GOP Threatens White House Over Medicare ‘Gag-Order’

Thursday, September 24, 2009 at 6:57 pm

It’s no news that Republicans are up in arms over the recent White House decision to bar insurance companies from encouraging their customers to oppose the Democrats’ health reform plans. But today they upped the ante.

In a letter to the White House, Republican leaders have threatened to block confirmation of 10 White House nominees to various posts in the Health and Human Services Department unless the “gag-order” is rescinded. Senate Minority Leader Mitch McConnell (R-Ky.) reiterated that threat today on Fox News.

“None of those people will get through the Senate easily until they lift the gag order,” McConnell said.

None of these people make it through the Senate without extensive debate until they lift the gag order and allow the First Amendment to function for everyone in this country, including people who just happen to be doing business with the federal government.

The ruckus began last week when the federal Medicare agency announced an investigation into Humana for letters the insurance giant had mailed to seniors warning that the Democrats’ health reform plans were threatening their private insurance coverage, called Medicare Advantage. The letters urged the seniors to contact their lawmakers opposing the legislation.

The Centers for Medicare and Medicaid Services claim those letters represent a breach of contract, because CMS requires MA sponsors to screen such mailings through the agency. CMS has barred all MA sponsors from sending similar messages to their customers. Republicans, though, say the First Amendment trumps the CMS guidelines.

This might have been just a minor footnote in the debate over health reform. But the GOP holds on the HHS nominees mean it could grow into something much bigger.



Comment posted September 24, 2009 @ 11:41 pm

I thought sanctity of contract trumped everything when it comes to business? Who has First Amendment rights at work?

Comment posted September 25, 2009 @ 1:42 am

I would think the issue is that the company is abusing it's patient record systems for partisan purposes.

I don't give my account to XCel, or Verizon, or Health Partners so they can solicit me on political issues. And if they're using medical patient information, those records require high levels of privacy and security. Company management should not have the right to use those records to pursue their personal political goals. If a senior disagrees, should they fear the company will treat them worse than someone who does agree with company management.

If the mailers are bulk-mail resident pieces, I'm with the Republicans. But if the seniors they contact are their own clients I think that is problematic.

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Hans Bader
Comment posted September 25, 2009 @ 7:22 pm

The Administration's gag order against Humana clearly violates the First Amendment, according to law professor Eugene Volokh, the author of a leading treatise on First Amendment law, and a former law clerk to Supreme Court Justice Sandra Day O’Connor. The gag order has also been criticized by the Wall Street Journal, the San Francisco Examiner, and Senate Minority Leader Mitch McConnell, yet the Administration obstinately insists on enforcing it.

The Supreme Court has said the First Amendment protects the free speech rights of businesses like Humana even when they are government contractors, in cases like Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996).

Liberal supporters of the gag order hypocritically claim Humana should shut up because it’s receiving federal funds (an argument they would never make regarding artists funded by the National Endowment for the Arts), and because its claims are supposedly false (even though its claims are truthful and are echoed by the non-partisan Congressional Budget Office, which is headed by Democrat Douglas Elmendorf).

But as Professor Volokh and the Washington Supreme Court have recently noted, “false statements of fact about the government are generally protected” by the First Amendment.

Humana’s statements are predictions about the future, and thus by definition not provably false. Moreover, they are chillingly accurate predictions, which is why Obama ally Senator Max Baucus (D-MT), who is drafting Obama’s health-care plan, asked Obama to ban them, as the Wall Street Journal notes:

“On Tuesday, the Congressional Budget Office director told Mr. Baucus’s committee that its plan to cut $123 billion from Medicare Advantage—the program that gives almost one-fourth of seniors private health-insurance options—will result in lower benefits and some 2.7 million people losing this coverage. Imagine that. Last week Mr. Baucus ordered Medicare regulators to investigate and likely punish Humana Inc. for trying to educate enrollees in its Advantage plans about precisely this fact.”

The fact that Humana is a government contractor doesn’t make this censorship any more acceptable, since the government simply has no business policing criticism of itself as “false”: federal courts have ruled that even false speech by government contractors and employees on matters of public concern can be protected, as cases like Johnson v. Multnomah County, 48 F.3d 420 (9th Cir. 1995) show.

Nor is there any evidence that Humana is using federal money to disseminate its message. And any subsidies Humana might be receiving would not justify the Obama Administration’s blatant viewpoint discrimination against it, since Obama allies that receive lots of federal subsidies are being allowed to trumpet their support for ObamaCare freely. Under the Supreme Court’s ruling in Rosenberger v. Rector of the University of Virginia, viewpoint discrimination is a forbidden, “egregious” form of discrimination even when the government is subsidizing a speaker; here, the federal government is plainly engaging in viewpoint discrimination, since it is letting AARP make blatantly false claims in favor of ObamaCare that contradict CBO findings and basic budget math, while blocking Humana from criticizing ObamaCare based on reasonable arguments echoed by the Congressional Budget Office).

Comment posted September 27, 2009 @ 6:46 am

How could you possibly be “with the republicans” ? Is Rush Limbaugh your only source of information? A public option is the only way to rein in these insurance companies.

Comment posted September 29, 2009 @ 10:39 am

I don't have a lot of sympathy for any advantage plan because I believed from the start that they were overpaid and that many did not live up to the hype. They claim to provide vision and dental care, for example, which Medicare does not. To put this in perspective, the “vision care” is an average of a $30.00 copay for an exam and a $100 discount per year on glasses. The dental care is a 50% reimbursement on basic dental–cleanings & xrays. It does not cover fillings, dentures or any kind of dental surgery. The hearing benefit is the same….$30.00 for the exam and $100 off for a hearing aid. Where do you find a hearing aid for $100? Of course, it is better than nothing, but you offset that by the fact that skilled nursing home care is often vastly less than what Medicare would offer and by the high “per admission” deductible/copay to the hospital. In case you don't know what that is, Original Medicare leaves you with $1068 to the hospital for a 60 day rolling benefit. That means you can be in and out or just in for sixty days, and as long as you aren't out for 60 days, you don't pay any more. All advantage plans charge PER ADMISSION. Charges range from $100 per day for five to seven days to $925 lump sum PER ADMISSION. Thus, if you have a company that charges, say 600 buck per admission, and you go back home after two days, but then have to return for a relapse or for some other problem, you pay that 600 bucks again..and on it goes. All plans do have a ceiling of some sort, ranging as high as $6000 before a person has reached their out of pocket max.

So my personal opinion is that Medicare Advantage plans are only good for two things. 1–to hold down costs for those who are on Medicare due to a disabilty and are not eligible for either Medicaid or a Medicare Supplement plan. 2. to control costs for those who are such low iincome that they can't afford a supplement, but are not poor enough to qualify for Medicaid. Unfortunately, in the latter case, many folks are going to find out that they would have a lower out of pocket cost by simply using a high deductible Medicare Supplement.

As for the gag order itself, although I'm not a fan of the plans, I support the right of all agencies to express their concerns. And the order of silence–whether you want to call it gag or something else–is definitely a mark of desperation on the part of this administration. They want to ram something through onto the American people because they know that once they get it through it will be difficult to reverse it. The Dems only care about getting nationalized health care. They don't care how many jobs it will cost or how much will be required in taxes. After all, they are insulated from the struggles of the real American people. It's high time that was changed.

Comment posted September 29, 2009 @ 10:48 am

As someone else said, they are real quick to jump on anyone that offers criticism–regardless of how accurate it is, but Obama claimed not to know that ACORN was receiveing tax dollars. I wonder if he would deny knowing that his campaign paid ACORN some 800 million for their “get out and vote” efforts–which were designed to be sure he was elected. I wonder if he knows that his field general is waiting for a meeting and a decision on Afganistan while he wanders around in Copenhagen trying to convince them to let Chicago have the 2016 Olympics. I wonder if he knows that Israel regards him as having thrown a very old ally (Israel) under the bus in favor of his Muslim friends—or that he gave a few billion dollars to Hamaas this summer. It's amazing how messed up priorities are on both the Dem side of the aisle and in the white house.

Comment posted October 30, 2009 @ 10:45 pm

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Comment posted October 31, 2009 @ 2:45 am

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