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Politics : Formerly About Advanced Micro Devices -- Ignore unavailable to you. Want to Upgrade?

To: i-node who wrote (585341)	9/13/2010 4:33:05 PM
From: TimF	Respond to of 1577894

Administration Tells Regulated Industry That There Will Be “Zero Tolerance” for Alleged “Misinformation” in Industry’s Statements About Government Policy Eugene Volokh • September 10, 2010 4:35 pm From the Department of Health & Human Services: Sebelius calls on health insurers to stop misinformation and unjustified rate increases Affordable Care Act will help lower costs and crack down on unjustified rate increases ... U.S. Department of Health and Human Services Secretary Kathleen Sebelius wrote America’s Health Insurance Plans (AHIP), the national association of health insurers, calling on their members to stop using scare tactics and misinformation to falsely blame premium increases for 2011 on the patient protections in the Affordable Care Act.... It has come to my attention that several health insurer carriers are sending letters to their enrollees falsely blaming premium increases for 2011 on the patient protections in the Affordable Care Act. I urge you to inform your members that there will be zero tolerance for this type of misinformation and unjustified rate increases.... According to our analysis and those of some industry and academic experts, any potential premium impact from the new consumer protections and increased quality provisions under the Affordable Care Act will be minimal.... Any premium increases will be moderated by out-of-pocket savings resulting from the law.... Given the importance of the new protections and the facts about their impact on costs, I ask for your help in stopping misinformation and scare tactics about the Affordable Care Act. Moreover, I want AHIP’s members to be put on notice: the Administration, in partnership with states, will not tolerate unjustified rate hikes in the name of consumer protections.... Already, my Department has provided 46 states with resources to strengthen the review and transparency of proposed premiums. Later this fall, we will issue a regulation that will require state or federal review of all potentially unreasonable rate increases filed by health insurers, with the justification for increases posted publicly for consumers and employers. We will also keep track of insurers with a record of unjustified rate increases: those plans may be excluded from health insurance Exchanges in 2014. Simply stated, we will not stand idly by as insurers blame their premium hikes and increased profits on the requirement that they provide consumers with basic protections.... It is my hope we can work together to stop misinformation and misleading marketing from the start.... The precise nature of the threat — as with so many threats — is not made entirely clear, so the legal analysis of the threat is also unclear. For instance, if the “zero tolerance for ... misinformation” policy simply means that the government will respond to misinformation with public criticism, that is permissible. But if the Administration is threatening to use its considerable regulatory power to retaliate against insurance companies that, in the Administration’s view, are conveying “misinformation” — for instance, because their financial analyses disagree with the Administration’s financial analyses — that strikes me as quite troubling. I suppose the Administration could defend some such regulatory action on the grounds that the letters to enrollees are a form of commercial advertising, and are therefore constitutionally unprotected if they are “misleading.” Still, even if such action would be constitutionally permissible, it would be quite troubling, as would threats that seem to hint as such action: It would involve the Administration’s deliberately trying to suppress criticism of its policies, under a “misinformation” standard that sounds highly subjective and politically contestable. (Consider the reference “to our analysis and those of some industry and academic experts” — what about the analysis of other industry and academic experts?) Perhaps I’m missing some important context here. But my first reaction is that this is ominous behavior on the Administration’s part, and seems to have both the intent and effect of suppressing criticism of the Administration’s policies — including criticism that simply expresses opinions the Administration dislikes, and makes estimates that it disagrees with, and not just criticism that contains objectively demonstrable “misinformation.” Thanks to InstaPundit for the pointer. volokh.com Bruce Hayden says: Praetorius: When is the government the sole arbiter of what is fraud? The problem here is that, that it is likely debatable whether the statements are inaccurate or not. What this is effectively doing is financially penalizing speech criticizing the government. Yes, the government, utilizing its police powers, may regulate commercial speech in order to protect consumers against fraud. But that isn’t what is going on here. We are not in the commercial realm, but rather, squarely in the government realm, where the reason that the speech is considered objectionable is that it differs in interpretation from that of the Secretary. Maybe another way of looking at this is that the standard for free speech depends on the forum or venue. The government is given much more deference when protecting consumers from fraud using its police powers, than when trying to prevent speech that essentially criticizes the government. There, I would suggest, the strictest of scrutiny applies, since it goes to the heart of the free speech required for a functioning democratic republic. volokh.com Phatty says: Mark Field: Since when is the government unable to regulate consumer fraud (assuming the statements are, in fact, false)? Consumer fraud involves deception of consumers in connection with the sale of products or services. Health insurers aren’t lying to potential customers in an effort to sell them insurance. If the government’s allegations are true, health insurers are simply lying about their reasons for setting their premiums at a certain level. What is the only potential harm that could result to anyone as a result of the health insurers “misinformation”? No consumers will be harmed. The only “harm” is that the health care law could lose popularity and democrats’ approval rating will go down. That’s why any attempt to silence the health insurers speech is purely political. The government here is trying to regulate purely political speech. It’s no different than an employer issuing a press release that says it had to layoff 10 employees because taxes are too high. volokh.com