Friday, October 24th, 2014

Original McConnell-Sebelius fact-check

Editor's note: This item was initially published May 25, 2013, as a Mostly False because of the limited supporting information we received Sen. Mitch McConnell's office. The office cited a letter sent to Humana, a government contractor for Medicare Advantage. We found that letter provided relatively little support for the senator's claim and rated it Mostly False. After the item was published, we received a note from Michael Cannon of the libertarian CATO Institute, who pointed out that we should have considered a 2010 letter from Sebelius to an insurance industry group. We found that letter actually provided more support for McConnell, even though his office had apparently been unaware of it. We have changed our rating to Mostly True and archived our previous fact-check below.

Controversy is swirling around the White House, with inquiries into the consulate attack in Benghazi, the IRS' targeting of conservative groups and the Justice Department’s probe of journalists’ phone records.

Some Republicans say these issues are emblematic of the how the Obama White House operates.

"There is a culture of intimidation throughout the administration. The IRS is just the most recent example," Sen. Mitch McConnell, R-Ky., said on Meet the Press on May 19, 2013. "... Over at HHS back during the Obamacare debate, Secretary (Kathleen) Sebelius sent out a directive to help insurance companies telling them they couldn't inform their policyholders of what they thought the impact of Obamacare would be on them."

McConnell named off a few more examples, but we zeroed in on his Obamacare claim. The letters he mentioned, written in 2009, didn’t actually come from Sebelius but from the acting director of the Medicare Drug and Health Plan Contract Administration Group, which falls within Sebelius’ Department of Health and Human Services.

We decided to check whether the letters prohibited insurance companies from communicating with their policyholders about the effect of Obamacare, which had not yet become law.

What the letters said

In the fall of 2009, during the fevered debate over Obama’s proposed health care overhaul, the Centers for Medicare and Medicaid Services announced it was looking into mailings that Humana sent to its nearly 1 million Medicare Advantage and Part D patients. CMS, as it’s known, is the federal agency that runs Medicare.

"CMS has learned that Humana has been contacting enrollees in one or more of its plans and alleging that current health care reform legislation affecting Medicare could hurt millions of seniors and disabled individuals (who) could lose many of the important benefits and services that make Medicare advantage health plans so valuable," the agency wrote to two Humana executives.

The letter said CMS was concerned that "this information is misleading and confusing to beneficiaries, represents information to beneficiaries as official communications about the Medicare Advantage program, and is potentially contrary to federal regulations and guidance."

The letter had a narrow scope: It dealt with Humana, as a government contractor, and the information it was giving Medicare beneficiaries.

But the Humana mailing prompted CMS to send a memo to all other Medicare Advantage and Part D contractors, warning them "to suspend potentially misleading mailings to beneficiaries about health care and insurance reform."

"We are concerned that the materials Humana sent to our beneficiaries may violate Medicare rules by appearing to contain Medicare Advantage and prescription drug benefit information, which must be submitted to CMS for review," CMS official Jonathan Blum said in a press release. "We also are asking that no other plan sponsors are mailing similar materials while we investigate whether a potential violation has occurred."

What the letters didn't say

McConnell's comment was much more sweeping. He said the Obama administration was restricting what insurance companies could say to their policyholders, which wasn't the case. The letters only applied to government-contracted Medicare Advantage providers.

"Insurance companies certainly have not been prevented from communicating their views," CMS spokesman Brian Cook told PolitiFact. "In this instance, Humana was conducting political advocacy work using government funds via ‘official Medicare notices’ sent to beneficiaries who have not opted in."

It's worth noting that after the CMS letter to Humana triggered some backlash from conservatives including McConnell, the Obama administration clarified its rules.

The new guidelines said Medicare Advantage contractors could communicate with Medicare beneficiaries about pending legislation as long as they did not use federal money to do so. Insurers also were required to get permission from beneficiaries before sending them information about legislation or asking them to join advocacy efforts. At the same time, Humana was cited for violating Medicare rules by sending misleading information to beneficiaries. The company was issued an official "notice of noncompliance" -- the lowest level of citation which carries no penalty.

In addition, a 2010 Government Accountability Office review of the letters found that in general, CMS "appeared to adhere to the agency’s policies and procedures."

Our ruling

McConnell said that in 2009 the Obama administration sent letters telling insurance companies "they couldn't inform their policyholders of what they thought the impact of Obamacare would be on them."

But that's an inaccurate characterization. The administration did not issue such a sweeping prohibition on insurance companies.

The letters McConnell referred to went first to Humana about the information it sent to beneficiaries of the federal Medicare program. That was followed by another memo to other Medicare Advantage companies, warning them not to spread misleading information about health reform.

But as long as they weren't Medicare providers using federal dollars to communicate with Medicare beneficiaries, insurance companies have always been free to communicate with their policyholders.

We rate the statement Mostly False.