Skip to content

CMS Gag Order Contradicts Policy Set by Clinton Administration

September 24, 2009

Washington, DC – Ways and Means Ranking Member Dave Camp (R-MI) today exposed a letter from the Clinton Administration clearly stating that private health care plans offering Medicare benefits have the right to inform their enrollees about pending legislation.  Earlier this week, however, CMS inexplicably reversed that long-standing policy by placing a gag order on Medicare Advantage plans and initiating an investigation of Humana for educating seniors about Medicare benefit cuts proposed by President Obama and Congressional Democrats.

“The more we uncover about this gag order, the more disturbing it becomes,” said Camp.  “The White House is trying to keep seniors from learning the facts about their proposed Medicare cuts.  Reversing precedent and abusing the federal government’s regulatory authority to restrict the constitutionally protected flow of information is wrong and unethical.  We need to get to the bottom of this and we need to make sure all Americans, and especially seniors, know the facts about what the President and Congressional Democrats’ health care bill will mean for them.”

The CMS gag order and investigation came as a result of a Medicare Advantage plan, Humana, providing accurate information to its members about the impact of proposed Medicare Advantage cuts.  Those facts are supported by the expert analysis from the non-partisan Congressional Budget Office, which found that proposed cuts to Medicare Advantage could cause millions of seniors to lose access to their plans and others could see their benefits cut or out-of-pocket costs go up. 

CMS’ unprecedented action is in direct conflict with its own guidance issued during the Clinton Administration.On the topic of whether or not a Medicare HMO could inform seniors about legislation, Bruce Merlin Fried, who after serving as a Member of the Clinton/Gore transition team, went onto become director of then-HCFA’s Center for Health Plans and Providers, instructed health plans in 1997 that, “prohibiting such information would violate basic freedom of speech and other constitutional rights of the Medicare beneficiary as a citizen.  As long as member materials that discuss the rights and responsibilities of the member and the HMO with regard to HMO membership are not misrepresented in the context of this article, we see no reason for prohibiting the distribution of information.”

CMS’ policy also appears to be at odds with Supreme Court decisions such as the landmark 1980 decision in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.  In that case, the Supreme Court made it clear that the government cannot restrict truthful, non-misleading commercial speech unless it demonstrates that its actions “directly advance” a substantial state interest and are no more extensive than necessary to serve that interest. 

“CMS has yet to tell me or the American people why the agency reversed its stance and took this action,” said Camp.  “The fact is they can’t defend it and they can’t point to a single case or guideline that gives them the authority to ban companies from sharing the facts about Democrats’ health care bill with America’s seniors.”