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.
