Here it is in plain language, to quit Medicare, Part A, one must withdraw from Social Security and REPAY all prior benefits received!

HI 00801.002 Waiver of HI Entitlement by Monthly Beneficiary

A. INTRODUCTION

Some individuals entitled to monthly benefits have asked to waive their HI entitlement because of religious or philosophical reasons or because they prefer other health insurance.

B. POLICY

Individuals entitled to monthly benefits which confer eligibility for HI may not waive HI entitlement. The only way to avoid HI entitlement is through withdrawal of the monthly benefit application. Withdrawal requires repayment of all RSDI and HI benefit payments made.

https://secure.ssa.gov/apps10/poms.nsf/lnx/0600801002!opendocument

And again, the procedures state that one may not withdraw only from Medicare, Part A while retaining monthly benefits:

HI 00801.034 Withdrawal Considerations

A. POLICY

To withdraw from the HI program, an individual must submit a written request for withdrawal and must refund any HI benefits paid on his/her behalf as explained in GN 00206.095 B.1.c.

An individual who filed an application for both monthly benefits and HI may:

• withdraw the claim for monthly benefits without jeopardizing HI entitlement; or
• withdraw the claim for both monthly benefits and HI.

The individual may not elect to withdraw only the HI claim.

An individual who filed an application for HI only may withdraw the claim at any time (see HI 00801.002).

Note: Even though a NH may withdraw a claim for monthly benefits and HI for HI only, the NH’s aged spouse (or other aged auxiliary) retains HI entitlement unless the spouse (or auxiliary) also specifically elects to withdraw the application for HI.

B. REFERENCE

See GN 00206.020 for a complete discussion of withdrawal considerations.

https://secure.ssa.gov/apps10/poms.nsf/lnx/0600801034!opendocument

Following the status conference held in Washington, DC, on April 9, 2010 we were ordered to re-file our complaint such that the government’s request for discovery could be denied. The new motion excludes the motivation of the plaintiffs for wanting to opt out of Medicare, Part A, and argues the case based on the fact that the procedure manual contradicts the Social Security and Medicare Acts.

http://TheFundForPersonalLiberty.org/pdf/100503-39-1-Plaintiffs-Memo-in-Support-of-Summary-Judgment.pdf

Citations of the statutes:

TITLE II – FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE BENEFITS

http://www.law.cornell.edu/socsec/act/0200.htm

Social Security Act, 42 USC §§ 401 et seq.,

http://www.law.cornell.edu/uscode/42/usc_sec_42_00000401—-000-.html

specifically, but not limited to, 42 USC §§ 402 and 426,

http://www.law.cornell.edu/uscode/42/usc_sec_42_00000402—-000-.html

http://www.law.cornell.edu/uscode/42/usc_sec_42_00000426—-000-.html

and the Medicare Act, 42 USC §§ 1395 et seq.,

http://www.law.cornell.edu/uscode/42/usc_sec_42_00001395—-000-.html

specifically, but not limited to, 42 USC §§ 1395, 1395a, 1395b, 1395i-2 and 1395o,

http://www.law.cornell.edu/uscode/42/usc_sec_42_00001395—-000-.html

http://www.law.cornell.edu/uscode/42/usc_sec_42_00001395—a000-.html

http://www.law.cornell.edu/uscode/42/usc_sec_42_00001395—b000-.html

http://www.law.cornell.edu/uscode/42/usc_sec_42_00001395—i002-.html

http://www.law.cornell.edu/uscode/42/usc_sec_42_00001395—o000-.html

    5/3/10 Revised Motion for Summary Judgment

The government is ordered to respond to the complaint on or before May 27, 2010.

Kent Masterson Brown recounted:

The government’s counsel responded by stating that he believed discovery was in order because the Government needed to determine whether the decisions of the Plaintiffs not to accept Medicare, Part A, were in their best financial interests!  Government counsel proceeded to inform the Court that he wanted to depose the Plaintiffs, the officials of the hospitals they routinely use, their insurers, and multiple other parties.

Mr. Brown concluded:

Judge Collyer denied the government’s Motion for Discovery and ordered us to re-file the Statement of Material Facts with it pared down to illustrate just the basic facts of the Plaintiffs having their FEHB benefits and HSAs taken away and the Plaintiffs forced into Medicare, Part A, against their will, as a condition of receiving the Social Security due to the POMS.

The short term timeline:

• May 5, 2010, Plaintiffs re-file the Motion for Summary Judgment
• May 27, 2010, Government responds to the motion
• June 14, 2010, Plaintiffs respond to the government’s response

Defendants Kathleen Sebelius, Secretary, Department of Health and Human Services, and Michael J. Astrue, Commissioner of the Social Security Administration, ask the Court to reconsider its denial of their motion to dismiss. [...] Plaintiffs Brian Hall, John J. Kraus, and Richard K. Armey, retirees who want to receive Social Security benefits but not be required to participate in Medicare Part A, oppose. The motion will be denied. 

Collyer noted of our primary argument:

When one becomes entitled to Social Security retirement benefits, one gets to choose whether to participate in that program or not. However, when one becomes entitled to hospital health insurance under Medicare, Part A, coverage is automatic and there is no choice. Plaintiffs essentially challenge SSA’s interpretation of “entitled” with respect to Medicare, Part A.

Further, Judge Collyer asks:

Since a retiree clearly has a choice as to whether to apply for and receive Social Security benefits — to which s/he is entitled — it is not at all clear why the same retiree does not, under the law and regulations, have a choice as to whether to apply for and receive Medicare, Part A, benefits. The “entitlement” language on which the Defendants seem to base their arguments is the same but, because of the POMS, the result is very different.

See Order Denying Motion to Reconsider for the complete text.
 
The judge ordered a scheduling conference for a status conference which was held 4/9/2010.

Dear Donors and Subscribers,

Brian Hall, the lead plaintiff in the Medicare Lawsuit, is on his way to regaining his freedom to contract for health insurance.  Mr. Hall’s health freedom was taken by government workers who wrote procedures for administering Social Security and Medicare that prevent him from opting out of Medicare unless he repays all Social Security and Medicare benefits received to date and foregoes his future Social Security benefits.  Those procedures act as law, contrary to the intent of the legislation Congress enacted when creating the Social Security and Medicare programs.

FIRST HUGE WIN

The Hall v. Sebelius lawsuit saw a huge win on September 29, 2009, that will help all plaintiffs suing the government.  The government routinely argues that plaintiffs must exhaust administrative remedies before they are allowed standing in the court of law.  Judge Collyer of the US District Court in Washington, DC rejected the government’s Motion to Dismiss on the grounds that exhaustion of administrative remedies would be futile.

Judge Collyer’s Memorandum Opinion (decision) was influenced by documentation presented by co-plaintiff John Kraus that his case had been ignored for three years until he was a plaintiff in the Medicare Lawsuit.  In the ruling, Judge Collyer states, “In Mr. Kraus’s case it appears that blame for his failure to exhaust administrative remedies lies with the SSA, not with himself.”

CAPITOL HILL BRIEFING

On October 13, 2009, lead attorney Kent Masterson Brown and CATO scholar Michael Cannon spoke on Capitol Hill at the Rayburn House Office Building.  Their video may be accessed on the CATO website under “Event Archives”.  Brown and Cannon discussed how Medicare, a voluntary entitlement, became a mandatory program without congressional approval.

During the question and answer portion of the briefing an audience member asked, “How much has the government spent to fight letting the plaintiffs leave the system?”  We have no idea, but during the May 22, 2009, hearing the government’s General Counsel for both Social Security and Health and Human Services were present as were about six other government attorneys.

Another audience member, Jenifer Healy of Representative Sam Johnson’s (R-TX) office, said that Ross Perot asked her congressman why he should be forced to participate in Medicare when the government is clearly running out of money for the program and he can pay for his own services.

The driving issue is freedom to contract, a fundamental right in a free society.  It does not matter whether Medicare is better or worse than any other insurance program, what matters is whether we can choose.  After all, a bird in a golden cage is still not free.

WHAT’S NEXT

Brian Hall and the other four plaintiffs will have to be patient.  The Medicare Lawsuit timeline can be found on our website at http://thefundforpersonalliberty.org/about/medicare-lawsuit/medicare-lawsuit-timeline-with-documents/, or by clicking on the timeline link in the lower left hand corner of every web page.  After all of the paperwork has been filed, the judge will schedule and conduct a hearing, then render an opinion.  It may take until May – August of 2010 to receive a final ruling on the Motion for Summary Judgment.

Fortunately, there will not be a trial because the facts of the matter are not disputed.  Both the plaintiffs and the government agree to what is written in the legislation and the procedural manual.  It will be up to the judge to make a ruling on the law.

After the final ruling in the US District Court, the losing side is likely to appeal to a three-judge panel of the US Court of Appeals.

Regaining retired citizens’ health freedom to contract for their insurance will be a long and difficult road and, in the words of co-plaintiff John Kraus, “They have our money to fight us with.” 

IRS DETERMINATION LETTER

After waiting 472 days, we received the valuable IRS determination letter that establishes we are exempt from Federal income tax under section 501(c)(3) of the Internal Revenue Code.  Past and future contributions to FFPL are deductible under section 170 of the Code.  FFPL is also qualified to receive tax deductible bequests, devices, transfers or gifts under section 2055, 2106, or 2522 of the Code”

A copy of the letter and our fiscal year 2008 tax return are accessible on the website

            www.thefundforpersonalliberty.org/about/corporate-documents/

Not only have the plaintiffs had to be patient, so too have the administrators and donors to this lawsuit!

FINAL COMMENTS

Thank you for helping Brian Hall, Lew Randall, Norm Rogers, John Kraus, and Dick Armey.  Our health freedom is at stake and a win for the five plaintiffs will be a win for all Americans who value the freedom to contract for the health insurance that best suits their personal needs after they pass the age of 65.

Remember, the plaintiffs are not asking for one penny from the government and taxpayers; they are only asking to have a past freedom restored.

Feel free to contact me with any questions or comments.

Sincerely,

Martha de Forest
Executive Director
(360) 830-6842
martha.deforest@TheFundForPersonalLiberty.org

PS  During our first fiscal year ending May 31, 2009, 93% of spending was for the Medicare Lawsuit and 7% was for administration and fundraising combined.  Thank you again for helping us litigate for your health freedom.

Donate securely online using PayPal at: http://www.TheFundForPersonalLiberty.org/donate/

To donate by mail, please make check out to:      THE FUND FOR PERSONAL LIBERTY
                                                                        c/o Brett Wilhelm, Secretary
                                                                        PO Box 940
                                                                        Freeland, WA 98249

JUDGE CLEARS WAY TO VOID RULES MANDATING ENROLLMENT IN
MEDICARE, PART A, AS A CONDITION OF RECEIVING SOCIAL SECURITY
RETIREMENT BENEFITS

 Motion to Dismiss Denied; Summary Judgment Pending

WASHINGTON, DC—In an opinion handed down on September 29, Judge Rosemary Collyer of the U.S. District Court in Washington, DC denied a Motion to Dismiss filed by Kathleen Sebelius, U.S. Secretary of Health and Human Services, and Michael Astrue, Commissioner of the Social Security Administration, clearing the way for the Court to void five rules created by the Clinton Administration that made receipt of an individual’s Social Security retirement benefits contingent upon enrollment in Medicare, Part A.
 
Originally filed in October, 2008 as Brian Hall et al v. Michael Leavitt et al, the lawsuit, now known as Hall v. Sebelius, involves five plaintiffs: Brian Hall of Virginia, Norman Rogers of Florida, Lew Randall of Washington, John Kraus of Pennsylvania and former U.S. House of Representatives Majority Leader Richard Armey of Texas.
 
The lawsuit challenges the validity of five rules in the Social Security Program Operations Manual, known as the POMS, that require enrollment in Medicare, Part A, as a condition of receiving Social Security retirement benefits and that mandate the surrender of all Social Security retirement benefits received if an individual seeks to disenroll from Medicare, Part A.
 
The plaintiffs claim that the POMS violate the Social Security statute enacted by Congress in that the statute makes the two federal programs completely voluntary and no federal agency has the authority — statutorily or constitutionally — to “legislate” requirements interfering with an individual’s entitlement to Social Security retirement benefits not enacted by Congress.
 
None of the plaintiffs want to enroll, or remain enrolled, in Medicare as they believe it is an inferior system that restricts seniors’ access to health care because of its administration and looming bankruptcy. Three of the plaintiffs, Hall, Kraus and Armey, had superior private health care benefits, including health savings accounts, under the Federal Employee Health Benefits Program, which they had been denied due to the enforcement of the POMS. The other two plaintiffs had private health insurance and health savings arrangements that would have been disrupted by the POMS had they applied for their Social Security retirement benefits.
 
“The government attempted to get the case dismissed, arguing that the POMS were mere expressions of the statutes and regulations and that none of the plaintiffs had exhausted administrative remedies available to them to challenge the POMS before they filed suit in Federal Court,” said Kent Masterson Brown, lead attorney for the plaintiffs in Hall v. Sebelius. “Judge Collyer denied their Motion.”

Rejecting the Government’s contention that the POMS were merely expressions of the statute and regulations creating and governing Social Security and Medicare, the Court ruled that “neither the statute nor the regulation specifies that Plaintiffs must withdraw from [Social Security] and repay retirement benefits in order to withdraw from Medicare, Part A.” “In contrast,” the Court asserted, “the POMS explicitly states that condition.”

Thus, according to the Court, “the POMS determines Plaintiffs’ rights or obligations in this instance and is an action from which legal consequences flow.” Concluding, the Court asserted: “the POMS is subject to judicial review.”

“With respect to the government’s argument that plaintiffs’ case must be dismissed because they failed to exhaust administrative remedies, the Court also asserted that exhaustion must be excused in this case; it would be futile,” said Brown.

Specifically, plaintiff Hall attempted to exhaust administrative remedies, but was informed by the Social Security general counsel that there was no way he could get out of Medicare, Part A, and still keep his Social Security. Plaintiff Kraus, through his Congresswoman, asked for an administrative law judge after he was “forced” to enroll in Medicare, but was stalled for more than three years.

“Importantly, the position taken by the government in this case clearly revealed its intent not to change the POMS,” said Brown.

The Court held, however, that “Where an agency has demonstrated an unwillingness to reconsider its position and there is certainty of an adverse decision – and where the challenge is to the agency’s policy and practice or systematic failure to comply with Federal law – exhaustion will be excused.”

Because the plaintiffs in this case challenge a policy “not found in the Social Security Act or federal regulations as Defendants allege, but was apparently created by the Social Security Administration and expressed in the POMS” – and exhaustion would be “futile” – the Court denied the Government’s motion.

“The Court further directed the government to respond within thirty days to the plaintiffs’ previously filed Motion for Summary Judgment asking the Court to void the POMS and permanently enjoin the government’s enforcement of the POMS,” said Brown.

 # # #

 090930 Press Release (pdf)

090929 Opinion Denying Motion to Dismiss (pdf)

Link to the Memorandum Opinion: 090929-Opinion-Denying-Motion-to-Dismiss.pdf

When it comes to health care what really matters is who decides.  So it is an astonishing fact that American seniors who want to privately contract with doctors and health facilities are forced to give up their Social Security benefits.  That unconstitutional interference with your individual right to contract for your health care led to our organizing as a 501(c)(3) to fund what we call the “Medicare Lawsuit.”

Thank you for your early support of The Fund for Personal Liberty.  We raised just over $300,000 during our first year and successfully launched the Medicare Lawsuit in federal court.  The Medicare Lawsuit is the first step on our journey to obtain precedent-setting court decisions that protect your individual right to contract for your health care.  

MEDICARE LAWSUIT OVERVIEW

Funding the Medicare Lawsuit is our first priority.  We have five co-plaintiffs who want to opt out of Medicare Part A and are suing the Secretary of Health and Human Services to protect their (and your) right to privately contract for better health services and enhanced privacy without having to forego Social Security benefits.  The current policy forces a retiree applying for Social Security to automatically enroll in Medicare Part A.  

We believe we have a very strong case for many reasons including:

• The policy was put in place by unelected bureaucrats during both Democrat and Republican administrations (violating Congress’s exclusive power to legislate). 
• 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.
• The policy was instituted without following the required procedure which includes putting proposed regulations out for public comment.
• Semantically, the word “entitlement” is not defined as “requirement” so retirees should have the option of declining the Medicare Part A benefit.
• The five co-plaintiffs exhausted all other avenues of remedy before engaging in a lawsuit.

To prevail could result in the following benefits:

• Freedom to choose your doctor and health plan without forfeiting your Social Security benefits; freedom to make your own medical decisions without government rationing of care; freedom to keep a health plan you are satisfied with; and, freedom to keep your medical history private.
• A decision stating that an individual has the right to select their insurance carrier could set an important legal precedence that works to undermine single-payer insurance.

There is no better time than the present for this case to be working its way through the courts.  This has the same potential significance as the recent Kelo and Heller cases have had regarding individual property rights and individual gun rights respectively.

MEDICARE LAWSUIT STATUS

Our lead attorney, Kent Masterson Brown, argued on May 22nd against the defendants’ Motion to Dismiss.  Mr. Brown also submitted a Motion for Summary Judgment.  We are now waiting for the judge’s ruling on the first motion.  If the defendants prevail, we have the option of appealing.  If the defendants lose their motion to dismiss, the judge will review our Motion for Summary Judgment.  If we prevail, we have won, but the defendants are likely to appeal.  If the Motion for Summary Judgment is denied, we will go to trial.  We plan to fight for your rights until we prevail and/or all judicial options are exhausted. 

GOVERNMENT INTERFERENCE DATABASE

We received a generous donation earmarked to develop a second website which will help us spread the word of our lawsuit and generate donations.  Our first website (www.MedicareLawsuit.org) has been an excellent resource for journalists and others who wish to educate themselves on our lawsuit.  The follow-on companion website will be directed toward activists and donors with a very large user-content component.  We are taking a long term view on government interference in the delivery of health care and will be collecting individuals’ stories for research and potential future litigation.

By the time you receive this, the new website will be live at www.TheFundForPersonalLiberty.org.  The blog portion of the website will give readers the opportunity to submit stories detailing government created barriers to their health freedom.  We welcome all stories relating to services denied due to rationing, patients denied access to experimental medicines, research hindered by regulation, and numerous other accounts of government interference in health freedom.  Do you have a story?

CONTRIBUTIONS

Legal fees and costs for the Medicare Lawsuit have outpaced contributions by about $180,000.  Unlike the government, I take debt extremely seriously.  While I cannot predict how long it will take to raise the money, I can say that it is our highest priority and all activities will be in support of a balance sheet with zero debt.   The first task is to raise funds to pay these debts. 

The second task is to raise enough funds to see this project to its conclusion.  Depending upon court rulings and appeals, we anticipate $100,000 – $500,000 in additional legal expenses. 

Surprisingly, we need small donations as much as we need large donations.  But please don’t hold back knowing this.  Fighting the jumbo bureaucracy known as the US Department of Health and Human Services is not for the faint-hearted.

Please visit our new website, test our donation page, check out the blog and make some comments.  I look forward to hearing from you.

In Liberty,
 

Martha de Forest
Executive Director