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EDITORIAL: Mugged by Medicare

Court case tests federal bullying authority over Social Security

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The Obama administration is trying to shove Medicare coverage down the throats of senior citizens who don't want it, but it's efforts are falling flat. Five plaintiffs are suing, arguing that no statute or regulation allows government to implement this requirement.

The Department of Health and Human Services insists an individual cannot forfeit Medicare eligibility and continue to collect Social Security benefits even after paying into the latter system over an entire career. The plaintiffs have private insurance they consider superior to Medicare and are willing to allow the Treasury to keep the benefits they earned after having paid Medicare taxes for decades. Everybody, including the American taxpayer, wins - except for bureaucrats, who don't want to be bothered to keep track of those who willingly forgo Medicare coverage.

After a hearing in November, D.C. federal district Judge Rosemary M. Collyer ordered the government to stop arguing in generalities and instead specify "when such a requirement/interpretation was adopted, and by what statute, regulation or administrative decision." In a brief filed Jan. 11, government lawyers answered with mere diversions. They claimed the Medicare entitlement "flowed automatically" from the Social Security entitlement and cited a 1965 law that says all Social Security beneficiaries "shall be entitled" to Medicare. That hardly compels use of both. To be "entitled" is not to be "required."

The lawyers then spent more than three pages detailing how somebody can "withdraw an application" for Social Security even though the plaintiffs' point is that they want to keep Social Security but abandon Medicare. Without seeming to realize it undercut the relevance of their argument, the government noted the regulation governing Social Security withdrawal "dates back to 1963, before Medicare existed." It's not clear, then, how it's applicable to a suit involving Medicare.

Medicare was created in 1965, but the Obama lawyers say an exhaustive search of government records produced a document 12 years later, in 1977, finally making the requirement clear. It's not much of a document. It's a Social Security Administration "Program Circular" - basically an internal bureaucratic policy newsletter - that says a beneficiary "may not waive or refuse" Medicare. Judge Collyer asked for a statute, regulation or formal administrative decision, not a flier.

According to the circular, a Medicare enrollee is free not to file for reimbursement but instead pay out of pocket. That assertion no longer is true. Subsequent regulations provide that in order to treat Medicare patients at all, hospitals must agree not to charge even a single patient for treatment outside of the Medicare system. If patients think they can get better care outside of Medicare, they are forbidden to do so if they are listed on Medicare's rolls, whether or not they plan on ever accepting Medicare's tax-paid benefits.

The government's brief isn't responsive to Judge Collyer's demand because no legitimate authority seems to exist for their freedom-destroying fiat. The five plaintiffs merely want the right to pay for their own level of medical care. Denial of that right could endanger their health, or lives. The Obama administration's position is legally and morally unsupportable.

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