"Sorry, You Can't Receive That Procedure":
The Clinton Administration's Attempt
to Limit Senior Citizens' Health Care
By Edward McDonough, J.D., LL.M. Candidate

A 1997 amendment to the Social Security Act (Section 4507 of the Balanced Budget Act) limits the elderly's access to health care. So who cares? Well, we all should. The web site of the U.S. Department of Health and Human Services has tables of projected demographic changes derived from the Bureau of Census populations and supported by the Social Security Administration. The middle projection shows a 17% increase in the elderly population from 33.5 million in 1995 to 39.4 million in 2010. By 2030, the projection shows the over-65 population increasing by 75% to over 75 million people. From 2030 to 2050, the elderly population is projected to increase to about 79 million. Of greater public concern will be the growth in the number of the oldest of the old (age 85 and over) -- from 3.6 million in 1995 to 5.7 million in 2010, 8.5 million in 2030, and 18.2 million in 2050. Someday, some among these millions will realize that they have been treated differently.

The Elderly in America

During 1997, Senator Jon Kyl (R-AZ) sponsored legislation explicitly allowing Medicare patients to contract with doctors at rates above the Medicare programís mandated fees and won overwhelming Senate approval. The Clinton Administration threatened to veto the entire balanced budget deal if the Kyl language was included. The Administration professed to fear the creation of a "two-tiered" health care system, one for the rich and one for the poor, but it is alleged that the Administration saw that giving patients a right to choose threatened the piecemeal effort to revive the "Clinton-care" plan defeated during the Presidentís first term. In order to preserve their budget deal, however, Republicans agreed to compromise language in Section 4507, which requires that any doctors who treat a Medicare patient privately must file an affidavit swearing they will see no Medicare patients for two years.

On December 30, 1997, the United Seniors Association (Association) filed suit against the Clinton Administration to enjoin the enforcement of Section 4507 of the Balanced Budget Act. As interpreted by the Health Care Financing Administration (HCFA), Section 4507 would prevent seniors from privately contracting with their doctors for otherwise covered medical services deemed "not reasonable and necessary" by HCFA. The term "private contracting" refers to a situation in which a beneficiary pays for Medicare-covered healthcare services or items with his or her own resources instead of the physician submitting a claim for payment to the Medicare program.

In the Association, the feelings run high, as is evident on its web site http://www.unitedseniors.org. Four individual members of the Association, all of whom are Medicare beneficiaries, will be unable to contract privately after January 1, 1998 because their personal physicians cannot afford to "opt out. " Statistically, less than 3.8% of the nation's physicians do not provide healthcare services under Medicare, and thus, few Medicare beneficiaries will be able to privately contract.

On March 6, 1998, the trial court heard oral arguments on the Plaintiffís Motion for Preliminary Injunction and took the matter under advisement. The trial court ruled against the Association on April 14, 1998. The Association appealed the trial courtís decision. The appeal is currently pending before the United States Court of Appeal Ė D.C. Circuit. (Court of Appeals Docket No. 98-5142). SeePublic Access to Court Electronic Records (PACER) for the D.C. Circuit for docket sheet information; dial 1-800-676-6856 for subscription information.Whatever the D.C. Circuit Court of Appeals may rule, this issue will continue to be challenged, through legislation and/or politically through the sheer number of elderly to whom this issue is so important.

For further information on Section 4507 and private contracting in medicine, see "Answers to Frequently Asked Questions about Private Contracting in Medicare by Robert Moffit, Ph.D. at http://www.unitedseniors.org/Paper%20RM%20FAQ.htm