Despite 'omissions,' GAO says HHS Medicare ads are legal

Although the Health and Human Services Department's controversial advertising campaign for the new Medicare law contains "notable omissions and other weaknesses," the General Accounting Office said Wednesday, "the materials are not so partisan as to be unlawful."

The GAO undertook the legal analysis at the request of nine House and Senate Democrats, who said the ads were so misleading they violated a ban on tax-funded "publicity and propaganda."

GAO disagreed, although it noted the department has already changed some misleading references in the print materials and pointedly criticized running one of the ads in the newspaper Roll Call. "There are any number of more effective vehicles to communicate with members of Congress, and at less cost, than advertising in a newspaper," the analysis said.

GAO agreed with Democrats that the campaign fails to note such key details as the fact that beneficiaries will have to pay for the new "drug discount cards," and premiums will be raised for those who fail to sign up for drug coverage when it first becomes available to them. It found the theme of the campaign -- "Same Medicare. More Benefits" -- "may appear as an attempt to persuade the public to the administration's point of view regarding the newly enacted benefit."

At the same time, though, "the publicity or propaganda prohibition ... does not bar materials that may have some political content or express support for a particular view," GAO concluded.

HHS Secretary Tommy Thompson hailed the decision. "We're going to keep providing seniors with fact-based information on the new benefits under Medicare and give them straight answers to their questions," he said in a statement.

Senate Majority Leader Bill Frist, R-Tenn., also praised the findings. "This opinion clearly shows that HHS is following the spirit and letter of the law by providing seniors critical information," Frist said.

Democrats, however, continued to urge HHS to pull the ads. "Although the GAO report does not find the Medicare advertising campaign to be technically illegal, it recognizes that the ads are full of errors and omissions," said Health, Education, Labor and Pensions ranking member Edward Kennedy, D-Mass. "It's obvious that Medicare funds are being misused to pay for TV ads designed to highlight the president's defective Medicare bill."

Sen. Frank Lautenberg, D-N.J., said, "Legal loopholes aside, Secretary Thompson needs to pull these misleading ads now."