Medicare Prescription Drug, Improvement, and Modernization Act of 2003—Use of appropriated funds for flyer and print and television advertisements, B-302504, March 10, 2004

B-302504 Mar 10, 2004 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Issue of Roll Call. /3/ We have enclosed copies of these materials. It also made changes to the text of the flyer that was posted on its website and provided to us by Senator Lautenberg in his January 29. Which are not available to those eligible for Medicare. " and the flyer now reads that beneficiaries who are "happy with" their current Medicare coverage "can keep it.". Its justification for the materials is afforded considerable deference. We point out that the HHS materials have notable omissions and other weaknesses. The materials are not so partisan as to be unlawful in light of our prior decisions and opinions. There are any number of more effective vehicles to communicate with Members of Congress. View Decision Medicare Prescription Drug, Improvement, and Modernization Act of 2003-Use of appropriated funds for flyer and print and television advertisements, B-302504, March 10, 2004 The Honorable Frank R. Lautenberg The Honorable Edward M. Kennedy The Honorable John F. Kerry The Honorable Jon S. Corzine United States Senate The Honorable Jan Schakowsky The Honorable Frank Pallone, Jr. The Honorable Pete Stark The Honorable Charles B. Rangel The Honorable Jim Davis United States House of Representatives This responds to your requests for our legal opinion regarding the Department of Health and Human Services's (HHS) use of appropriated funds to produce and distribute a flyer and print and television advertisements concerning the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA). /1/ Specifically, you ask whether HHS's use of appropriated funds constitutes a violation of the "publicity or propaganda" prohibitions in the Consolidated Appropriations Act of 2004, Pub. L. No. 108-199, Div. F, Tit. VI, Sec. 624, 118 Stat. 3 (2004), and the Consolidated Appropriations Resolution of 2003, Pub. L. No. 108-7, Div. J, Tit. VI, Sec. 626, 117 Stat. 11, 470 (2003). The prohibitions in both Acts contain the same language: "No part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by the Congress." 118 Stat. 3, 117 Stat. at 470. As agreed, this opinion addresses the text of: (1) the cover letter and flyer that HHS provided us on February 25, 2004; /2/ (2) a transcript of a television commercial entitled "The Right Answer," dated January 22, 2004; and (3) an advertisement placed in the February 5, 2004, issue of Roll Call. /3/ We have enclosed copies of these materials. To respond to your requests, on February 6, 2004, we wrote HHS for factual information regarding its plans and its legal justification for its use of appropriations for this purpose. Letter from Gary L. Kepplinger, Deputy General Counsel, United States General Accounting Office (GAO), to Alex Azar, General Counsel, HHS, February 6, 2004 (Kepplinger Letter). Because of your concerns about the political nature of the flyer, we asked HHS to justify specific statements in the flyer, including references to Health Savings Accounts and the statement that MMA "preserves and strengthens" Medicare. At your request, we also met with the staff of concerned Members who wanted to express their views. /4/ In addition, we had a telephone conversation with majority staff of the House Committee on Energy and Commerce for the same purpose. On February 25, 2004, HHS replied. Letter from Dennis G. Smith, Acting Administrator, Centers for Medicare & Medicaid Services (CMS) to Gary L. Kepplinger, Deputy General Counsel, GAO, February 25, 2004 (Smith Letter). In its reply, among other things, HHS defended its use of the phrase "preserves and strengthens." It also made changes to the text of the flyer that was posted on its website and provided to us by Senator Lautenberg in his January 29, 2004, request. HHS deleted the references to Health Savings Accounts, which are not available to those eligible for Medicare. In addition, HHS revised the statement that Medicare beneficiaries could keep their coverage "exactly the same," and the flyer now reads that beneficiaries who are "happy with" their current Medicare coverage "can keep it." As we explain below, HHS's use of its appropriations to produce and disseminate the materials at issue does not violate the publicity or propaganda prohibitions in the appropriation acts. /5/ We note that HHS has explicit authority to inform Medicare beneficiaries about changes to Medicare resulting from MMA and, thus, its justification for the materials is afforded considerable deference. However, we point out that the HHS materials have notable omissions and other weaknesses. For example, enrollees for the drug discount card program to start in June 2004 may be charged an annual fee, and savings from the discount cards may vary across covered drugs.