The Ineffable Agreement

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I scribble a lot of notes to myself while I’m surfing the web, or writing; and use old envelopes, the backs of letters, or whatever is at hand, for the purpose.

By chance, I happened to glance at the obverse of the page I was using, and saw that it was a letter I had received from Medicare in 1997. It contains the essence of modern government in a nutshell.

That essence is the "social contract" theory, which holds that if you live in city A in state B, in the USA, you have, simply by voluntarily living there, placed yourself under the jurisdiction of A, B, and USA. Being unwritten, and unspoken, and, in fact, unknown to the vast majority of people allegedly a party to it, the "contract" cannot be precisely stated, but in general terms, goes like this: "In return for whatever benefits and privileges you may incur by living in A, B, and USA, you will do what the rulers of those communities order, or face whatever punishments they see fit to place upon you." It is admittedly rather open-ended, but necessary nonetheless if government is to operate under some sort of veneer of legitimacy. In other words, the obligation to obey is one you took upon yourself, voluntarily, simply by living in A, B, and USA. So shut up and do what you’re told!

There could be a modicum of reasonableness to this if the person involved had just moved to state B from state X, to escape its oppressive taxation. "You see how much better life is here in B than it was in X? So the price you pay is allegiance to us rulers here at B."

Or the person could have emigrated here from Tyrannoland, where life is almost unbearable. "How lucky you are to have gotten to this haven! All we ask is that you do what we tell you. And promptly, please, or you’ll be sorry." But this is like saying that the slave who escaped from a master who kept him in chains and fetters, to a new master who kept him only in chains, agrees to the chains and won’t challenge their use. In truth, all that our slave, or émigrés, have done is to better themselves slightly by leaping from the fire into the frying pan. Does that indicate that they willingly agree to be sautéed, or only that being sautéed beats, by a little, being incinerated?

In any event, for the overwhelming majority of us, it’s irrelevant. We were born here, and were never at any time aware, or made aware, that any sort of agreement existed between our rulers and us. And, should we be made aware of it, we would realize that an unwritten agreement is pretty hard to enforce, especially when it was unspoken as well, and its exact terms are unspecified. The idea, in other words, is just plain crazy, and doesn’t merit serious discussion.

Ah, but it does! Medicare discusses it in the letter I mentioned above. It was a response to an earlier letter — or letters — of mine, in which I sought to learn from that agency the source of its jurisdiction over me.

Physicians can be either "participating," or "non-participating." Participating physicians sign an agreement with Medicare, and receive payment for their services directly from Medicare. The great majority of my colleagues participate, probably because they think their patients will be affronted if they do not. Since Medicare never pays 100% of its "allowable" charge, however, the participating physicians must then bill the patients for the difference, and then post the checks to each patient’s account when received. This has always seemed to me more trouble than it was worth. In a busy practice, it would require hiring someone solely to keep charge of Medicare charges, payments, and co-pays. Phooey.

I have always been non-participating, which means that I haven’t entered into any agreement whatever with Medicare, and bill my patients. Most of them, in fact, pay before they leave the office, and thus enormously simplify my bookkeeping. Medicare reimburses them directly — although at a leisurely pace.

But: if I have entered into no agreement with Medicare, what gives them the authority to set my fees, and punish me if I exceed those fees? How does a corporation which has entered into an arrangement with my patients exercise dominion over me, in the absence of any agreement whatever between us? That was the question I put to Medicare. Here is their answer:

"…I would like to reiterate that once a physician or supplier provides services to a Medicare recipient, the provider of service becomes subject to Medicare rules and regulations under Federal Law. The source of Medicare law is Title 18 of the Social Security Act and CFR 42. Thus, by providing services to Medicare recipients, you are agreeing to adhere to the rules and regulations mandated by the Health Care Financing Administration (HCFA) which is governed by Federal Law."

Note the capitals: Federal Law! I genuflected, of course. At least as awesome is the bland assertion that "by providing services to Medicare recipients, you are agreeing to adhere to the rules and regulations…" I am not! Like the Internal Revenue Code, the Medicare regulations are voluminous, confusing, and ever changing. Thus, like the income tax, Medicare participation is "voluntary." By seeing Medicare patients, I am volunteering into the system, except I’m not. That line of "reasoning" may seem plausible to some Medicare clerk, but it simply isn’t true. I see the patients as they come through the door. If they have entered into some agreement with a government agency, it’s between them and that agency. I never volunteer!

The ultimate purpose of Medicare, I have always maintained, is to destroy the private practice of medicine, and the job is nearly complete. To give the whole thing the color of law, the hoary old "social contract" idea is dragged out and reinflated. And it isn’t just Medicare, of course, but government in general. How does it gain authority over us? By asserting it. If we question it, who answers the question? They do. If you resist, can you go into a court of law? Sure: their court, their judge. In the case of Medicare, they simply would deny my patients reimbursement, and they, finding it easier to fight me than the government, would change doctors.

The social contract theory, ridiculous and palpably unjust as it is, remains alive and reasonably well. Maybe it’s time we turned off the respirator and let it slip into the oblivion it deserves. Of course, without the social contract theory, government is revealed as just another gang of plunderers, with no legitimate reason to exist. All the more reason to pull that plug!

Dr. Hein [send him mail] is a semi-retired ophthalmologist in St. Louis, and the author of All Work & No Pay.

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