Quin Hillyer
Quin-essential Cases:Why can't we decline Medicare benefits?
By: Quin Hillyer
Examiner Columnist
March 24, 2009
Judge Rosemary Collyer of the U.S. District Court for D.C. last week was given a chance to strike a major blow for freedom from bureaucratic idiocy. Every American taxpayer, along with every citizen who wants to make his own decisions on health care, should hope Judge Collyer brings the bureaucracy to heel.
This column first covered this case, Brian Hall v. Charles E. Johnson, last October. The five plaintiffs, who now include former House Majority leader Dick Armey, are challenging a policy of the Department of Health and Human Services (DHHS) that denies Social Security benefits to anybody who refuses to enroll in Medicare.
Read that again: As the policy now stands, if you want to pay for your own health care rather than let taxpayers finance it through Medicare, government will not let you receive the Social Security benefits for which you have spent a lifetime paying taxes.
Note that nobody is trying to avoid contributing to Medicare. The plaintiffs merely want to decline the tax-funded benefits for which they already have paid. None of them want the bureaucracy, the governmental intrusions into their privacy, and the rationing of care they believe Medicare entails - so they volunteer to let taxpayers off the hook by providing their own health care coverage.
But DHHS won't let them. Or at least not if they want to receive Social Security benefits. Forfeit Medicare, says DHHS, and you must also forfeit Social Security even if you've paid for it for half a century.
This is nuts. Utterly nonsensical.
Or, as Collyer more delicately put it in an earlier procedural ruling, “it is passing strange that [the government] insists that all persons receiving Social Security retirement benefits, a federal program that is running out of money, also must be part of Medicare Part A, another federal program that overruns budgets.”
The plaintiffs challenged the rule on multiple grounds, saying that the bureaucratic policy at issue was improperly implemented, that it violates the clear language of the acts creating Social Security and Medicare, and that it violates the First Amendment right of petition to “redress grievances” by providing no option for administrative appeal.
Earlier this month, DHHS filed a motion asking that the case be dismissed. Last Wednesday the plaintiffs counter-filed, asking that Collyer grant “summary judgment” in their favor - meaning they want her to rule that their case is so strong on its face that they win it without a trial. They asked her to issue a permanent injunction barring the government from enforcing the erroneous rule.
They note that the policy identifies no language from the actual Social Security or Medicare laws that supports it. Indeed, both laws say that anybody who meets age and eligibility requirements “shall be entitled” [emphasis added] to benefits under each program. The “shall” means that the government must pay up if asked, and the “entitled” means to have a right to something.
But as the plaintiffs irrefutably argue, “ 'shall be entitled' does not mean 'must be enrolled'.” The choice, if the citizen otherwise qualifies, is with the citizen, not the government (at least as long as the government still offers the programs). Moreover, nothing in either law (as passed by Congress) makes reference to acceptance of one benefit being necessary for acceptance of the other.
Indeed, the Medicare law itself specifically says that “nothing contained” in the law “shall be construed to preclude any… individual from purchasing or otherwise securing” private health insurance.
Furthermore, one of the plaintiffs, a longtime federal worker, owns government-sponsored insurance (FEHB) that specifies this: “If you do not apply for one or more parts of Medicare, you can still be covered under the FEHB program.”
So the federal Medicare bureaucracy has created a policy that contradicts existing federally backed health insurance along with the actual language of the Medicare law. The policy is legally unsupportable.
It is also unsupportable as a matter of good government. Plaintiffs convincingly calculate that if just one percent of Medicare recipients choose, for whatever reason, to decline benefits, the program would save $3.4 billion annually by 2017. It makes no sense to ask American taxpayers to finance expensive benefits that the would-be recipients don't even want.
Quin Hillyer is associate editorial page editor for The Washington Examiner. He can be reached at qhillyer@gmail.com.
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