If Congress passed a law so sweeping as to be possibly the biggest infringement on economic liberty this decade, would that be headline news? Apparently not.

Scant media attention has been paid to the Balanced Budget Act’s Medicare provision, which blacklists doctors who provide medical treatment to Medicare-eligible patients without billing Medicare. Beginning January 1, doctors who treat seniors outside the Medicare system will be required to sign an affidavit agreeing not to seek any Medicare reimbursements for medical services for two years. Seniors’ right to pay privately for medical services will essentially be destroyed by this legislation, because few providers will be able and/or willing to treat only seniors who do not use Medicare.

Previously, Medicare-eligible seniors were able to privately contract for services if they were not participating in Medicare Part B, the voluntary, but popular, supplemental medical insurance that covers physician, outpatient, and other services. Under the new law, they will be able to participate in Medicare Part B and privately contract — but the new law also makes it unlikely that they will be able to find any willing providers. Catch-22?

Supporters of the new law defend on two grounds the restriction on private contracting. First, they argue it is a necessary protection against fraud and abuse of the Medicare program.

In particular, the fear is that physicians could "double-dip" by simultaneously receiving payments from the Medicare program and from the patient. Their concern may be valid, but unfortunately this prescription is more dangerous than the ill it is designed to cure.

Even if a doctor were to risk severe financial penalty and imprisonment by double-billing Medicare and the patient, this illegal practice would create no additional financial strain on the government system, compared to Medicare payment alone.

Indeed, if the privately contracted health service were covered under Medicare, the government would be paying for the treatment no matter whether the patient also pays for it or not.

Furthermore, an Explanation of Medicare Benefits form is sent to each patient by the government whenever Medicare pays a claim, making it easy for the patient who suspects double-billing to report it to the government.

The restriction on private health care for seniors is also defended in the name of consumer protection. The argument is that unscrupulous doctors, if not regulated, may overcharge patients. In other words, consumer choice (as opposed to the financially unstable Medicare bureaucracy) will lead to increased costs.

Nothing could be further from the truth. Patient freedom to seek care outside the Medicare system can only drive costs down and improve quality through cost-conscious individual financial decisions. Patients who pay for services out of their own pockets will make more considered and thoughtful choices, weighing the need for treatment against costs.

A peculiar irony of this Medicare restriction is that foreign seniors who travel to the U.S. to obtain health care enjoy more freedom of choice than our own seniors. Unlike Medicare-eligibles in the U.S., non-citizens may privately contract for medical services without restriction (and without being forced to pay into Medicare, either). Doctors who would not dare contract with American seniors may treat without restriction non-citizens paying privately. Even the much-maligned British health care system is less restrictive than Medicare when it comes to private contracting.

Can we then assume that the Medicare Beneficiary Freedom to Contract Act sponsored by Senators Jon Kyl (R-AZ) and Don Nickles (R-OK) and Congressman Bill Archer (R-TX), which would remove the two-year exclusion from Medicare for doctors who privately contract with Medicare-eligibles, will fix the problem? Unfortunately, no.

The proposed "fix" would expand private contracting, but contains a rule that allows it only if privately contracted medical services are reported to the Secretary of Health and Human Services. Seniors will be allowed to purchase medical services on their own only if they sacrifice their right to medical privacy. Seniors deserve better.

So far, none of this has been deemed newsworthy by the American media. But does anyone really doubt that readers and viewers would be interested in an attack on the freedom of doctors and senior citizens? Reporters should hold lawmakers accountable for behind-the-scenes actions designed to keep seniors firmly in place in the Medicare system.

Naomi Lopez is a research associate at the Institute for SocioEconomic Studies in White Plains, New York.

— Rich Noyes