CMS Lays Out Policy for Insurers To Address Overhaul With Members

On Friday, the White House decided not to enforce a ban on insurance company mailings to seniors claiming that Medicare benefits would be cut drastically if health care legislation is enacted, the AP/Atlanta Journal-Constitution reports (Alonso-Zaldivar, AP/Atlanta Journal-Constitution, 10/16).

In a memo to insurers sent Friday, CMS said that insurance companies can communicate with Medicare beneficiaries on pending legislation as long as the mailings are not funded with federal money. CMS also said that insurers must first obtain permission from beneficiaries in writing, by phone or on a Web site before sending them information about legislation or lobbying their support for grassroots advocacy efforts (Pear, New York Times, 10/17).

The Back Story

In September, Senate Finance Committee Chair Max Baucus (D-Mont.) requested that HHS investigate mailings sent by the private insurer Humana to its Medicare enrollees outlining proposed cuts to their benefits included in Baucus' health care legislation.

CMS responded with a letter to Humana ordering the company to cease the mailings and take down related information from its Web site (California Healthline, 9/23).

Republicans railed against the letter, characterizing it as a "gag order" and a threat to free speech rights. They also threatened to block confirmation of the administration's HHS appointments if the policy was not rescinded (New York Times, 10/17).

Response

Republicans portrayed the Friday announcement as a reversal of the "gag order" and claimed a political victory against the White House (Reichard/Norman, CQ HealthBeat, 10/16).

House Ways and Means Committee ranking member Dave Camp (R-Mich.) said, "I am relieved that the administration is no longer misusing its regulatory authority to prohibit plans from communicating factual information to seniors about the Medicare cuts in health care reform" (New York Times, 10/17).

CMS spokesperson Peter Ashkenaz said the agency is not "backing away from" any previous directives (CQ HealthBeat, 10/16). He added, "We've never said the plans can't mail information like that. We said they can't use federal dollars to pay for the mailings or federal data -- like lists of plan enrollees that they have only because those enrollees are Medicare beneficiaries."

Friday's announcements "just describe the rules the plans need to follow," he said (Frates, "Live Pulse," Politico, 10/16).

Humana Receives 'Notice of Noncompliance'

On Friday, CMS officials sent a "notice of noncompliance" to Humana stating that the company violated its "data use agreement" with the government by using records of Medicare enrollees to contact beneficiaries (New York Times, 10/17).

The letter also chastised Humana for statements printed on the envelopes of the messages to seniors stating, "Important Information about your Medicare Advantage Plan -- open today!"

Because enrollees soon will begin to receive required annual notices about changes to their plans, CMS said it was "particularly concerned that this mailing could mislead or confuse beneficiaries."

CMS' letter to Humana contained no information about penalties to the company and "said it concluded the matter," CQ HealthBeat reports (CQ HealthBeat, 10/16).