[Congressional Record Volume 143, Number 149 (Thursday, October 30, 1997)]
[Senate]
[Pages S11403-S11405]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             MEDICARE BENEFICIARIES FREEDOM TO CONTRACT ACT

  Mr. THOMAS. Mr. President, we would like to scoot back now on to this 
focus on Medicare, the idea that Medicare patients certainly have an 
opportunity to choose, that we are able to strengthen the Medicare 
Program through this function. I will first yield to the sponsor of the 
bill and, frankly, the person who has carried the weight and continues 
to, the Senator from Arizona.
  Mr. KYL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, will you please advise me when I have spoken 
for 7 minutes?
  The PRESIDING OFFICER. We shall grant the Senator 7 minutes.
  Mr. KYL. I appreciate that.
  Mr. President, I appreciate the Senator from Wyoming taking this time 
to discuss what we think is one of the most important matters yet to be 
decided before the end of this legislative session. I know we have some 
appropriations bills to pass to ensure that the Federal Government is 
funded for next year, and perhaps a couple of other items, like the 
fast-track legislation. But in terms of important principles, I can't 
think of anything more important than ensuring that the American people 
have the right to go to the doctor of their choice.
  You heard me right. I said to ensure that the American people have 
the right to go to the doctor of their choice. You mean they don't have 
that right? Well, Mr. President, unless we fix a part of the balanced 
budget bill that we passed earlier in this session, as of January 1, 
senior citizens in this country will not be guaranteed the right to go 
to the physician of their choice. Here is the problem.
  The Clinton administration interprets the Medicare law to require 
that a Medicare patient be treated under Medicare; that that person 
cannot go to a doctor who may see some Medicare patients but is not 
taking anymore Medicare patients and, therefore, is unwilling to treat 
the patient as a Medicare patient. Here is the exact situation, a real-
life story that happened to one of my constituents in the small town of 
Prescott, AZ.
  She just turned 65. She is diabetic. She was having complications. 
She wanted to see a physician who could take care of her, and there 
weren't very many specialists in that small town. She found one who 
could take care of her. She went to him and he said, ``Now, you are 
65.''
  She said, ``Yes.''
  He said, ``Then I don't think I can take care of you.''
  She said, ``Why not?"
  He said, ``I'm not taking anymore Medicare patients, you're Medicare 
eligible.''
  She said, ``That is all right, send me the bill, I will pay you. We 
will save Medicare money.''
  He checked with HCFA, the entity that runs Medicare, and sure enough, 
he could be prosecuted for a Federal crime if he entered into what is 
called a private contract with her.
  That is the way the Clinton administration interprets the law and, in 
fact, Mr. President, that is the way they want the law to read because 
they don't want any competition for Medicare. Once you turn 65, it is 
their view that everybody should have Medicare and only Medicare. One 
of my colleagues said it is Medicare or no care.
  That is an unacceptable choice for senior citizens in this country. 
Why should you become second class when you turn 65 and not be able to 
contract privately with a physician of your choice?
  I am on a Federal health care plan. I happen to like Blue Cross, so I 
signed up with the Blue Cross plan. But I still go to a doctor that is 
outside of that plan and pay for it myself. I have that right. Why 
shouldn't a senior citizen have the same right that I do under my 
Federal health care plan? Why should someone, merely because they turn 
65, be denied the right to privately contract with the physician of 
their choice? Maybe they have been seeing the same doctor for 40 years 
and they want to continue seeing that doctor but he is not taking 
anymore Medicare patients, why shouldn't they be able to go to him and 
why shouldn't he be able to contract directly with them?

  We passed it 64-35 in the Senate. It went into the balanced budget 
bill, but the administration said, no, they would veto the balanced 
budget bill unless we took that provision out or unless we changed it. 
How did they insist it be changed, without my approval by the way? They 
said, OK, the patient can have the choice but no doctor can serve such 
a patient unless in advance he opts out of Medicare for 2 years.
  Let's be realistic, only 4 percent of the nonpediatricians don't 
serve any Medicare patients. Most doctors have some Medicare patients. 
Do we want to literally force those doctors to dump all of their 
Medicare patients just so they can privately contract? That is not the 
way to encourage more doctors to see more Medicare patients. Why 
shouldn't a physician be able to both treat patients under Medicare and 
not treat patients under Medicare?
  There is only one argument, other than the fact this presents some 
competition to Medicare. In that regard, I don't see how it hurts 
Medicare, because to the extent that anybody would choose not to take 
advantage of Medicare, they are saving Medicare money. It doesn't hurt 
Medicare. It actually helps Medicare, they don't have to pay as much.
  There is some concern that some unscrupulous doctor somewhere might 
take advantage of a Medicare patient. ``I'm not going to treat you 
under Medicare; you have to enter into a private contract with me, and 
I am going to gouge you.'' I don't think that is going to happen.
  Just to be sure, we built into the bill which I introduced a 
provision against fraud. It requires a written contract, and the 
patient can get out of it at any time. HCFA gets information from the 
doctor which tells them exactly what is going on. So if there is any 
fraud, that doctor can be prosecuted. So we have taken care of the 
major problem that has been raised.
  I don't think there is any reason why our bill should not pass. I 
don't think this Congress should go on record as standing for the 
principle that when you turn 65 in the United States of America, you 
don't have the choice to go to the doctor of your choice, and that 
doctor doesn't have the choice to care for you if he wants to do that. 
It is wrong, it is un-American, it is a violation of fundamental 
rights, and before this Congress adjourns, Mr. President, we need to 
fix the law so that

[[Page S11404]]

senior citizens in this country have a fundamental right to the medical 
care that they deserve.
  Again, I thank the Senator from Wyoming for his sponsorship of this 
time for us to discuss this issue. I hope we have a chance before this 
legislative session is over to act upon this bill to get it passed and 
that the President will sign it. Thank you, Mr. President.
  Mr. ALLARD. Mr. President, I understand that the Senator from Wyoming 
controls the time, is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. ALLARD. I request 5 minutes.
  Mr. THOMAS. I yield to the Senator from Colorado.
  The PRESIDING OFFICER. The Senator from Colorado is recognized for 5 
minutes.
  Mr. ALLARD. Mr. President, it is a pleasure to be here with my 
colleagues from Arizona and Wyoming, because I share in their concern 
that this is a fundamental issue of our freedom and that is the right 
of the seniors to privately contract their own health care.
  Quite frankly, I am surprised we are having to debate this issue on 
the Senate floor. It is amazing to me how far we have strayed from this 
principle of some fundamental freedoms that the individual should 
enjoy.

  Again, I compliment particularly my colleague from Arizona for his 
leadership on this particular issue and also my colleague from Wyoming.
  The notion that in America we have a group of citizens who would be 
effectively prohibited by law from paying for their own health care is 
absurd.
  In order to fully understand the issue, I think it is important to 
review a bit of the history about this particular issue.
  The Health Care Financing Administration has interpreted current law 
to restrict voluntary, private contracts between physicians and 
Medicare-eligible beneficiaries. HCFA has issued threats of fines and 
exclusion against doctors who violate this arrangement and enter into 
private agreements. HCFA has created a situation where doctors must 
comply with regulations stipulated by Medicare if they accept even one 
Medicare beneficiary as their patient. Medicare, as we all know, is the 
only federally funded health care program that prohibits private 
contracting by the participants.
  During the balanced budget debate, Senator Kyl offered an amendment 
that would have allowed for seniors to use their own money for their 
health costs. Unfortunately, through deliberations in conference, this 
provision was stricken and a new law that takes effect in January 
requires physicians who enter into private contracts to forego Medicare 
reimbursement for a period of 2 years. It has been reported that 
currently only 9 percent of physicians do not have any Medicare 
patients. This provision effectively restricts the choice and the 
quality of health care services provided to senior citizens. This would 
tend to prohibit doctors from treating elderly patients and would deny 
seniors the choice of seeking treatment outside of the Medicare system. 
According to the amended law, any doctor who is found to be treating 
Medicare patients and privately contracting will be subject to fines 
and even imprisonment. In all practicality, the language makes private 
contracting impossible.
  It is imperative that Congress revisit this issue and resolve this 
shortsighted legislation. I am proud to support Senator Kyl's bill, the 
Medicare Beneficiaries Freedom to Contract Act, which would allow 
seniors the ability to use their own discretion and money for their 
health care needs. This legislation is crucial for the elderly 
individuals who rely on our Medicare system. By allowing senior 
citizens the ability to retain the doctors of their choice, they are 
able to receive the care that they want and require. This legislation 
is essential to senior citizens' rights to use their own discretion for 
their health care needs.
  Although it is true that the deficit in January has declined, the 
portion of these revenues claimed by entitlement spending continues to 
rise as entitlement spending rises. I agree with my colleague from 
Arizona when he says this is also something that will help us balance 
the budget. Why wouldn't Medicare accept the idea that a private 
individual can pay for his own health care services out there? It means 
they don't have to pay for it. It means less expenditures on 
entitlement spending. It means we can do more to reduce deficit 
spending. Particularly at a time when Medicare is in dire need of 
reform, how can Congress simply deny seniors the right and ability to 
use their own money for health services?
  This is not a ``Washington one-size-fits-all'' situation. We are 
talking about the health care of our Nation's elderly. Medicare 
beneficiaries should be given the right to pay out of pocket and to 
choose their own health care provider. It is their freedom we are 
infringing upon, and it is imperative we act now to rectify this wrong.
  Congress must create a more efficient and effective health coverage 
program for seniors. Senator Kyl's bill is one essential step to 
complete that goal. More choice and competition must be implemented in 
the Medicare Program, thereby facilitating proper health care coverage 
that fits different individuals' needs and desires. Congress must act 
now to rectify this problem.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Wyoming.
  Mr. THOMAS. Mr. President, we have been joined by our associate from 
Minnesota. Let me first say that this Medicare issue, of course, is one 
of the most important issues that we deal with. I think it is one of 
the most important issues to America. Certainly it is the most 
important issue to seniors. The idea is to keep it available over time 
so people who are now paying into part A and will pay into part A will 
have the benefits of it when they are eligible, to keep choice in it so 
that seniors will have some choice as they enter into this kind of 
health care; to keep it financially strong, which is the difficulty, of 
course--their costs have gone up in Medicare; they have finally 
narrowed down some, largely through the involvement of managed care, 
and there will be a committee or a commission appointed in December to 
take a look at the future of it--and to make it available in all parts 
of the country. My friend from Colorado just talked about that. We have 
small towns, we have towns in which there are only one or two 
physicians. So this choice thing is so important, that it be there.
  Let me now yield to the Senator from Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.

  Mr. GRAMS. Mr. President, I rise today to join my colleagues in 
expressing my support for Senator Kyl's Medicare Beneficiary Freedom to 
Contract Act, of which I am a cosponsor. As I explained on the floor in 
a statement last Monday, the thought that we have to debate in the U.S. 
Senate whether or not we are going to allow seniors the very basic 
right to use their money as they see fit is really just testimony to 
how far this administration is willing to go in trying to impose its 
will and its vision of socialized medicine on the American people. 
Socialized medicine, what Americans rejected in 1993, the 
administration is trying to, in incremental steps, reimpose on the 
American public.
  Over the past few weeks I have received many letters, many phone 
calls and e-mails on this very subject. I would like to share one of 
these letters with my colleagues today. This comment came from a 
constituent of mine in Saint Paul, MN. The constituent wrote:

       By what right do you arrogate to yourself the right to 
     determine the length of my life? Medicare could easily fall 
     short of the necessary medical steps to preserve health and 
     life. Remember, this will apply to you, too.

  My fellow Minnesotan could not be more correct in the assessment of 
this provision which was tucked into the Balanced Budget act. It was 
tucked in there in the dark of the night, without debate and with 
little regard for the consequences and with the demand by the 
administration that it be included no matter what. It is unconscionable 
that the United States, the world's model of freedom and liberty, has 
now decided that senior citizens are somehow second-class citizens, 
that they are incapable of making their own choices when it comes to 
health care.
  Opponents of the Freedom to Contract Act claim that this bill now 
will make it easier for doctors to force seniors to give up their 
Medicare rights and be charged ``the sky's the limit.'' They say that 
without this protection,

[[Page S11405]]

seniors will be overpaying for their medical care.
  I give our Nation's physicians and our Nation's seniors a lot more 
credit than that. This bill does absolutely nothing to force seniors to 
opt out of the Medicare Program, nor does it implicitly encourage them 
to do so. It simply will give our seniors an additional choice in how 
they receive their health care services--an additional choice on how 
they receive their services. In fact, I believe increasing choices for 
seniors in the Medicare Program was probably one of the best things 
that came out of this year's Balanced Budget Act. The Medicare 
Beneficiary Freedom to Contract Act is just a logical extension of the 
Medicare Plus Choice Program that was created in the Balanced Budget 
Act.
  I urge my colleagues to set aside the demagoguery and restore the 
rights of our senior citizens. They deserve our respect and they 
deserve the right to make their own choices. If we don't act on this 
bill before this session of this Congress ends, it will go into effect 
and then it will be very hard to restore this right to our seniors. So 
I am asking my colleagues, urging them, to join with us to make sure 
that we preserve the rights of our senior citizens to have an 
additional choice in how they decide on their health care.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. THOMAS. Mr. President, I appreciate very much the time. I 
appreciate being joined by my friends in support of this Medicare 
Beneficiaries Freedom to Contract Act. Let me just review how we got 
where we are.
  During the consideration of the balanced budget, Senator Kyl put in a 
very simple amendment which simply said that you could have this choice 
that did allow for physicians to treat under a private contract in 
addition to Medicare. Unfortunately, the administration became adamant 
about it. I think they followed, as the Senator from Minnesota said, 
the idea of turning this back into a one-size-fits-all kind of 
federally controlled program. The President threatened to veto the 
entire budget package because of this, if this 2-year prohibition was 
not included. So, today I am still disappointed with the 
administration, with HCFA, with the President's opposition to this 
proposition.
  We are going to continue to push for consideration of this issue 
before this Congress adjourns so we can eliminate this bottleneck, this 
thing which takes away the choice of senior citizens in their health 
care.

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