Medicare Prescription Drug, Improvement, and Modernization Act of 2003--Use of Appropriated Funds for Flyer and Print and Television Advertisements

B-302504: Mar 10, 2004

Additional Materials:


Julie Matta
(202) 512-4023


Office of Public Affairs
(202) 512-4800

The Department of Health and Human Services (HHS) has initiated a multimedia advertising campaign to highlight the recent changes to Medicare made by the Medicare Prescription Drug, Improvement, and Modernization Act. This campaign does not violate the prohibition on the use of appropriated funds for publicity or propaganda because HHS has explicit authority to inform Medicare beneficiaries about these changes to Medicare, and thus is entitled to substantial deference in its decision to initiate the campaign. While the Medicare campaign materials have significant omissions and weaknesses, they are not so purely partisan as to be unlawful, in light of our prior decisions and opinions.

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

[2] Roll Call [3] [4]

As we explain below, HHSs 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]

Roll Call

See See to be codified at Id. Id. See See to be codified at

Flyer and Cover Letter


An earlier version of the flyer that you enclosed with your request and that had appeared on HHSs website, but was not mailed to beneficiaries, had an additional banner entitled News for All Americans, which announced the availability of Health Savings Accounts, to which eligible taxpayers will make tax-free contributions, even though Health Savings Accounts will not be available to those eligible for Medicare.


Roll Call [6]

Roll Call

Id See

History of Publicity or Propaganda Prohibitions

Id. Id.


See, e.g.,

See, e.g.

Id. Id.

as the ostensible position of persons not associated with the government . . . 66 Comp. Gen. 707 (1987). Id.

See, e.g. [8] [9]

Application of Publicity or Propaganda Prohibition to Flyer and Advertisements

[10] Cf.


[11] See to be codified at [12] Id See also See to be codified at Id.

See to be codified at [13]

See to be codified at

[14] Financial Report for the United States Government [15] [16]

[17] Id Id.

Id. Id.

Roll Call. Roll Call The Hill The Washington Post The New York Times USA Today Roll Call The Hill [18]


This reply was supplemented by discussions with CMS officials.

[3] As agreed, we did not obtain and evaluate information from beneficiaries concerning the utility to them of these materials.

[4] This meeting included members of your staff and the staffs of Senators Jon S. Corzine, Edward M. Kennedy, John F. Kerry, and Hillary Rodham Clinton, the staffs of Representatives Jim Davis, Frank Pallone, Jan Schakowsky, and Pete Stark, as well as minority staff of the House Committee on Ways and Means.

[5] We obtained information from HHS regarding the costs to HHS of printing and mailing the flyer and cover letter, producing and airing the television commercial, and producing and publishing the Roll Call advertisement. As agreed, we did not audit that information. The unaudited cost information is provided in an enclosure to this opinion.
[6] In addition to Roll Call, we understand from informal discussions with an HHS official that advertisements were placed in several other newspapers, including The Hill, The Washington Post, The New York Times, and USA Today.
[7] In two audit reports in the 1970s, GAO characterized publications as propaganda from an audit, not a legal, perspective. U.S. General Accounting Office, Problems With Publications Related to the Clinch River Breeder Reactor Project, EMD-77-74 (Washington, D.C.: Jan. 6, 1978); Evaluation of the Publication and Distribution of Shedding Light on Facts About Nuclear Energy," EMD-76-12 (Washington, D.C.: Sept. 30, 1976). In neither report did GAO apply the publicity or propaganda prohibition; instead, the reports set out their own criteria against which to audit the publications. Consequently, these reports have limited value in understanding the prohibition.
[8] The date of this opinion is listed incorrectly in Westlaw as July 27, 1978. See 1978 WL 10850.

[9] For example, the White House arranged a series of regional conferences in 1962 in 12 cities across the country. Some argued that these conferences had political overtones. The White House justified the conferences as providing the opportunity to seek the views of state and local officials and interested citizens on federal programs. We found this justification reasonable, so we did not object to the use of appropriated funds. B-147578, Nov. 8, 1962.

[10] While the flyer credits the actions of President Bush and Congress with enacting the legislation and the new benefits, such a statement describes the constitutional process for enacting legislation.

[11] For example, HHS is required to prepare an annual notice to beneficiaries explaining the benefits available to them and to provide information via a toll-free telephone number. See 42 U.S.C. 1395b-2 (2000). HHS is also required to provide information to enable Medicare beneficiaries to evaluate the value of Medicare supplemental policies and the relationship of such policies to Medicare benefits. See 42 U.S.C. 1395ss(e).
[12] HHS is required to provide annual mailings prior to each years open season describing the various managed care plans and the traditional fee-for-service option in specific detail so that beneficiaries can compare the various options. It also is required to maintain a toll-free number and Internet site for information about the managed care program. See 42 U.S.C. 1395w-21(d).
[13] Moreover, with respect to the prescription drug coverage, the information supplied may lead beneficiaries to underestimate the amount they will need to pay for prescription drugs.

[14] See, e.g., 149 Cong. Rec. S15899 (daily ed. Nov. 25, 2003) (statement of Senator John McCain); U.S. General Accounting Office, Medicare: Financial Challenges and Considerations for Reform, GAO-03-577T (Apr. 10, 2003).

[15] Department of Treasury, 2003 Financial Report of the United States Government, downloaded on March 9, 2004; Fiscal Year 2003 U.S. Government Financial Statements: Sustained Improvement in Federal Financial Management Is Crucial to Addressing Our Nations Future Fiscal Challenges, GAO-04-477T (March 3, 2004).
[16] See, e.g., 149 Cong. Rec. S15750 (daily ed. Nov. 24, 2003) (statement of Senator Herb Kohl) (stating that the MMA fundamentally changes the nature of Medicare); 149 Cong. Rec. S15891-2 (daily ed. Nov. 25, 2003) (statement of Senator Patrick Leahy) (stating that the MMA could force seniors to leave the traditional Medicare program).
[17] HUD mailed the publication to HUD grantees, public interest groups, churches, mayors, National Urban League affiliates, Indian tribal leaders, public housing agencies, business groups, historically African-American colleges and universities, academics, newspapers and news organizations.
[18] Because we were not aware of the newspaper advertisements at the time of our February 6 letter to HHS, we did not include any questions about these advertisements.