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Newsletter

Health Freedom Watch
October 2009

Contents:


Call Your Senators ASAP and Tell Them to “Vote No” on Mandatory Health Insurance

The Senate will soon vote on a bill that would compel most Americans to buy health insurance.

Thus everyone should call his or her senators as soon as possible and tell them to “vote no on a mandate to buy health insurance.”  Let them know you don’t want the federal government serving as your insurance agent, deciding what type of coverage you must carry.  And be sure to emphasize that health care is too personal to be controlled by a small panel of federal experts.

You might also want to add that a mandate would destroy everyone’s health and financial privacy.  That’s because the federal government would have the authority to tell insurance companies they must adopt electronic data interchange (as proposed in the leading health-care bills).  And a mandate enforced by tax penalties means the IRS would have greater access to our financial information and health-insurance status.

Do Americans really want the federal government forcing them to buy health insurance and to have their records vulnerable to breaches of privacy—or face tax penalties from the IRS?

If not, NOW is the time to act to keep this Big Brother program from being enacted in this free nation.

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Senate Finance Committee Approves Mandatory Health Insurance with 40 Percent Tax on High-End Health Plans

The Senate Finance Committee finished marking up its mandatory health-insurance plan on October 2.  The Committee’s plan (it has not yet provided legislative language) was reviewed by the Congressional Budget Office (CBO) and includes these key provisions and costs (over 10 years, 2010-2019):

  • A mandate for most legal residents to buy health insurance (the proposed penalty for not carrying insurance in the marked-up plan is $750 per adult/$1,500 per family);  
  • A 40 percent tax on high-end insurance plans that cost more than $8,000 annually for individuals and $21,000 for families – estimated to amount to $201 billion in new taxes affecting about 15 percent of health plans and 8 percent of taxpayers;
  • CBO estimates approximately $4 billion in penalty payments will be imposed on Americans;
  • $461 billion in federal credits and subsidies for coverage provided through new Health Insurance Exchanges;
  • Health-care cooperatives that may operate as nonprofit organizations; and
  • Reductions in Medicare, Medicaid, CHIP and other federal health programs by $404 billion.

The CBO’s October 7 analysis estimates the plan would insure about 29 million citizens, leaving about 17 million Americans uninsured.  Also, some 8 million unauthorized immigrants would remain uninsured. 

The Senate Finance Committee’s marked-up proposal is posted online: http://www.finance.senate.gov/sitepages/leg/LEG%202009/100209_Americas_Healthy_Future_Act_AMENDED.pdf  

Sources: 

  • “Chairman’s Mark: America’s Healthy Future Act of 2009,” Senate Finance Committee: http://finance.senate.gov/index.html
  • Congressional Budget Office, Letters to Senator Max Baucus, September 16, 2009 and October 7, 2009.
  • “Baucus Releases Finance Reform Proposal, Outlines Ways to Pay for Expanding Coverage,” BNA’s Health Care Policy Report, September 21, 2009.

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55% Oppose Penalty for Not Buying Health Insurance

The following excerpt is from an October 7 Rasmussen Report:

“The health care reform plan working its way through the U.S. Senate now includes a proposal that requires young and healthy Americans to either buy health insurance or pay a $750 annual penalty for not having it. But a new Rasmussen Reports national telephone survey shows that 55% of U.S. voters oppose that proposal. Just 32% of voters think young and healthy Americans should be forced to purchase health insurance or else pay a penalty. Fourteen percent (14%) are not sure. Among voters ages 18 to 29, 29% favor the provision, known as ‘the individual mandate,’ while 57% are opposed to it.”

Source: “55% Oppose Penalty for Not Buying Health Insurance,” Rasmussen Reports, October 7, 2009.

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Judge Clears Way to Void Rules Mandating Enrollment in Medicare, Part A, As a Condition of Receiving Social Security Retirement Benefits

Motion to Dismiss Denied; Summary Judgment Pending

Washington, DC—In an opinion handed down on September 29, Judge Rosemary Collyer of the U.S. District Court in Washington, DC denied a Motion to Dismiss filed by Kathleen Sebelius, U.S. Secretary of Health and Human Services, and Michael Astrue, Commissioner of the Social Security Administration, clearing the way for the Court to void five rules created by the Clinton Administration that made receipt of an individual's Social Security retirement benefits contingent upon enrollment in Medicare, Part A.

Originally filed in October, 2008 as Brian Hall et al v. Michael Leavitt et al, the lawsuit, now known as Hall v. Sebelius, involves five plaintiffs:  Brian Hall of Virginia, Norman Rogers of Florida, Lew Randall of Washington, John Kraus of Pennsylvania and former U.S. House of Representatives Majority Leader Richard Armey of Texas.

The lawsuit challenges the validity of five rules in the Social Security Program Operations Manual, known as the POMS, that require enrollment in Medicare, Part A, as a condition of receiving Social Security retirement benefits and that mandate the surrender of all Social Security retirement benefits received if an individual seeks to disenroll from Medicare, Part A.

The plaintiffs claim that the POMS violate the Social Security statute enacted by Congress in that the statute makes the two federal programs completely voluntary and no federal agency has the authority—statutorily or constitutionally—to "legislate" requirements interfering with an individual's entitlement to Social Security retirement benefits not enacted by Congress.

None of the plaintiffs want to enroll, or remain enrolled, in Medicare as they believe it is an inferior system that restricts seniors' access to health care because of its administration and looming bankruptcy.  Three of the plaintiffs, Hall, Kraus and Armey, had superior private health care benefits, including health savings accounts, under the Federal Employee Health Benefits Program, which they had been denied due to the enforcement of the POMS.  The other two plaintiffs had private health insurance and health savings arrangements that would have been disrupted by the POMS had they applied for their Social Security retirement benefits.

"The government attempted to get the case dismissed, arguing that the POMS were mere expressions of the statutes and regulations and that none of the plaintiffs had exhausted administrative remedies available to them to challenge the POMS before they filed suit in Federal Court," said Kent Masterson Brown, lead attorney for the plaintiffs in Hall v. Sebelius.  "Judge Collyer denied their Motion."

Rejecting the Government's contention that the POMS were merely expressions of the statute and regulations creating and governing Social Security and Medicare, the Court ruled that "neither the statute nor the regulation specifies that Plaintiffs must withdraw from [Social Security] and repay retirement benefits in order to withdraw from Medicare, Part A."  "In contrast," the Court asserted, "the POMS explicitly states that condition."

Thus, according to the Court, "the POMS determines Plaintiffs' rights or obligations in this instance and is an action from which legal consequences flow."  Concluding, the Court asserted: "the POMS is subject to judicial review."

"With respect to the government's argument that plaintiffs' case must be dismissed because they failed to exhaust administrative remedies, the Court also asserted that exhaustion must be excused in this case; it would be futile," said Brown.  

Specifically, plaintiff Hall attempted to exhaust administrative remedies, but was informed by the Social Security general counsel that there was no way he could get out of Medicare, Part A, and still keep his Social Security.  Plaintiff Kraus, through his Congresswoman, asked for an administrative law judge after he was "forced" to enroll in Medicare, but was stalled for more than three years.

"Importantly, the position taken by the government in this case clearly revealed its intent not to change the POMS," said Brown.  

The Court held, however, that "Where an agency has demonstrated an unwillingness to reconsider its position and there is certainty of an adverse decision—and where the challenge is to the agency's policy and practice or systematic failure to comply with Federal law—exhaustion will be excused." 

Because the plaintiffs in this case challenge a policy "not found in the Social Security Act or federal regulations as Defendants allege, but was apparently created by the Social Security Administration and expressed in the POMS"—and exhaustion would be "futile"—the Court denied the Government's motion. 

"The Court further directed the government to respond within thirty days to the plaintiffs' previously filed Motion for Summary Judgment asking the Court to void the POMS and permanently enjoin the government's enforcement of the POMS," said Brown.

Note:  In Hall v. Leavitt, originally filed on October 9, 2008, Hall and four co-plaintiffs charge that the Social Security Administration (SSA) and Department of Health and Human Services (HHS) acted illegally when they adopted policies that link Social Security eligibility with participation in Medicare, Part A.  The lawsuit also charges that the policies were improperly adopted and implemented in violation of the federal Administrative Procedure Act.  The plaintiffs seek the right to opt out of Medicare without losing the Social Security benefits for which they paid taxes during their working lives.

Source:  Press release by Jennifer Berkowitz on behalf of plaintiffs and counsel representing Hall v. Sebelius, October 1, 2009: www.medicarelawsuit.org

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Health Freedom Watch is published by the Insitute for Health Freedom. Editor: Sue Blevins; Assistant Editor: Deborah Grady. Copyright 2009 Institute for Health Freedom.