[Congressional Record Volume 144, Number 2 (Wednesday, January 28, 1998)]
[Senate]
[Pages S89-S90]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                MEDICARE, FREEDOM, AND PRIVATE CONTRACTS

  Mr. GRAMM. Mr. President, one of the most important pieces of 
legislation that will be considered by the Senate this year is Senator 
Jon Kyl's bill, S. 1194, the ``Medicare Beneficiary Freedom to Contract 
Act''. I am proud to be an original co-sponsor of this bill.
  Enactment of this legislation will insure that our senior citizens 
who participate in the Medicare program will retain the right to pay 
for the treatment or services they want from the doctor of their 
choice.
  The Clinton administration has sought to restrict such a fundamental 
freedom but I do not believe that the American people will support that 
position once we have had a chance to bring the matter to their 
attention.
  Mr. Kent Masterson Brown, writing in the Washington Times on January 
25, 1998 has provided a succinct analysis of this issue and I commend 
his article to my colleagues. I ask unanimous consent that the article 
be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                 Medicare's Assault Against the Elderly

       Throughout my 23-year career as a litigator of 
     constitutional issues, principally in the health care arena, 
     I have witnessed the growth of Medicare with a sense of 
     alarm.
       From what was designed by Congress to be a ``voluntary'' 
     health benefits program for the elderly, it has mutated into 
     a bureaucratic leviathan that controls who provides health 
     care services, and how those health care services are 
     delivered--despite absolutely explicit, statutory guarantees 
     to the contrary. We now have a federal agency--the Health 
     Care Financing Administration (HCFA)--involved in a 
     relentless effort to totally control the delivery of health 
     care to the elderly by deciding, without legal authority, 
     what services a physician will provide even though Medicare 
     will not pay for them. Those controls now manifest themselves 
     in the denial of basic health care services to the elderly, 
     as well as denying the elderly access to the most innovative 
     and cost-effective health care technologies.
       HCFA has exercised its power to control the delivery of 
     health care by steadily racheting down payment for health 
     care services, and, at the same time, stepping up its threats 
     against providers who deliver health care services which 
     HCFA, for purely fiscal reasons, deems ``unnecessary'' even 
     though those services might be life-saving and even though 
     the federal government does not pay for them. Recent changes 
     in law which we are challenging in court, will make the 
     situation even worse.
       To understand what is taking place, we need to start with 
     the basic Medicare law. Nowhere in the Medicare Act is a 
     beneficiary required to file a claim for payment for health 
     care services each and every time he or she sees a physician. 
     Yet, those in charge of HCFA threaten physicians with severe 
     sanctions ``even criminal prosecution'' if they do not file 
     such claims. Why make such a demand, which only adds to 
     costs? If a car insurance company made such demands on its 
     policyholders everytime a door was dinged it would go 
     bankrupt.
       In 1992, I had to file a lawsuit in federal court in 
     Newark, N.J., in order to allow five patients to contract 
     privately with their personal physician. All those patients 
     wanted was the opportunity to see their physician in the 
     nursing home more than once a month and to protect the 
     privacy of their medical records, nothing more. The federal 
     government, however, threatened the physician with sanctions 
     if she complied with the patients' wishes and did not file a 
     claim. HCFA entered the courtroom declaring that the 
     physician could not contract privately with her Medicare 
     patients because she is required to file a claim with 
     Medicare each and every time she sees her Medicare patients. 
     If those patients wanted to pay privately, HCFA declared, 
     they could write a check to the federal government.
       The federal court disagreed with HCFA in Stewart vs. 
     Sullivan. The court found there were no statutory 
     prohibitions against private contracting for Medicare 
     beneficiaries and that HCFA had developed no ``clearly 
     articulated'' policies against it. The threats were just 
     that: threats. They were made without any statutory or even 
     regulatory authority.
       Last summer, all this sparring took a drastic turn for the 
     worse. Congress, under pressure and threats from the Clinton 
     administration, enacted Section 4507 of the Balanced Budget 
     Act of 1997. This provision makes it unlawful for a physician 
     to contract privately with a Medicare-eligible patient unless 
     the physician agrees, in writing, not to bill Medicare for 
     any services delivered to any Medicare patient for two years.
       The practical consequences of Section 4507 ``which amounts 
     to a de facto ban on private contracting'' are not difficult 
     to foresee. We know, for example, more than 96 percent of the 
     nation's physicians see Medicare patients. We know the vast 
     majority of these physicians will not abandon all their 
     current Medicare patients in return for entering into private 
     contracts with a few. And we know many of the less than 4 
     percent of physicians not directly affected by the de facto 
     ban already, for one reason or another, have been excluded 
     from the Medicare program. Thus, no senior citizen will be 
     able to contract privately for any meaningful health care 
     services even if he or she could find a physician who was 
     willing.
       Seniors are thus left with a ``take it or leave it'' system 
     that denies and rations health care. They will get only those 
     services the federal government says they should get Nothing 
     more can be provided--even if they wish to pay for it 
     themselves.
       What does this mean in real life terms? The answer is 
     simple. For everyday, inexpensive screening and diagnostic 
     laboratory services, our seniors will receive one, unless 
     there is an ``approved'' diagnosis accompanying a claim for 
     payment filed with HCFA. Because all laboratory services 
     claims must be filed on an ``assignment'' basis, if HCFA will 
     not pay, the services will not be provided unless the 
     physician pays for them and exposes himself/herself to severe 
     sanctions.
       Thus, the elderly will be denied asymptomatic prostate-
     specific antigen (PSA) tests to detect prostate cancer, 
     asymptomatic serum glucose tests to detect diabetes, and 
     thyroid tests to detect hypothyroidism and hyperthyroidism, 
     to name a few.
       What is alarming is that senior citizens, more than most, 
     need to have such tests available because as a group they are 
     the most vulnerable to a variety of life-threatening 
     diseases. To detect these diseases (all of which have long 
     asymptomatic periods) early is to control or to cure them. 
     That saves lives and money. If HCFA get its way, seniors will 
     only get those important diagnostic tests after the symptoms 
     have appeared--either too late for much help, or when 
     intervention becomes expensive. That is how the federal 
     government has determined to control health care for what it 
     calls our ``frail elderly.''
       This is Medicare's brave new world. It is a world that 
     offers the minimum at best. It allows for no decision-making 
     on the part of the Medicare beneficiary.
       It is incredible that in this country--supposedly the 
     freest on Earth--the government prohibits a senior citizen 
     from paying for his

[[Page S90]]

     or her own health care. Even in the British National Health 
     Service, a citizen can privately contract. But not here.
       If the U.S. Constitution protects a pregnant teen-ager when 
     she seeks an abortion, even one so young the law considers 
     her lacking the capacity to vote, it must protect senior 
     citizens who seek only to receive the health care they want 
     and for which they are willing to personally pay. If the 
     Constitution protects the medical records of those with 
     deadly diseases about which we know very little, it surely 
     protects the medical records of seniors who seek privacy. If 
     the Constitution protects citizens against discrimination, it 
     surely protects seniors from being singled out and denied the 
     opportunity to make decisions regarding their personal health 
     just because they are 65 years of age or older.
       On Dec. 30, the members of the United Seniors Association, 
     including Tony Parsons, Peggy Sanborn, Ray Perry and Margaret 
     Perry filed a lawsuit in federal court asking that Section 
     4507 of the Balanced Budget Act of 1997 be declared 
     unconstitutional as violative of Article I, Section 8, of the 
     Constitution and the First, Fourth, Fifth, Ninth, 10th and 
     14th Amendments of the Constitution. They have asked the 
     court for an injunction to stop the Clinton administration 
     from enforcing Section 4507, and to block any attempts to 
     interfere in the private contracting of America's elderly.
       Until this unconstitutional provision is eradicated by 
     Congress, the freedom and safety of America's senior citizens 
     will be severely jeopardized.

  Mr. GRAMM. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. COVERDELL. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Collins). Without objection, it is so 
ordered.
  Mr. COVERDELL. Madam President, parliamentary inquiry: It is my 
understanding that for the next hour and a half the control of the time 
is under the direction of the Senator from Georgia or others he may 
designate.
  The PRESIDING OFFICER. The Senator is correct. Under the previous 
order, the Senator from Georgia or his designee is recognized for 90 
minutes.
  Mr. COVERDELL. Thank you, Madam President.

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