The Centers for Medicare & Medicaid Services (CMS) issued a Memorandum September 21, 2009, to health care insurers that have contracted with Medicare as part of Medicare Advantage or the Part D prescription benefit, requiring them to stop making statements in mailings to plan enrollees regarding health care reform. CMS is concerned that some of the statements may be misleading to enrollees.

The CMS Memorandum was prompted by a mailing from a Medicare Advantage plan to its enrollees, warning that health care reform bills being considered by both houses of Congress could result in cuts to benefits and services under Medicare Advantage as well as traditional Medicare and Medicaid. The mailing also encouraged enrollees to contact their members of Congress to voice opposition to such cuts. CMS stated that the mailer appears to convey official and "legitimate Medicare program information" but instead only "offer[s] misleading and/or confusing opinion and conjecture by the plan about the effect of health care reform on the [Medicare Advantage] program…[and] that such communications are potentially contrary to federal regulations and guidance."

Organizations and plans were also instructed to remove any such material from their websites. The Memorandum further states that CMS is researching whether such communications are contrary to federal regulations and guidance for the MA and Part D programs, and other federal law, including HIPAA. Based on its investigation, CMS could pursue compliance and enforcement actions against insurers that have issued such mailers.

In response, Republican lawmakers have warned that they would not allow President Obama to fill health positions until CMS reverses its position barring insurers from telling the elderly how Democrats' health overhaul could affect their benefits. For more information, please click here.