Crossed Swords: Medicare Private Contracting

John S. Hoff
Article Type: 
November/December 1999
Volume Number: 
Issue Number: 

Lois Copeland is a dedicated physician. She is providing courageous leadership to protect the freedom of Medicare patients and their doctors. However, her review (Medical Sentinel, July/August 1999) of Medicare Private Contracting --- Paternalism or Autonomy is ill-conceived. The statements in that review are irrelevant to the substantive issue and factually incorrect.

I would have thought that Dr. Copeland would have understood the intellectual and legal support the monograph provides her effort, and welcomed it. At the very least, I would have expected Dr. Copeland to analyze the ideas discussed and presented any differing or complementary views she might have.

Instead, the review essentially consists of an assertion that two statements of fact made in the monograph are not correct. Building from this, the review goes on to belittle my scholarship and to advise me to be more careful in my review of court opinions and statutes. Because I am accused of factual misstatements and a lack of care, I must set the record straight.

Dr. Copeland's focus on the asserted two factual misstatements misses the forest for a few small trees. The statements that she objects to are not relevant to the analysis of the issues. They are part of the narrative explaining the background and effect of Section 4507. More importantly, Dr. Copeland's assertion that they are inaccurate is simply wrong.

Dr. Copeland brought the issue of private contracting to the fore by suing Medicare to obtain a declaratory judgment that private contracting is lawful. The court refused, in Stewart v. Sullivan, to rule on her request because, it said, it could not find a clearly articulated policy against private contracting. The court sidestepped the issue by stating that it was not ripe for adjudication.

As a practical matter, therefore, the court's decision supported private contracting. If Medicare did not have an understandable policy against it, doctors and patients could privately contract... HCFA, however, continued to threaten enforcement of its supposedly non-existent policy. In response Senator Jon Kyl pushed legislation to permit private contracting. Under the threat that the President would veto the Balanced Budget Act [of 1997], however, Congress was forced to settle on what is now Section 4507.

In reciting this background of Section 4507, I stated that the court in Stewart v. Sullivan found that HCFA had not clearly articulated a policy against private contracting --- what I thought was an innocuous and uncontroversial statement of historic fact. Dr. Copeland, however, reacted vehemently to this plain vanilla recitation. She said that the court found that the HHS Secretary had not articulated such a policy and that HCFA did not have the right to make policy, but only to administer policy emanating from the Secretary in a clearly articulated manner.

On the basis of the fact that I referred to HCFA rather than to the Secretary of HHS, Dr. Copeland accuses me of a doubly dastardly deed: "Unfortunately, Mr. Hoff's lack of careful scholarship has enhanced the bureaucrats' power grab and the vulnerability of senior citizens and the physicians who serve them." I was not aware that a reference to HCFA --- an agency within HHS --- rather than to the Secretary would have such an impact.

Dr. Copeland, moreover, fails to mention that later in the same paragraph from which she quotes the offending reference to HCFA, I said that the court found that HHS had not articulated a policy. More importantly, she has build a mountain of accusation from a gossamer distinction. It doesn't matter whether one refers to HCFA or to HHS. For these purposes they are interchangeable. HCFA is an agency within HHS (although the Administrator, like the Secretary is appointed by the President and approved by the Senate)... The Secretary is responsible for the actions of HCFA and accordingly suits challenging HCFA actions are brought against her.

Along these lines, it is interesting to note that Dr. Copeland also complains that I did not interview Secretary Shalala. I doubt that Secretary Shalala would have sat for an interview on this issue or indeed that she had any knowledge to contribute to the discussion. Her views in any event are a matter of public record. United Seniors Association brought suit after the enactment of Section 4507 to challenge the constitutionality of the statute and the underlying Medicare policy (United Seniors Association v. Shalala). The Secretary defended the statute and HCFA's policy against private contracting. She did not distinguish between HCFA and the Department and defended HCFA's policies and actions, It is not likely that she would have taken a different position if interviewed.

Dr. Copeland's second allegation of error is my statement that after the passage of Section 4507 she stopped engaging in private contracting...Perhaps Dr. Copeland decided between the time she gave her affidavit and the preparation of the amicus brief that she would resume private contracting. Or perhaps there is no good explanation for the difference...

Finally, Dr. Copeland complains that I did not interview her. I regret that I did not have that pleasure. The issues are complex --- and made more so by HCFA's inarticulate confusion. To minimize the chances of error, I reviewed the draft of the monograph with the learned counsel who had represented her in Stewart v. Sullivan and who also represented United Seniors Association in United Seniors Association v. Shalala. He did not find any error in my discussion of the facts or the law. It is apparent that checking with him was not only prudent but also most likely to assure accuracy.

The statements in my monograph that Dr. Copeland disputes are in fact accurate.

John S. Hoff
Washington, DC


Dr. Copeland Replies:

I thank Mr. Hoff for the kind words he spoke about me in the book, but I would have preferred a personal interview prior to its publication.

Lois J. Copeland, MD
Hillsdale, NJ

Correspondence originally published in the Medical Sentinel 1999;4(6);193-198. Copyright©1999 Association of American Physicians and Surgeons (AAPS).

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