Washington, DC – Today, the Centers for Medicare and Medicaid Services (CMS) announced that the Agency was backing away from its inappropriate and unconstitutional gag order on all Medicare Advantage (MA) and prescription drug plans. On September 21, 2009, CMS issued an order prohibiting all MA and prescription drug plans from communicating with seniors about the Medicare cuts in health care reform. This gag order reversed long-standing Clinton Administration guidance to plans.
Ways and Means Ranking Member Dave Camp stated, “I am relieved that the Administration is no longer misusing its regulatory authority to prohibit plans from communicating to seniors factual information about the Medicare cuts in health care reform. However, I remain concerned that CMS overstepped in issuing its gag order as a result of undue political pressure to penalize anyone who dare speak out against the Democrats’ health care bill. We still need to get the answers to how and why this gag order was issued.”
The quick issuance and reversal of this policy calls into question the validity of CMS’ decisions and the possible role political influence played in the misapplication of its regulatory authority. While CMS has taken steps to rectify the damage caused by its actions in September, Congress still must understand how these mistakes were made. To date CMS has not responded to the request to provide documents related to the process that led to the issuing of the gag order. Additionally, Ranking Member Camp and the Republican Members of the Committee on Ways and Means are awaiting a report by the Inspector General of Health and Human Services about the role politics played in the Agency’s regulatory process.
CMS’ clarified guidance restates existing law and regulation that affirms MA and prescription drug plans have the right to communicate with seniors about legislation as long as plans do not use federal resources to do so. Furthermore, CMS is no longer challenging the accuracy of the statement that, “millions of seniors and disabled individuals [who] could lose many of the important benefits and services that make Medicare advantage health plans so valuable.”
Since CMS launched an investigation into Humana, Inc. and then shortly thereafter issued a gag order on all plans, Republican Members of the Ways and Means Committee sent the following letters:
September 21, 2009 letter from Ranking Member Camp to CMS asking the Agency to repeal the gag order and clarify that plans can legally communicate with seniors about legislation.
September 23, 2009 letter from Ranking Member Camp to CMS asking the Agency to provide all documents related to CMS decision making in this area.
September 24, 2009 letter from Republican Members of the Ways and Means Committee to Chairman Rangel asking for a hearing on CMS’ gag order.
October 2, 2009 letter from Republican Members of the Ways and Means Committee to HHS Inspector General Levinson requesting an investigation into the role politics played in CMS decision making.
October 7, 2009 letter from Republican Members of the Ways and Means Committee to Secretary Sebelius asking her to instruct CMS to repeal the gag order based on her statement that CMS cannot prohibit all plan communications.
October 16, 2009 letter from Health Subcommittee Ranking Member Herger to Secretary Sebelius about the validity of CMS investigation and the lack of oversight into co-branding partners actions.