 |
 |
|
|
The old saw about the danger of actually getting what you ask for has just proved all too true for many physicians. Now that Congress has passed a law that will for the first time explicitly allow physicians to enter into private contracts with their Medicare patients, some of the organizations that spent years urging Congress to enact such a law are calling on lawmakers to revisit the issue to undo what they view as a serious flaw in one of its major provisions.
The section that has caused consternation at APA, the American Medical Association, and other organizations that represent Medicare providers is the one that bars any physician or health care professional who signs a private contract with a Medicare-eligible patient from billing Medicare for the treatment of any beneficiary for a two-year period after that first private contract is signed.
Under the recently passed law, any physician or other practitioner who agrees to establish a private contracting arrangement at the request of a Medicare beneficiary must file an affidavit with the Health Care Financing Administration (HCFA), the federal agency that administers the Medicare program, in which the physician agrees that for the two years beginning at the time the affidavit is signed, he or she will submit no Medicare bills to HCFA for any patient.
The provision was added to the bill at the last minute as a compromise with opponents of Medicare private contracting. Prominent among these opponents was President Bill Clinton, who maintained that permitting this option was a step on the road to a two-tiered health care system for America’s rapidly expanding population of senior citizens. Only the wealthiest beneficiaries, opponents said, will be able to afford to bypass Medicare, with its rules, paperwork, and coverage limits, and pay whatever their physician chooses to bill them. The White House had sent the message to Capitol Hill that Clinton was considering vetoing the bill if it contained the unlimited private contracting alternative.
The Medicare reform was included in the Balanced Budget Act of 1997 and is projected to save the Medicare system about $5 billion over the next five years. With much of this savings slated to come from payments to providers and hospitals, the ability of physicians to contract for payment at a rate they and their patients agree is fair could have become a more popular option had it not been largely negated by the two-year participation prohibition.
From APA’s perspective, the need for private contracting has nothing to do with fostering a system that will be advantageous for wealthier seniors, emphasized Jay Cutler, director of the APA Division of Government Relations.
"Our advocacy of private contracting is based on the belief that confidentiality and privacy are essential to quality treatment. Patients should not be denied the option of receiving psychiatric care without having to look over their shoulder to see how the government or other third parties may be using information from their treatment records," Cutler said.
In addition, with the federal government mounting a strong campaign to urge Medicare beneficiaries to join HMO’s and other managed care plans, private contracting is becoming an even more important option for patients who dread breaking off a long-standing therapeutic relationship because their psychiatrist may not be on some new provider panel, added Nicholas Meyers, deputy director for Congressional relations in APA’s Division of Government Relations.
Bills to unbind physicians from the two-year exclusion requirement have been introduced in the Senate by Jon Kyl (R-Ariz.)—a sponsor of the original private contracting provision—and in the House by Bill Archer (R-Texas), chair of the powerful Ways and Means Committee. The legislators maintain that as enacted, the new law will dissuade all but a handful of physicians from signing such private contracts, thus gutting the intent of the original proposal.
"Not only does the lack of an effective and reasonable private contracting option penalize physicians, it also unnecessarily penalizes Medicare beneficiaries who have virtually been denied the same choices that younger Americans enjoy when it comes to paying for their health care," stated Ronald Shellow, M.D., chair of APA’s Joint Commission on Government Relations.
"The Clinton Administration claims that without the two-year prohibition, private contracting will undermine the Medicare system. In my opinion, though, the current law will actually undermine it because private contracting will now be open only to a handful of physicians with very rich elderly patients," Shellow maintained.
The new bills introduced by Kyl and Archer would repeal the two-year barrier along with the need to submit affidavits to HCFA when private contracts are signed with Medicare beneficiaries. They also specify that physicians and others are freed from Medicare’s reimbursement and billing limits only for patients with whom they agree to private contracting.
Practitioners would still be required to submit information identifying the Medicare beneficiaries with whom they have private contracts to ensure that the government does not somehow reimburse the physician for services ordinarily covered by Medicare.
Also detailed in the new legislation, known as the Medicare Beneficiary Freedom to Contract Act of 1997, are requirements and standards for these new private payment arrangements, some of which are carried over from the previous bill. Contracts will have to include, for example, a description of the services specifically included in the agreement and an acknowledgment that the patient realizes that supplemental insurance policies—better known as Medigap policies—will probably not be applicable for coverage of services beyond what Medicare would have paid if the contract was not in effect.
The contracts will also have to state that the Medicare-eligible patient who enters into a private-payment arrangement with a physician still retains the right to obtain Medicare-reimbursed treatment and other services from providers with whom he or she has no such contract.
As in the earlier legislation, emergency treatment will be outside the purview of the private contracts unless the agreement was signed by both parties prior to the occurrence of the medical emergency.
While Shellow pointed out that the prospects are not particularly favorable that both houses of Congress will pass the bills doing away with the two-year limit during the current session, he stressed, "We’ve won uphill battles on important issues before, and I’m confident we will win this one as well."