After a long wait, we have finally heard from the U.S. Court of Appeals for the D.C. Circuit in the United Seniors v. Shalala. You can read the full decision at http://www.aapsonline.org. This was to be the suit that helped establish the right of a physician to deal privately with a Medicare patient outside of the Medicare system, or to "privately contract." I must admit, however, that as I read the words in the actual decision, I was filled with disillusionment and dismay.
To put it clearly, this case won the right of physicians to "privately contract" only for Medicare services that are not covered by Medicare. What a grand victory! In truth, this "victory" in nothing more than a sham, an affront to the very basic rights this nation is supposedly founded upon. These judges have "danced around the truth" with this case. Please read this document and you will understand what I mean.
They discuss "covered services" and "non-covered services" and "Advanced Beneficiary Notices" that allow physicians to charge for services that Medicare might deem "unnecessary" or "unwarranted." They basically spend 20 or so pages skirting the real issues of physician, and by inclusion, patient freedom. You cannot have patient freedom without allowing physicians to exercise that freedom. Physicians continue to lose their economic freedom, and without it, their patients, whether or not they realize it, will not be well advised freely as to medical interventions that they might need and desire. These judges have chosen to trample the rights of physicians rather than acknowledge or defend them. This is surely a decision of iniquity, which after reading, I have lost any hope that "our" court system will defend our right as physicians to deal privately outside of the Medicare system and charge a reasonable fee for our services to patients.
Why are physicians constantly accused of wanting to "gouge the public" with exorbitant prices, and everyone else, including lawyers, dentists, plumbers, restaurants, auto dealers, house painters, accountants, landscapers, electricians, carpenters, auto mechanics, and, in short, everyone else is not? It's because, we have made ourselves easy targets, and this must end. I believe it is time for physicians to end this injustice. "4507" must be rescinded.
We physicians, as a minority in this country, have lost our rights, because we have not insisted on retaining them. This situation is not new, but rights are not gained without a struggle. It is all to easy for a manipulated majority to "vote away" the rights of a defenseless minority, but at some point, that minority must stand and fight. Rosa Parks chose to do this and had to sit in the front of the bus. Someone had to directly and unequivocally violate an oppressive law enacted by the majority which had expropriated her fundamental rights as a citizen under our Constitution. It is time for physicians to do the same to defend our rights. We need a physician to "sit in the front of the bus."
The coming contest toward regaining our rights, I believe will take us three to five years, and it needs to be planned in detail to be successful. I will be working with you over the next several months to plan, direct, and execute this plan so that we can successfully change Section 4507, as far as being the section that legitimizes the underlying HCFA policy against private contracting. The right to privately contract must be expanded.
Together we will reassert the fact there is justice for all in our constitutional republic. The right of citizens to enter into private agreements is vital to a free society. AAPS will remind the State that under Article I, Section 10 of the U.S. Constitution, "No State can pass any law impairing the obligations of contracts." Moreover, we shall also remind Congress of their own 1965 Medicare Act, in particular Section 1801 that states: "Nothing in this title should be construed to authorize any federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided...." Our cause is just; let's see that we prevail.
This is my last letter to you as the President of our Association. I leave you all with this goal, which I consider one of the most important projects our Association should undertake - for it represents not just some of the principles upon which we stand, but all of them. We must continue this struggle for equal justice under the law and the preservation of individual liberty, in spite of the appearance of the overwhelming odds against us, in spite of the costs to us all, and in spite of the obvious labor that it will surely entail. My best to each of you as we continue together down this road on the quest for truth, and towards achieving true "Liberty and Justice for All."
Dr. Weaver is a thoracic surgeon in Durham, NC. E-mail: firstname.lastname@example.org.
Originally published in the Medical Sentinel 1999;4(6);207. Copyright©1999 Association of American Physicians and Surgeons (AAPS)