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Policy Newsletter

July 14, 2006 | IN THIS ISSUE:

CMS Part D Policy Creates 1st Amend. Problems

Professor Robert Rotunda of George Mason University has authored a legal backgrounder recently published by the Washington Legal Foundation entitled “CMS Information Policy Under Medicare ‘Part D’ Creates First Amendment Problems.”  The backgrounder examines CMS’ prohibition on nursing homes and pharmacists providing information to Medicare Part D beneficiaries about Part D plans for purposes of helping them select the best plan.   Prof. Rotunda finds the CMS restrictions not only violate free market principles, but “are unconstitutional violations of the providers’ First Amendment commercial free speech guarantees.”

Professor Rotunda writes:

“Nursing homes, as care providers, obviously have a close relationship with their nursing home residents and family members. The LTCPs also have a close relationship with these individuals. It is quite common for the LTCPs to send representatives to the nursing homes monthly to make sure that they give the proper drugs to the right people without unhealthy side effects. These services save between $3.4 billion and $5.5 billion (1997 dollars) in additional drug related problems, thanks to the special efforts of the nursing homes and the LTCPs.

“In spite of that enviable track record, the [CMS] Marketing Guidelines restrict what ‘Providers’ may and may not say about the new Prescription Drug Benefit program, even if what they say is truthful, non-misleading and in writing. The Marketing Guidelines include very specific limitations on the types of statements that pharmacies, including LTCPs and their consultant pharmacists, may make concerning PDPs in which the LTCPs participate or do not participate [i.e., are in-network or out-of-network]. The Marketing Guidelines, among other things, prohibit both pharmacies and nursing homes from accepting any completed enrollment applications for submission to PDPs from a Medicare beneficiary.
“CMS not only restricts competition, it violates free speech”

Download a PDF copy of the of the Washington Legal Foundation backgrounder:


I wanted to bring it your attention and hope you will give it your consideration. 


Darrell McKigney
Director of Government Affairs
Long Term Care Pharmacy Alliance
(202) 386-7557