Mailing of brochure touting health-care law irks GOP lawmakers, who ask GAO to investigate

By David S. Hilzenrath
Washington Post Staff Writer
Thursday, May 27, 2010; 11:04 AM

The federal government this week spent millions of dollars mailing a brochure to 40.2 million Medicare beneficiaries describing how the recent health-care overhaul "will provide you and your family greater savings and increased quality health care."

The Obama administration said the mailing is an effort to inform the public about the effects of the legislation.

Republican lawmakers call it misleading propaganda and an illegal use of taxpayer funds. On Wednesday, senior Republicans on the House Ways and Means Committee asked the Government Accountability Office (GAO), a federal watchdog, to assess the issue.

The dispute is part of a continuing battle to shape public opinion in the run-up to the midterm congressional elections. Democrats are arguing that the legislation was a historic step forward, while Republicans say that it will compromise medical care -- including coverage under Medicare, a federal insurance program for the elderly and disabled.

Health and Human Services Secretary Kathleen Sebelius publicized the brochure at a news conference in the Capitol on Wednesday with the House's top Democrats, Speaker Nancy Pelosi (Calif.) and Majority Leader Steny H. Hoyer (Md.).

"At the Department of Health and Human Services, it's our responsibility to get the word to seniors about what the facts are involving this critical benefit program," Sebelius said.

"One of our top jobs is to clear up confusion and correct misinformation about health reform. This brochure . . . is a good place to start," Pelosi said.

The brochure was prepared by the Centers for Medicare and Medicaid Services (CMS), an agency within HHS, said Marilyn Tavenner, the acting administrator of CMS. Sebelius was involved, and the White House was consulted, Tavenner said. It was paid for out of the budget for Medicare beneficiary information and outreach, she said.

The four-page glossy color brochure says the new law delivers "needed improvements that will keep Medicare strong and solvent." It also describes "Improvements Beyond Medicare That You and Your Family Can Count On," such as permitting young adults to remain on their parents' health insurance policies until their 26th birthday. It uses variations of the words "improves" or "improvements" eight times.

Republicans disputed the assertion that the law improves the Medicare Advantage program, through which beneficiaries can voluntarily enroll in private health insurance plans that typically offer extra benefits along with tighter restrictions on care.

The new health-care law reduces funding for Medicare Advantage by $206 billion over 10 years, and the chief actuary at CMS has predicted that the cuts will result in "less generous benefit packages," senior Ways and Means Republicans Dave Camp of Michigan and Wally Herger of California wrote in a letter to the GAO.

The brochure says the Medicare Advantage cuts eliminate overpayments to insurance companies.

The Ways and Means Republicans also challenged the brochure's assertion that the law will improve access to care. They cited a statement by the CMS actuary that some health-care providers might stop participating in Medicare, "possibly jeopardizing access to care for beneficiaries."

In addition, the Republicans argued that it was a misuse of Medicare funds for the brochure to discuss provisions that have nothing to do with Medicare. Tavenner, the Medicare official, countered that Medicare beneficiaries often help educate their families and friends.

There is a long history of one party accusing the other of distributing propaganda under the guise of informing the public.

In 2004, Democrats complained to the GAO about a Bush administration flier promoting a new Medicare prescription drug benefit. In an echo of the current dispute, the flier said a 2003 law "preserves and strengthens the current Medicare program."

In the 2004 case, the GAO said the material distributed by the Department of Health and Human Services had "notable omissions and other weaknesses" -- for example, no mention that beneficiaries would be charged certain fees, or that the new drug benefit would greatly widen a gap in Medicare funding. However, the GAO concluded that the flier was not illegal.

The ban on government propaganda "does not bar materials that may have some political content or express support for a particular view," GAO general counsel Anthony H. Gamboa wrote in the 2004 legal opinion. "[W]e have historically afforded agencies wide discretion in their informational activities," he said.

Federal law prohibits the use of congressionally appropriated funds for publicity or propaganda. The GAO has interpreted that to mean three things: touting the importance of a government agency, engaging in activities that serve a purely partisan purpose, or misleading the public as to the source of the information.

The GAO found that HHS crossed the line in another 2004 case when it distributed scripts and prepacked video segments for television stations to plug into newscasts. The videos promoted the prescription drug benefit and gave the appearance of being genuine news stories. One concluded with the narrator saying, "In Washington, I'm Karen Ryan reporting."

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