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EDITORIAL: POMS de terror

- The Washington Times - Tuesday, October 6, 2009

Freedom won a big round Sept. 29 when Judge Rosemary M. Collyer slapped down federal commissars who are pushing a senseless and dangerous Medicare requirement.

Judge Collyer, who sits on the U.S. District Court for the District of Columbia, refused to dismiss a lawsuit in which the three plaintiffs are merely asserting a right to refuse aid provided by taxpayers. Against these plaintiffs, the Department of Health and Human Services insists that the government can coerce people to accept Medicare benefits they don't want. The government's position in Hall, et al. v. Sebelius is nonsensical.

The Social Security Administration has issued rules in its Program Operations Manual System (POMS) that state that "the only way to avoid" the hospital and outpatient services provided by Medicare Part A is also to forgo Social Security benefits that have been earned through a lifetime of payroll taxes. Even worse, the government mandates that individuals who refuse such services must repay all Social Security benefits and Medicare benefits already collected.

The plaintiffs all had private health insurance that they think offers better coverage and more options than Medicare does. They therefore are willing to give up Medicare services even though that would mean forfeiting all the Medicare taxes they have paid through the years. However, they do not want to give up Social Security benefits, which are financed separately from Medicare.

For some illogical reason cooked up by bureaucrats, the POMS ties together the Medicare and Social Security benefits that the texts of the Social Security Act and Medicare Act treat separately. Indeed, the Social Security Act says that anybody who has paid into the system "shall be entitled" to its benefits without once mentioning Medicare as a prerequisite.

Government bigfoots moved to dismiss the plaintiffs' case on several hypertechnical procedural grounds. In allowing the case to go forward, Judge Collyer didn't merely reject the government's technical arguments, but also touched on the substance of the case. "A pragmatic analysis," she wrote, "demonstrates the unlikeliness of [the government's] claim that the POMS merely mirrors the Social Security Act and regulation, as neither the statute nor the regulation requires a withdrawal from retirement benefits in order to withdraw from Medicare Part A."

As a matter of both law and fairness, the judge is absolutely right. The POMS was promulgated without any public comment or review, yet the Department of Health and Human Services has treated its rules as if they are settled law. It should not do so under any circumstances. It especially should not do so if, as here, the POMS contradicts the self-evident meaning of the legislation it purports to interpret.

Turning the tables on Big Brother, Judge Collyer has demanded that the government file a motion by the end of this month to explain why summary judgment should not be awarded in favor of the plaintiffs, without even the necessity of a full trial. This is a no-brainer. The POMS rule is obviously unfair to citizens who merely want to make their own choices about health care with their own money. It's also flat-out bad policy to force taxpayers to finance services that the recipients don't want. The government's case is weak and should be abandoned.