Will Judge Kavanaugh Support Freedom From Medicare?

September 5, 2018

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For some, it’s almost unthinkable. Who’d want to be free from Medicare? Perhaps those who realize that Medicare is almost bankrupt, that by law they can’t pay cash to get the care Medicare denies unless an ‘Advance Beneficiary Notice’ was signed, and that terms like “privatizing Medicare” (narrow-network health plans) and “negotiating drug prices” (drug formularies) are simply code words for rationing care.

So, as the U.S. Senate grills Judge Brett Kavanaugh in Supreme Court confirmation hearings, consider his 2012 Medicare ruling in Hall v. Sebelius.

Plaintiffs, including Brian Hall and former House Majority Leader Dick Armey, had appealed to the U.S. District Court of Appeals in D.C. seeking to overturn the 1993 Clinton executive instruction that penalizes Americans who refuse to enroll in or disenroll from Medicare, Part A (hospitalization). This instruction was inserted by executive fiat into the Social Security Administration’s Procedural Operations Manual System (POMS). Under this instruction, those who refuse Medicare, Part A are denied access to the Social Security benefits to which they are lawfully entitled, and they must pay back to the government any Medicare or Social Security benefits they have already received. This restriction is not a law, and no law authorizes this penalty.

Kavanaugh ruled against the plaintiffs, claiming that the plaintiffs sought to opt out of Medicare entitlement, which is automatic under federal law for those who claim Social Security benefits. But that’s not true. Dissenting Judge Henderson says Hall and Armey “never suggested that they sought to renounce their entitlement to Medicare, Part A…Instead, they argue something much more fundamental, i.e., that there is no statutory authority for the POMS’s edict that an individual who declines Medicare, Part A coverage is required to forego/refund SSRB [Social Security Retirement Benefits].”

Judge Henderson says nothing in federal statutes requires an individual to accept the Medicare benefits, and adds, “Nor do they even hint at permitting the SSA to withdraw SSRB and demand repayment thereof if an individual does not want to participate in Medicare, Part A. The POMS alone does that.” She says the POMS “gives the SSA power that the Congress in no way provides.”

Hall and Armey brought the lawsuit because their private insurers downsized their private coverage as soon as they became eligible for Medicare, eliminating their access to the full range of benefits. In addition, I'll also note, their insurance became secondary coverage and Medicare became primary coverage, forcing them to go through Medicare first.

Henderson chided Kavanaugh and his majority opinion saying, “The majority’s silence on the sole question in the case—is the Social Security Administration (SSA) authorized to penalize an individual who seeks to decline Medicare, Part A coverage by requiring him to forfeit his Social Security benefits and repay any benefits previously received—provides the answer: no.”

The case was appealed to the U.S. Supreme Court, which refused to hear it in January 2013. Whether Kavanaugh wants individuals forced into Medicare (which is scheduled to be bankrupt in 2026) is unknown, but his ruling six years ago is not comforting.

CCHF is leading the charge to end this unlawful prohibition. Sign our petition to President Trump asking him to delete Clinton’s executive instruction from the POMS: bit.ly/MedFreedom

Twila Brase, RN, PHN
President and Co-founder