Republicans criticize Obama administration brochure on health-care overhaul

By David S. Hilzenrath
Friday, May 28, 2010; A22

As the secretary of health and human services explains it, the government has an obligation to spread the word about the new health-care law. To that end, the department spent millions of dollars printing a glossy brochure and mailing it this week to 40 million Medicare beneficiaries detailing what Secretary Kathleen Sebelius called "the facts."

Among the facts:

There are "Improvements in Medicare You Will See Right Away." There are "Improvements in Medicare You Will See Soon." There are "Improvements Beyond Medicare That You and Your Family Can Count On." And that's not all: These improvements "will provide you and your family greater savings and increased quality health care."

Not surprisingly, Republicans see it differently. In Washington's political hothouse, one person's recitation of the facts is another's "gross misuse of taxpayer funds to provide biased information for political purposes."

That's the way Senate Minority Leader Mitch McConnell (R-Ky.) and several colleagues put it. On the House side, senior Republicans on the Ways and Means Committee have called for an investigation, saying the brochure violates a legal ban on government propaganda.

The bitter year-long battle over health-care legislation has become an inch-by-inch, word-by-word war for public opinion in which features of the legislation are being trumpeted, spun, counter-spun, and spat upon. It's a contest in which no boast goes unanswered, and no sign of progress is too small to ballyhoo.

On Thursday, Sebelius held a news conference to issue another progress report on implementation of the health-care law. The news: The first $250 rebate checks for Medicare beneficiaries caught in the so-called prescription drug "doughnut hole" will go out June 10, five days earlier than planned.

What voters ultimately conclude could help determine the outcome of the fall elections and the balance of power in Congress.

Sebelius publicized the brochure at a news conference Wednesday with the House's top Democrats, Speaker Nancy Pelosi (Calif.) and Majority Leader Steny H. Hoyer (Md.).

"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.

"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 added.

The brochure was prepared by the Centers for Medicare and Medicaid Services (CMS), an agency within HHS, said Marilyn B. 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. CMS spokesman Peter Ashkenaz said the brochure was mailed to 40 million households at a cost of 45 cents each. That adds up to $18,000,000.

Republicans disputed one assertion after another. The brochure says the law makes "Improvements to Medicare Advantage," a program through which beneficiaries can voluntarily enroll in private health insurance plans. Not so, wrote Rep. Dave Camp (Mich.) and Wally Herger (Calif.), senior Republicans on the Ways and Means Committee. In a letter to the Government Accountability Office, a federal watchdog, they noted that the new health-care law reduces funding for Medicare Advantage by $206 billion over 10 years, and that the chief actuary at CMS has predicted that the cuts will result in "less generous benefit packages."

The brochure says that what's being cut from Medicare Advantage are overpayments to insurance companies.

The Ways and Means Republicans also challenged the 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 said it was a misuse of Medicare funds for the brochure to discuss provisions that have nothing to do with Medicare, such as allowing young adults to stay on their parents' insurance policies until they turn 26. Tavenner, the Medicare official, countered that Medicare beneficiaries often help educate their families and friends.

In a letter to Sebelius on Thursday, McConnell and seven other Senate Republicans accused HHS of following a double standard. They noted that last year the department ordered insurance companies that do business with Medicare to stop telling customers the proposed legislation would jeopardize their benefits. (Insurers were exhorting customers to rise up against the bill.)

There is a long history of one party accusing the other of engaging in taxpayer-funded propaganda, and not too long ago the shoe was on the other foot.

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 HHS 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," then-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 video segments for television stations to plug into newscasts. The videos promoted the prescription drug benefit and gave the appearance of being news stories. One concluded with the narrator saying, "In Washington, I'm Karen Ryan reporting."

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