Senate Republicans ratcheted up their assault today on the Health and Human Services Department for cracking down on an insurance company for a mailer the agency said was scaring seniors.
The GOP leaders warned HHS Secretary Kathleen Sebelius that they will block confirmations of any agency appointees until she lifts what they call a "gag order" on insurers that is "without apparent justification or basis in law."
"America’s seniors and the health plans that serve them deserve to have their free speech rights respected," they wrote. "Their rights should not be subject to the whims of any administration, and the health plans that serve them should not be threatened with punishment if they speak out on a matter of public concern simply because the administration disagrees with their position."
(The full letter is below.)
According to the office of Senate GOP leader Mitch McConnell, there are at least 10 vacant posts covered by the hold: Surgeon General, Assistant Secretary for Resources, Assistant Secretary for Planning, Assistant Secretary for Public Affairs, Assistant Secretary for Legislation, Commissioner of the Administration for Children, Commissioner of the Administration for Native Americans, Administrator for the Centers for Medicare and Medicaid Services, Administrator for Substance Abuse, and General Counsel.
"They have ten vacancies of people they are trying to get appointed to the administration," McConnell said on Fox Business Network this afternoon. "None of those people will get through the Senate easily until they lift the gag order."
He also accused Democrats of skirting the truth on Medicare. "I think the Democratic majority is undeterred by the facts. The facts are that they are trying to cut Medicare. They are certainly cutting Medicare Advantage...It's astonishing."
Senate Finance Chairman Max Baucus had complained about the mailer sent by Humana Inc., warning seniors that they could lose important benefits under the Democratic health care bills. HHS launched an investigation and ordered Humana and other private companies that contract with Medicare to stop sending customers information about the overhaul's potential effects on their benefits.
While Democrats deny that the bills would cut Medicare benefits, the Congressional Budget Office and independent analysts said some seniors could lose some enhanced benefits. The Globe reported today that more than 10 million seniors enrolled in Medicare Advantage could see their plans shrink or be replaced by traditional coverage.
September 24, 2009
The Honorable Kathleen Sebelius
Department of Health and Human Services
200 Independence Avenue, SW
Washington, D.C. 20201
Dear Secretary Sebelius:
America’s 11 million seniors enrolled in the Medicare Advantage program deserve to be informed of any potential actions that could be taken by the federal government that could have broad implications on the Medicare program. Medicare Advantage Plans and Prescription Drug Plans that provide services through the Medicare program have a constitutional right to provide information about these Medicare programs to their customers. Therefore, we hope you understand our grave concern with the recent Centers for Medicare and Medicaid Services directive barring all such providers from any and all communications of this kind with America’s seniors. This gag order must be immediately lifted.
As the Supreme Court has repeatedly recognized, our constitutional tradition is one of “a profound commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Health plans, of course, have the right to speak on matters of public concern, a fundamental principle that your department, until recently, recognized and respected. Specifically, the Department of Health and Human Services (HHS) had previously noted that there was no legal authority to justify prohibiting a health plan “from informing its members of proposed legislation and exhorting them to express their opinions” about it. In fact, HHS had previously determined that shutting down communication of this sort “would violate basic freedom of speech and other constitutional rights of the Medicare beneficiary as a citizen.”
Now, the Obama administration has reversed this longstanding HHS decision – in the midst of a critical debate about the future of health care services in our country – to shut down communication between private companies and America’s seniors on an issue that has a direct impact on their health care. Your department has done this by imposing an industry-wide gag order without apparent justification or basis in law, contradicting your past public guidance and the plain language and spirit of the First Amendment, among the most sacred tenets of our democracy.
America’s seniors and the health plans that serve them deserve to have their free speech rights respected. Their rights should not be subject to the whims of any administration, and the health plans that serve them should not be threatened with punishment if they speak out on a matter of public concern simply because the administration disagrees with their position.
Until your department rescinds its gag order and allows seniors to receive information about matters before Congress, we will not consent to time agreements on the confirmation of any nominees to your department or associated agencies.
Thank you for your consideration of this matter of such great importance to America’s seniors.
Republican Leader Mitch McConnell
Republican Whip Jon Kyl
Republican Conference Chairman Lamar Alexander
Republican Policy Chairman John Thune
Vice Conference Chair Lisa Murkowski
NRSC Chairman John Cornyn
Ranking Member on Senate Finance Committee Charles Grassley
Ranking Member on Senate HELP Committee Mike Enzi
About Political Intelligence
Glen Johnson is Politics Editor at boston.com and lead blogger for "Political Intelligence." He moved to Massachusetts in the fourth grade, and has covered local, state, and national politics for over 25 years. E-mail him at email@example.com. Follow him on Twitter @globeglen.