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Government Instructing Private Corporation To Stop Expressing Certain Opinions About Health Care Reform?

Here's a letter from the Department of Health & Human Services Centers for Medicare & Medicaid Services (CMS) to Humana, Inc., a leading health insurance company; the letter is apparently demanding that Humana stop sending this mailing.

Dear Ms. Miller/Ms Kelly:

CMS has learned that Humana has been contacting enrollees in one or more of its plans and alleging that current health care reform legislation affecting Medicare could hurt "millions of seniors and disabled individuals [who] could lose many of the important benefits and services [emphasis in original document] that make Medicare advantage health plans so valuable." The message, which is included in an envelope that states it contains "important information about your Medicare Advantage plan—open today!," makes several other claims about the legislation and how it will be detrimental to enrollees, ultimately urging enrollees to contact their congressional representatives to protest the actions referenced in the letter (see attachment).

CMS is concerned that, among other things, this information is misleading and confusing to beneficiaries, represents information to beneficiaries as official communications about the Medicare Advantage program, and is potentially contrary to federal regulations and guidance for the MA and Part D programs and other federal law, including HIPAA. As we continue our research into this issue, we are instructing you to end immediately all such mailings to beneficiaries and to remove any related materials directed to Medicare enrollees from your website.

Please be advised that we take this matter very seriously and, based upon the findings of our investigation, will pursue compliance and enforcement actions....

As best I can tell, the statements in the Humana mailer contained constitutionally protected opinion. Whether it's "misleading and confusing" naturally depends on how you interpret the mailer, and the various health care proposals. But precisely because the terms are so mushy, political advocacy (as opposed to commercial advertising) can't be restricted simply on the grounds that it's "misleading and confusing." Even knowingly false statements of fact about the government are generally constitutionally protected; it's possible that knowingly false statements of fact about particular legal proposals are not protected, but I've never seen any cases that extend such a false-statements-of-fact First Amendment exception to statements that are merely "misleading and confusing." (I suspect also that if HHS had the goods on why the statements were supposedly outright false, it would have said so.)

It's possible that the claim about the envelope's supposedly "represent[ing] information to beneficiaries as official communications about the Medicare Advantage program" is an allegation of outright knowing falsehood. I couldn't find a copy of the envelope that the HHS letter complains about; if you can point me to it, I'd be much obliged. But the HHS letter complains about the content of the mailing as well as the envelope, and the "instruct[ion]" "to end immediately all such mailings to beneficiaries and to remove any related materials directed to Medicare enrollees from your website" seems to cover the content and not just the envelope.

There's also a separate question about whether "instruct[ing]" a private company to stop certain speech, before any adjudication that the speech is unprotected, is a prior restraint. Presumably threats to prosecute or sue based on assertedly unprotected speech are generally permissible, if the speech is indeed unprotected, but an overt order — which is how the letter is framed — is generally not. But that to me is something of a tangent; I don't see any basis for how the contents of the letter can even be subject to subsequent punishment, much less a prior restraint.

Thanks to InstaPundit for the pointer.

Related Posts (on one page):

  1. The Humana Controversy and Government Funding:
  2. Government Instructing Private Corporation To Stop Expressing Certain Opinions About Health Care Reform?
ruuffles (mail) (www):

There's also a separate question about whether "instruct[ing]" a private company to stop certain speech, before any adjudication that the speech is unprotected, is a prior restraint. Presumably threats to prosecute or sue based on assertedly unprotected speech are generally permissible, if the speech is indeed unprotected, but an overt order -- which is how the letter is framed -- is generally not.

How exactly does this letter say anything that a standard "Cease and Desist" letter does not?

By the way, the link is to Huffpo, not Inpu.
9.21.2009 8:13pm
Kazinski:
I think that such unfortunate misunderstandings could be eliminated if the government created some board to provide mandatory guidance to corporations, newspapers, and bloggers and other rabble rousers about their communications with the people. With the government screening this information before it was released we could then rest assured that we wouldn't be lied to or misled.

I for one would feel much safer.
9.21.2009 8:16pm
ShelbyC:

How exactly does this letter say anything that a standard "Cease and Desist" letter does not?


Nothing. Isn't this basically a "Cease and Desist" letter, from the government, ordering someone to "cease and desist" constitutionally protected speech?
9.21.2009 8:16pm
ruuffles (mail) (www):

Isn't this basically a "Cease and Desist" letter, from the government, ordering someone to "cease and desist" constitutionally protected speech?

Freakin' awesome. So not only does does a corporation have personhood, it also gets to send out these letters that the government doesn't? Do you see anything in the letter in which CMS threatens any action not available to a corporation?
9.21.2009 8:18pm
Oren:

Even knowingly false statements of fact about the government are generally constitutionally protected; it's possible that knowingly false statements of fact about particular legal proposals are not protected, but I've never seen any cases that extend such a false-statements-of-fact First Amendment exception to statements that are merely "misleading and confusing."

You obviously know more than I do about commercial speech doctrine (and the Supreme Court has vacillated on the matter, making your job even more interesting) but doesn't the fact that party directly intends to sell a product by the speech at least enter into the calculus?

Ohralik v. Ohio State Bar Ass'n

We have not discarded the "common-sense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.


At any rate, it's a fascinating case at the intersection of commercial speech (where 'truthful but misleading' can be proscribed) and political speech (where even willful falsehood is protected).
9.21.2009 8:19pm
Officious Intermeddler:
How exactly does this letter say anything that a standard "Cease and Desist" letter does not?


Arguably a C&D letter from HHS is different in degree than a C&D letter from J. Random Crank.

Just sayin'.
9.21.2009 8:20pm
ruuffles (mail) (www):

For the latest expose's by Andrew Breitbart - today, the NEA being instructed and controlled by the White House to advance their agenda, using government funds.

So where was this website post-Patriot Act? Hmm?

If you goto archive.org, you'll see this current version didn't come active until after 2006.
9.21.2009 8:20pm
Arkady:
Your piece mentions compliance, and this, from the WSJ, talks about what that might mean:


Jonathan Blum, CMS's acting director of the Center for Drug and Health Plan Choice, said the agency "places strict limits and oversight on how [Medicare Advantage] plans communicate with beneficiaries. There's a potential violation of CMS's marketing rule."


I don't know, but it appears from the quote that a condition of being able to participate in the government-run Medicare Advantage program, and thus take government money, is agree to the limits (rules) mentioned above. Does anyone if this is true and what those rules are?

I note also that it was Senator Baucus that requested the action.
9.21.2009 8:27pm
ShelbyC:

So not only does does a corporation have personhood, it also gets to send out these letters that the government doesn't? Do you see anything in the letter in which CMS threatens any action not available to a corporation?


Yeah, and a private citizen (even acting on behalf of a corporation) can tell random people on the street, "Can you step over here please, put you hands on the wall and spread your feet apart. OK, now please get the the back seat of my car, I'm going to take you downtown" for no reason. But uniformed police officers can't! I wonder what the world's coming to?
9.21.2009 8:28pm
BGates:
the fact that party directly intends to sell a product by the speech

What are they selling? Membership in the Humana Partner program? They're not charging for that, which I'd think would be an important component of a sale.
9.21.2009 8:30pm
shertaugh:
We'd all be better off if Congress's next budget bill includes a line that all persons receiving federal funding for a specific purpose are barred from saying, or required to say, certain things that relate directly to the funding.

For example, if Congress can bar persons receiving money for family planning from mentioning abortion (Rust v. Sullivan), why can't Congress bar insurers from expressing a position contrary to the limits set by Congress.

If Congress controls the food supply, and insurers get fat at the congressional feeding trough, then the insurers should man-up and keep quiet . . . if that's what Congress wants.

It worked in Rust.
9.21.2009 8:34pm
Officious Intermeddler:
We'd all be better off if Congress's next budget bill includes a line that all persons receiving federal funding for a specific purpose are barred from saying, or required to say, certain things that relate directly to the funding.


Personally I think we'd all be better off if the courts would respect the First Amendment and stop coming up with nonsense like Rust that exalts the power of the government. But that's me. YMMV.
9.21.2009 8:37pm
PeteP:
Ruuffles - if you had had an actual point to make, what do you imagine it might have been ?

I said http://biggovernment.com/ is a new website - and it is ( In terms of suddenly becoming widely known and read ).

You asked "So where was this website post-Patriot Act? Hmm?"

Well, seeing as the timeframe you specify includes today, it is exactly at the URL above, as I stated.

The key things about it, IMO are A ) he has name recognition / insider contacts, and B ) the money to keep the site alive ( against inevitable attempts to take it down ).

That, and he's breaking NEW news, like the Acorn tapes that have brought down ACORN.
9.21.2009 8:48pm
rc:
BGates: "What are they selling? Membership in the Humana Partner program?"

This is an interesting point, because the gubment's position is that anyone who wants to keep their insurance won't lose it. So from the gubment's worldview, the insurance company isn't 'selling' anything.

The gubment can charge the company for fraud, or accuse them of political speech violations, but the government's very own stand is that there will be no change for those who wish to keep their coverage. And since these messages were sent out to existing customers, they're 'selling' nothing.

Unless of course the government is actually a competing company, and that changes everything. Incidentally, is the government willing to subject itself to all the rules, restrictions and oversight as a corporation? Can it?

No corporation has a Department of Justice. Just another reason why 'public option' is not fair 'option.'
9.21.2009 8:53pm
Ebenezer (mail):

Personally I think we'd all be better off if the courts would respect the First Amendment and stop coming up with nonsense like Rust that exalts the power of the government. But that's me. YMMV.


Personally I think we'd all be better off if corporations weren't treated as people, and concentrated on manufacturing goods and services in exchange for payment, rather than getting involved in politics. But that's me.
9.21.2009 8:58pm
Anderson (mail):
Arguably a C&D letter from HHS is different in degree than a C&D letter from J. Random Crank.

BOO-yeah. CMS imposes penalties first &thinks about them later.

The comment about "strict limits and oversight on how [Medicare Advantage] plans communicate with beneficiaries" may well be correct -- I haven't had the pleasure of litigating this issue with CMS, tho I've tangled with them on other, really boring ones.

But I would hope to see, in CMS's letter, some EXPRESS reference to the SPECIFIC regulation authorizing its threat.
9.21.2009 8:59pm
ShelbyC:

At any rate, it's a fascinating case at the intersection of commercial speech (where 'truthful but misleading' can be proscribed) and political speech (where even willful falsehood is protected).


They dug the Nike shoe case, didn't they? I sure hope we don't expand the "commercial speech" doctrine beyond speech proposing a comercial transaction, to any speech that the speaker hopes to gain commercially from. We can pretty much kiss the 1A goodbye if that happens.
9.21.2009 9:01pm
rc:
ShelbyC "We can pretty much kiss the 1A goodbye if that happens."

'specially if the government goes into business, then prosecutes its competition...
9.21.2009 9:12pm
Officious Intermeddler:
Personally I think we'd all be better off if corporations weren't treated as people, and concentrated on manufacturing goods and services in exchange for payment, rather than getting involved in politics.


There will be rent-seeking by rent-seekers as long as there is rent to seek. Solution: stop dishing out rent.
9.21.2009 9:12pm
Bama 1L:
I wonder if any state insurance commissioners will get involved.
9.21.2009 9:12pm
ShelbyC:

Personally I think we'd all be better off if corporations weren't treated as people, and concentrated on manufacturing goods and services in exchange for payment, rather than getting involved in politics. But that's me.


Of course, many folks find it convienient to form corporations for the purpose of getting involved in politics, like the ACLU, NAACP, etc.
9.21.2009 9:22pm
MedicareCode:
The extremely voluminous regulations that govern how Medicare plans interact with current and potential customers can be found (in part) here: manuals.

In particular, the manual governing advertising and marketing materials can be found here: marketing manual

Undoubtedly, somewhere in this massive pile of verbiage there is a regulation that could be read to prevent a Medicare Advantage plan from doing just about anything. Whether it should be used to restrict advocacy in this way is a pretty debatable proposition.

(By the way, the next time someone tells you that there isn't very much government intervention in health care, point them to the section where the manual specifies the font size to be used in marketing materials.)
9.21.2009 9:26pm
Pyrrhus (mail) (www):
Dear HHS and CMS,

Your letter may contain an impermissible prior restraint. Furthermore, it is potentially confusing and misleading to the public as to there First Amendment rights. As we continue our research into this issue, we are instructing you to end immediately all such mailings to insurance companies and to remove any related materials from your website.

Please be advised that we take this matter very seriously and, based upon the findings of our investigation, will pursue compliance and enforcement actions.

-The Voters
9.21.2009 9:35pm
Brian Garst (www):
This is an administration of bullies, plain and simple. They care nothing about quaint ideas like "rights" or "free speech."
9.21.2009 9:36pm
Brian Garst (www):

Freakin' awesome. So not only does does a corporation have personhood, it also gets to send out these letters that the government doesn't? Do you see anything in the letter in which CMS threatens any action not available to a corporation?

Uh, yes? There's a reason the Constitution says "Congress shall make no law" and not "No one can restrict the right..." Government has a legal monopoly on force and is, therefore, in need of unique restrictions.
9.21.2009 9:39pm
Ebenezer (mail):

Of course, many folks find it convienient to form corporations for the purpose of getting involved in politics, like the ACLU, NAACP, etc.


Yes. I think that's a valid point. But I still think there needs to be of a clear separation between organizations created with the stated purpose of political action and advocacy and those created with a profit motive.

But now I just sound like someone railing against centuries of case law... Who knows... next I may start calling the judiciary, "those tyrants in black robes," or some such nonsense.
9.21.2009 9:42pm
ShelbyC:
Ebenezer:

But I still think there needs to be of a clear separation between organizations created with the stated purpose of political action and advocacy and those created with a profit motive.


Why? What's wrong for organizing for a profit motive? And certainly folks have a right to request political action so they can earn more money, right? Hell, women demanding equal pay have a profit motive.
9.21.2009 9:50pm
govols:
Sorry--I'm not sure why this isn't open and shut with Rust. Unless I misread this, this is a situation where private companies have been given the opportunity to offer Medicare Part C and D. I've never understood such a move in policy terms (other than a slush-fund for Republican donors), but that's neither here nor there. My question--no one's forcing Humana to offer a product the federal government could just as easily (and more cheaply) provide. If they're on the federal teat, I'd argue, they are subject to federal constraints--speech and other. If they weren't, well, this would be an entirely different case.

What am I missing?
9.21.2009 10:01pm
Mac (mail):

Personally I think we'd all be better off if corporations weren't treated as people, and concentrated on manufacturing goods and services in exchange for payment, rather than getting involved in politics.


Ebenezer,

Yeah, that did Microsoft a lot of good under Clinton. I think it is safe to say they learned their lesson about not contributing to political parties.
9.21.2009 10:05pm
Mac (mail):

ShelbyC,
Of course, many folks find it convienient to form corporations for the purpose of getting involved in politics, like the ACLU, NAACP, etc.



Don't forget ACORN and the NEA. Whoops, sorry, the NEA is a neutral tax funded organization. Now, why is it they were on a conference call with the White House to promote his health care agenda along with a lot of recent grantees and potential grantees? Yeah, don't want anyone who earns a profit and pays taxes to be able to speak.
9.21.2009 10:10pm
loki13 (mail):
While I appreciate the effort shown by MedicareCode to track down the relevant portions, I lack the stamina at this date to read them.

However, I still wonder about EV's primary analysis. Let's use a simple example:

Government contracts with company to print ballot envelopes for election. Government specifies what can and cannot be put on to those envelopes (in very specific terms). Printing company decides to also put on the ballot envelopes a lengthy screed in support of certain cnadidates and/or propositions. Government tells them to stop. Analyze.

So I think this is a little more complicated. If Humana had sent out *separate* mailings to these customers and were speaking in their own voice, that would be a clear violation of the 1st Am.. If Humana called them up, again, they could be advocating (and annyoing). But this might be more complicated because of the nature of the speech (perhaps it is mixed goernment speech, a la Beef Council case- as I said, too tired to really think this through right now).
9.21.2009 10:14pm
Steve:
Rust v. Sullivan, 500 U.S. 173 (1991):

Petitioners' reliance on these cases is unavailing, however, because here the government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized. The Secretary's regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities...

In contrast, our "unconstitutional conditions" cases involve situations in which the government has placed a condition on the recipient of the subsidy rather that on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program.


Hard to see how Rust helps the government here. I guess I'm taking for granted that Humana isn't using government funds to send this mailing, but that seems like a safe assumption.

I do think the envelope is a concern, and Humana really shouldn't be allowed to trick people into reading a political message under the guise of "important information about your Medicare Advantage plan," but those are separate issues.
9.21.2009 10:31pm
RBG (mail):

But I still think there needs to be of a clear separation between organizations created with the stated purpose of political action and advocacy and those created with a profit motive.


Ha. It's a good thing most newspapers and other print media don't turn a profit, right? Nothing worse than a profitable media corporation publishing political opinions. Especially in a free nation.
9.21.2009 10:33pm
ShelbyC:

If they're on the federal teat, I'd argue, they are subject to federal constraints--speech and other. If they weren't, well, this would be an entirely different case.


speech and other? how 'bout religion?
9.21.2009 10:36pm
Ebenezer (mail):

Why? What's wrong for organizing for a profit motive? And certainly folks have a right to request political action so they can earn more money, right? Hell, women demanding equal pay have a profit motive.


Yes, but I see a difference between people (individuals) speaking, which I believe they should be able to do for just any purpose or reason, and corporations speaking. (I'm not saying that you have to see it as well)

The added layer of anonymity and unaccountability that corporations grant probably isn't something that the founding fathers envisioned when they thought about the First Amendment. But now I'm sounding like an originalist, which I'm also not... I'm all over the place today...

Honestly though, I'd trade free political speech for Corporations--if they could be tried and put in prison (or executed), for their wrongs, like normal people.
9.21.2009 10:37pm
Ebenezer (mail):
for just [about] any purpose or reason.
9.21.2009 10:38pm
Ebenezer (mail):

Ha. It's a good thing most newspapers and other print media don't turn a profit, right? Nothing worse than a profitable media corporation publishing political opinions. Especially in a free nation.


Because journalism/newspapers didn't exist before the invention of the corporate personhood?
9.21.2009 10:40pm
ShelbyC:

I do think the envelope is a concern, and Humana really shouldn't be allowed to trick people into reading a political message under the guise of "important information about your Medicare Advantage plan," but those are separate issues.


Of course, that gets a little tricky. I get deceptive stuff on envelopes all the time. Envelopes that contain information that the govt disagrees with shouldn't get heightened scrutiny.
9.21.2009 10:42pm
ShelbyC:

Yes, but I see a difference between people (individuals) speaking, which I believe they should be able to do for just any purpose or reason, and corporations speaking. (I'm not saying that you have to see it as well)

The added layer of anonymity and unaccountability that corporations grant probably isn't something that the founding fathers envisioned when they thought about the First Amendment. But now I'm sounding like an originalist, which I'm also not... I'm all over the place today...


Well, corporations don't really speak, do they? That letter was written by a group of individuals acting as an ogranization, seeking to advance their interests. The fact that the govt ficticiously treates the organization as a person doesn't change the fact that what they're doing is threatening to harm the financial interests of individuals in order to cause individuals to stop engaging in constitutionally protected speech, correct?
9.21.2009 10:54pm
Steve:
Envelopes that contain information that the govt disagrees with shouldn't get heightened scrutiny.

I think the government has a pretty clear interest in ensuring that people don't get an envelope saying "important information about your government program" and toss it out assuming it's just another piece of junk mail.

My sense is that the government has actually been fairly aggressive about safeguarding this particular prerogative in the past.
9.21.2009 10:58pm
Sticky (mail):
Eugene, I think you mean to write "HHS" when you say "DHS."

[Whoops, thanks! -EV]
9.21.2009 11:27pm
Angus:
My initial impulse is to side with Humana in this case. The burden would have to be high on the government. That said, I'd have to actually see the envelope and contents to make my decision 100%. I can envision one possibility that would change my mind: if Humana's mailing made it appear as though it was an official communication from Medicare about Medicare benefits. Humana does not, I would argue, have the right to pass off it's own positions as "official government positions."
9.21.2009 11:37pm
Mac (mail):
I have a long and intimate relationship with Medicare Advantage due to elderly parents, now deceased. Also, having at one time of my life been a registered and licensed Medicare insurance agent who sold Humana Medicare policies, both Advantage and regular supplement.

There is a long list of what Medicare Advantage and Medicare Supplement policies may say, all coming under strict Federal regulation.

In this case, the law regulating what companies may say they offer in the way of Medicare health related benefits has nothing to do with what the insurance company may say regarding politics. I do believe that the current bills will eliminate Medicare Advantage. It seems that those who have Medicare Advantage have a right to know this and that Humana has not only a right, but a duty to inform their policy holders of this even, and perhaps especially, if the Government action will eliminate this option. I do believe our founding Fathers would have been in favor of full disclosure.

The Government essentially transfers the risk from themselves to Humana. They take the average cost of treating Medicare patients in a given area and pay that money to Humana. If Humana makes money, good. If they lose money, too bad for them. I think Humana Medicare Advantage is very, very good and can be very, very bad. Medicare recipients make the decision if the good outweighs the bad. I understand that most Medicare Advantage patients are very happy with it. I would not choose it, based on past experience with it due to parents after the 1996 balanced budget act. It is not Humana's fault that the government cut reimbursement to the point that Humana had to dramatically cut back in certain areas, Medicare Rehab in nursing homes is the specific issues I have with them. Most major problems can be traced back to Government action, I think. The failing of Medicare Advantage, most certainly, can be traced to the cuts in Medicare reimbursement in 1996 and the much vaunted Balanced Budget Act. Two thirds to three fourths of the nursing homes in this country went into bankruptcy following this act. There is no free ride or benign legislation. Humana Medicare Advantage has to make a profit to stay in business. It prevented them from doing so. Something had to give. It was, as it always is, patient care.

However, Humana Medicare Advantage is very, very good at preventive medicine and prescription drug coverage. You pick your poison as it is not a perfect world and never will be.

But, the regulations are all about what is covered. They are absolutely not about what the corporation may say about the Government.
9.21.2009 11:42pm
Stash:
I agree that "important information about your Medicare Advantage plan—open today!," seems to be the only thing that might be out of line, as it truthfully should be "our political position on health reform." That is, the former suggests that it is an "official" notice of some sort. There are, for example, restrictions on sales materials and debt collection letters that purport to be from or endorsed by the government when that is untrue. I suspect that there may be some restriction on the plan's use of the "Medicare" name for non-benefit/plan business. There also may be some arcane "marketing" restrictions on the use of the enrollment list, as the elderly are often considered to be particularly vulnerable to scams. But in any case the pertinent regulation, if any exits, should really have been cited in the letter. The failure to do so makes me suspect that there isn't one.
9.22.2009 3:48am
Anderson (mail):
Govol: What am I missing?

You've established, at most, that CMS has the authority to enact a speech-restricting rule.

But did they actually do so? Where in the CFR or the Marketing Manual is it?
9.22.2009 8:22am
SG:
I'm in complete agreement with Angus. Unless the mailing strongly intimated it was official governmental communication (which I'd argue would be fraud), the government has no business restricting what Humana chooses to communicate to its customers.
9.22.2009 8:44am
ShelbyC:
Well, as Steve says, the envelope is a seperate issue. Even if the envelope said, "Direct message from President Obama and the Almighty", the letter is clearly an instruction to stop sending mailings "alleging that current health care reform legislation affecting Medicare could hurt "millions of seniors and disabled individuals [who] could lose many of the important benefits and services [emphasis in original document] that make Medicare advantage health plans so valuable."
9.22.2009 9:00am
ShelbyC:

But in any case the pertinent regulation, if any exits, should really have been cited in the letter. The failure to do so makes me suspect that there isn't one.


Of course, it's hard to imagine that any such regulation would be consitiutional, unless the mailing were paid for by govt funds.
9.22.2009 9:02am
Steve:
A question someone alluded to above is whether there are restrictions on Humana's right to use this mailing list. I don't know enough about how the Medicare Advantage program works to understand this, but it seems plausible to me that the government could say "here's a mailing list for you, provide you only use it for approved communications."

The analogy upthread to a private company with the contract to print ballot envelopes actually seems rather apt. Just because you have the list of people receiving absentee ballots, that doesn't mean you get to send them whatever the heck you want about the upcoming election - even if it's completely truthful information.
9.22.2009 9:16am
SG:
I don't think there is, but there ought to be some kind of official letterhead/watermark used to denote official government communication. It ought to be illegal (a la counterfiting) to use that mark for private communication and mandatory to use it for official governmental correspondence.

Then there's no question of fraud and the government doesn't even have an arguable reason to send a C&Ds.
9.22.2009 9:17am
SG:
Steve,

That's not unreasonable, but I don't think the analogy holds in this case. As I understand it, Humana is contacting its own customers, not simply a list of names that it received as being a government contractor.

To take a different analogy, the do not call list exempts companies with whom you have an existing relationship (it also exempts politicians...). Humana would seem to have a reasonable interest in keeping its customers informed about potential changes to their benefits - it's likely that at least some of their customers would be upset to find their benefits changed, even if the change was the result of new legislation.
9.22.2009 9:25am
J Mann (mail):
Is the issue here that Humana can't provide political advocacy to its customers when acting as their medicare advantage plan, but it could send them some info that was clearly identified as coming from a P.A.C.?

If that's the bottom line, I can't say that I'm necessarily outraged.
9.22.2009 10:10am
SeaDrive:
Medicare Advantage is a failed attempt by the Bush administration to privatize some portion of Medicare. To get it started, the Gov't subsidized it (i.e. it cost the Gov't more per enrollee than regular Medicare). Without the subsidy, it's not workable. These plans are quite different from Medicare, and lots of seniors have trouble understanding why their coverage is different from their friends'.

Given that the Healthcare bills in Congress may make Medicare Advantage go away completely, I think Humana is within bounds communicating with their enrollees, but I'm not sure that urging them to write Congress supporting Humana's point of view is legit.
9.22.2009 10:11am
Anderson (mail):
Of course, it's hard to imagine that any such regulation would be consitiutional

Now there, I dunno; part of contracting w/ CMS might be the nondisparagement of CMS. As noted above, nobody forced Humana into the Medicare Advantage business.
9.22.2009 10:16am
ShelbyC:

Now there, I dunno; part of contracting w/ CMS might be the nondisparagement of CMS. As noted above, nobody forced Humana into the Medicare Advantage business.


Don't matter. The govt can't pay people to give up their 1A rights. Even govt employees have the right to critize the govt.
9.22.2009 10:42am
ForFrakSake (mail):

Freakin' awesome. So not only does does a corporation have personhood, it also gets to send out these letters that the government doesn't?


Oh noes! Poor little pitiful oppressed US federal government. Life is so unfair!
9.22.2009 11:07am
one of many:

Medicare Advantage is a failed attempt by the Bush administration to privatize some portion of Medicare.

no.


a) medicare advantage dates from the Clinton administration (and I'm not willing to credit/blame Clinton for it) under the name Medicare+Choice, Medicare Advantage is merely the Medicare+Choice program renamed with minor changes mostly concerned with how the government calculated payments

b) alternatively you can credit/blame Reagan for it, prior to Medicare+Choice the Tax Equity And Fiscal Responsibility Act allowed the privatization of some portion of Medicare, although Medicare+Choice completely rewrote how this was done, the beginning of privatization took place under Reagan
9.22.2009 11:48am
wfjag:

Even knowingly false statements of fact about the government are generally constitutionally protected;

Really? Because apparently the Chairman of the Senate Finance Committee doesn't seem to think so. See U.S. investigates mailing by Humana, www.courier-journal.com/louisville-news (registration required).

It looks like this is more than a mere warning letter to Humana. How far the investigation goes and how serious it becomes are not yet clear. Still, judging by the sudden chill in the air, it looks like winter arrived early this year at Humana's Louisville headquarters.
9.22.2009 12:25pm
MartyA:
The CMS message would have been much clearer if it had simply added something like, "Teams of Black Panthers, the authorized domestic government enforcement agency, are prepared to visit your homes and offices should you fail to comply." Mentioning Holder's name might be a little over the top.
9.22.2009 12:26pm
Mac (mail):
one of many,

Thank you for explaining the Medicare Advantage history. You saved me the trouble. Now, some will have to dig much deeper to blame everything, including Medicare Advantage, on Bush. I am sure they will come up with something, even if they have to imagine it, as was this one.
9.22.2009 12:54pm
SeaDrive:
Thank you for explaining the Medicare Advantage history.


My mistake. I blamed it on the Bush administration based on inexpert anecdotes. I notice that "one of many" confirmed that it was a conservative attempt at privatization, and did not dispute that it hasn't been a success, at least in the narrow sense that it hasn't saved the government a lot of money. Medicare Advantage does offer a choice of a very different plan which ought to be a good thing, at least in the abstract. There could be a very lengthy discussion about whether it worked well in practice.
9.22.2009 2:51pm
Mac (mail):
SeaDrive,

I really don't know about the savings or lack thereof. Do you have figures?

It can't cost the Government more than they are spending already, I wouldn't think, as they pay Humana the average cost of Medicare per person in a given area.

I don't think "privatization" is the correct term to apply to Humana, either. A person still must be eligible for and enrolled in Medicare. It is an alternative form of Medicare, but it is still Medicare. Anyone over 65 has no other health insurance option as their primary care provider other than Medicare, either traditional or Advantage. I am not sure why anyone would equate Humana Medicare Advantage to privatization.



I notice that "one of many" confirmed that it was a conservative attempt at privatization, and did not dispute that it hasn't been a success, at least in the narrow sense that it hasn't saved the government a lot of money.


I don't agree that it was a conservative attempt at privatization. Regardless of what Reagan did, it took off under Clinton. I am not sure why you think Medicare Advantage aka, in your world, "privatization" is somehow, by definition, "bad".

Even if it has not "saved Medicare a lot of money" that would be an extreme success given that regular Medicare has and continues to have skyrocketing expenses and costs to the point of going bankrupt in the near future. Compared to that, it would seem that Medicare Advantage is a rousing success story in cost control and, given the satisfaction of its members, in providing quality services that they want and desire. We wish a government program could achieve customer satisfaction and cost containment. I don't think it has ever been know to happen. At least, I can't think of a single example.
9.22.2009 3:13pm
Mac (mail):
Interesting article here from the WSJ about this issue.
9.22.2009 3:38pm
SeaDrive:
Mac: I hate to provide a newspaper article as a source since they are so often wrong, but here is one which is the first thing that came up in a Google search:

http://tinyurl.com/m2hkp9

Some specific quotes:


But here's the catch: Medicare Advantage costs on average 14 percent more per person than traditional Medicare and is helping to bankrupt the program.



But in the mid-1990s Congress started boosting payments to the private insurers as a way to entice them to offer plans for seniors. It was part of a philosophical shift by the Republican-controlled Congress during the Clinton administration toward what was promoted as privatization and outsourcing of Medicare.
9.22.2009 4:21pm
Mac (mail):

One estimate from House Democrats shows Medicare premiums are $90 a year higher because of Medicare Advantage.

But health industry studies show Medicare Advantage is popular, and in some cases may be providing better care.

A study released last week by America's Health Insurance Plans, the leading industry lobby, which represents 1,300 insurance companies, said Medicare Advantage patients in Nevada had 23 percent fewer hospital stays and 33 percent lower readmission rates than those under traditional Medicare.

A 2008 report by the insurance industry pointed to the Medicare Advantage plans' success in managing chronic health care problems, often using nurse coaches who dial up patients and remind them to take medications and keep doctors' appointments and watch out for depression. The study noted one strategy at Health Plan of Nevada/Sierra Health &Life, where nurses made 370 calls in languages other than English to make sure patients understood their care.



SeaDrive,

The above is from the article you referred to. I agree about the dangers of relying on newspaper articles. It is always fraught with danger.
That said, I note that it quotes "One estimate from House Democrats is that premiums are $90.00 higher per year because of Medicare Advantage." I don't think I am being partisan to say that I believe in financial estimates from House Dem's as much as I believe in Santa Claus. I would not accept estimates from Rep.'s either if it is on something they want. That is why we have the CBO and a so-called free press.

I note the article does not seem to factor in a reduction in costs from fewer hospital visits and readmissions and keeping people healthy i.e. preventive medicine.

It is odd that on the one hand Democrats are trashing this and at the same time, saying their "reforms" will save money by reducing hospital visits through preventive care and reduce costs by reducing readmissions. And, I note as well the author did not mention that Medicare Advantage completely eliminates waste, fraud and abuse which is another method Obama and the Democrats say they will use to reduce costs and pay for insuring 47 million, oops, it is now down to 30 million uninsured (having suddenly eliminated illegals from the ranks of the uninsured). Also, pay for the 500 billion in aledged "savings" from reforms to the program. I can't understand how you can reduce or eliminate a program that has been shown to be effective, provide preventive care, has no fraud, waste or abuse and then say that reducing it and putting more people into traditional Medicare will save money.

Overall, it makes no sense to say that what you want to do will accomplish all that the Dem's say it will and trash a plan that does exactly that. I am truly confused.

Also, the author claims this happened in the mid-90's with a Republican Congress. Maybe so, but I know for a fact that the 1996 Balanced Budget Act severely hurt Humana and, as I said above, nursing homes as well as many in Allied Health Care who had previously provided services to Medicare recipients as well as just about everyone else providing Medicare services.

I think we got a very partisan and not terribly well informed version of Medicare Advantage in this article. I don't think I even buy the mid-90's thing. That does not square with my memory (however, relying on that is as dangerous as relying on newspaper articles) and I was pretty actively involved in Medicare at that point both from the aged parent standpoint who had Humana from the very early 90's and as an insurance agent for Humana. I doubt a whole lot of what the author presented.

However, the article pretty well supports Humana's contention (getting back on topic) that Congress is trying to reduce or eliminate Medicare Advantage so I am at a loss as to how Baucus gets off accusing Humana of lying to Seniors. I do dread the day when members of Congress get to unilaterally decide what is truth and what is a lie. I think the First Amendment is in pretty serious trouble.
9.22.2009 7:38pm
Mac (mail):
And, this today.
9.24.2009 4:16pm

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