Thursday, October 23rd, 2014

Legal Documents

Plaintiffs’ Final Motion for Summary Judgment

Filed May 3, 2010 ~ Plaintiffs seek to enroll for Social Security benefits without being forced to enroll in Medicare, Part A. The government has argued that because the procedure operations manual (POMS) requires enrollment in Medicare at the same time as Social Security, that it must be so.

Outline of the 40-page document that restates the plaintiffs’ constitutional and procedural arguments.

STATEMENT OF FACTS

  1. INTRODUCTION
  2. WHAT MANDATE THAT THE PLAINTIFFS ENROLL IN MEDICARE, PART A, AS A CONDIDTION OF RECEIVING THEIR SOCIAL SECURITY MONTHLY MENEFITS ARE THE THREE CHALLENGED POMS OF THE DEFENDANTS
  3. THE PLAINTIFFS DO NOT WANT TO BE ENROLLED IN MEDICARE, PART A, BUT THEY WANT TO RECEIVE THEIR SOCIAL SECURITY MONTHLY BENEFITS

ARGUMENT

  1. THE CHALLENGED POMS ARE TOTALLY CONTRARY TO THE SOCIAL SECURITY AND MEDICARE ACTS AND REGULATIONS PROMULGATED THEREUNDER

    1. The POMS Are Contrary To The Language Of The Social Security Act, 42 U.S.C. §§ 401 et seq., And The Medicare Act, 42 U.S.C. §§ 1395 et seq., And Thus Represent Policies Or Rules For Which There Is No Statutory Basis

      1. The Statutory Entitlement to Social Security Monthly Benefits Makes It Clear Such Is Voluntary
      2. The Statutory Entitlement to Medicare, Part A, Benefits Makes It Clear Such Is Voluntary
      3. The Medicare Preamble Statutes Protect The Individual’s Choice of Health Insurance Plans
      4. Where Congress Dictated How Individuals May Lose Social Security Monthly Benefits, It Did Not Include Refusing To Enroll In Medicare, Part A
      5. The Fact That Medicare Is An “Entitlement” Does Not Make Enrollment In It Mandatory
      6. The Challenged POMS Are Contrary To The Social Security And Medicare Acts, And This Court Should Enjoin Them Being Enforced Under 5 U.S.C. §§ 706(2)(A),(B) and (C)
    2. The Properly-Promulgated Regulations of the Defendants Do Not Make Medicare, Part A, Mandatory, Nor Do They Provide For The Stripping Of One’s Monthly Social Security Benefits If He or She Elects To Not Enroll In, Or To Disenroll From, Medicare, Part A
    3. The Challenged POMS Should Be Given No Deference Whatsoever
  2. THE POMS AMOUNT TO “LEGISLATING,” A POWER OF GOVERNMENT RESERVED ONLY TO CONGRESS BY ARTICLE I, SECTION 1, OF THE CONSTITUTION OF THE UNITED STATES
  3. AS CONGRESS HAS DELEGATED TO THE DEFENDANTS NO AUTHORITY TO IMPOSE THE SANCTION OF DENYING AND ORDERING REPAYMENT OF MONTHLY SOCIAL SECURITY BENEFITS IF AN INDIVIDUAL DOES NOT ENROLL IN, OR DISENROLLS FROM, MEDICARE, PART A, THE POMS ARE INVALID AND UNLAWFUL UNDER TITLE 5 U.S.C. § 558(b)
  4. THE CHALLENGED POLICIES WERE IMPLEMENTED WITHOUT ANY NOTICE AND COMMENT RULE-MAKING AS REQUIRED BY THE ADMINISTRATIVE PROCEDURE ACT
    1. The Language of the APA Dictates that the POMS Are Invalid and Unlawful

      1. The Challenged Policies Are Agency Rules Under The APA
      2. The Challenged POMS, AS “Rules” Under The APA, Must Have Been Promulgated By Means Of “Rule-Making” In Order To Be Enforceable
    2. The POMS Are Not Rules Relating to “Benefits” or “Interpretive” Rules
      1. The POMS Are Not “Benefit” Rules
      2. The POMS Are Not “Interpretive” Rules, They Are “Substantive” or “Legislative” Rules
    3. Substantive Rules Are Invalid and Unenforceable If Not Promulgated By Means Of Rule-Making
  5. PLAINTIFFS ARE BEING DENIED A FUNDAMENTAL RIGHT TO DETERMINE THEIR OWN HEALTH CARE OR THEIR PROPERTY INTEREST IN THEIR SOCIAL SECURITY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
    1. Plaintiffs Are Being Denied Their Fundamental Right of Privacy By Being Forced to Enroll in Medicare or Being Denied the Right to Get Out of Medicare Pursuant to The Challenged Policies
    2. Plaintiffs Are Being Denied Their Property Interest In Their Social Security By The Challenged Policies

CONCLUSION

Government’s Response and Their Motion for Summary Judgment

Filed May 27, 2010, by the Justice Department on behalf of Health and Human Services ~ The government’s final arguments rebutting the plaintiffs’ request for summary judgment. Most striking in the government’s arguments is that they focus on the plaintiffs’ motivations and not on the law that the plaintiffs are challenging. See the Medicare Lawsuit Timeline to read supporting documents with declarations from various government experts. You are warned to not read the documents if you are offended by arguments dripping in sarcasm (p. 35 “If the minimal burden of writing a check and finding a stamp is deemed injury, the Bureau accepts gifts online.”) or if you believe it is none of the government’s business why or how you decide to manage your health and finances.

Components and outline of the 59-page document filed by the government:

  • DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
  • DEFENDANTS’ STATEMENT OF GENUINE ISSUES OF MATERIAL FACT WITH RESPECT TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
  • DEFENDANTS’ STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE

DEFENDANTS’ MEMORANDUM 1) IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; AND 2) IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

STATEMENT OF THE CASE

  1. Enrollment Provisions, And Absence Of Enrollment Provisions, For Hospital Insurance Benefits Under The Social Security Act
  2. Plaintiffs’ Circumstances or Alleged Circumstances
  3. Prior Proceedings In This Action

ARGUMENT

  1. Plaintiffs Lack Standing To Challenge The Absence Of Any Enrollment, Disenrollment, And Re-enrollment Procedures For The Hospital Insurance Benefits To Which They Are Entitled Under The Social Security Act.

    1. Alleged Injury To Privacy Interests
    2. Alleged Impact On Care And Hospital And Physician Choice
    3. Lack Of Monetary Injury
  2. Because Plaintiffs Are Both Entitled To Old-Age insurance Benefits Under The Social Security Act And Are Age 65 Or Older, They Are Also Entitled To Hospital Insurance Benefits Under The Social Security Act
    1. Comparison Of Premium And Non-Premium Based Hospital Insurance Benefit Provisions
    2. What Enrollment Provisions Do (And Aren’t Needed To Do Here)
    3. Costs Of Establishing Enrollment Procedures
    4. Plaintiffs’ Ahistorical Interpretation Of Section 226
    5. Plaintiffs’ Confusion Of Cause And Consequence
    6. The Unimportance Of The POMS And The Importance Of The POMS
    7. Plaintiffs’ Demand For Legislation

Conclusion

Plaintiffs’ Rebuttal to the Government’s Response

Filed June 28, 2010 by Plaintiffs ~ Plaintiffs respond to the governments’ preposterous claims. This document is the final response to the Government’s arguments and was submitted on behalf of the plaintiffs to the US District Court of Appeals, Washington, DC.

Outline of 25-page final motion filed by plaintiffs

  1. The challenged POMS are totally contrary to the Social Security and Medicare Acts and regulations promulgated thereunder.

    1. The POMS are contrary to the language of the Social Security Act, 42 U.S.C. §§ 401 et seq., and the Medicare Act, 42 U.S.C. §§ 1395 et seq., and thus represent policies or rules for which there is no statutory basis.
      1. Entitlement to Social Security
      2. “Entitlement” to Medicare, Part A
      3. The Preamble Statute to Medicare
      4. Congress Enacted a Statute to Medicare
      5. “Entitled” Does Not Mean “Required”
      6. The Challenged POMS Are Contrary To The Social Security And Medicare Acts, And This Court Should Enjoin Them From Being Enforced Under 5 U.S.C. §§ 706(2)(A),(B) and (C)
    2. The Regulations of the Defendants Do Not Make Medicare, Part A, Mandatory, Nor Do They Provide For The Stripping of One’s Monthly Social Security Benefits If He Or She Elects To Not Enroll In, Or To Disenroll From, Medicare, Part A.
      1. The Social Security “Entitlement” regulation
      2. The Medicare, Part A, “Entitlement” regulation
      3. 20 C.F.R. § 404.640(b) forms no basis for the POMS
      4. 42 C.F.R. § 406.6 forms no basis for the POMS
      5. The court should ignore defendants’ argument that it would cost too much to comply with the law
    3. The Challenged POMS Should Be Given No Deference Whatsoever
  2. The POMS amount to “legislating,” a power of government reserved only to congress by Article I, Section 1, of the Constitution of the United States.
  3. As congress has delegated to the defendants no authority to impose the sanction of denying and ordering repayment of monthly social security benefits if an individual does not enroll in, or disenrolls from, Medicare, Part A, the POMS are invalid and unlawful under Title 5 U.S.C. 558(b).
  4. The challenged policies were implemented without any notice and comment rule-making as required by the Administrative Procedure Act.
    1. The language of the APA dictates that the POMS are invalid and unlawful
    2. Plaintiffs are being denied a fundamental right to determine their own health care or their property interest in their social security in violation of the due process clause of the Fifth Amendment.
      1. Plaintiffs’ rights to determine their own health care choices – including who pays for them and how they are paid – are being constitutionally denied by the POMS
      2. The defendants cannot constitutionally divest plaintiffs of their Social Security benefits by means of the POMS

Medicare Lawsuit Timeline

Filed October 9, 2008 to present ~ The original legal documents filed with the US District Court of Washington, DC., and subsequent rebuttals, court opinions, and declarations. Documents include:

  • 10/9/2008 ~ The original complaint filed by plaintiffs Hall, Randall and Rogers
  • 12/15/2008 ~ the amended complaint adding Armey and Kraus as co-plaintiffs
  • 2/17/2009 ~ Government’s first motion to dismiss
  • 9/29/2009 ~ Judge Collyer’s opinion granting three plaintiffs standing and, importantly, establishing a test to determine if exhausting administrative remedy would be futile
  • 10/30/2009 ~ Government’s motion to reconsider their motion to dismiss. A blatant move to stall the case and exhaust the plaintiffs’ resources. Motion asks for discovery in lieu of dismissal.
  • 12/4/2009 ~ Plaintiffs respond to motion for reconsideration
  • 3/24/2010 ~ Judge denies the motion to reconsider the motion to dismiss
  • 5/3/2010 ~ Plaintiffs resubmit their motion for summary judgment
  • 5/27/2010 ~ Government files an answer to the plaintiffs and requests extensive discovery, again showing that their primary wish is to stall the case and exhaust the plaintiffs’ resources

The timeline also lists future anticipated activities with a rough schedule for the lawsuit.