Civil Action No. 08-1715 (RMC)

United States District Court for the District of Columbia

BRIAN HALL, et al. (including Richard Armey), Plaintiffs,

v.

KATHLEEN SEBELIUS, Secretary, Department of Health and Human Services, et al., Defendants.

Plaintiffs are retired Federal employees who have reached age 65 and have applied for, and are receiving, Social Security Retirement benefits. As a result, they are “entitled” to Medicare Part A, coverage. They do not, however, want Medicare coverage. And the only avenue provided to Plaintiffs to un-entitle themselves is to cease receiving Social Security Retirement benefits – and to repay all such benefits already received. Plaintiffs declaim that such a requirement is contrary to the Social Security Act, of which Medicare is a part. The Court concludes that Plaintiffs’ claims are without merit.

FACTS

Plaintiffs Brian Hall, John Kraus, and Richard Armey share the following characteristics:

• They are retired from Federal employment and have attained the age of 65.

• They applied for, and are receiving, Social Security Retirement benefits.

• They are entitled to benefits under Medicare Part A.

• They had previously been enrolled in health plans under the Federal Employees Health Benefit (FEHB) program and wish to continue that coverage in full.

• They do not want to be covered by Medicare Part A and want to disenroll from Medicare Part A.

• They want to continue receiving their monthly Social Security Retirement benefits.

These facts are all undisputed and, for purposes of resolving this dispute, are the only facts that pertain.

ANALYSIS (excerpts)

Every individual who –

(1) has attained age 65, and

(2)(A) is entitled to monthly insurance benefits under section [42 U.S.C. § 402] of this title . . .

shall be entitled to hospital insurance benefits under part A of title XVIII [of this chapter] for each month for which he meets the condition specified in paragraph (2) . . . .

42 U.S.C. § 426(a). What this means is that an individual who has applied for Social Security Retirement benefits and qualifies to receive such benefits, so that he is “entitled” to Social Security Retirement benefits, automatically becomes “entitled” to Medicare Part A upon his 65th birthday. The only way to avoid entitlement to Medicare Part A at age 65 is to forego the source of that entitlement, i.e. Social Security Retirement benefits. There are but two ways to forego Social Security Retirement benefits: (1) fail to apply even though qualified, see 42 U.S.C. § 402(a) (requiring the filing of an application); or (2) withdraw one’s application and repay all retirement benefits already received, see 20 C.F.R. § 404.640.

Social Security regulations provide a means of avoiding entitlement to monthly Social Security Retirement benefits and thereby also provide a means of avoiding entitlement to Medicare Part A benefits. An individual may withdraw an application for Social Security Retirement benefits after it has been filed by submitting a written request and either repaying “[a]ll benefits already paid” or upon the SSA being “satisfied that they will be repaid.” See 20 C.F.R. § 404.640.3 These regulations are of no assistance to Plaintiffs, however, since they want to avoid Medicare Part A and retain their Social Security Retirement benefits.

There is a “dis-enrollment” possibility, albeit very unattractive, that allows a 65 year-old beneficiary to make himself un-entitled for Medicare Part A by foregoing one of the essential requirements to become entitled to Medicare Part A – receipt of Social Security Retirement benefits.

That Medicare entitlement has very specific consequences for a retired Federal employee: If a Federal retiree who has attained age 65 is “not covered” by Medicare Part A, perhaps because he withdrew his application for Social Security Retirement benefits, his FEHB “plan, other than a prepayment plan described in” 5 U.S.C. § 8903(4), “may not provide benefits . . . to pay a charge imposed by any health care provider, for inpatient hospital services which are covered for purposes of benefit payments” by Medicare Part A, “to the extent that such charge exceeds applicable limitations on hospital charges established for Medicare purposes.” 5 U.S.C. § 8904(b)(1)(A). Thus, even if Plaintiffs were to forego and repay all Social Security Retirement benefits, their FEHB-paid benefits would be no more, and no less, than what Medicare Part A would provide.

Plaintiffs argue that “entitled” to Social Security Retirement benefits does not mean “required to accept” so that “entitled” to Medicare Part A benefits does not mean “required to accept.” While the Plaintiffs’ plain-English reading of the word “entitled” has its attractions, in context the Medicare “entitled” does not actually mean “capable of being rejected.” An individual is “entitled” to Social Security Retirement benefits only after he has worked the requisite quarters, attained age 62 (or more), and filed an application. See 42 U.S.C. § 402. There being no affirmative filing of an application necessary for a Medicare Part A entitlement, it is a different type of entitlement because of its automatic nature. The Medicare Part A entitlement is tied exclusively to the fulfilment of two requirements: (1) receiving Social Security Retirement benefits; and (2) being age 65 – the removal of either having the effect of disestablishing that entitlement.

CONCLUSION

Plaintiffs are trapped in a government program intended for their benefit. They disagree and wish to escape. The Court can find no loophole or requirement that the Secretary provide such a pathway. Defendants’ Motion for Summary Judgment [Dkt. # 42], which was previously denied without prejudice, is reconsidered and will be granted and Plaintiffs’ Motion for Summary Judgment [Dkt. # 51] will be denied. A memorializing Order accompanies this Memorandum Opinion.

Date: March 16, 2011

ROSEMARY M. COLLYER

United States District Judge

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1715-54

Comment:

By Don McCanne, MD

Although this looks like another cute trick that Dick Armey tried to pull off, it is much more serious than that. This is a another blatant effort to try to destroy Medicare as a social insurance program to which all people over 65 who are receiving Social Security benefits are entitled.

This was not a broad anti-government stance. Medicare was targeted specifically. In this civil action, the plaintiffs wanted to specify that they had the right to reject Part A of Medicare, but they weren’t rejecting government programs in general because, in the same civil action, they wanted to keep their Social Security benefits, and they wanted to keep their government-sponsored federal employee retirement health benefits program (as their primary coverage and not secondary to Medicare).

When Medicare was enacted, a decision was mode to be certain that absolutely everyone over 65 on Social Security would be enrolled in Part A – the hospital component. Enrollment would be totally automatic, so much so that an individual could refuse enrollment only by refusing Social Security benefits and refunding to the government any payments already made.

What Dick Armey was trying to do was to establish the principle that individuals could decline Medicare completely and choose a private option (though in this case his private option was a government-sponsored private plan). Thi

s would be another step beyond merely selecting a private Medicare Advantage plan, still subject to Medicare regulations. This would totally divorce private plans from Medicare. The intent of the conservatives all along has been to move Medicare patients into private plans and then destroy Medicare by drastically underfunding it (and “drowning it in a bathtub”).

One of the most fundamental principles of the single payer model is that absolutely everyone is automatically enrolled. Opting out is not an option for anyone. People would still have the freedom to not use the health care system, but they couldn’t opt out of enrollment any more than pacifists like me can opt out of paying for our wars.

The conservatives and libertarians oppose single payer, and they fear that Medicare will be improved and then provided to everyone, as a single payer system. They will not stop in their efforts to shred Medicare into tatters, and walk away with their affluent friends to obtain their boutique health care on their own, leaving the rest of us to fend for ourselves – as if “personal responsibility” could buy a ticket to health care.

Let’s fool them. Let’s fix Medicare and then enroll absolutely everyone – automatically!