Something truly strange is happening with two supposedly conservative judges on the U.S. Court of Appeals for the D.C. Circuit: They are just making up facts on their own, in direct contradiction of the record before them, to protect a government power that no legislation and no formal regulation ever claimed authority to do. In short, these two judges are either incredibly sloppy or, sadly, flat-out dishonest.
The case involves efforts by five plaintiffs to keep private insurance rather than to accept Medicare benefits they do not want. Based on a mere administrative guideline adopted without any formal rule-making, the federal government will not allow somebody to renounce Medicare benefits without also renouncing all the Social Security benefits they earned through a lifetime of work.
Challenging this administrative guideline, the plaintiffs lost 2-1 before a three-judge panel of the appeals court, and then last week the entire court refused to reconsider. Concurring in that denial of review, the two allegedly conservative judges, Brett Kavanaugh and Douglas Ginsburg, wrote an explanation that is false in every respect:
What really seems to be going on in this case is that plaintiffs’ private insurers are curtailing coverage because plaintiffs have another source of coverage — namely, Medicare Part A. Plaintiffs are not happy that their private insurers are in effect penalizing them based on their entitlement to Medicare Part A benefits. Plaintiffs therefore want to “disenroll” from Medicare Part A. They claim a statutory right to “disenroll” and argue that the Department of Health and Human Services and the Social Security Administration have improperly denied them that right…. We obviously cannot do anything here about the coverage practices of private insurers. … To reiterate, no one is forced to take Medicare Part A benefits. But the key problem for plaintiffs is that their private insurers apparently will not ignore the fact that plaintiffs are able to obtain Medicare Part A benefits.
This is balderdash. The private insurers did not choose to curtail coverage; law requires them to curtail primary coverage if the client already has coverage under Medicare. And the clients are indeed effectively “forced to take Medicare Part A benefits” because if they do not, they must not only also renounce their claim on the Social Security benefits they have earned, but also must repay any SS benefits they already accepted. Their point is that the government is forcing them to accept something they don’t want — and the fact is, the private insurer definitely would still cover them if they were eligible for Medicare but declined it.
Here is a direct quote from the FEHB insurance manual of one of the plaintiffs, explicitly contradicting Judges Kavanaugh and Ginsburg: “If you do not apply for one or more Parts of Medicare, you can still be covered under the FEHB Program.” In that plaintiffs’ official “Statement of Material Facts” — disputed by nobody — he wrote he “will be able to obtain only the health care services Medicare deems ‘allowable’ under the circumstances…. His current insurance carrier will cease being a primary payer and it will become only a supplemental carrier; the decision-making regarding providers and coverage will be exercised by Medicare [my emphasis added].”
Nothing could be clearer: Despite the tommyrot proclaimed by the judges, it is Medicare, not the private insurers, that is in control.
Furthermore, the plaintiffs’ lead lawyer, Kent Masterson Brown, told me this: “Ginsburg, interestingly, asked me whether the Plaintiffs would continue to be insured and I answered him directly that they would… [and] all the Plaintiffs would continue to be insured if they chose not to stay in Medicare.”
The original dissenting judge, Karen LeCraft Henderson, scathingly wrote about the rehearing denial that her colleagues had shown an “insistence on miscalling the game” by pretending to decide “an issue that was not even before the court” while “avoid[ing] the sole issue in this case: whether the Social Security Administration is authorized to penalize an individual who declines Medicare, Part A coverage.” If anything, she understates the case. The truth is, plaintiffs repeatedly corrected the judges about what their complaint was, and the judges repeatedly ignored the plaintiffs’ own words and insisted on considering an issue the plaintiffs explicitly denied they were raising.
Imagine a child telling a parent he wants an apple instead of a cookie, and the parent answering, “No, I told you, you can’t go outside and play.” The parent and the court are denying requests nobody even made.
What remains is that the Social Security Administration is prohibiting Americans from saving taxpayers money by turning down Medicare coverage, even though no law and no official regulation actually so prohibits them. Not even Alice’s Wonderland was so nonsensical. But Judges Kavanaugh and Ginsburg don’t even have the excuse of having fallen through a rabbit-hole; they’re just willfully obtuse.