Professor Rotunda Writes of 1st Amendment Problems Created by CMS Information Policy under Medicare Part D

The Center for Medicare and Medicaid Services ("CMS"), a part of the Department of Health and Human Services (HHS), has set up significant limitations on the ability of long-term-care pharmacies, consultant pharmacists and nursing homes to disseminate useful information to participants in Medicare Part D, states Professor Ronald D. Rotunda in a Washington Legal Foundation Legal Backgrounder. He adds that  CMS restrictions are unconstitutional violations of the providers' First Amendment commercial free speech guarantees.

CMS Information Policy Under Medicare "Part D" Creates 1st Amendment Problems, Legal Backgrounder, July 7, 2006. By Ronald D. Rotunda.

"Congress decided that medical insurance needs more competition; the CMS rules undermine competition by forbidding truthful, nonmisleading speech.  Medicare Part D will empower senior citizens -- the plan participants or beneficiaries -- to make the choices that are best for each of them.  There is no quick answer as to what choice is best, because that varies for each participant and the number and types of drugs that each participant will need.  What may be the best PDP in one year may not be the best choice in the following year, when the participant's drug needs change.  But that causes no real problem because Medicare Part D allows the participants to change PDPs just as the rest of us can change our medical insurance plans on a yearly basis.

"The essence of the law is competition and the free market.  Information is essential to the free market.  Yet, CMS has decided to put sand in the gears of competition by prohibiting Providers from offering truthful, nondeceptive information to the participants.  CMS has decreed that it will not allow the nursing homes and pharmacies to give truthful, non-misleading information about what different plans offer and why some plans may be better for participant #1 but other plans may be better for participant #2.

"Although the CMS restrictions on their face permit Providers to give patients written materials comparing PDPs, which may help the patients decide between Plans, the restrictions that the Guidelines impose effectively make it impossible for a Provider to do that.  The Guidelines impose a prior restraint and then erect so many compliance hurdles that the Providers will not be able to publish any writing that is current.  If the Providers (the nursing homes and pharmacies) must jump over all the hurdles, months will pass, and the written information will likely be out-of-date.  Either way, it will be too late for the nursing home resident, who needs information now."

Read the article