                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                       )
BRIAN HALL, et al.,                    )
                                       )
            Plaintiffs,                )
                                       )
       v.                              )              Civil Action No. 08-1715 (RMC)
                                       )
CHARLES E. JOHNSON, Acting             )
Secretary,                             )
Department of Health & Human Servs., et)
al.,                                   )
                                       )
            Defendants.                )
                                       )

                                  MEMORANDUM OPINION

               Brian Hall, a retiree from the federal Department of Housing and Urban Development

(“HUD”), sues the Department of Health and Human Services (“HHS”) to avoid being forced to

accept Medicare Part A, and forego the private health insurance that he now enjoys. Most

immediately, Mr. Hall moves for a temporary restraining order to prevent HHS and its constituent

agency, the Social Security Administration (“SSA”), from enrolling him in Medicare Part A now that

he has turned age 65. Mr. Hall complains that if he refuses to accept Medicare Part A, he will not

only lose all of his future, monthly Social Security benefits, according to HHS policies, but he will

be required to repay to the Social Security Administration all of the monthly Social Security benefits

he has received over the past three years (since he retired at age 62).

                                             I. FACTS

               Brian Hall was formerly an employee of, and is now retired from, HUD. Am. Compl.

¶ 13. He retired at age 62. Pursuant to the Federal Employee Health Benefits program, he chose to

participate in the Mail Handlers Benefit Plan - Consumer Option upon retirement, a plan that
includes a Health Savings Account (“HSA”) and a high-deductible health insurance policy. Pl.’s

Mem. in Support of Mot. for TRO (Pl.’s Mem.), Attach. 1 (Decl. of Brian Hall (“Hall Decl.”) ¶ 3).

Mr. Hall alleges that this insurance policy will be available for the balance of his life and will cover

his future health care expenses unless he is compelled to enroll in Medicare Part A. Id. ¶¶ 3-8.

               Mr. Hall applied for retirement benefits under Title II of the Social Security Act on

October 20, 2005. Defs.’ Opp’n to Pl.’s Mot. for TRO, Ex. B (Decl. of Craig A. Street (“Street

Decl.”) ¶ 4). That application stated on the first page, in all capital letters, “I APPLY FOR ALL

INSURANCE BENEFITS FOR WHICH I AM ELIGIBLE UNDER TITLE II (FEDERAL OLD-

AGE, SURVIVORS, AND DISABILITY INSURANCE) AND PART A OF TITLE XVIII

(HEALTH INSURANCE FOR THE AGED AND DISABLED) OF THE SOCIAL SECURITY

ACT, AS PRESENTLY AMENDED.” Id. ¶ 5. Mr. Hall began to receive Social Security retirement

benefits in February 2006. Id. ¶ 6.

               According to certain policies of HHS,1 Mr. Hall complains that he will be

automatically enrolled in Medicare Part A in January 2009 because he turned 65 years of age on

January 3, 2009. Believing that the medical care available to Medicare patients is inferior to that

provided under private health insurance, Mr. Hall has notified HHS that he is unwilling to enroll in

Medicare Part B, which provides coverage for physician care, but he cannot similarly decline

Medicare Part A, which provides coverage for hospital costs. As a result, he will be forced to

discontinue his FEHB benefits, 5 U.S.C. § 891 et seq., as he will no longer be able to contribute to



       1
          See Program Operations Manual System/Hospital Insurance (“POMS HI”) 00801.002,
Waiver of HI Entitlement by Monthly Beneficiary; POMS HI 00801.034, Withdrawal
Considerations; and POMS GN 00206.020, Withdrawal Considerations When Hospital Insurance
is Involved.

                                                  -2-
his HSA, and his insurance carrier will cease covering his health care costs and expenses as the

primary insurer. 26 U.S.C. § 223(b)(7); IRS Publication 969 at www.irs.gov; Am. Compl. ¶ 13; Hall

Decl. ¶ 21.

               Mr. Hall contends that upon reaching age 65, he automatically became “. . . an

individual who is entitled to benefits under Part A of this subchapter or enrolled under Part B of this

subchapter;” 42 U.S.C. § 1395a(5), and thereby became a “Medicare beneficiary.” Id. And, while

Medicare beneficiaries can enter in private contracts with physicians for medical care, 42 U.S.C. §

1395a(b)(2)(B), Mr. Hall believes that a contracting physician would thereby be barred from

submitting any claim to Medicare for a period of two years, even for other patients. 42 U.S.C. §

1395a(b)(3)(B)(ii) (two-year bar); United Seniors Ass’n v. Shalala, 182 F.3d 965, 968 (D.C. Cir.

1999) (“This means that a doctor who enters into a private contract with even a single patient is

barred from submitting a claim to Medicare on behalf of any patient for a two-year period.”). Mr.

Hall fears that his physicians and providers will not provide health care services and be paid

privately by him so long as he is a “Medicare beneficiary.”

               Further, as a “Medicare eligible individual,” Mr. Hall will no longer be able to

contribute to his HSA and use pre-tax dollars for his health care costs. According to 26 U.S.C. §

223(b)(7):

               Medicare eligible individuals

               The limitation under this subsection for any month with respect to an
               individual shall be zero for the first month such individual is entitled
               to benefits under Title XVIII of the Social Security Act and for each
               month thereafter.

See also IRS Publication 969 at www.irs.gov.



                                                 -3-
               Mr. Hall alleges that the policies reflected in the POMS cited above are not reflected

in any statutory language. These policies would require him to withdraw from receiving Social

Security benefits and repay all such benefits already received in order to avoid Medicare Part A. He

complains that the effect of the challenged POMS is to force him and all citizens to enroll in

Medicare Part A whether they want to or not. He wishes to receive monthly Social Security benefits

without any Medicare coverage. See Pl.’s Mem. at 38 (“[A]s stated above, BRIAN HALL [sic] is

entitled to Social Security and Medicare already, but he does not want any Medicare benefits.”).

                                  II. STANDARD OF REVIEW

               A court must consider four factors in deciding whether to issue a temporary

restraining order:2

               1.      whether the movant has shown a substantial likelihood of success on
                       the merits;

               2.      whether the movant would suffer irreparable injury if the injunction
                       is not granted;

               3.      whether the issuance of a preliminary injunction would cause
                       substantial harm to other interested parties; and

               4.      whether the public interest would be served by the issuance of an
                       injunction.

Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998). The foregoing factors should

be balanced on a “sliding scale,” i.e., a lesser showing on one factor can be surmounted by a greater

showing on another factor. CSX Transp., Inc. v. Williams, 406 F.3d 667 (D.C. Cir. 2005). Even so,

in order to justify intruding into the ordinary litigation process by issuing a preliminary injunction,




       2
         The same standard applies to both temporary restraining orders and to preliminary
injunctions. Experience Works, Inc. v. Chao, 267 F. Supp. 2d 93, 96 (D.D.C. 2003).

                                                 -4-
it is critical that a movant 1) make a substantial showing of likelihood of success on the merits, Am.

Bankers Ass’n v. Nat’l Credit Union Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999), and 2) make

a showing of at least some injury. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738,

746 (D.C. Cir. 1995). A preliminary injunction is “an extraordinary remedy that should be granted

only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell

v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004).

                                     III. APPLICABLE LAW

               The Medicare Act, which is Title XVIII of the Social Security Act, 42 U.S.C. § 1395

et seq., established a program of health insurance for the elderly and disabled. Medicare Part A,

called Hospital Insurance, covers services furnished by hospitals and other institutional providers.

42 U.S.C. §§ 1395c-1395i-4. Entitlement to Medicare Part A benefits occurs automatically for

individuals who turn 65 and are receiving monthly Social Security benefits under 42 U.S.C. § 402.

See 42 U.S.C. § 426(a) (“Every individual who . . . has attained the age of 65, and is entitled to

monthly insurance benefits under section 402 of this title . . . shall be entitled to hospital insurance

benefits under part A of this chapter. . . .”). By contrast, Medicare Part B, which provides

supplemental medical insurance benefits for certain medical and health care services not otherwise

covered under Medicare Part A, including physician services, is an optional program to which

individuals are not automatically entitled. Individuals entitled to Part A must pay for Part B and may

choose to opt out of Part B. 42 U.S.C. §§ 1395j-1395w-4. “This optional coverage [under Part B]

. . . supplements the mandatory institutional health benefits (such as coverage for hospital expenses)

provided by Part A.” Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 674-75

(1986).


                                                  -5-
               The government explains:

               There is . . . no separate statutory or current regulatory means of
               avoiding one’s “entitlement” to Medicare Part A benefits, at least for
               so long as one retains entitlement to monthly Social Security benefits.
               Indeed, entitlement to Medicare Part A arises automatically for
               persons who are entitled to monthly Social Security benefits. A
               person could avoid entitlement to Medicare Part A by avoiding
               entitlement to monthly social security retirement benefits by failing
               to request the latter. One way to achieve this result is simply not to
               file an application for monthly Social Security benefits. See 42
               U.S.C. 402 [sic].

Defs.’ Opp’n at 5. In addition, an individual may withdraw an application for monthly Social

Security benefits by submitting a written request pursuant to 20 C.F.R. § 404.640. If an individual

has already began to receive Social Security retirement benefits, s/he can still withdraw from that

program but only if, inter alia, the Social Security Administration determines that “[a]ll benefits

already paid based on the application being withdrawn are repaid” or SSA is “satisfied that they will

be repaid.” See 20 C.F.R. § 404.640. Mr. Hall cannot afford to repay his Social Security retirement

benefits or live without them. However, he does not challenge these regulations.

               The focus of Mr. Hall’s petition for a TRO is three provisions in SSA’s POMS, which

he asserts “serve to tie monthly benefits under Social Security and Medicare, Part A, enrollment

together and to confiscate an individual’s Social Security monthly benefits if he or she attempts to

opt out of Medicare, Part A.” Pl.’s Mem. at 8. The POMS state, in relevant part:

               POMS HI 00801.002, Waiver of HI Entitlement by Monthly
               Beneficiary

               A. INTRODUCTION

               Some individuals entitled to monthly benefits have asked to waive HI
               Entitlement because of religious or philosophical reasons, or because
               they prefer other health insurance.


                                                -6-
B. POLICY

Individuals entitled to monthly 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 RSDI and HI benefit payments.

POMS HI 00801.34, Withdrawal Considerations

A. POLICY

To withdraw from the HI program, an individual must submit a
written request for withdrawal and must refund any HI benefits paid
on his/her behalf as explained in GN00206.095B.I.c. An individual
who filed an application for both monthly benefits and HI may:

!      Withdraw the claim for monthly benefits without jeopardizing
       HI entitlement; or

!      Withdraw the claim for both monthly benefits and HI.

The individual may not elect to withdraw only the HI claim.

POMS GN 00206.020, Withdrawal Considerations When Hospital
Insurance is Involved

B. POLICY

The claimant can withdraw an application for:

!      RSI [Retirement or Survivors Insurance, i.e., Social Security]
       cash benefits only;

!      RSI cash benefits and HI insurance coverage . . ., or

!      Medicare [Part B] only

However, a claimant who is entitled to monthly RSI benefits cannot
withdraw HI [Medicare, Part A] coverage only since entitlement to HI
[Medicare, Part A] is based on entitlement to montly RSI benefits. .




                                  -7-
                . .3

                                           IV. ANALYSIS

                Mr. Hall seeks an order to enjoin Defendants Charles E. Johnson, Acting Secretary

of HHS, and Michael J. Astrue, SSA Commissioner, from enforcing the POMS by “enrolling

Plaintiff, BRIAN HALL, in Medicare, Part A,” and from denying him Social Security benefits while

this case is litigated. Pl.’s Mem. at 47. It is passing strange that SSA insists that all persons

receiving Social Security retirement benefits, a federal program that is running out of money, also

must be part of Medicare, Part A, another federal program that overruns budgets. However, that

conundrum is for another day when this case gets to the merits of the Plaintiffs’ complaint. The

issue now is much more narrow: should the Court enjoin Defendants from enrolling Mr. Hall in

Medicare Part A and denying him Social Security benefits because he is not so enrolled?

                The question rests on a false premise. Defendants do not, and did not, “enroll” Mr.

Hall in Medicare Part A. Rather, he applied for all insurance benefits for which he was entitled

under the Social Security Act and, upon reaching age 65, became automatically entitled to Medicare

Part A benefits without any action by Defendants. 42 U.S.C. § 426(a) states, in relevant part:

Every individual who –
(1)    has attained age 65, and
(2)(A) is entitled to monthly insurance benefits [i.e., monthly Social Security benefits] under section
       202, would be entitled to those benefits except that he has not filed an application therefor
       (or application has not been made for a benefit the entitlement to which for any individual
       is a condition of entitlement therefor), or would be entitled to such benefits but for the failure
       of another individual, who meets all the criteria of entitlement to monthly insurance benefits,
       to meet such criteria throughout a month, and in conformity with regulations of the Secretary,
       files an application for hospital insurance benefits under [Medicare, Part A]. . .
...


        3
          The foregoing policies may be found on the web at
https://secure.ssa.gov/apps10/poms.nst/lnx0200206020 open document.

                                                  -8-
shall be entitled to hospital benefits under [Medicare, Part A]. Section 426(a) never uses the word

“enrolled,” or any variation thereof. The statutory provisions relating to Medicare, Part B (insurance

for physician’s and other services), which do predicate benefits on voluntary “enrollment,” clarify

the distinction between “entitlement” and “enrollment” in the statutory scheme. See 42 U.S.C. §§

1395i-2, 1395o. 42 U.S.C. § 1395o, which addresses Medicare Part B, states that “[e]very individual

who . . . is entitled to hospital insurance benefits under [Medicare, Part A] is eligible to enroll in the

insurance program established by this part.” Thus, only upon “enrollment” do eligible individuals

become entitled to Medicare, Part B benefits. Entitlement to Medicare, Part A, on the other hand,

is a status that Mr. Hall achieved automatically upon attaining age 65. No “enrollment” or other

action was or is required to confer entitlement upon Mr. Hall. A temporary restraining order

presupposes that an action has occurred or will occur that must be immediately enjoined to prevent

irreparable harm to the moving party. There is no action for the Court to enjoin here; hence, the

Court has no authority to issue a temporary restraining order.



Date: January 28, 2009                                                  /s/
                                                         ROSEMARY M. COLLYER
                                                         United States District Judge




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