Lawsuit Could Rein In Medicare Bureaucrats

Quin Hillyer

Did you know that American citizens on Social Security cannot refuse Medicare “benefits” even if they wish to save the government some money by paying for their own medical care?

U.S. District Court Judge Rosemary Collyer has been assigned the chance to reverse this profoundly unfair rule, and thus strike a blow for free choice, common sense, and the Constitution.

In what could turn into a landmark case, plaintiffs Brian Hall, Lewis Randall and Norman Rogers are senior citizens who wish to receive the Social Security benefits for which they have spent their adult lifetimes paying. Hall is from Catlett, VA, while Randall is from Freeland, WA, and Rogers lives in Miami, FL.

But all of them have private means of paying for health care, and none of them want the bureaucracy, the governmental intrusions into their privacy, and the rationing of care that they believe are part and parcel of Medicare.

All have paid their Medicare taxes during their whole working lives, but none wants to take advantage of the program’s offerings. By opting out, they would save taxpayers’ money. They calculate that if just 1 percent of Medicare recipients choose to forgo their “benefits,” the program would save $1.5 billion per year – and $3.4 billion annually by 2017.

At issue are federal rules promulgated in 1993 and in 2002 that prevent individuals from withdrawing from Medicare benefits without also leaving Social Security benefits behind.

The plaintiffs claim, first, that the rules were issued without following proper procedures, because they were not published beforehand in the Federal Register and because there was no chance for public comment.

Second, they say the rules themselves violate the Social Security Act of 1935 and the Medicare Act of 1965, both of which guarantee that the benefits are voluntary. In the Social Security Act, for instance, section 1394 reads thusly: “Nothing contained in this subchapter shall be construed to preclude any State from providing, or any individual from purchasing or otherwise securing, protection against the cost of any health services.”

Compare that law passed by Congress with the rule promulgated without public comment by the bureaucrats in 2002: “A claimant who is entitled to monthly [Social Security] benefits cannot withdraw [from Medicare] coverage only since entitlement to [Medicare] is based on entitlement to monthly [Social Security] benefits.”

Quite clearly, the rule contradicts the duly passed law.

Yet all three plaintiffs were told they could not turn down Medicare without also forfeiting the Social Security benefits they have earned through a lifetime of work. And they cannot contract with doctors privately to pay for procedures not approved by Medicare – even if they use their own money.

This is a denial of individual constitutional liberty, pure and simple. It is authoritarianism. It is outrageous. And the Bush administration, like the Clinton administration before it, is deliberately and unforgivably undermining several major foundations of the American republic.

Indeed, the plaintiffs argue that not only do the two rules violate the law both on substance and on procedural grounds, but violate the Constitution as well. Specifically, they say the rules violate Article One, Section One, which assigns legislative power to Congress rather than the executive, and the First, Fourth, Fifth, Ninth and Fourteenth Amendments as well.

Because the current pleading is a request for an injunction to suspend the 1993 and 2002 rules, rather than a full consideration of the merits, the legal brief does not directly explain its constitutional arguments.

But the First Amendment claim involves the denial of the right of petition “to redress grievances,” because the rules at issue provide no recourse for administrative appeal. The other constitutional issues relate to concerns over liberty and privacy, and they promise to be considerable.

Both law and justice argue in favor of the plaintiffs here. But Congress also has a chance to rein in the rogue bureaucracy. Completely apart from the court case, Rep. Sam Johnson, R-TX, recently introduced the Medicare Beneficiary Freedom to Choose Act (H.R 7148), which would allow seniors to choose their own doctor, contract privately with the doctor, and/or completely opt out of Medicare.

The new Congress in January ought to pass this bill forthwith. If people want to pay for their own health care, more power to them.

Quin Hillyer is associate editorial page editor of the Washington Examiner. He can be reached at

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