Medicare Private Contracting — Paternalism or Autonomy by John S. Hoff

Reviewed by Lois J. Copeland, MD
Article Type: 
Book Review
July/August 1999
Volume Number: 
Issue Number: 

John S. Hoff of the American Enterprise Institute attempts to elucidate the reasoning and facts surrounding the bureaucratic prohibition of the right to privately contract between a Medicare-enrolled senior citizen patient and his or her chosen physician in this small booklet. Unfortunately, the book itself unknowingly adds to the wealth of errors which surround this subject.

For example, Mr. Hoff inaccurately states the district court in Stewart v. Sullivan (i.e., the lawsuit in which I and five of my senior citizen patients sued for the recognition of our right to contract privately with one another, NOT for the ability to have more than one nursing home visit per month which Mr. Hoff also inaccurately states throughout this book) “determined that HCFA had not clearly articulated a policy on private contracting and accordingly decided the matter was not ripe for adjudication.”(1)

Judge Politan, in fact, determined that the Secretary of Health and Human Services (HHS) had not clearly articulated a policy on private contracting; that, in fact, he (Judge Politan) did not believe that such a policy did in fact exist emanating from the Secretary; that HCFA did not have the right to make policy, only to administer policy emanating from the Secretary in a clearly articulated manner; and that HCFA did not have the power to sanction a physician; that we were, therefore, not threatened in our attempt to privately contract with one another, and since there was no real prohibition against what we sought, he dismissed the case and welcomed us back for relief should such an actual threat occur.

Thus, the very beginning of this book reveals the fundamental problem which has occurred in the administration and working of the Medicare program time and time again: the failure to actually carefully read the actual law, or to go directly to responsible sources (such as myself with respect to Stewart v. Sullivan) or the Secretary of HHS with respect to the formation of actual policy, but rather to rely upon the posturing of the HCFA bureaucracy which time and time again positions itself to obtain and maintain power (which Judge Politan pointed out it does not possess in law).

When I first read Ayn Rand’s Atlas Shrugged during my junior year in high school, I could only think that this was a frightening fantasy which could never exist in America.  When I reread this prescient book during my active war against the HCFA bureaucracy in the early 1990s, I could only conclude that I was actually living Atlas Shrugged. The lack of Aristotelian logic and reason has abounded in the workings of the bureaucratic edicts and tangles woven by the bureaucrats’ grab for power, and is made quite evident in this small book. 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.

Following the passage of 4507, Mr. Hoff states: “The reaction of Dr. Copeland is instructive. She engaged in private contracting after the court in Stewart v. Sullivan found no clearly articulated HCFA policy or regulation prohibiting private contracting. Upon enactment of section 4507, she ceased doing so.”(2) No, Mr. Hoff, I have not ceased doing so. And it is stated specifically in the Appeal of United Seniors v. Shalala,(3) in which I am an amicus along with my Association for Liberty, Choice and Self Autonomy, that I am placed at risk in my principled stand to privately contract with whatever senior citizen patient needs to do so with me in order to avoid the inherently evil and dangerous rationing and discrimination which naturally follows and has occurred when government disregards its constitutional limits and reaches for the power which is properly and lawfully in the hands of the people.

As a lawyer entrusted with reading and protecting the law, Mr. Hoff needs to rethink and rewrite his treatise after conducting a more careful review of the actual and written opinions and statutes — and performing interviews of the individuals he names.


1. Hoff JS. Medicare Private Contracting — Paternalism or Autonomy. Washington, DC, American Enterprise Institute, 1998, p. 8.
2. Ibid., p. 15.
3. Appeal of United Seniors vs. Shalala.

Reviewed by Lois J. Copeland, MD
Hillsdale, NJ

 Dr. Copeland practices internal medicine in Hillsdale, New Jersey, and serves on the Board of Directors of AAPS. Her e-mail address is:

Originally published in the Medical Sentinel 1999;4(4):150. Copyright ©1999 Association of American Physicians and Surgeons (AAPS).

(Medicare Private Contracting — Paternalism or Autonomy by John S. Hoff. American Enterprise Institute, Washington, DC; 1998; 73 pp.; $9.95, Paperback; ISBN: 084477123-6.)

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