- The Washington Times - Wednesday, August 23, 2000

Last month Medicare celebrated its 35th birthday. Although not without its flaws, the system has generally provided doctor choice and improved health care quality for millions of seniors.

To be sure that it continues to serve seniors well into the new century, the flaws need to be fixed and the system strengthened and improved. There are several comprehensive bills now pending in Congress that would do just that.

An essential part of the Medicare problem could be fixed right now. It stems from a provision of the law enacted in 1997 that compromises seniors' power to choose a doctor, and reduces health care quality.

Imagine the day you turn 65. You go for a checkup to your doctor of 30 years. He tells you that, since you've become eligible for Medicare, he can no longer treat you. Amazed, you ask why, and he replies that, due to low Medicare reimbursement rates and excessive paperwork requirements, he can't afford to take any more Medicare patients.

You ask, "Can I just pay you out of my own pocket?" No, your doctor replies, "if I take your money, I could be criminally prosecuted for health care fraud. Now that you're 65, you can only get your health care through government medicine."

This actually happened to a constituent of mine, Mary Ann Howard of Prescott, Ariz. Despite her willingness to pay for her own care, Mrs. Howard could not do so. While it seems straight out of "Ripley's Believe It Or Not," in America today, once you turn 65, it's Medicare or no care.

How could this be?

Through a flawed interpretation of the Medicare law, the Clinton administration forbids Medicare beneficiaries from using their own money to go to the doctor of their choice.

To override this restriction, the Senate passed the Kyl amendment in 1997 that would guarantee health care choice for seniors. But, to protect its monopoly over seniors' health care, President Clinton threatened to veto the entire budget over this one provision. He ultimately agreed to sign it only if it included a poison pill: Physicians and other providers could treat seniors outside of Medicare only if they first dumped all of their Medicare patients for two years.

Much as they may want to accommodate people like Mrs. Howard, few physicians believe they should abandon all of their senior patients. So the poison pill has had its intended effect; there is still no effective choice for those who, for their own reasons, seek an alternative to Medicare.

In 1997, a group of seniors whose rights to health care choice were violated by this law filed suit in federal district court. The decision handed down, in July 1999, in the case of United Seniors Association vs. Shalala looked, to some, like a victory for seniors' ability to contract privately for medical treatment outside of Medicare if they chose.

Would that it were so.

What the D.C. Court of Appeals did last summer was: (1) affirm what can only be described as a banal feature of Medicare law that procedures not chargeable to Medicare, such as cosmetic surgery, can be paid for out-of-pocket; and (2) put the Health Care Financing Administration (HCFA) on record saying it would stop its overt bullying to prevent care where doctors and providers deemed "medically necessary" but HCFA (which runs Medicare) did not.

Let's hope we can take the agency at its word, at least in these limited situations. But even if we do, what happened to my constituent, Mrs. Howard, will still happen. Because the opt-out penalty survived last summer's legal challenge, the chilling effect on doctors has only warmed by a scant degree or two.

Seniors still can't get clearly covered services outside of Medicare. There is still no explicit permission to contract privately with physicians. In short, HCFA still exert too much control over seniors' choice.

We must get rid of the penalty for private contracting and restore to seniors like Mrs. Howard the same freedom enjoyed by other Americans.

Here's how we do it.

In an effort not to appear as dictatorial as it is in practice, HCFA has produced a memorandum saying seniors really do enjoy flexibility. There could be instances, says the HCFA memorandum, where "the beneficiary, for reasons of his or her own, declines to authorize the physician or practitioner to submit a [Medicare] claim."

We should waste no time in enshrining this statement in public law. I've drafted a bill that would do just that and would make HCFA stick to its word. And I can't think of a better time to do it than to commemorate the 35th anniversary of Medicare.

Of course, a clear and unambiguous affirmation of seniors' right to choose is the last thing the administration wants. It would get in the way of its and Al Gore's long-term goal of universal government health care. But in the United States of America, neither an executive branch agency, nor the Congress for that matter, should have the authority to deny citizens the ability to say who will treat them.

Jon Kyl is a U.S. senator from Arizona.

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