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One Pen Stroke

By Twila Brase

On Day One, President Trump can right a 23-year wrong

With one stroke of his executive pen, Donald Trump can provide senior citizens a path to private insurance.

On August 30, 1993, the Social Security Administration (SSA) under President Bill Clinton promulgated rules to counter the fact that “[S]ome individuals entitled to monthly benefits have asked to waive Hospital Insurance (HI) entitlement because of religious or philosophical reasons, or because they prefer other health insurance.”

Without public notice or comment, the SSA added two new rules to its “Program Operations Manual System (POMS)” regarding disenrollment in Medicare Part A (Hospital Insurance, or HI). The language is impressively stark:

“Individuals entitled to monthly [Social Security] benefits which confer eligibility for HI may not waive HI entitlement. The only way to avoid HI entitlement is through withdrawal of the monthly benefit application. Withdrawal requires repayment of all Retirement, Survivors, Disability Insurance (RSDI) and HI benefit payments.” RSDI includes Social Security retirement benefits.

In short, the only way out of Medicare is to say goodbye to one’s Social Security payments — the dollars taken out of every paycheck during one’s working life — and to pay back any Social Security and Medicare benefits a senior citizen has already received. Seniors are not allowed to separately drop out of Medicare. The SSA clarifies, “The individual may not elect to withdraw only the HI claim.”

In 2002, the SSA under President George W. Bush strengthened this prohibition by issuing another rule, again without public notice or comment. It says citizens can only withdraw from: 1) RSDI cash benefits, 2) RSDI cash benefits and HI insurance or 3) Medicare Part B only. It says Americans entitled to Social Security benefits “cannot withdraw HI coverage only since entitlement to HI is based on entitlement to monthly benefits.” In short, because Medicare (HI) entitlement is attached to Social Security benefits, the SSA claims you can’t “un-entitle” yourself.

A lawsuit was filed in 2008. Former U.S. Senate Majority Leader Dick Armey was one of several plaintiffs in Hall vs. Sebelius. The case made it all the way to the U.S. Supreme Court, which in January 2013 opted not to hear it.

Earlier, on February 7, 2012, the D.C. Court of Appeals had ruled against the plaintiffs. The ruling and the words of the dissenting judge are instructive. Federal Judge Brett Kavanaugh, who wrote the decision, acknowledges that plaintiffs “have suffered injuries in fact from their reduced private insurance” due to curtailment of private coverage and reduced benefits, but he rules there’s no statutory way to “disclaim their legal entitlement to Medicare Part A benefits.”

But Judge Karen LeCraft Henderson dissented, saying the SSA POMS manual “gives the SSA power that the Congress in no way provides.” She says the plaintiffs argue that “there is no statutory authority for the POMS’ edict that an individual who declines Medicare, Part A coverage is required to forgo/refund [Social Security Retirement Benefits].” She adds, “I agree.” Nothing in law prohibits citizens from receiving their Social Security benefits if they opt out of Medicare, Part A.

Senior citizens need the freedom to buy private insurance. Medicare has a $43 trillion unfunded liability and rationing strategies are being imposed on Medicare patients under the Democrat’s Affordable Care Act (ACA, aka “Obamacare”) and the Republican’s Medicare Access and CHIP Reauthorization Act of 2015 (MACRA),

President Trump can strike these rules from the Social Security Administration’s program operations manual with a simple executive order.

One page. One pen. One signature. On Day One.

Under this new wave of freedom, a new market for private insurance for all citizens will emerge, starting with senior citizens who choose to keep their private health insurance to the end of their days. All citizens need the freedom to find a private policy that meets their personal needs and isn’t vulnerable to the political winds and budgetary restrictions of Congress.

There’s no better day to deliver this long-overdue health freedom to Americans than Inauguration Day, January 20, 2017.

(Citizens’ Council for Health Freedom is a 501(c)3 national patient-centered national health freedom organization based in St. Paul, Minn., that exists to protect health care choices, individualized patient care, and medical and genetic privacy rights. CCHF sponsors the daily, 60-second radio feature, “Health Freedom Minute” and has branded “The Wedge of Health Freedom,” available to patients and doctors at http://www.JointheWedge.com. CCHF president and co-founder Twila Brase, R.N., has been called one of the “100 Most Powerful People in Health Care” and one of “Minnesota’s 100 Most Influential Health Care Leaders.”)