The American Association of Physicians and Surgeons Files Health Care Lawsuit

SUIT ALSO CHALLENGES THE CONSTITUTIONALITY OF REQUIRING RETIREES TO ENROLL IN MEDICARE, PART A TO RECEIVE RETIREMENT BENEFITS

by Debra Mullins

(May 25, 2010) — In a new twist to the health care reform lawsuits, the American Association of Physicians and Surgeons (AAPS), a leading advocate of choices in heath care freedom for physicians and their patients, is the first organization of heath care providers to file a lawsuit challenging the Patient Protection and Affordable Care Act (PPACA) signed into law by Mr. Obama on March 23, 2010. The complaint was filed in U.S. District Court for the District of Columbia on March 26, 2010.

The AAPS is a non-profit organization founded in 1943 to preserve the practice of private medicine, ethical medicine, and the patient-physician relationship. According to the organization’s website, “AAPS has been dedicated to the highest ethical standards of the Oath of Hippocrates and to preserving the sanctity of the patient-physician relationship and the practice of private medicine. The motto, “omnia pro aegroto” means “all for the patient.”

According to an AAPS spokesperson, the group has approximately 5,000 members including such notables as U.S. Representative and former Presidential candidate Dr. Ron Paul (R-TX), Dr. Tom Price (R-GA), former U.S Representative Dr. John Cooksey (R-LA), and Kentucky Senate hopeful, Republican Dr. Rand Paul.

The most recent lawsuit is perhaps the most comprehensive in terms of the relief sought on behalf of heath care providers and their patients. Not only does it challenge the constitutionality of the PPACA based on the Fifth and Tenth Amendments, but it also seeks relief from what it claims is an unconstitutional federal mandate which requires retirees who receive Social Security benefits to also participate in Medicare, Part A once reaching the age of 65. Retirees who opt out of Medicare, Part A risk losing their Social Security benefits.

Named defendants in the complaint are Health and Human Services Secretary Kathleen G. Sebelius and Commissioner of Social Security Michael J. Astrue, a President Bush appointee in 2007.  The Honorable Judge Rosemary M. Collyer, a Bush appointee in 2003, will preside.

The Plaintiffs seek injunctive relief in part for the following which they claim as unconstitutional:

• The federal mandate that AAPS retirees must enroll in Medicare, Part A in order to collect Social Security retiree benefits. The argument is that Medicare is inadequate and retirees should have the right to decide to purchase private insurance.
• The PPACA as a federal mandate for individual heath care insurance purchase is outside the scope of the federal government’s limited and enumerated powers.
• The new mandate will drive up the cost of insurance when compared to high deductible plans coupled with health savings accounts.
• The PPACA is unenforceable in its entirety because it lacks a severability clause and cannot be funded without the insurance mandates on individuals and businesses of 50 or more employees.
• Order Defendants Sebelius and Astrue to submit an accounting on the solvency of Medicare and Social Security.
• The suit states that the requested relief is necessary to preserve individual liberty and choice under Social Security, as well as to prevent the PPACA from bankrupting the United States generally and Medicare and Social Security specifically and from unconstitutionally denying individual and state liberty from ultra vires (beyond powers) federal dictates.

AAPS members who are practicing physicians and other medical caregivers who have opted out of Medicare would like to compete with medical caregivers within Medicare in serving retired Americans, but the retired patients have greater difficulty retaining such AAPS members.

The full complaint can be accessed here. Responses are due between early and mid-June.

While there are several lawsuits challenging the PPACA, this is not the first complaint addressing the alleged unconstitutionality of requiring retirees collecting Social Security benefits to enroll in Medicare, Part A.

In October 2008, five retirees filed for similar injunctive relief in U.S. District Court for the District of Columbia regarding the unconstitutionality of compulsory Medicare A enrollment as a condition of continuance of Social Security retirement benefits upon reaching the age of 65.  The Social Security Act and Medicare A are not inextricably linked, but rather by a procedural rule defined in the SSA’s Procedural Operation Manual System (POMS) used by SSA employees to process Social Security Claims. The case was filed on behalf of the Plaintiffs by Frank M. Northam of Washington D.C.-based Webster, Chamberlain & Bean, and Lexington, KY-based Kent Masterson Brown. Both specialize in constitutional law.

Two of the Plaintiffs have since terminated their interest in the case since neither had filed for Social Security retirement benefits.

Former Secretary of Health and Human Services Michael Leavitt and Commissioner of Social Security Michael J. Astrue are named as defendants. Leavitt, in addition to serving as the Secretary of the HHS during the Bush administration, also served as the Administrator of the Environmental Protection Agency 2003 to 2005 and as the Governor of Utah from 1993 to 2003.  The remaining plaintiffs are as follows:

• Plaintiff Brian Hall of the Commonwealth of Virginia has been collecting Social Security retiree benefits since 2006 and was scheduled to be enrolled in Medicare A in January 2009. He must exercise his Medicare A option to continue receiving his retirement benefit.
• Plaintiff John Krause, of the Commonwealth of Pennsylvania, has received his Social Security retirement benefit since 2005 and was automatically enrolled in Medicare A. Mr. Krause contacted the Social Security Administration (SSA) and requested discontinuance of his Medicare A. The SSA denied his request,  to which Mr. Krause filed an appeal.
• Plaintiff Richard Armey, of Texas, has received Social Security since 2003 and was automatically enrolled in Medicare A in 2006 even though he wanted to forgo Medicare and keep the private insurance he had under the Federal Employee Health Benefits Program. Mr. Armey lost his private insurance because receiving his Social Security Benefits was predicated on enrollment in Medicare A. Mr. Armey is a retired employee of the Department of Housing and Urban Development.

The judge presiding over the case is the same Honorable Judge Rosemary M. Collyer. The complaint has proceeded through several motions on behalf of both the Plaintiff and Defendants. The Defendants filed a Motion to Dismiss and a Motion for Reconsideration, both of which were denied. The most recent motion filed on behalf of the Plaintiffs on May 20, 2010 was  a Motion for Summary Judgment. There are no other proceedings scheduled at this time.

The AAPS has filed several lawsuits challenging the intrusion of the government into the physician-patient relationship. Most notably, in 1993, it successfully sued then-First Lady Hilary Clinton’s Health Care Taskforce because of its closed-door meetings which were held in direct violation of the Federal Advisory Committee Act. The AAPS also unsuccessfully sued Florida on behalf of Rush Limbaugh in 2004 challenging the constitutionality of the Health Insurance Portability and Accountability Act (HIPPA). The AAPS argued that it was a violation of the Fourth Amendment when Limbaugh’s medical records were accessed without a warrant.