WASHINGTON – Twenty-one Republicans, led by U.S. Rep. Joe Barton, R-Texas, ranking member of the House Energy and Commerce Committee, today asked the Department of Health and Human Services inspector general to look into the recent actions taken against Humana regarding the Democrats’ health care reform plans.

“We find the timing of the CMS investigations of Humana and other Medicare Advantage health insurance companies to be highly suspect.  The Senate Finance Committee — whose jurisdiction includes CMS — is marking up Senator Baucus’s health care reform proposal this week,” the lawmakers wrote. “According to Senator Baucus’s own press release, CMS took the very action he recommended it take against Humana within one week of his request. Given that CMS staff has not responded to our repeated requests to provide citations to the federal regulations and guidance that were the basis of its decision, we have grave concerns that the CMS actions with respect to Humana and other MA insurance companies were not fully the product of normal agency processes, but were instead improperly influenced.”

The committee Republicans requested that Inspector General Daniel Levinson determine whether Centers for Medicare and Medicaid Services integrity was compromised after Teresa DeCaro, acting director of the CMS Medicare Drug and Health Plan Contract Administration Group, ordered the company to end mailings to beneficiaries about what would happen to Medicare should the current Democratic proposals in Congress become law.

According to Humana, it sent mailings to its Medicare Advantage enrollees during the second week of September which accurately informed the enrollees that Congress is considering “significant cuts to Medicare Advantage” and that “millions of seniors and disabled individuals could lose many important benefits and services ...”. On Sept. 18, CMS ordered the company to “end immediately all such mailings to beneficiaries and to remove any related materials directed to Medicare enrollees from your website.”  Ms. DeCaro went on to state that CMS took “this matter very seriously” and “will pursue compliance and enforcement actions.” CMS followed that order with a memo on Sept. 21 to all MA health insurance companies “to suspend potentially misleading mailings to beneficiaries,” writing that “such communications are potentially contrary to federal regulations and guidance for the MA and Part D programs and other federal law, including HIPAA”.

The Republicans requested that this investigation address the following points:

•    “Whether the CMS actions regarding Humana and other MA health insurance companies complied with the First Amendment of the U.S. Constitution and applicable federal law, regulations, and CMS guidance;

•    “Whether there are facts indicating that CMS’s impartiality or the integrity of its decision-making processes with respect to Humana and other MA health insurance companies were compromised or otherwise improperly influenced; and,

•    “Whether the recent CMS actions with respect to Humana and other MA insurance companies is consistent with investigations CMS has conducted previously of Medicare or MA health insurance companies for distributing marketing materials relating to proposed legislation or requesting enrollees to express their opinion on the proposed legislation.”

The lawmakers have also asked Charlene Frizzera, acting administrator for Centers for Medicare and Medicaid Services, provide information to the committee, and to schedule a staff briefing specifically including DeCaro and Jonathan Blum.

“The CMS decision with respect to Humana appears contrary to the First Amendment and past CMS precedent,” the Republicans wrote to Frizzera. “In fact, during the Clinton administration, Director Bruce M. Fried of the Center for Health Plans and Providers stated in a July 10, 1997, letter that ‘[w]hile it may be difficult for a reviewer to ascertain whether or not the information about legislation . . . is accurate and without slant ... we believe that prohibiting such information would violate basic freedom of speech and other constitutional rights of the Medicare beneficiary as a citizen.’

Among the requests from Frizzera:

•    “Please explain whether CMS consulted with any attorneys at CMS or HHS before CMS took action on Sept. 18 and Sept. 21 with respect to Humana and other MA health insurance companies. Please list each attorney and indicate whether that attorney supplied his or her advice verbally or in writing, and the date that the attorney provided the advice. Please identify each CMS employee who communicated with attorneys on the Humana matter before Sept. 22, 2009, and the dates of such communications.

•    “Please explain CMS’s basis for initiating an investigation of Humana, Inc. at this time.

•    “Please explain whether CMS believes that Medicare Advantage companies have a right to communicate with their enrollees about proposed legislation. Please identify any federal laws, regulations, or CMS guidance, transmittals, or letters that are relevant to this issue.

•    “Please explain whether CMS considered the July 10, 1997, letter from Bruce M. Fried regarding marketing materials that relate to proposed legislation when it issued its September 18 and September 21 directives to Humana and other Medicare Advantage insurance companies. Please explain whether the July 10, 1997, letter reflects current CMS policy on this issue. If so, please explain how the current situation with respect to Humana differs from the situation addressed in the Fried letter. If not, please explain when CMS changed its policy and the rationale for this change.”

A copy of the letter to Levinson can be found here.

A copy of the letter to Frizzera can be found here.