Tuesday, September 22, 2009

CMS in Hot Water?

Earlier today, we reported on the (misguided) decision by CMS to shut down Humana's efforts to educate its policyholders about the dangers of ObamaCare. In the update to that post, we further reported on Representative Camp's condemnation of said efforts.
Well, it appears that Rep Camp's protestation may be the least of CMS's problems.
According to conventional wisdom (i.e. certain blogs):
"Medicare providers are only allowed to communicate with plan members about the benefits they have now, not about possible changes to benefits. They are also not allowed to use plan-related communications to lobby for policies or legislation."
First, this is somewhat misleading: the source cited for this bit of misdirection neglects to mention that, in this context, "providers" does not mean doctors, hospitals, etc. The relevant guidelines (available here) specifically define MA plans as "providers" for the purpose of those guidelines.
The more important point is that the guidelines do no such thing. This verbiage appears nowhere in the text, nor is there anything even like it in the document (I know, because I've spent a good chunk of the evening reading through it). The seemingly relevant sections (50 and 90.7) make no mention of this kind of restriction, nor does it appear anywhere else in the text.
Which brings us to the next problem: I believe that CMS has exceeded its authority. Insurance companies are regulated by the states. Yes, the MA plans which are at the center of this discussion are based on federal guidelines, but they are approved and regulated by the state departments of insurance; CMS would seem to have no jurisdiction here.
Methinks that CMS has overreached here, and may have difficulty supporting its case. Were I running Humana, I'd announce a 180, restart the mailings, and tell CMS to pound sand. If they don't like it, I'm sure it'd make fascinating C-SPAN material.
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