The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
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 OLDAGE, 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,*fn1 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 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.
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.").
A court must consider four factors in deciding whether to issue a temporary ...