LAWSUIT RESULTS IN SIGNIFICANT VICTORY AGAINST MEDICARE RATIONING
As a result of a federal Court of Appeals ruling July 16 in a lawsuit brought by the United Seniors Association, those eligible for Medicare who wish to pay for treatment that Medicare will not reimburse are at last free to do so.

"The United Seniors Association (USA) deserves the thanks of every American for the effective blow it has struck against Medicare rationing with this lawsuit victory," said the director of NRLC's Department of Medical Ethics, Burke Balch.

For many years, rationing- inducing price controls were imposed on treatment provided to anyone eligible for Medicare, even when the patient sought to pay for the treatment without seeking Medicare reimbursement. During congres-sional consideration of the Balanced Budget Act of 1997, Senator Jon Kyl (R-AZ) offered an amendment to lift price controls in such circumstances, an amendment accepted by both the House and Senate.

In part because President Clinton strongly opposed allowing this freedom, however, he vetoed the bill. As a result, a compromise provision was finally negotiated and enacted which permits Medicare-eligible patients to pay the full cost of treatment, but only when the doctor providing such treatment signs an affidavit promising not to seek Medicare reimbursement for any treatment for any patient for at least two years.

Because only a relatively few physicians serving populations of fairly well-to-do older Americans can afford to practice without receiving any reimbursement from Medicare, the practical effect was to make it nearly impossible for most senior citizens to find physicians willing to provide such treatment.

Since the law passed, it has been clear that this provision applies whenever Medicare reimbursement is available for a treatment, even if the Medicare reimbursement rate is so low that health care providers cannot afford to provide the treatment for that price. In such circumstances, older Americans are not free to pay for the treatment at its real cost, unless they are able to find a doctor who has renounced all Medicare reimbursement for two years.

Especially as the retirement of the baby boom generation strains Medicare's resources and reimbursement rates fall farther and farther behind medical inflation this is likely to result in increased rationing. This aspect of the law, unfortunately, remains unaffected by the successful lawsuit.

However, it has been far less clear how the provision applies to cases in which Medicare refuses any reimbursement either because Medicare does not generally cover the treatment or because it is denied in a particular case. Conflicting signals had been given by Clinton Administration officials on various aspects of this question. The United Seniors Association brought suit, claiming it is unconstitutional to prohibit Americans from spending their own money for health care when the health care is not provided by the government. Finally after the lawsuit had already been argued before the judges of the D.C. Circuit Federal Court of Appeals the Health Care Financing Administration issued new regulations interpreting the law as inapplicable in every case in which Medicare reimbursement is not offered. The Court of Appeals therefore did not reach the constitutional issue, contenting itself with giving a definitive and permissive interpretation of the regulations.

United Seniors Association Counsel Kent Masterson Brown said, " The decision is the most sweeping pronouncement ever made by any court on the subject of Medicare beneficiaries' access to health care." Brown added, "Prior to the lawsuit filed by USA, seniors had little control over their own health care and doctors lived in fear when providing certain services to Medicare recipients."

The United Seniors Association, a group of older Americans that fights for their rights to unrationed medical treatment, may be contacted at www.unitedseniors.org.