely than men to experience wage theft, as are foreign-born workers. Among U.S.-born workers, the rate of minimum wage violations for African American workers was three times higher than that of white workers. Nevertheless, wage theft is an issue that affects all demographic categories. The majority affected are over 25, they are native-born U.S. citizens, and nearly half are white. Low-wage workers who experience wage theft also face myriad hurdles in accessing justice. Labor agencies across the country are under-resourced and understaffed. Retaliation remains rampant and the fear of retaliation keeps countless workers from coming forward. The growing use of non-compete agreements and no-poaching agreements has only made it more difficult for low-wage workers to find work, and it does discourage workers from coming forward and risk getting fired. Legal assistance, especially for low-wage workers can be very difficult to find and extremely costly. Finally, the recent U.S. Supreme Court decision in Epic Systems effectively adds another barrier for workers. It allows employers to force their workers to sign mandatory arbitration agreements that effectively bar collective action and close the courthouse doors. For more than 60 million workers who are subject to mandatory arbitration agreements around the country, the U.S. Department of Labor and agencies like the USDOL may be their only recourse, because those agencies are not bound by such agreements. Ultimately, an enforcement agency must be able to pursue a strategic enforcement strategy that effectively leverages their limited resources. Strategic enforcement refers to an agency's ability to be selective about where and how they use their resources in order to focus on where the problems are largest, where workers are least likely to come forward, and where the agency's efforts are most likely to improve industry compliance. Given the magnitude of the problem of wage theft and the crucial role that USDOL plays in enforcement, Congress must ensure that USDOL and the Wage and Hour Division within USDOL have the resources and the staff that they need in order to carry out their work strategically. Thank you for the opportunity to submit testimony today and I look forward to your questions. [The information follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. DeLauro. Thank you all very much for your testimony. We will now begin questions. Let me just, before I go to my questions, just make a point. There seems to be--I guess, Mr. DeCamp, you talked about wage theft is non-existent or it is exceedingly rare. It seems to be in dire contrast to all of the information that has been provided by the other panelists, so maybe at some point the four of you can get into that discussion. What I would like, at the end of the--if we can get to either this morning or you get back to us, in terms of what kinds of recommendations you have for the subcommittee to be able to try to move forward. With that, NELP estimates in 1948, one investigator for every 22,600 covered workers. Today there is one per every 135,000 workers. In recent years, Wage and Hour reached a high- water mark of 1,446 full-time employees in 2015. In contrast, DOL estimated Wage and Hour had just 1,297 in 2019. A 10 percent decrease, alarming, over four years. Instead of requesting more resources for aggressive enforcement, Secretary Acosta is looking to expand the compliance assistance program. That is the PAID--Payroll Audit Independent Determination. Quite frankly, where we have had no evaluation, no determination of its effectiveness at all. A question for you, Ms. Huizar. In your view, can compliance assistance serve as a substitute for strong Federal enforcement? Can you walk me through why the Labor Secretary's approach will not help solve the wage theft crisis we are seeing? Ms. Huizar. Yes. Thank you, Chairwoman DeLauro. So I think compliance assistance means different things at different times, and I think, as has been said before, compliance assistance can come in the form of outreach and education to employers, and it is crucial to make sure that employers understand their rights and their responsibilities as it is crucial to understand--for workers to understand their rights and when they can come forward. But what we are seeing is that the Wage and Hour Division of the U.S. Department of Labor is carrying out a program called PAID, where, you know, labeled as compliance assistance they allow employers to come forward voluntarily and self- report violations. And through that program the agency hopes that employers will pay back wages to workers, but there are no consequences for employers who come forward through that program. So essentially there are no incentives for employers to change their behavior or for employers who are watching what is going on with enforcement to change their own practices. And we at NELP believe that the PAID program is not a form of compliance assistance. It is actually a form of amnesty for wage violators. So we believe at the cornerstone of strategic enforcement we must place deterrents as a goal and a strategy that does not impose a higher cost on employers for violations is not doing that. I should--oh---- Ms. DeLauro. Go ahead. Ms. Huizar [continuing]. I should also mention that a worker who has suffered wage theft and is then offered simply the wages that they were owed at the beginning is not receiving a true remedy for what they have experienced. Workers in those cases are basically giving their employers a zero-interest loan, based on their unpaid labor, and at the same time workers, especially low-wage workers, are struggling to make ends meet. Most workers are living paycheck to paycheck. And so that is why the Fair Labor Standards Act provides for damages for workers and for penalties. Ms. DeLauro [continuing]. A strategic enforcement. So let me move into that with a question for Attorney General Raoul and for yourself, in the strategic enforcement efforts, state labor departments, state attorneys, using these smart ways in which to deter violations. Let me ask you, Attorney General, can you explain how you are leveraging the scarce resources of your Workplace Rights Bureau to target investigations and lawsuits in ways that achieve the greatest impact? Ms. Huizar, your organization published a report, ``Winning Wage Justice: Strategies for Effective Local Wage Enforcement.'' Can you explain how local agencies may approach complaints differently based on the potential impact of the investigation?'' Mr. Raoul. Thank you, Chairwoman. So as I explained, we have introduced legislation to allow us to collaborate with local prosecutors, with labor, with community organizations. We utilize that collaboration to be able to enforce--I gave the example of the Chinese-style buffet restaurant. It is important for us to be able to rely on the Department of Labor. Oftentimes at the State level we have--the Federal law sets a floor and oftentimes at the State level we are a little bit more--we set a higher floor. And so to the extent that the Department of Labor is not working as a partner, and we have enjoyed working as a partner with the Department of Labor, it does not enable us to leverage our limited resources. We only have 10 investigators in our State Department of Labor for a population of 12.7 million in the State of Illinois. It is difficult for us to act alone to enforce these violations. Ms. DeLauro. What I am going to do is since I have got 4 seconds left here, Ms. Huizar, we will get back to you and have you address that question. Let me yield to my colleague from Oklahoma. Mr. Cole. Thank you very much, Madam Chair, and I think we probably all agree that one case of this is one too many. But I want to pick up where our chair was headed in her opening remarks and try to get some idea of the magnitude. So I am going to ask each of you, and I ask you to be pretty brief if you can because I want to get all of your responses in. But no. 1, give us some sense of the magnitude of this, either in terms of the percentage of workers that are impacted or the frequency, the numbers of firms that are involved in this, so that we can get that grasp. And second, your view of the balance, again, between deliberate violation and accidental, you know, either the employer misunderstanding or what have you. So if we could start with you, Mr. Katz, and then we will just go right down the line. Mr. Katz. Thank you very much. In terms of how widespread this is, I would say that if we literally walked out of this room and were able to interview individuals working on the construction sites on K Street or in the restaurants on Capitol Hill or in nursing homes within a couple-mile radius, we would find that different forms of wage theft are affecting well over 50 percent of the individuals who we would consider low-wage workers. That may be a low number when it comes to certain industries, because I would say our experience in, for example, the restaurant industry is that well over 50 percent of restaurants do not comply with minimum wage and overtime requirements. In the context of how difficult is it to comply, I would say there is no question that there may be certain aspects of the FLSA which are more difficult to understand than most, but I would say that essentially 98 percent of what the FLSA instructs us to do in regards to paying minimum wage, paying over time, keeping accurate records so that there are not disputes over what people are paid, those provisions are easy to comply with. They have been the law for approximately 80 years now. And so I would say that when an employer violates those provisions, by and large that is a willful violation. Mr. Cole. Thank you. Mr. DeCamp. Mr. DeCamp. If we are talking about wage theft the way that the other members on the panel are defining it, which is any FLSA violation or perhaps any FLSA and any state wage law violation, then I would agree that the numbers are very large. If we are talking about the category of willful, intentional acts, I think it is much, much smaller category, probably less than 1 percent. Look, I don't think there is an employer out there where I couldn't go through their records and talk to their employees, including in this building, and find violations of the FLSA or State wage and hour law. These are next to impossible to comply with 100 percent of the time. But when we are talking about deliberate versus good-faith or unintentional violations, I think there is a big difference there. I think that the comment here, from the previous witness, that 98 percent of the requirements of the FLSA are crystal clear to comply with, that is true at 30,000 feet--time and a half, overtime, minimum wage, keep records. That is easy. But at the ground level, when you are actually applying these rules, in their details, in the 1,000-plus pages of regulations under the FLSA, and 80 years of case law, everybody gets it wrong. There are so many ambiguities that nearly all the violations that I see--and my practice is 100 percent wage and hour--is in the non-willful range. There are willful violations. They are small but they are out there. But that is not most violations. Mr. Cole. Thank you. Attorney General Raoul. Mr. Raoul. You know, I think we have heard a little bit of consensus from the previous two speakers. The bottom line is whether willful or intentional the end result is a worker not being paid the wages that they worked for. And to the extent that we are facing consequences where there are mandatory arbitration agreements and class waivers, that enhances the burden on public enforcers because there is no private action. So for my office, where I have no investigators, it creates a huge burden, particularly if we do not have the partnership of the U.S. Department of Labor. Mr. Cole. Thank you, General. Ms. Huizar. Ms. DeLauro. Can I interrupt for a second? Mr. Cole. Certainly. Ms. DeLauro. This is an important question, I want to say to my colleagues. Because we are over on the time---- Mr. Cole. Yeah, no, you control the time. Ms. DeLauro. No, no. Well, but I just want to just say don't feel--I mean---- Mr. Cole. Yeah. Ms. DeLauro [continuing]. Let's---- Mr. Cole. Yeah, no. I think we all want to get this one. So please. Thank you, Madam Chair. Ms. Huizar. Thank you. So I think that the definitive study at this point on wage theft prevalence was a study conducted-- or released in 2009. It was NELP. It was the UCLA Institute on Research and Labor--Research on Labor and Employment, it was the Center for Urban Economic Development at the University of Illinois, and a number of other partners. They surveyed over 4,000 workers in several cities and through that survey they were able to basically gather information about a market that is representative of the low- wage market. And through that study, which has been cited over and over again, we found minimum wage violations in about 26 percent of cases for the previous work week that was analyzed. As I mentioned, nearly two-thirds of workers in that study had experienced some kind of pay-related violation. When we look at industries within that study, the home care industry had overtime violations above 80 percent, for example. Within the food and drink, hospitality sectors, agriculture, and others, we know that rates are that high. And I think I will say, in terms of whether these are small, technical violations that are hard to detect and hard for employers to understand, you know, just from my personal practice--I started my career at the grassroots level, administering economic development programs in Connecticut--and I will say that in my experience most of the violations that I have come across are not small or technical. I have seen employers instruct workers that only their first 40 hours will be placed on their paycheck and will be recorded, and then the next 20, 25 hours will not be recorded anywhere. And they may get paid some portion of the minimum wage for those extra 40-plus hours, but they often do not get the full overtime pay for those hours. And that is when workers would come to me and to my fellow attorneys for help. I think they understood that they were working all day, basically, every week, for very little in pay. And, of course, we see workers--you know, I saw countless workers in the construction industry who go back to their employers at the end of two weeks or a month of hard work and the employer either gives them just a portion of what was promised, what was explicitly promised, or gives them nothing at all. And so I think that in our practice most violations are very clear to workers, and that is when workers come forward or they seek help, but that is also why we need strategic enforcement to go out and find industries that are taking advantage of these practices and undercutting their competitors. Mr. Cole. Thank you. Thank you, Madam Chair. Ms. DeLauro. Thank you. Congresswoman Frankel. Ms. Frankel. Thank you. Thank you for the hearing, thank you to the panelists, and welcome to the students. So I think, if I listen to you all, for a worker I guess whether the wage violation is deliberate or not, it is the same effect. You are not getting what you earned, right? What is the most common type of wage theft? You mentioned-- somebody mentioned Fortune 500 companies. What is the most common wage theft for a Fortune 500 company? Ms. Huizar. So I think in terms of the most common form of wage theft I would say, in my experience and based on the research that I have reviewed, it is often overtime violations. So workers will get oftentimes the minimum wage for the first 40 hours and then nothing for the overtime hours, or some iteration of that. But we do see violations, for example, in the restaurant industry, where tipped workers who are supposed to get a base wage from their employer, or a guaranteed base wage plus tips, where there is a sub-minimum wage for tipped workers, we often see that employers are not tracking precisely how much in tips workers are recovering each week. If you talk to most bartenders and most waitresses and waiters, they will tell you that they get sort of the same paycheck every week from their employer, which is a very small amount, and then the rest is sort of an informal system that does not guarantee them the minimum that they are owed under the law. Ms. Frankel. Is this detected by the worker? I mean, do the workers know they are not getting overtime, and then what is a worker supposed to do, other than talking to their boss and then they are told, sorry. Then what is a worker supposed to do? Mr. Katz. If I may, Congresswoman, one of the issues is essentially what are the resources available to that worker. Unfortunately, in our experience, what we can say is it is a small percentage of the individuals who are not paid the overtime, are not paid minimum wage, or are paid as, you know, so-called independent contractors when they are really employees. It is only a small percentage who ever find their way to a workers' rights clinic or to a private lawyer to assist them. Unfortunately, the resources available to low-wage workers are very limited, and unfortunately, also, many times employers do not keep the records that the law mandates they keep so that the employees can, at some later point, figure out what are the wages they are actually owed. Ms. Frankel. So, I mean, I read some of the estimates of the lost wages. I think it was something like $4,400,000,000 annual for women workers, $3,600,000,000 for men annually. I guess that is because more women are in minimum wage jobs. What is it, two-thirds of the minimum wage jobs are for women? So what can we do to enforce the law? I mean, what can we do better, from a Federal point of view? Ms. Huizar. So I think that a lot has been done at the Federal level, especially under the last administration. I think Administrator David Weil has conducted a lot of research and study on what works best, how do we leverage limited resources in the best way. And that is where this idea of strategic enforcement really comes from. It is about employing the principles of prioritization to cases and deterrence, and thinking about how an agency can influence a system-wide change. And those are things that the agency has already started to put in place. We are seeing more and more directed investigations by the agency instead of simply responding to complaints as they come in. And what the agency needs, and what, I think, most agencies need are more resources, more investigators, in order to really have a chance to analyze the data that they have and use that data as strategically as possible to find the high violators, to find workers in industries that are too afraid to come forward, and to really use their power to make a difference in employers' decisions. Ms. Frankel. How does that happen? If you don't have a complaint, how do we know that there are violations? Mr. Katz. Madam Congresswoman, the DOL has the authority to investigate workplaces without there being a complaint, and we would urge that the number of investigators be increased, that they be properly budgeted, and that when the DOL investigates and identifies wage violations in the workplaces that, as one of my colleagues mentioned earlier, that the remedy for those individuals is not just what they were previously owed but remedies to the full extent that the law provides, right now double damages, and as proposed in this bill, increased damages. Ms. Frankel. Madam Chair, if I could just ask. So more resources. Does anyone have a figure in their mind what kind of increase in the budget or the amount of personnel that would be needed? Ms. DeLauro. I know Mr. DeCamp wants to get into this conversation. Ms. Frankel. Okay. Yeah. Ms. Huizar. So I will not put a specific number out there, but I will reiterate the number that was cited before where, in 1948, we had about 1,000 investigators in the Wage and Hour Division for about 22.6 million workers across the workforce. Today we have fewer than 1,000 investigators for 135 million workers. So I don't think we can say that we are doing as much as we were doing in the 1940s, or as much as we can, given the prevalence of the issue and the growth in the workforce. Mr. DeCamp. First, on the resource end--thank you, Madam Chairman--for the resource issue I think it is important to recognize that the Wage and Hour Division does a lot of good and with more resources they could do more good. Obviously, there are competing demands for the money and that is up to the appropriators, but certainly more resources could be helpful and could benefit especially low-wage workers. From the standpoint of how do you prevent violations, I think it really depends on the type of violation. There are certainly willful violators out there where putting out all the compliance assistance information in the world is not going to change their behavior. For them you need punitive, coercive enforcement. But for the vast majority of employers, certainly in my experience, if you give them the information and if you give workers the information about what the law requires, they will want to comply. The workers will be aware of their rights. The employers will want to comply because they don't want a visit from the Department of Labor or a plaintiff's lawyer or anything like that because it is a lot more expensive in that instance not to comply than to get it right in the first instance. So to prevent those types of violations, having clear legal standards, having more information put out there, having the Department of Labor and State agencies having more information, more compliance assistance with employers, with community groups, with workers, to make sure that everybody understands the standards, and clarifying some of these gray areas in the law--and there are a lot of them--would benefit workers and prevent a lot of violations. Ms. DeLauro. Thank you very much. And I would just say I think we should get a copy to everyone of the abstract that the former Wage and Hour Division head, David Weil, wrote about the concept of strategic enforcement, which, in fact, does talk about some of the things that all of you are speaking about in terms of making the agency do what it needs to do, and have the kind of outreach it needs to have in order to get at this problem. With that let me recognize Congresswoman Herrera Beutler. Do you want to wait for a few minutes? Ms. Herrera Beutler. Could you---- Ms. DeLauro. Oh, absolutely. No, take your time. Let us know. Okay. Thank you. Let me just take a moment to--thank you all for coming, by the way, guys. Do well, all right? Run for office. All right. Mr. Cole. Can we find out where they live first? Ms. DeLauro. Let me take a moment to question the premise that the misclassification of workers is somehow not part of wage theft. Employers are often willfully miscategorizing workers as independent contractors, and then, in the process, denying them the wages they should be rightfully paid under the Fair Labor Standards Act. Historically, Wage and Hour has had many cases involving civil monetary penalties and liquidated damages in misclassification cases. So I have two questions, one for Mr. Katz, one for Ms. Huizar. Mr. Katz, it is my understanding that you have seen, first- hand, worker misclassification and has resulted in vulnerable workers not getting their promised wages. Can you walk us through some examples of cases where this happened? And, Ms. Huizar, in your view, does the Wage and Hour Division have a role to play in holding employers accountable for misclassification resulting in workers losing promised wages and overtime? Mr. Katz. Mr. Katz. Thank you, Congresswoman. I can think of two quick examples. One is from the group of electrical workers that I talked about earlier in my testimony, who were working side-by-side with electrical workers hired directly by the electrical contractors. The individuals whom I represented in that case, approximately 45 of them, were paid as so-called independent contractors. They received an hourly wage, $18 to $20 an hour, and that is what they received. They did not have taxes withheld from their paychecks. The employer did not pay the employer portion of those taxes. When they worked overtime, they were paid $20 an hour instead of the $30 an hour they should have received. Similarly, I can think of an example involving three construction workers who worked for a contractor in the District of Columbia, in Maryland. The three of them worked approximately 8 to 10 years for this contractor. They were paid a straight hourly wage. Again, they were never paid overtime. The employer never paid their portion of the--never paid-- withheld the employee taxes, never paid the employer portion of those taxes. So that has a couple of consequences. Number one, it means they were not getting--because they were treated as, in quotes, ``independent contractors,'' they were not being paid time-and- a-half overtime they should have been paid. Number two, when they went to file their taxes each year, they had a real headache with the IRS, because the IRS had, of course, no record that any taxes had ever been withheld and so they got hit by huge penalties. Number two, that kind of a situation basically denies Federal and State taxing authorities of funds they should be receiving. All of us pay employment taxes, okay. They go to support also to different government functions. In that kind of a situation the employer was essentially denying tax monies owed to Federal taxing authorities and also not paying into, for example, the unemployment insurance fund, so that when people get laid off, you know, they can collect unemployment insurance. Ms. DeLauro. Ms. Huizar. Ms. Huizar. Yes. Thank you. So in terms of whether the Wage and Hour Division has a role to play---- Ms. DeLauro. Right. Yes. Ms. Huizar [continuing]. In tackling misclassification, I think I would first say that the Wage and Hour Division's explicit goal is to enforce the Fair Labor Standards Act, which means to protect employees and their right to minimum wage and overtime and other basic, basic protections. And so in order to do that, the Wage and Hour Division absolutely has a role in identifying industries where misclassification is happening. I think some estimates put the number at around 10 or 20 percent of workers that are misclassified in the economy these days, and the agency has the power to use its resources to analyze data, to look at industries, at sectors, to use complaints to figure out when employees are being misclassified, and then to use the agency's resources to bring the most impactful, targeted cases against violators. Ms. DeLauro. Thank you. Congressman Harris. Mr. Harris. Thank you very much, and, yeah, I am sorry that I had to step out. We have the Secretary of Agriculture next door. Mr. DeCamp, I am sorry I missed your testimony, but some of this is confusing to me. I am not a labor attorney. My understanding is that some states, including mine, actually set a higher minimum wage than other states, and in those states that what is an exempt and a non-exempt job don't necessarily overlap with the Federal minimum wage. Is that true? Mr. DeCamp. There are, in some states, different standards, higher compensation standards or different compensation standards to be exempt or non-exempt for the most commonly used exemptions under the FLSA. That is correct. Mr. Harris. Right. And I know that, I think in the opening statement, the ERG study from 2014, sponsored by the Department of Labor, you know, a statistic was mentioned that has to do with California. California is one of those states that had a higher minimum wage and also, I think, had different--a slightly different definition of which jobs it applied to. Is that right also? Mr. Harris. Not just slightly different. Very different in terms of the types of duties that qualify and how you assess whether somebody is exempt. Mr. Harris. Okay. And are you aware of that statistics, that again was quoted, where 49 percent of the wage was underpaid to the--in that study, to the people in California who were subject to the minimum wage? Mr. DeCamp. I have heard that number used in the written testimony and the oral testimony. It is not something I had seen before. It is hard to know without more context what that really represents or how good that number is. Mr. Harris. Yeah. I am asking for your comment on that, actually, because I went and actually read through the study. And it is interesting because it claimed that a $63 decrease, or underpayment of that, of minimum wage in a weekly salary, was actually 49 percent--it was a 49 percent effect on the income. And I guess that wasn't kind of a full-time job, on average. I may ask you again to look into that and get back to me on exactly how that was derived, but it is just not--and, look, I know statistics. I have taken a course in statistics. You know, you pluck one number out of the air and you make it seem, in California, you know, you are underpaying by 50 percent, but it appears to be a very small number of people. And again, it seems because of the definitional differences in California it might actually be a hard number to determine. But where are the places, if you could just review for me where you believe that the term--and I enjoyed reading your testimony a lot. I am sorry I didn't hear it, because again, you know, we should just be honest. I mean, theft is a crime, is a felony--I guess normally a felony. I mean, it involves actually stealing something. So I understand the emotions of calling this wage theft, but you make the point that there are many things that occur where theft is probably a little too strong, like you didn't really understand what the law--it was unintentional, for instance. Most times if you think of, you know, auto theft, for instance, it is rarely unintentional. So what are the major parts, or what are the contributors to the overall problem when it is actually an unintentional act? Mr. DeCamp. Largely it is ambiguous legal standards. For example, the issue of who is an employee versus an independent contractor. That is an issue that has bedeviled Congress since at least 1978, and well before that with the passage of Section 530 of the Internal Revenue Code. Recognizing that determining, for tax purposes and other purposes, where that line is can oftentimes defy word tests, and you only know it after the fact when a court applies a test that it may make up on the fly, for purposes of the litigation. Exempt, non-exempt. When we look at the Department of Labor's own violations historically, those were in the area primarily of exempt versus non-exempt. Is an employee properly classified under the administrative exemption? Do they have sufficient discretion and independent judgment regarding matters of significance? These are terms that--they exist in regulations and they have been in regulations for decades and decades, but nobody knows what they really mean, in part because they don't really have meaning. They take on meaning in the context of a given case, but they don't, in many instances, lead to noble outcomes ex ante. That is another area of significant problems. Another concern is identifying what constitutes compensable work. Everybody understands that if you are hired to swing a hammer in a factory, the time you spend swinging the hammer is work. But what about the time you spend putting on your gear at the start of the day or waiting in line in security to get checked out at the end of the day? There have been cases, and some have reached the Supreme Court, dealing with what constitutes work. In today's day and age things like travel time, commuting, use of mobile devices, use of computers at home. You get a phone call from your supervisor and it lasts 3 1/2 minutes, after hours. Is that work? Is it not work? These are gray areas that cause a lot of concern. When people are on call, is that work or is it not work? And these are areas where employers who want to get it right find it very difficult to comply, and it is doubly so for smaller businesses that don't have sophisticated legal and HR staffs in-house to deal with these questions. A lot of the times the people who are trying to deal with these standards, to the extent they even know about them at all, are non-lawyers, regular human beings who are not used to reading statutes and regulations, don't even know that some of these laws exist. Maybe they have heard of overtime but they don't know what the specifics are in terms of what is required. Mr. Harris. And my understanding in some states--because I think I remember this when I was in the State legislature I sat on the labor committee, that even the definition of independent contractor can be different in different states. Right? Mr. DeCamp. Absolutely. There are multiple different tests that are used. The Federal standard differs from what is used in California, it differs from what is used in many other states. Mr. Harris. That is what I thought. Thank you very much. I yield back. Ms. DeLauro. Congresswoman Herrera Beutler. Ms. Herrera Beutler. Thank you, Madam Chair. I have a couple of thoughts and I wanted to direct a couple of questions to Mr. DeCamp. You know, Washington State has been dealing with a bill at the State level that is similarly attempting to get at the problem of when people who have worked for their money don't get paid, period. I don't think anybody is going to disagree that that is biblical, actually. So I am not going to fight that one. But as we all know, we can create layers that maybe attempt to get at a problem but can create a lot of unintended consequences for other people who are fair actors, and that is what we need to get to here. You know, I am aware, in my state, with a bill that is moving forward, you know, the testimony was brought if a small general contractor--and I think about my father-in-law who had his own business. It was him and then my mother-in-law did books. So oftentimes they are hiring many different subs to complete a house or a project. Sometimes those subs have many more employees that it would dwarf the general contractor. Correct? And that is where I want to get into some of these things, because that can have such a negative impact on everybody involved. So I was hoping that perhaps you could explain how businesses, contractors, homebuilders, who are fair-minded folks, who want to pay their employees, may find themselves in violations of the Fair Labor Standards Act, and is there any ambiguity in the law? Are there things that we should be looking at really to tighten up this process? That is the first question. Mr. DeCamp. Sure. There is tremendous ambiguity in the law regarding the employment relationships in a multi-tier contracting situation. That has led to a lot of DOL enforcement in a variety of industries. We have seen it in residential and commercial construction, among others. And a lot of times the lines get blurred, and who is a joint employer? These are tough questions. And if they were easy questions we wouldn't see so many violations. And it is the kind of thing where a lot of the practices are uniform, or relatively uniform, within an industry because people are not going to lawyers to find out how do I structure this. They are basing it on how other folks in the industry do it and how they learned it when they were coming up through the industry. So there is a lot of HR, by word of mouth. And we see a lot of convergence of practice, classification in pay, otherwise, within a given industry for that reason. People move from company to company and practices spread. And what you can do, if there is a way to get there, is to provide clearer legal standards. I don't have any better answer to the question than Congress has had for the last 40 years, trying to deal with how do you draw that line--coming up with a word test that neatly, through all cases, draws the line between independent contractor and employee. Lots of people have tried and nobody has come up with a particularly good answer. It is either a vastly over-expansive line that kills the concept of independent contracting or vastly under-inclusive and doesn't provide adequate remedies for workers. So trying to strike that balance, it is hard. It defies words. Ms. Herrera Beutler. So would it be worth our time to spend more of our energy focused on helping people comply, not necessarily taking the penalty approach first off? Because you said--gosh, I didn't write it down--it seems like a lot of people violate this, not intentionally. So in my mind, I think, so then how do we get people to comply so that we can, number one, penalize the truly bad actors, right, and then, number two, make sure people are getting their wages? Mr. DeCamp. Well, to the extent that there are clear standards then you can get into helping people comply with the standards, compliance ex ante is easier because the standards are clearer, and then punishing those who don't comply is also easier and more appropriate because there has been clear notice of what is required. When we are talking about helping people comply with a standard that is gray to begin with, now it is more a question of risk tolerance and what do we want people to do. Do we force them to be so far away from where the gray area is to avoid penalties or do we take some other approach? I think, on that particular issue of employee versus independent contractor, Congress could do a lot of good if there were a way to legislate an answer to that question. Ms. Herrera Beutler. Thank you. I yield back. Ms. DeLauro. Thank you. Let me ask General Raoul a question, if I might. At a recent hearing on predatory for-profit colleges we heard how many students are subjected to mandatory arbitration clauses that deny them the right of private action--the private right of action. I am startled to hear that in Ms. Huizer's testimony that more than 60 million workers are subjected to these agreements, shutting off rights to be able to seek justice in court. General, you speak of this issue in your testimony. Just how has the growth of these waivers in employment contracts affected the ability of Illinois workers to seek their promised wages? Mr. Raoul. Yeah. So Fair Labor Standards, that contemplates both public enforcement as well as private right of action, and the balance of which, you know, can have impact on what the burden is on public enforcers like myself and my office, and like the Department of Labor, and like State Departments of Labor. We saw, from a 2018 study, where in 1992 there was approximately 2 percent of workers subject to these mandatory arbitrations, and that it has now grown to, as reflected, close to 60 percent. And so what that means is it chokes off the---- Ms. DeLauro. Private right. Mr. Raoul [continuing]. The private right of action, and then, if we are not appropriately resourcing the U.S. Department of Labor and, in our case, the State Department of Labor--and I testified before our state appropriations committee just a couple of weeks ago, asking for more resources to get investigators and lawyers in my office, we are thereby overburdened and unable. And if I could touch on the conversation around misclassification and intentional bad actors and unintentional bad actors, you know, the reason I mentioned before that I introduced legislation to enhance the capacity of the Attorney General's Office, it is not to supplant the authority of the Department of Labor but it is to go after egregious actors, egregious to the level where it is clearly not unintentional. And we have heard complaints, not just from employees but from contractors who are left at an unfair competition in bidding wars. You know, if it is a public works project, for example, they rely on the fact that they--bad actors are relying on the fact that they are misclassifying workers to be able to bid lower on public works projects. Ms. DeLauro. Thank you. I just have a question about--we have, today, a situation, the growth of what is called the fissured workplace in our economy. Core business activities are outsourced or contracted out. Staffing agency conducting HR functions, housekeeping firms cleaning hotels, contractors for manual labor in distribution centers. The firms often turn to their own subcontractors to hire workers at a specific location or to perform other supporting functions. When wage theft occurs, who is responsible? How do we get businesses to make sure their contractors and franchisees are compliant with the law? Mr. Katz, you mentioned your concern that changes in interpretation of joint employer liability would harm your clients. Do you have anything to add to that point? Ms. Huizar, complicated contracting relationships are out there between workers and the businesses in today's economy. How can strategic enforcement on the Federal and State levels deter the behavior? Mr. Katz. Mr. Katz. Thank you. An example that I think I mentioned earlier in my testimony is a group of--let me say this. If we took a walk down K Street in the District of Columbia and observed some of the construction sites in the booming construction industry in D.C., we would see the banners of the large general contractors and the other large contractors, you know, hanging from, you know, the building that is being constructed. However, large numbers of the individuals who are pulling the electrical wires, who are pouring the concrete, who are hanging the drywall, work for either labor brokers or highly undercapitalized subcontractors. And so that if you have, within that industry, essentially business entities that are able to control the workplace, yet able to structure the workforce so as to attempt to avoid liability, many individuals who are not paid, even though it is the general contractors who are benefitting from the labor of those individuals. If the Department of Labor moves backwards and eliminates the ability of the individuals who are doing the work to try to seek unpaid wages from the general contractors who are benefitting from the labor, in reference, again, to the proposed change in joint employment, then essentially those individuals will be out of luck. If I can mention one more example, we represented a group of five women who were employed by essentially a fly-by-night cleaning outfit to work at a hotel in Georgetown, and they worked 11:00 at night to 6:00 in the morning, vacuuming the hallways, cleaning the bathrooms. Every single operation they did was a direct instruction of the hotel itself--this is how you vacuum the hallway, this is how you clean the bathrooms. However, when that fly-by-night subcontractor didn't pay them for four weeks and disappeared, the position of the hotel was, ``We didn't hire these people.'' So we now have what has been referred to a fissured workplace, where despite the fact that these individuals worked in the hotel, wore the uniform of that hotel, and were under the supervision of cleaning supervisors, janitorial supervisors in that hotel, the hotel still attempted to disclaim responsibility for those unpaid wages. Ms. DeLauro. I am going to--and I checked with the ranking member--Mr. Huizar, just about how can the issue of strategic enforcement bear on this instance? Ms. Huizar. Yeah. So I think it is important too, to recognize that the fissured workplace is not a new phenomenon. I think the garment industry is a great example of how this has been around for a very long time. We have layers and layers of contractors and subcontractors. But it has become an issue where companies are using the fissured workplace to shed liability, to be able to essentially turn a blind eye to violations in their own supply chairs in their industries. And so through strategic enforcement we can apply some of the lessons of the past in dealing with industries like the garment industry, and also some of the research that has been developed in recent years. And some of the things that have been done, have proven successful are prioritizing cases and looking for the lead companies in an industry, the people and the companies that truly exercise influence and power over conditions of work, down the chain and across the industry. So if you focus on those you can bring them to the table, if they care about their brand name and their reputation, and you can work with them to fix some of the issues voluntarily. You can also use a joint employer kind of strategy to hold accountable more than one employer, when the reality is that multiple companies are responsible for violations. When it comes to penalties, we have damages and fines that can be used, but we have research telling us that we can be very careful and strategic about where we use those fines and penalties. Ms. DeLauro. Thank you. Congressman Cole. Mr. Cole. Thank you very much. I want to go back to this issue of the joint employer, and I will start with you, Mr. DeCamp, because usually when I come across it it is in the context somewhat different than you discussed, Mr. Katz, which is big national or international corporations that are basically operating franchisee systems. And, you know, they come in and they say, ``Look, we don't hire the workers. We don't have somebody there supervising them. We are not doing.'' What we have done is create a structure that has allowed, particularly in these communities--and I know a lot of these people in my area. In small towns, this actually becomes the way up for a lot of people to actually become very successful. These can be very lucrative, but the people that pursue them are usually working 80 hours a week. They have had to amass capital. They are the classic small businessman but with the structure around them now to support them. And while I certainly would agree with Mr. Katz--and I will give you a chance to respond as well--you know, on some of the egregious examples he mentioned, I don't want to kill a goose that is laying golden eggs out there and giving people an opportunity--and, frankly, sometimes creating entrepreneurs in communities that have very, very few, and where they are tethered in the community and they stay there and they spend money there and they employ people there. What is your reaction to what the Administration has done? What, in your view, is the appropriate balance on this joint employer issue? Mr. DeCamp. Historically, contractors that engaged in the kind of behavior described by Mr. Katz, if we are talking about a general contractor that is running all aspects of everything that happens on a work site, including directing the hiring and firing of employees of subcontractors, and setting the wages rates, and controlling every piece of what happens, effectively is the employer, and that has always been the case under the FLSA, back to the 1930s or 1940s. That has not changed. I think what is interesting about where the law was going for a while, recently, was that it was threatening more traditional arrangements like franchising, like related corporations, and trying to make people financially responsible or making entities financially responsible where they were not actually exercising control as an employer. I think that the proposed joint employment regulation restores more of a realistic approach to looking at who is actually, with respect to the workers at issue, acting like an employer? Who is controlling the work? Who is hiring and firing, maintaining the records, setting the wage rates? If a company somewhere up the chain is actually directing all that then that is going to be an employer, or a joint employer at least, and will be liable. And if they are not, then they won't. And so I think that the current proposal reflects where the FLSA has been, historically, and I think it is a good way to strike the proper balance. Mr. Cole. Obviously you have a different view, Mr. Katz, and I want to give you an opportunity to express that. Mr. Katz. Thank you, Congressman. The concern that is what we see in workers is not the issue of minor violations. It is not the issue of an occasional business in which it is unclear what is the relationship between two businesses. What we see regularly are the situations, some of the examples I have been describing, where the violations of the FLSA are very clear and where--in situations where the employer, the business that controls the work situation is consciously taking advantage, essentially using another entity in order to attempt to avoid liability for wages that are owed, for taxes that are owed. I would also say the situations that I am describing, if we are, you know, addressing fairness that some of my colleagues mentioned, it is not only unfair to the workers who, you know, I have described in these instances, it is also unfair to the other contractors, to other businesses that are trying to play by the rules, who are trying to follow the law who, as one of my colleagues says, end up being underbid on a contract essentially because they are trying to play by the rules. Mr. Cole. Thank you very much. There is actually not that much difference, if I understand both of you, I mean, your respective positions in some ways, and it gets down to this difficult area of legal ambiguity that you mentioned, and obviously just the determination of the appropriate facts on this issue. Let me ask this one quickly, and I will try to ask it across all of you. You know, we all know that we have different minimum wages, by states, in many cases, above the Federal floor, which, by the way, makes it very difficult to legislate federally. It is sort of--we would be better off with a one- size-fits-all, or allowing state and locality, because of cost of living, to take different things into different consideration. So I would like your view on that. What should we be doing, going forward, on minimum wage, at the Federal level? And we will just start with you, Mr. Katz, and go down the line, if I can. Mr. Katz. I would say that a significant increase in the Federal minimum wage would help address, number one, any ambiguities that may exist between states, or even within states in which there are different minimum wages. I would say that increasing the Federal minimum wage would help lift up the living standards of all of those who are working for a living and who are covered by the Fair Labor Standards Act, and that where we lift up the minimum wage we are lifting up the living standards of working people. Mr. Cole. Thank you. Mr. DeCamp. Mr. DeCamp. I think we need to be very careful about increases to the minimum wage in areas where the wage levels are low, where the economies have different price levels and wage norms. What might work perfectly fine in San Francisco and New York does not work in rural Alabama. We have to look at making sure that we are not killing jobs. Now modest increases don't seem to have a significant effect on job. Significant increases do. And we are already seeing this is in the restaurant industry. If you increase the minimum wage too steeply it incentivizes automation and the destruction of jobs, and we need to be careful not to make it cheaper for businesses to not hire workers than to hire workers, because the true minimum wage is zero. If you don't have a job then the minimum wage is simply a barrier to entry. It doesn't protect you. It keeps you down. Mr. Cole. I will---- Ms. DeLauro. Go ahead. Mr. Cole. Well, is that okay? Finish up? Ms. DeLauro. Yeah. Go ahead. Mr. Cole. Thank you. General. Mr. Raoul. Yeah. Sir, I certainly echo the sentiments of Mr. Katz that it is important to lift the minimum wage on a Federal level to make sure that we are maintain the capacity for workers to lift, you know. And I recognize what you pointed out, Congressman, that in different regions there are different costs of living, but the reality is that we, in this country, have not maintained lifting the minimum wage with the increase of cost of living throughout the country. Mr. Cole. Thank you. Ms. Huizar. Ms. Huizar. Thank you. So I think NELP Is a big supporter of raising the minimum wage, and nationally we know that more than 40 percent of workers are earning under $15 an hour. We also know that most workers, especially if they have children, anywhere in the country, cannot afford their basic necessities earning under $15 an hour, at this point. So we are supporters of the Raise the Wage Act and a careful phase-in of a $15 minimum wage federally, and I would also say tying that issue to wage theft and the enormity of the problem, I think that in some ways making workers less vulnerable financially could go a long way in helping workers come forward and protect their rights. I think currently workers have almost nothing in savings, they are living paycheck to paycheck, can barely afford to live week to week, and I think if we lift more workers out of those circumstances, empower them to invest time into protecting their rights I think that we can also make a difference when it comes to wage theft. Mr. Cole. Thank you. Thank you for your indulgence on the time, Madam Chair. Ms. DeLauro. Congresswoman Frankel. Ms. Frankel. Thank you very much. Well, let me just add that there is something wrong with somebody working all day and then not being able to pay for their necessities because they are not getting paid a fair wage. And thank you all again for being here. Listening to this, it seems quite obvious to me that one of the reasons that women earn 80 cents on a dollar that a man earns, and actually much less for women of color, part of it is because of the wage theft problem. I saw that NELP--I don't know if it was in your testimony or something I read, that 30 percent of women experience a minimum wage violation compared to 20 percent of men. Is there a reason for that? Ms. Huizar. So I think--oh, if I may--I think part of the reason is that there are more women in the low-wage workforce. They are overrepresented nationally and so they are more vulnerable. Ms. Frankel. So, and I think there is another sort of side effect, a bad side effect, is the exploitation in some of these service jobs, like the massage industry and the nail industry, where there is a real exploitation of women, sometimes immigrant women and undocumented women, women who don't speak English. My question is if there was more of an enforcement by the Department of Labor, just on the wage issue, whether or not there would be more detection of this exploitation. Mr. DeCamp. If I could address that, the Department of Labor has actually, from time to time, partnered with criminal law enforcement agencies, human trafficking task forces, and others, State and Federal, to address that kind of concern, recognizing that sometimes it is about more than just the wages. There may be other things going on with these workers. And those kinds of partnerships can be very helpful in protecting low-wage works. Ms. Frankel. Thank you. Okay. Thank you for that. Can you--somebody explain to me--you talked about how--we sort of talked about mandatory arbitration and poaching limits enforcement. But could someone just explain to me why that is, how that works? Mr. Raoul. Well, from my standpoint as a state public enforcer, as I mentioned before, FLSA contemplates both a private right of action as well as public enforcement, and we have all been talking about, both at the Federal and State level, limited resources---- Ms. Frankel. Excuse me. Not to interrupt you but I am, obviously. Mr. Raoul. That is all right. [Laughter.] Ms. Frankel. But let's start with arbitration. The employer and the employee goes to arbitrate. Is there something that is preventing an enforcement? What is it that is preventing the enforcement? Mr. DeCamp. If I could speak to that, it doesn't prevent public enforcement. It doesn't prevent a State or Federal agency from taking a matter and commencing an investigation. What it prevents is private litigation by the client. Ms. Frankel. Oh, I see. So are you saying that the employee is at a disadvantage? Mr. Raoul. What I was trying to say is if you look at the universe of enforcement, we don't get to all of the cases, not nearly all of the cases we experience in Illinois. So if we choke off one route of enforcement, that creates a greater burden on public enforcement, whereas if you have that private right of enforcement, you know---- Ms. Frankel. Got it. And what is the poaching? Ms. Huizar. If I could maybe get to that as well, I think for both mandatory agreements and for poaching it boils down to a worker's ability and incentive to come forward. I think with mandatory agreements if a worker knows that the arbitrator is going to be paid by the employer and they won't be able to appeal their case in any significant way they really have no incentive to come forward. When it comes to poaching agreements, I think we are seeing more---- Ms. Frankel. What does that mean? I am sorry to be ignorant about that, but---- Ms. Huizar. In most cases, and especially, I think, in the low-wage industries, we are seeing that employers are basically coming to agreements with their competitors, where they say, ``You are not going to hire my workers if I fire them or if they leave.'' Ms. Frankel. Oh. Ms. Huizar. And so in many ways--that is one way in which these no-poaching agreements work. And I think it all ties into the issue of retaliation as well, because if an employee leaves their job or protests, with a no-poaching agreement not only are they losing their job but they are losing their ability to secure a new job, or it is going to be a much harder situation for them. Ms. Frankel. Madam Chair, may I just ask one more question? Ms. DeLauro. Go ahead. Ms. Frankel. I am going to ask a question for Mrs. Bustos. Anyway, no. There was a comment early on about an FLSA proposal, which--maybe it was Mr. Katz who made a mention of an FLSA proposal that you were against. Do you remember that? Mr. Katz. Yes. Ms. DeLauro. Joint employer. Ms. Frankel. Yeah. Could you just explain what--how that impacts all this? Mr. Katz. Yes. That was in reference to a proposal, I believe it was issued by the Department of Labor last week, which would cut back on the entities that would be considered joint employers under the Fair Labor Standards Act. Basically the DOL has proposed a regulation which would have a four-part test which would essentially move us back a full generation, you know, failing to recognize sort of what is the structure of the present workplace, failing to recognize, you know, the widespread use of outsourcing subcontractors, et cetera, so that the business entities that are controlling the workplaces can attempt to avoid liability for unpaid wages within the workplace that they control. The DOL regulation would essentially cut off any possibility that large numbers of low-wage workers would be able to get any type of remedy. Ms. Frankel. Thank you. Ms. DeLauro. Congressman Harris. Mr. Harris. Thank you very much, and let me follow up on that with you, Mr. DeCamp, because in your testimony you say that, you know, the department's recent joint employment regulatory proposals are fair, sensible, even-handed approaches. And I know I had a lot of complaints with the last administration joint employer proposal, a lot of complaints from small businesses, especially franchise owners, in my district. So could you explain why you feel they are a fair, sensible, and even-handed approach? Mr. DeCamp. I think that where the department is going now is consistent with where the FLSA has been historically. I think that, historically, when Congress passed the FLSA, and for decades since, it was clear that certain types of business arrangements did not constitute joint employment, things like traditional franchising, things like traditional bona fide contracting and subcontracting relationships where somebody up the chain is not actually directing the work and controlling the employment. That, traditionally, was not seen as giving rise to a joint employment situation. I think during the last administration the waters got muddied a bit and there were some aggressive attempts to use the concept of fissured workplace as a way to assign broader responsibility to other individuals and other entities who historically would not have been regarded as employers. And we saw some case law start to develop going down that road. And I think that what the current DOL proposal does is to walk back perhaps the last five years of the most out-there case law. The department already, at the start of the Administration, withdrew some of the department's informal guidance that came out on some of these issues and this joint employment regulation follows through with that, restoring the notion of who is and is not an employer. It is not going to answer every single question with clarity, but I think it does reset the balance in a way that is very much in line with what Congress intended when it passed the law and the way it was enforced and understood for more than 70 years. Mr. Harris. Okay. And, Mr. Katz, do you think that my franchisees have a point about the problems with the joint employer guidance of the last administration? It would have made, you know, McDonald's, for instance, responsible for their franchisees' employees. Mr. Katz. I would need to have more specific information, specific facts in any situation about who would be responsible. What I would say is the following, that the problem that the Administration, you know, was trying to address, in the joint employment and the guidance that was issued in 2015, directly addressed a critical problem that we see in this economy, which is that businesses that essentially own and control the workplace are structuring the workplace so as to attempt to avoid responsibility for violations of the law in the workplace that they own and control. Mr. Harris. Okay. So, yeah. So, I mean, obviously, McDonald's doesn't control the workplace of its franchisees, so we are probably in agreement on that, I guess. Mr. DeCamp, there is--you know, problems arise with the tipped worker. Could you go through where the problems arise with determination of whether tipped workers are being--you know, are being paid legally, under the law? Mr. DeCamp. That problem goes back to the 1960s, when the FLSA first applied to restaurant employees and hospitality. It has been confusing everybody since, because there have been numerous Department of Labor regulations and subregulatory pronouncement the courts have held to be inconsistent with the statute. There is ongoing litigation about who is and is not a tipped employee, what hours of work a tipped employee can get paid a tip credit wage as opposed to full minimum wage. That is ongoing and in dispute. The Department of Labor has changed position on some of these issues over time. There has been recent statutory amendment to address part of these issues. And so that is a real challenge for restaurants, even knowing what they are supposed to do. How do I pay my people? I mean, a restaurant is not a complicated business situation, for the most part. People work in a building, by and large, and there are vertical relationships within that structure. It should not be difficult. It should not require levels and levels of Federal litigation and regulation to try to understand, does this person get $2.13 an hour or more, under State law, or does this person have to get full State and Federal minimum wage for this particular work or for their entire work? It has been maddening. Mr. Harris. So you think the current law is just ambiguous, I mean, it creates gray zones? Mr. DeCamp. I think the statute is clear enough. I think that the subregulatory pronouncements and the regulations have been ambiguous to the point of disaster. Mr. Harris. Okay. Thank you very much. I yield back, Madam Chair. Ms. DeLauro. Just a point of clarification. It is my understanding, and for my colleague, as well, Mr. Katz, it would appear that McDonald's controls how franchisees fry the fries, what uniforms they wear, how they set up the store, and there are many, many employment practices that they dictate to their franchisees. With that, if I can, in 2009, the survey that NELP did found that workers who made a complaint to their employer, there was a stunning 43 percent experienced one or more forms of illegal retaliation. Easy to imagine how this might have a chilling effect in the workplace, keep many victims of wage theft silent, hindering the efforts of enforcement agencies to learn about many violations. Mr. Katz, can you discuss some examples of retaliation you have seen by employers and supervisors on workers? Can you walk us through the kinds of experiences that workers may live through when they stay silent? And, Ms. Huizar, you have talked about employer retaliation in your testimony, how this challenge affects the efforts of the Wage and Hour Division, State labor departments, and State attorneys general to crack down on violating employers. Mr. Katz. Mr. Katz. Thank you, Congresswoman DeLauro. A couple of points. Number one, when people stay silent about wage theft because they are intimidated, they justifiably fear retaliation, the results are fairly straightforward. They don't get paid the wages they law requires them to be paid. They live in poverty. They can't afford what they should be putting on the table or, you know, for their kids. They can't get their kids medical care. And it essentially keeps people in poverty. And we are talking about individuals who, in response, are often working two and three jobs. So that when people are not paid the wage they should be paid, and when, for various reasons, including the potential for retaliation, keep them silent, then it means that they and, by extension, oftentimes, the community they live in, are in poverty. I can think of one specific incidence of retaliation which had such widespread effects. There were immigrant laborers who were working on a public construction site in Washington, D.C., who should have been paid prevailing wage. Literally the day before that worksite was going to be subject to an investigation by the Wage and Hour Division, the employer went around the worksite handing out little slips of paper that had the figure $38 on it. And the individuals asked, ``What is that?'' and the employer said, ``That is the wage I want you to tell the investigators that you are earning,'' even though these individuals were earning between $18 and $20 an hour. They were being paid less than they should have been paid. So the employer had them essentially lie to Wage and Hour investigators, and then the laborers protested this and sought advice from a workers' rights clinic, the individual who first sought advice was fired. Not only was he fired, the employer called him up and said, ``Don't talk to anybody about this. We know where your family lives. And if you give us any more problems we are going to make sure you and your family are deported.'' Okay. So that individual literally had to move away from his family in order to attempt to, you know, seek a remedy for the unpaid wages. The employer let it be known that that was the employer's position, and a number of the other employees on that worksite, who had originally sought legal assistance, you know, to remedy these unpaid wages, then sort of withdrew their complaints and did not pursue their unpaid wages. Ms. DeLauro. Ms. Huizar, and then I will get you. Ms. Huizar. Yes. Thank you. I think when it comes to the issue of retaliation it is important to recognize that it is a sort of foundational issue when it comes to wage theft, because if workers cannot come forward in a system that depends on them to bring complaints and that depends on them to collaborate with investigators, we can't hope to actually enforce the law or to make our minimum wage a reality for workers. We also know--and I think as Mr. Katz's stories, accounts tell us--retaliation can be incredibly subtle, it can come in different forms, and what agencies at the State, local, and Federal level need to do is recognize that it stands as a barrier to everything else that they are doing, and they must not only fast-track complaints that come in alleging retaliation but they must also proactively look for retaliation in cases, hold employers accountable with harsh penalties, in order to put them on notice that this is not going to be tolerated conduct and that it cannot possibly shape employees' decisions whether or not to come forward. And I will also just say, on the joint employer issue, if I may, I think going back to that for a second, it is a standard that has been around for decades, and I think a key thing to remember is that the Fair Labor Standards Act uses the term ``suffer or permit to work'' in order to figure out who is an employer, and that is markedly different from the common law. It is a standard that has been developed mostly in the subcontracting and contracting context, and it is only recently, with sort of an outlier case in the McDonald's sort of franchise context, that the standard has become as controversial as it has been. But we have decades of case law and precedent showing us that it is a crucial or necessary standard and that we are capable, both as enforcement agencies, lawyers, advocates in employing it adequately. Ms. DeLauro. I am going to allow Mr. DeCamp to respond. Mr. DeCamp. Just very quickly. Thank you, Madam Chairwoman. Ms. DeLauro. Sure. Mr. DeCamp. I am not familiar with the specific circumstances that Mr. Katz described with regard to retaliation, but assuming those facts to be true, an employer that did those things would seem to be guilty of multiple Federal felonies. And so I think there are already existing robust remedies to deal with an employer that directs employees not to speak with Federal investigators or to lie to Federal investigators in the course of a Federal investigation or to threaten deportation in that process. There is already a structure to deal with that. Ms. DeLauro. I understand that and I appreciate the comment very, very much. But when you are someone who is fearful of your livelihood, when you are fearful that you and your family may be deported, it doesn't make any difference, and that you don't know what is on the books and what your rights are. You just know that if you keep your mouth shut you are going to be all right, and if you don't, you and your family are going to suffer. So that is a reality that we know today. Thank you. Congressman Cole. Mr. Cole. Thank you very much, Madam Chair. I am going to give all of you a rare privilege. I am going to let you--I had the good fortune to sit where my friend, the chair, sits now, and she is going to have to mark up a bill pretty soon, and she is going to have a lot of difficult tradeoffs. We are not going to make you make any of the tradeoffs. But it is interesting to me, as I look at this, the administration has actually requested a very modest increase in funding here. I would suspect that at least a number of you would propose more. And we spend about $228-, $229,000,000 a year now, and they are asking for a $4,000,000 increase. You know, if you wanted to take a ballpark figure, what would be appropriate? Because we all agree this is an important area of enforcement. You have all agreed that this is an area where more money would be a good thing. So, you know, if you had to make the decision that my poor friend has to make, what would you recommend? Mr. Katz. For the amount of money for enforcement? Mr. Cole. No. Just the overall budget. And I say that because, look, our allocation, probably, for this subcommittee, will be higher than the Administration has requested. So there will be extra money available. The problem here is always the competing priorities you have over a vast jurisdiction. I mean, this is $228,000,000 piece of a $180,000,000,000-plus budget, so it is not a big item here. So the real thing is, what would be enough to make a difference, to do the good that you all say can be done here? I am just curious. How would you ballpark this? How would you size this? And, frankly, you know, when you make these considerations, I can tell you, having been a chairman, you are sometimes thinking multiple years too, because you recognize you can give them more than they can spend or staff up to, so sometimes you lay out a path going forward. My friend and I have done that at the NIH and other agencies before. So I am just curious what your professional opinion is. What would be right-sizing this department, if you will, or division? Mr. Katz. I must admit, Congressman, I sort of do not have enough understanding of the broad parts of the budgetary process. The one point I think I would offer is that we have heard that the number of Wage and Hour investigators in the Wage and Hour Division is the same as existed in 1948, and our workforce is approximately seven times larger now. So I would propose a budget that essentially says we need as many investigators now as we had in 1948, so let's take the budget specifically for those investigators and multiply it by seven. Mr. Cole. Mr. DeCamp. Mr. DeCamp. I wouldn't go quite that far, but I would suggest that increasing the number of investigators by about 25 or 30 percent over a five- or six-year period would be appropriate and in line with where the agency has been historically. It is important not to grow too fast, too soon, or else you risk quality control, in terms of intake and training. But graduated increases in staffing levels would be appropriate and beneficial. Mr. Cole. Thank you. General Raoul. Mr. Raoul. Congressman, I honestly have to sort of punt on this. Mr. Cole. That is fair enough. It is a very unfair question. Mr. Raoul. You know, all I can say is that the U.S. Department of Labor has been an important partner to us at the State level, and just appropriately resourcing it could be helpful to us, in terms of State and Federal. Ms. Huizar. Thank you. I do think we have a long way to go before we are back at 1948 levels, and, you know, barring being able to invest seven times more into the budget I think 25 percent of an increase to the Wage and Hour Division's budget over two years would go a long way to helping the agency do the most that it can with the resources that it has. Mr. Cole. These are tricky questions because, I will tell you, you know, we do not need an army seven times bigger than it was in 1948. There are lots of tools, lots of other things that you have to factor in here. But it is just one of the tough things that you can see. But we clearly have a consensus that there is a need for an increase here, and you even have it from the Administration at some level. So that is helpful, I think, for all of us to know as we make tough decisions. I don't have anything else. I will yield back, Madam Chair. Ms. DeLauro. Congressman Harris. Mr. Harris. Thanks. Just very briefly, just to follow up on that, you know, my understanding is, you know, 29 states and the District of Columbia have a higher minimum wage than the U.S. If a state enacts a higher minimum wage, why shouldn't it assume more responsibility for policing that minimum wage? I mean, you all come here and say, ``Well, you know, the Federal Government should be policing it,'' but, in fact, states, and Attorney General Raoul, I am pretty sure Illinois has a higher minimum wage--Maryland has a higher minimum wage. When the legislature takes that action, why doesn't it preempt the Federal Government from actually enforcing that higher minimum wage? Because you mentioned, you know, we partner with you, but, in fact, you know, if a state is going to say, ``Look, we want to be avant garde here. We want to be ahead of everyone else,'' why shouldn't more of the enforcement fall on the state? And I am interested on minimum wage. Obviously there are other things the Wage and Hour Division does. Mr. Raoul. Certainly. I don't dispute you on that, and as I indicated in my opening remarks that there are a few state attorneys general who are actually active in this space at all. So to the extent that we are active, and I have asked of my State legislature appropriations to allow me to at least have an investigator, and a few more attorneys to do just that. But other states, who may have minimum wages that may mirror the Federal minimum wage, may not even have an active attorney general in this space whatsoever. So I don't dispute you. Mr. Harris. And I think that would be appropriate. I mean, if you are not going to say that we are going to pay a higher minimum wage, then the Federal Government should be enforcing the minimum wage in that state, but it just--again, it is just puzzling to me. And I am glad you are quite honest about it, you know, that the state should undertake some of the responsibility. Mr. Raoul. I would say, Congressman, the example that I gave in my opening remarks involved a Chinese-style buffet restaurant that was paying less than the Federal minimum wage, and that was a state-enforced action. Mr. Harris. Good for you. Thank you very much. I yield back, Madam Chair. Ms. DeLauro. Thank you. Just a point to my colleague, and one specific to minimum wage. But Georgia, Alabama, Florida, Louisiana, and Mississippi, there is no state-level enforcement, claims, whether it is wage theft, need to be filed directly with the U.S. Department of Labor. So there are a number of states who do not have this capacity that Illinois has had. Mr. Harris. If the chair would just yield, but do they have a higher minimum wage than the Federal Government? Ms. DeLauro. That is not something I know, but I think that we have places where there is little---- Mr. Harris. Again, you know---- Ms. DeLauro. I tend to look at---- Mr. Harris. You know my point on this. Ms. DeLauro [continuing]. No, yeah, I do know your point. Mr. Harris. Having served on a legislature, you know, if we are going to raise the minimum wage we should actually take some responsibility for enforcing it. Ms. DeLauro. Always. Let's do it. Let's go to $15 an hour and take the responsibility. Congressman Cole, just wrapping it up. Mr. Cole. I don't want any remarks I made to be confused with agreeing to that particular proposal. But I want to sincerely thank the chair for this hearing. It has been, I think, a very, very good hearing. And I want to thank each and every one of you. I found your testimony, you know, really educational to me, as a legislator. I found the interchange good. And when you leave this place please go tell other people that we don't always fight up here, that we actually do occasionally look for common solutions, and this is an area where we clearly need to do a little bit better than we have been doing. You all agree on that. And, as I said, even the Administration, at some level, thinks so as well. So I think this has been, Madam Chair, very helpful to all of us, to sort of sit down and think through some of these issues, and I thank you very, very much for taking your time, providing your expertise and your perspectives to the subcommittee. Thank you, Madam Chair. Ms. DeLauro. Thank you very, very much, and thank you again to our panelists. This has been a very unbelievably rich hearing, rich in the information, and also the bi-play and different points of view, which, in some instances, are maybe not as far apart as sometimes even, you know, political people would like to make them, but they are not. I think there was overall a basic--there is a magnitude, that the problem is widespread. It is nationwide. And whether or not, in my views, what I said in my opening remarks, we need to call it what it is when we are looking at infringement of the act, and to be able to address that. But also I think that--and I would mention that because the increases that you talk about, or the way that we can deal with this--in this budget we are looking at, you know, a $3,500,000, $3,600,000--$3,800,000 increase, most of which has been relegated to information technology. And, you know, it would seem that that is not where the gaps are at Wage and Hour, that there are much more serious gaps that we can address from this subcommittee. And I would talk about--and I want to place into the record--with unanimous consent I ask for placing into the record the piece by the former Wage and Hour Division Director, ``Creating a Strategic Enforcement Approach to Address Wage Theft: One Academic's Journey in Organizational Change.'' I think that this is a document that can provide and help us with a roadmap of how we go about looking at a place where we can't provide all of the resources that the agency needs of all of a sudden, or, you know, but how you do deal with a creative way in which to address an issue that has an unbelievable impact on the lives of workers today, millions of workers today, whether or not they are fearful of the retaliation or whether or not they are willing to speak up, and look for a way to be made whole. We have always said, in this country, we want to pay people a fair day's work--a fair wage for a fair day's work. That is what the premise is underlying here. That is what the law states. So that you have been enormously helpful in shining a light at ways in which we might address the issue. And I would just ask--I know we are asking a lot--if there are ways, other than in your testimony--and we will scour the testimony for looking at recommendations--but if there are other recommendations that you can make to us, as we are putting this piece of legislation together, not unlike what the ranking member asked in terms of where increases are. There are other areas, please get that to us so that we can help Wage and Hour, but we can help the workers, which they are there to protect. Thank you very, very much, and the hearing is closed. Thank you. [Material submitted for inclusion in the record follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]