- The Washington Times - Friday, April 1, 2011

Federal judges disagree with each other all the time. However, it is rare for a judge to disagree utterly with herself and rarer still to do so within a single case. That’s what happened March 16 when Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia ruled that senior citizens can be forced to accept Medicare coverage they don’t want.

The plaintiffs in Hall v. Sebelius asked only to be allowed to keep private health insurance rather than enroll in Medicare. They did not ask repayment of the taxes they put into Medicare, but only to forgo its benefits. The Obama administration argued that the only way to avoid Medicare coverage is also to refuse the Social Security benefits for which the plaintiffs paid through a working lifetime. “Plaintiffs are trapped in a government program intended for their benefit,” Judge Collyer wrote. “They disagree and wish to escape.”

The administration based its position on something called a Program Operations Manual System (POMS), issued in 1993. POMS, neither a law enacted by Congress nor a rule formally adopted by the Social Security Administration, is merely an advisory document for program administrators. Throughout the long course of the case, Judge Collyer insisted that the POMS is not legally conclusive. “Neither the statute nor the regulation specifies that Plaintiffs must withdraw from Social Security and repay retirement benefits in order to withdraw from Medicare,” she wrote in an earlier ruling on the case in September 2009. In November 2010, she remained insistent, ordering the administration to prove “when such a requirement/interpretation was adopted, and by what statute, regulation, or administrative decision.”

The government failed. Yet the judge suddenly flipped. In her final decision, she defined “entitled” to mean “mandated” and then decided that something imposing a mandate on the government should instead be interpreted to impose the mandate on the citizen. She even acknowledged that in both “plain-English” and in the dictionary itself, the word “entitled” means to be allowed something, but not “required to accept” it. Ludicrously, though, she wrote that Medicare “is a different type of entitlement because of its automatic nature.”

Judge Collyer cited a 1986 case, Bowen v. Michigan Academy of Family Physicians, to prove that Congress had intended to make the entitlement mandatory. Her citation was bizarre. The Bowen case involved a patient’s right to go to court to protest a denial of benefits. It was in that sense that the Supreme Court found the benefits mandatory - that the government can’t deny benefits without being challenged by the patient. That situation is almost the opposite of the Hall v. Sebelius case, in which the patient wants to avoid benefits the government would impose rather than the government trying to deny benefits.

It took the plaintiffs just six days to file notice to appeal Judge Collyer’s decision. By rights, it shouldn’t take much longer than that for the appeals court to follow both the law and common sense - not to mention the dictionary - and side with Judge Collyer’s first incarnation. Medicare should be an optional benefit, not a straitjacket.

Quin Hillyer is a senior editorial writer for The Washington Times.