Medicare Meets Mephistopheles

I. IntroductionMedicare is the 800 pound gorilla of American health policy. Covering approximately forty million (primarily elderly) Americans, it funnels $250 billion per year into the pockets of physicians, hospitals, clinical laboratories, home health agencies, physical therapists, social workers, and a veritable army of other health professionals. Medicare's administered pricing system can, whether by accident or design, shower largesse on particular regions, provider groups, and device manufacturers while starving others-with predictable consequences on the availability of the underlying goods and services. Medicare's footprint is so large that its every move has spill-over effects on the rest of the market.Given Medicare's centrality to health care and health policy, it is not surprising that it has attracted considerable academic attention. Amazon.com lists more than 800 books that mention Medicare.2 Every year, approximately 500 law review articles are published that mention Medicare-100 in the title.3 The participants in this symposium account for numerous books and scores of articles on the subject.Although I have written articles on fraud and abuse, patient dumping, and the quality of care received by Medicare beneficiaries, I am a comparative newcomer to the subject of Medicare.4 When I start working on an article, my invariant strategy is to obtain and read as many prior writings on the subject as I can locate. In short order, stacks of books and articles on Medicare soon filled my office. After considerable research and many late nights, I completed an article for this Symposium. My article analyzed the Medicare program from a competition policy perspective, identified a few minor problems for correction, and lauded the contributions of Medicare to health policy and social justice.5 The article then waxed wroth about the vicious lies and calumny told about Medicare by its detractors.6Word apparently got out that I was working on an article about Medicare. A mysterious document appeared in my inbox at the University of Maryland School of Law shortly before the conference. My secretary informed me that a courier clothed in black and red, driving a red Lamborghini Diablo, delivered the document.7 The mailer bears an official-looking sticker, warning those who handle it that the envelope is made with asbestos fibers. The mailer bears an extraordinary amount of stamps, each bearing the likeness of Rodin's Gates of Hell.8 The document within the mailer is written on black parchment, reeks of brimstone, and singes the fingers of those unwary enough to handle it without insulated gloves. The words on each page glow red against the black parchment. The cover of the document is stamped with the legend, "Abandon Hope All Ye Who Read Further," and a reproduction of Hieronymus Bosch's infamous painting of the seven deadly sins.9 The document purports to be a memo from a junior bureaucrat (Underling Demon 666, Deputy Assistant Special Coordinator for Accelerating Recruitment (DASCAR) in the Department of Illness and Satanic Services (DISS)) to the chief executive of his organization (Satan) reporting on the progress of their plans to use Medicare to undermine the American republic.After reading the document, I immediately forwarded a copy to the Centers for Medicare and Medicaid Services (CMS).10 I am told that they have "top men" studying the document. ' ' CMS was unable to provide any indication of when or whether they would officially release the document, let alone their analysis-although one anonymous source suggested that it would not take any longer than the finalization of the EMTALA regulations.12The document was clearly important and deserved circulation to as wide an audience as possible-if only to alert the public of the depths to which opponents of Medicare would stoop to slime this sacred pillar of intergenerational equity.13 I was faced with a wrenching decision. Do I submit my own article, providing yet another valentine to the virtues of Medicare, allowing me to take my rightful place at the head of the crowd of the program's adoring academic enthusiasts? …