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

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

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

by Jane M. Orient, M.D.

In normal times, the relationship between patient and physician has been based on an implicit, voluntary understanding or contract. Is it possible that a physician’s relationship with a Medicare-eligible patient must now be codified in a legal document meeting narrow specifications defined by the federal government? And can it be in these United States of America that such a relationship is altogether forbidden unless (a) the physician swears to forgo all reimbursement from the only insurer of the patient population in greatest need of his services or (b) the service provided is “unnecessary” but not “unwarranted”?

The absurd state of affairs with Medicare is highlighted by a series of remarkable occurrences:

In 1997, Congress enacted a law (Section 4507 of the Balanced Budget Act) to assure exception (a) as an improvement on the previous situation in which private contracting was deterred by intimidating notices from Medicare carriers. To take advantage of the exception, physicians are supposed to formally opt out of the program even though they may never have agreed to opt in.

Next, United Seniors Association (United Seniors v. Shalala) filed suit to have Section 4507 declared unconstitutional, asserting that it effectively prohibited private contracting on a case-by-case basis, as well as to enjoin the Department of Health and Human Services from “in any way impairing Plaintiffs’ freedom to contract privately for health care services” (1).

In July, 1999, the U.S. Circuit Court for the District of Columbia found for the defendant but declared exception (b) (2). Based on the oral argument, this was not unexpected. The Court proceedings reminded this observer of the Lord High Executioner’s song in Gilbert and Sullivan’s Mikado: “And I am right, and you are right, and everything is quite correct.” Both sides declared victory, the Court seemed to breathe a sigh of relief at not having to adjudicate any serious Constitutional issues, and the Wall Street Journal applauded in a lead editorial (3).

It is doubtful that Medicare could have been enacted had Americans foreseen that it would mean compulsory dependency upon a bankrupt federal program for all “necessary” medical care, regardless of personal resources. Such a situation is thoroughly unAmerican; indeed, it is more characteristic of a totalitarian Marxist society, in which all are impoverished in preference to allowing anyone to better himself through his own efforts.

Has the unthinkable truly come to pass? And are Americans content with the tiny sliver of freedom acknowledged in this Court decision, although even that is clouded by the potential for the government to declare a treatment “unwarranted”?

Congress has never enacted a law explicitly repealing the assurances in Sections 1801, 1802, and 1803 of the Social Security Act. The Courts have never explicitly found that a person forfeits his right to use his own property to protect his own life as soon as he becomes entitled to federal “insurance” (although they have accepted the parties’ stipulation to the functional equivalent of this situation). The Department of Health and Human Services (HHS), acting through the Health Care Financing Administration (HCFA), has nevertheless acted as though these things had indeed happened.

An excellent scholarly review of congressional ineptitude and HCFA’s weaving and dodging is found in John S. Hoff’s monograph, Medicare Private Contracting: Autonomy or Paternalism (4). This book is a “must read” for anyone seeking to penetrate the fog created by HCFA’s “phantom policy” on private contracting. (I disagree with the review published previously in The Medical Sentinel; I found the book lucid, accurate, and right on target in its analysis.)

As Hoff recognizes, Section 4507 is an “exception to nothing.” Yet, as he also points out, few physicians have been willing to treat Medicare-eligible patients privately. For example, on the first annual AAPS Medicare Patient Freedom Day in 1995, counsel for the Florida Medical Association warned physicians that they might be subjected to both civil and criminal penalties if they dared to treat a Medicare patient for $1 without filing a claim (5). To a physician who “confessed” to this activity, HCFA responded that “[p]ursuing sanctions in such a case would be an inappropriate use of the Medicare program’s scarce administrative resources” because “the beneficiary was unlikely to have been harmed since she was charged only $1″ (6).

So what now? The position of AAPS since 1965 has been that physicians ought to refuse to participate in an immoral and unconstitutional program. Many physicians adhered to this policy by declining to sign a participation agreement but giving patients the documentation they needed to file for their benefits. A critical change, in my view, occurred with the requirement that, as of September 1, 1990, physicians file Medicare claims for all covered services (even those sure to be denied because the patient had not met the deductible). An attempt to repeal this requirement was made in 1990 (7), but it failed. At this point, simple repeal would accomplish nothing because HCFA, with the assistance of the AMA, immediately increased the complexity of the claims-filing process; it is now probably impossible for most patients to file a claim without assistance. Space for narrative diagnoses was eliminated in 1991 (8). A strict liability standard for coding was established by the Eighth Circuit in Anesthesiologists Affiliated v. Sullivan in 1991 (9).

Most patients and physicians are now trapped. Even “nonparticipating” physicians participate to some extent unless they only treat patients who do not receive Medicare reimbursement. HCFA is relentlessly trying to increase its authority over all medical care. Neither Congress or the Courts have shown the slightest inclination to stop the gradual encroachments on the right to seek or offer private medical care.

Nevertheless, life, liberty, and property are unalienable rights. Moreover, they are recognized by the U.S. Constitution. Those who exercise and defend these rights can, and ultimately will, prevail. Victory, however, will not be won by simply sending a lawyer into a courtroom pleading for a narrow exemption, while accepting the basic assumptions of the program.

REFERENCES

(1) Brown, KM, Northam, FM, Memorandum of points and authorities in support of plaintiffs’ motion for a preliminary injunction, United Seniors Association, et al., v. Donna Shalala, U.S. District Court for the District of Columbia, civil action no. 97-3109.

(2) United State Court of Appeals for the District of Columbia Circuit, United Seniors Association, et al., v. Donna Shalala, No. 98-5142, decided July 16, 1999.

(3) Anon., Wall Street Journal, July 29, 1999, p. A26.

(4) Hoff, JS, Medicare Private Contracting: Paternalism of Autonomy, Washington, DC, AEI Press, 1998.

(5) Ault, TA, Director, Bureau of Policy Development, Health Care Financing Administration, letter to physician, Nov 8, 1995.

(6) Thrasher, J, memorandum to Donald C. Jones, Executive Vice President, Florida Medical Association, July 14, 1995.

(7) Medicare Claims Filing. AAPS News 1990;46(10):2.

(8) No Words Please. AAPS News 1991;47(4):2.

(9) “Strict Liability” for Codes. AAPS News 1991;47(10):3.