Most Americans would agree that the relationship
between a doctor and a patient is nobody's business--especially the
government's. Nonetheless, Congress and the Clinton Administration
have made a confusing mess of the Medicare law that governs this
very relationship.
Buried
deep in the Balanced Budget Act of 1997 is a provision (Section
4507) that deliberately curtails a senior citizen's right to spend
his or her own money on a medical service covered by Medicare and
provided by a doctor of his or her choice. According to this law,
to contract privately to treat a senior citizen a doctor must:
-
Sign an affidavit to that effect and
submit it to the Secretary of Health and Human Services within ten
days.
-
Agree to remove himself from the
Medicare program and refrain from submitting any claims to Medicare
for reimbursement for two full years.
Because very few physicians can afford to
drop out of Medicare for two years, the vast majority refuse to
treat senior citizens privately.
No
other government health program has a similar statutory restriction
for any other class of Americans. Indeed, senior citizens and their
physicians in the United States have less personal freedom to
engage in private contractual relationships than their counterparts
enrolled in the British National Health Service, one of the world's
best-known systems of socialized medicine.
The
premises of the new Medicare restrictions are even worse than most
Americans might imagine, because the Clinton Administration
recently convinced a federal court that a Medicare beneficiary's
right to privacy in a contractual relationship with a doctor--even
though no tax dollars are involved--is not protected by the U.S.
Constitution. This result of this odd combination of congressional,
executive, and judicial actions has been twofold: a profoundly
damaging precedent that curtails the personal freedom of doctors
and patients, and a unique and confusing situation for doctors and
patients in the Medicare program.
RESTORING THE RIGHTS OF SENIORS
There
is a proposal before Congress, however, to restore the rights of
seniors and their physicians. The Medicare Beneficiary Freedom to
Contract Act (S.1194/H.R. 2497), introduced by Senator Jon Kyl
(R-AZ) and Representative Bill Archer (R-TX), would:
-
Restore the right of doctors and
patients to enter into private agreements on mutually agreed upon
terms by repealing the legal requirement that doctors give up their
Medicare reimbursement for two years if they enter into a private
contract.
-
Repeal the statutory requirement that
doctors submit an affidavit to the Secretary of HHS agreeing not to
submit any Medicare claims for two years.
-
Clarify that nothing in Medicare law
prevents Medicare patients from entering into private agreements
with their doctors on a case-by-case basis for any length of
time.
-
Take steps to ensure that private
contracting does not lead to Medicare fraud.
CONCLUSION
The
emerging debate over private contracting has exposed both the
essentially authoritarian assumptions underlying the current
Medicare system and the arbitrary operations of an arrogant
bureaucracy unchecked by serious congressional oversight. It is
time for Congress to begin to exercise serious oversight over the
Health Care Financing Administration, the federal agency that
oversees Medicare and has contributed significantly to confusing
the issue of private contracting for senior citizens and their
doctors.
Congress should curtail the excesses of the
Medicare bureaucracy and fix what is clearly broken. Lawmakers
should make sure that doctors and patients in Medicare enjoy at
least the same professional flexibility and personal freedom that
their fellow citizens enjoy.
In
addition, members of the National Bipartisan Commission on the
Future of Medicare, assembled to present recommendations to reform
the financially troubled program, can make sure that America's
senior citizens are never again burdened with similar bureaucratic
restrictions.
By
doing so, they can reaffirm the principle that all Americans retain
the fundamental freedom to spend their own money on the physicians
and medical treatments of their choice. Freely chosen contractual
relationships between doctors and patients are the business of
doctors and patients, not of Congress or the federal
bureaucracy.
--
Robert E.
Moffit is Director of Domestic Policy Studies at The Heritage
Foundation.