- The Washington Times - Wednesday, October 15, 2008

ANALYSIS/OPINION:

ANALYSIS/OPINION:

COMMENTARY:

Suppose you work for 45 years, pay all your taxes, and stay out of trouble. At age 66 you apply for Social Security benefits. But the Social Security Administration says “no.”

The reason they give seems odd: You have told us you don’t want to sign up for Medicare, Social Security officials say, and you can’t receive your retirement benefits if you won’t do so. Says who? Since when? This is not a hypothetical situation. I have just described the Catch-22 a number of would-be Social Security recipients find themselves in. I am one of them.

While it may seem odd to some people that anyone in his or her right mind would not sign up for Medicare the minute he becomes eligible, countless retirees might be better off - medically, if not financially - if they didn’t. These are people who have insurance benefits superior to Medicare’s or who have substantial health savings accounts (HSAs) and don’t want to be barred from making additional contributions, as they would under Medicare. Should the government blackmail people to apply for government “benefits” that are inferior to benefits they already enjoy and are willing to pay for themselves?

Apparently, that’s the position of the Department of Health and Human Services (HHS) and the Social Security Administration, which established rules in 1993 during the Clinton administration - updated and toughened in 2002 under the current administration - which say, in effect, that any retiree who asks to not be enrolled in Medicare Part A, the hospital insurance program, or seeks to withdraw from Part A after being “automatically” enrolled when applying for Social Security, will be denied retirement benefits.

There are several problems with these rules. Problem No. 1 is that the rules are illegal, contrary to the spirit and letter of the Social Security and Medicare laws, neither of which makes eligibility for Social Security dependent upon participation in any other government program - or receipt of any other government benefit. I am eligible for Social Security because I’ve reached the legal retirement age and paid enough taxes during my working lifetime to qualify.

Nowhere in Social Security’s legal framework or legislative history is it written that I will be considered eligible only if I sign up for Medicare. The rules are also problematic because they were put into place secretly.

Under the federal government’s Administrative Procedures Act, any substantive rule proposed by any federal agency must be publicized in advance by being published in the Federal Register. Citizens who might be affected by these rules, or might have an interest in the rules for other reasons, then have a chance to comment on the proposals. It is an orderly process that makes sense.

And it is a process ignored by the Social Security Administration and HHS when they put the policy linking Medicare and Social Security benefits into effect. Indeed, even now - despite several requests - Social Security officials refuse to address the issue. Their attitude seems to be: This is how we’ve decided it’s going to be. Tough luck.

The bottom line is: I shouldn’t be denied my Social Security benefits if I choose not to enroll in Medicare.

I want to keep my existing health coverage and am willing - and fortunate enough to have the wherewithal - to pay for it. That should be my right.

We are told, in effect, that we have to accept benefits we don’t want (or need) or be penalized thousands, even tens of thousands, of dollars per year. So we have filed suit in U.S. Federal District Court in Washington, D.C., challenging the improper rules - and the improper way they were implemented.

We invite AARP, the National Association of Retired Federal Employees and other senior citizen and civil liberties organizations to join us.

One of the few things, perhaps, we can agree upon in these days of bitter political divisions is that Social Security is an inviolate contract. As a practical matter, there may be times when Washington needs to consider making changes to the Social Security program, but such actions are taken in the open, by Congress - not by bureaucrats behind closed doors.

Brian Hall, a retired federal government employee living in Catlett, Va., is lead plaintiff in Hall v. Leavitt, a lawsuit (www.medicarelawsuit.org) seeking to bar the federal government from stripping seniors of their Social Security benefits if they choose not to participate in Medicare.

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