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GOP Overreacts To CMS 'Gag Order' GOP Overreacts To CMS 'Gag Order'

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Legacy Content / RULES OF THE GAME

GOP Overreacts To CMS 'Gag Order'

Agency Is Within Its Rights To Investigate Whether Humana Used Medicare List Improperly

September 28, 2009

Congressional Republicans have worked themselves into a high dudgeon over a Health and Human Services department probe into one insurance company's controversial lobbying activities.

Not content to blast the investigation in angry letters and floor statements, GOP lawmakers have now threatened to block all HHS nominees from confirmation until the agency reverses course.

At issue is whether insurance company Humana, Inc., violated federal rules when it warned some of its Medicare Advantage clients in a mailing that pending health care legislation could slash their benefits.


Lost in all the righteous indignation are some basic facts about Humana's obligations as a government contractor.

Humana is one of several private health plans that contracts with the Centers for Medicare & Medicaid Services, a division of HHS, to cover Medicare beneficiaries under the Medicare Advantage and Part D programs. As part of that contract, Humana agrees to submit benefit information to CMS for advance review.

CMS maintains that Humana's mailing violated that agreement, and this month instructed Humana, and all private Medicare Advantage providers, to "immediately discontinue all such mailings" until it completes an investigation. CMS acted at the urging of Senate Finance Chairman Max Baucus, D-Mont., who in a statement called it "wholly unacceptable for insurance companies to mislead seniors."

GOP response was swift and aggressive. Senate Minority Leader Mitch McConnell, R-Ky., charged on the Senate floor that "the administration and its allies are now attacking citizen groups and stifling free speech."

Rep. Dave Camp, R-Mich., the ranking Republican on the House Ways and Means Committee, demanded that CMS turn over "all documents and communications" regarding the probe, warning the agency may have faced "undue political pressure." Camp demanded to know why the AARP, which has spent millions to lobby for heath care changes and is also a Medicare Advantage provider, received no such scrutiny.

Sen. Jon Kyl, R-Ariz., tried without success during the Finance Committee's health care markup last week to win approval for an amendment that would have protected insurance companies' right to communicate with Medicare beneficiaries on pending legislation. Conservative bloggers, activists and editorial writers weighed in, attacking the CMS "gag order" as a gross First Amendment violation.

Most recently, McConnell and seven other Senate Republicans wrote to HHS Secretary Kathleen Sebelius, pledging to block confirmation of any nominees to the agency until HHS "rescinds its gag order and allows seniors to receive information about matters before Congress." The letter cites the senators' "grave concern" over the HHS decision to "shut down communication between private companies and America's seniors on an issue that has a direct impact on their health care."

Lost in all this righteous indignation are some basic facts about Humana's role and obligations as a government contractor. Humana's communications did not take the form of a generic advertising campaign or mass mailing -- something the insurer was and remains free to do. Rather, Humana mailed a letter to Medicare Advantage members whose names and addresses were provided by the federal government.

Part of what CMS is investigating is "how protected information may have been used," according to a CMS spokesman who responded to questions via e-mail. "We are looking into whether the company misused beneficiaries' personal information."

In its memo to Medicare Advantage insurers, CMS stated that "such communications are potentially contrary to federal regulations and guidance... and other federal law, including HIPAA" (the Health Insurance Portability and Accountability Act of 1996, which includes privacy and security protections for health data.)

To be sure, the Supreme Court has recognized the right of federal grantees to speak out on policy issues, as long as they fund those activities with their own (not federal) money. Humana officials "believe these informational and educational materials did not require a filing with the agency," a company spokesman stated.

In their letter to Sebelius, GOP senators complained that the CMS action contradicts HHS's stated policy regarding health plan communications with members. Republicans also object that CMS not only asked Humana to halt its mailings, which called on clients to contact their members of Congress, but to take down a Web page posting a similar message.

Still, the use of a federally-provided mailing list for lobbying activities raises legitimate questions. That's one reason why the Humana mailings differ from lobbying by the AARP. The AARP has, indeed, spent millions on TV ads and newsletters promoting health care reform. But none of it was done using federally-provided lists, an AARP spokesman said. As one Senate Democratic aide pointed out: "Humana is perfectly welcome to take out ads and send out mailers to... everyone in the country if they wanted to."

One reason the Humana dispute has gotten so overheated is that CMS called the insurer's Medicare warnings "misleading and confusing to beneficiaries." Republicans retort that Humana was spot on, and that its Medicare message was accurate. There's plenty of room for disagreement over whether Medicare Advantage plans should be trimmed to rein in soaring health care costs, and whether proposed health care changes will actually cut benefits for seniors.

But that's not the real issue here. The question is: Does CMS have a right to investigate whether a federal contractor misused a government mailing list? On that score, the HHS probe appears well within bounds. If anything, it's the GOP's dire warnings and threats of retaliation that begin to step over the line.

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