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Congressmen Question HHS's Legal Authority
to Force Seniors into Medicare Part A

October 5, 2004

Three congressmen sent a letter to Health and Human Services Secretary Tommy Thompson questioning the current policy of forcing seniors into Medicare Part A and asking whether that same policy could be applied to the new prescription drug benefit (Medicare Part D). A copy of the letter follows:

July 16, 2004

Secretary Tommy Thompson
Department of Health and Human Services
200 Independence Avenue
Washington, DC 20201

Dear Secretary Thompson:

Please provide our offices with an answer to the following questions:

  • If a federal law says a person "shall be entitled" to a certain benefit or shall "automatically qualify" to receive a certain benefit, can the person waive the benefit?

  • What section of federal law gives the Social Security Administration the authority to condition receipt of Social Security benefits, for which a senior citizen is otherwise entitled to, on that senior's enrollment in Medicare Part A?

These questions are prompted by a federal policy that essentially forces seniors to enroll in Medicare Part A (hospital insurance) when they apply for Social Security benefits. It is our understanding that the only way seniors can opt out of Medicare Part A is by forfeiting all of their Social Security retirement cash benefits. (See Social Security policy HI 00801.002 titled "Waiver of HI Entitlement by Monthly Beneficiary.")

Additionally, once enrolled in Medicare Part A, the only way a senior can withdraw from this program is to pay back all received Social Security cash benefits and any Medicare Part A payments that were made on the senior's behalf.

As you are aware, federal law currently limits a Medicare recipient's ability to use private funds to obtain health services, even when the senior would prefer to obtain care outside of the Medicare system. This prohibition means seniors' health care options are, for all intents and purposes, limited to those approved of by the Center for Medicare and Medicaid Services (CMS). Therefore, involuntarily enrolling seniors in Medicare Part A severely limits seniors' ability to control their own health care.

Yet, when Medicare was established in 1965, Congress inserted a provision in the original law that states the following:

"OPTION TO INDIVIDUALS TO OBTAIN OTHER HEALTH INSURANCE PROTECTION: Sec. 1803. Nothing contained in this title shall be construed to preclude any State from providing, or any individual from purchasing or otherwise securing, protection against the cost of any health services" [emphasis added].

This exact language is still in the United States Code of Federal Regulations, (42 U.S.C. 1395b) and, thus, any agency that interferes with an individual's ability to "purchase or otherwise secure protection against the cost of any health care services" may be violating federal law.

Whether participation in an "entitlement" program is mandatory or voluntary has serious ramifications for the ability of seniors who are currently receiving private prescription drug coverage to continue receiving that coverage. The new Medicare Prescription Drug and Modernization Act defines persons who are eligible for the Medicare prescription drug program as "an individual who is entitled to benefits under Part A or enrolled under Part B."

Using the Social Security Administration's logic (i.e., if seniors are "entitled" to Medicare Part A, they must take it or forgo their Social Security benefits), could not the Social Security Administration also force seniors to enroll in the new Medicare drug program as a condition of receiving Social Security benefits for which they are otherwise eligible?

Furthermore, given the limitation on Medicare recipients' ability to use private funds to pay for their health care expenses, wouldn't forcing seniors into the Medicare prescription drug program force these seniors to give up their private, employer-sponsored drug coverage?

I am sure you can understand why obtaining answers to these questions is of great importance to our senior constituents who wish to continue their private prescription drug coverage and/or use private funds to obtain health care. Therefore, we would appreciate an answer to the above questions. Please contact Mr. Norman Singleton, Congressman Paul's legislative director, with any questions concerning this request.

Thank you for your attention to our concerns.

Sincerely,

Ron Paul
Tom Tancredo
Walter Jones

This letter was originally published in the July/August 2004 issue of Health Freedom Watch.