Tong v. Secretary of Health and Human Services

Filing 15

ORDER denying Plaintiff's 13 Motion for Summary Judgment; granting Defendant's 14 Motion for Summary Judgment, signed by Judge Richard A Jones. (SWT) (cc: Plaintiff via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ANDREW JOHN TONG,

CASE NO. C16-0102RAJ
ORDER

Plaintiff,

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v.
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SECRETARY OF HEALTH AND
HUMAN SERVICES,

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Defendant.

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I.

INTRODUCTION

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This matter comes before the Court on Plaintiff Andrew John Tong’s Motion for
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Summary Judgment, Dkt. # 13, and upon Defendant Secretary of Health and Human
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Services’s Cross Motion for Summary Judgment, Dkt. # 14. Neither party has filed a
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response. For the reasons stated below the Court DENIES the Plaintiff’s motion and
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GRANTS the Defendant’s the motion.
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ORDER - 1

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II.

BACKGROUND

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Plaintiff Andrew John Tong wants to terminate his Medicare enrollment,

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challenging the most recent step of this prolonged process: the decision by the Medicare

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Appeals Council (“the Council”) that Mr. Tong must remain enrolled in Medicare Part A

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until October, 2019 and must pay two months of outstanding premiums for his Medicare

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Part B coverage. Dkt. # 1; Administrative Record (“AR”) 15-16. Mr. Tong claims that

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he is unable to use alternative insurance while he remains enrolled in Medicare. Dkt. # 1,

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¶ 8.

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Mr. Tong is a veteran of the United States Armed Forces. AR 34. He was injured

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while serving and was therefore entitled to Social Security disability benefits, also known

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as SSDI. Id. at 5, 34. Based on his receipt of SSDI, Mr. Tong also began receiving

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Hospital Insurance under Medicare Part A and Supplementary Medical Insurance under

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Medicare Part B. Id. at 5.

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On April 4, 2011, Mr. Tong began working for Alaska Airlines, work that

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disqualified him from receiving Social Security Disability benefits. Id. at 71-74. While

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his work disqualified him from SSDI, the Social Security Agency informed Mr. Tong

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that he had been granted a trial work period, for nine months after he began working—

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from April, 2011 through December, 2011. Id. at 73. The SSA further explained that

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Mr. Tong was eligible for an extended period of eligibility for three years after his trial

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work period, beginning in January, 2012, and ending in December, 2014. Id. After

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December, 2014, the extended period of eligibility would end if Mr. Tong’s income

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reached a predefined monthly amount, thereby qualifying as Substantial Gainful Activity,

ORDER - 2

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or SGA. 1 Id. at 74. Finally, in the same letter, the SSA informed Mr. Tong that while he

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was no longer eligible for disability benefits, his Medicare coverage could continue. Id.

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On April 13, 2014, Mr. Tong requested that the SSA terminate his Medicare Part

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B benefits, effective May 31, 2014. Id. at 5, 34. In response, the SSA informed Mr.

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Tong that he owed $314.70 to cover his Medicare Part B premiums through June 30,

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2014, at which point the SSA would terminate Mr. Tong’s Part B enrollment. Id. at 6.

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On June 10, 2014, Mr. Tong requested a reconsideration of this decision, writing: “I

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asked that Medicare be stopped on April 8, 2014; it should have been cancelled in March

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2014 when you stopped my Social Security Payment.” Id. (quoting AR 43). The SSA

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wrote back, informing Mr. Tong that its initial decision was correct and he still owed

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$314.70 for Medicare premiums covering April, 2014 to June, 2014. Id. (citing AR 44).

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On July 10, 2014, Mr. Tong requested the termination of his Medicare Part A

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benefits. Id. at 6, 34. The next apparent communication from the SSA was a letter,

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dated August 20, 2014, where the SSA wrote that since Mr. Tong was no longer entitled

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to Social Security, “we are stopping your hospital insurance [Part A] coverage under

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Medicare. Your hospital insurance coverage ends on the last day of December 2014.

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Please destroy your Medicare card after the coverage ends.” Id. at 6 (citing AR 48). This

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letter is in opposition to the SSA’s current position and all further communications the

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SSA had with Mr. Tong. See Dkt. # 14; AR.

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For calendar years 2011 through 2014, average monthly income in excess of $1000
presumptively indicated substantial gainful activity. See SSA Substantial Gainful Activity,
https://www.ssa.gov/oact/cola/sga.html (last visited June 14, 2017).

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1. Administrative Hearing

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On March 9, 2015, Mr. Tong filed a timely appeal with the Office of Medicare

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Hearings and Appeals, requesting immediate termination of his Medicare coverage and

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arguing that the SSA was erroneously charging him Medicare Part B premiums for

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months after his coverage terminated. Id. at 35. On May 28, 2015, an administrative

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hearing was held on Mr. Tong’s appeal. See id. at 34-97. The Administrative Law Judge

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(“ALJ”), Judith Showalter, considered whether (1) Mr. Tong had completed the

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procedure for terminating his participation in Medicare Parts A and B and (2) was

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required to pay $314.70 in outstanding Medicare premiums for April 2014 through June

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2014. Id. at 35.
The ALJ found that Mr. Tong had terminated his Medicare enrollment under both

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Parts A and B. Id. at 37. The ALJ also found that Mr. Tong’s Part B enrollment

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terminated in June, 2014 and his Part A enrollment had terminated in September, 2015.

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Id. at 37. The ALJ determined that Mr. Tong was entitled to a waiver of any outstanding

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Medicare premiums. Id. at 37.

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2. Review by the Council

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The SSA referred the ALJ’s decision to the Medicare Appeals Council. Id. at

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21-22. The Council found that the ALJ had applied the wrong regulations to Mr. Tong’s

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case, applying those regulations for premium Hospital Insurance, which Mr. Tong did not

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have. Id. at 13. Applying regulations applicable to free Part A benefits, the Council

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determined that Mr. Tong could not waive entitlement to his Part A Hospital Insurance

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“without also forfeiting his entitlement to Social Security Disability Benefits and

ORDER - 4

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repaying the cost of the disability benefits provided to that point.” Id. at 14. In other

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words, unless he was able to repay all SSDI payments, Mr. Tong was required to remain

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enrolled in Medicare Part A through the end of September, 2019. Id. at 14. The Council

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also found that Mr. Tong had terminated his Medicare Part B coverage, effective May 31,

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2014—not July, 2014 as the SSA suggested—meaning Mr. Tong was only required to

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pay Medicare Part B premiums for April and May, 2014. Id. at 15.

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Mr. Tong, acting pro se, moves to reverse the decision of the Council, arguing that

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the 2014 termination of his Medicare Parts A and B coverage—recognized by the ALJ,

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but reversed by the Council—should be reinstated and he should not be required to pay

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additional premiums. See Dkt. ## 1, 13. The Secretary argues that the Council’s

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decision should be upheld. Dkt. # 14.

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III.

DISCUSSION

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The Court’s review of a final decision by the Secretary of the Department of

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Health and Human Services is very limited. “Since the federal Medicare and Social

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Security programs are similar, the Court reviews a Secretary’s final decision in

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accordance with the statute that controls review of the Commissioner of Social Security

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decisions.” Maxmed Healthcare, Inc. v. Burwell, 152 F. Supp. 3d 619, 624 (W.D. Tex.

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2016) (citing 42 U.S.C. § 405(g) (2006)), 42 U.S.C. § 1395ff(b) (2006)). “The

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Secretary’s decision will be affirmed unless it is ‘arbitrary, capricious, an abuse of

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discretion, or otherwise not in accordance with law.’” 5 U.S.C. § 706. “The Secretary’s

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factual findings are conclusive if they are supported by ‘substantial evidence.’” Int’l

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Rehab. Scis. Inc. v. Sebelius, 688 F.3d 994, 1000 (9th Cir. 2012) (quoting 42 U.S.C. §

ORDER - 5

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405(g)). “‘Substantial evidence’ means ‘more than a mere scintilla but less than a

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preponderance; it is such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.’” Id. (quoting Sandgathe v. Chater, 108 F.3d 978, 980

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(9th Cir.1997)).

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1. Medicare Part A

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Mr. Tong first seeks to terminate his enrollment in Hospital Insurance under

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Medicare Part A, claiming that he cannot simultaneously be enrolled in Medicare and

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receive benefits under Tricare—health insurance available to veterans of the United

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States Army. Dkt. # 13, ¶ 7.

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Unfortunately, and perhaps surprisingly, there is no statutory mechanism for Mr.

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Tong to terminate his entitlement to Medicare Part A before October, 2019. 42 U.S.C. §

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426(b); 00820.025A POMS HI; Hall v. Sebelius, 667 F.3d 1293 (D.C. Cir. 2012). In the

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analogous case of Hall v. Sebelius, the D.C. Circuit court began by noting the unusual

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nature of a case where the plaintiffs sued because they did not want government benefits,

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specifically the plaintiffs wished to disclaim their legal entitlement to Medicare Part A.

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667 F.3d at 1294. The court analogized the plaintiffs’ situation to that of “a poor citizen

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entitled to food stamps who is not required to take the food stamps, but nevertheless

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remains entitled to them.” Id. at 1296. The court held that under the law, the plaintiffs

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were entitled to Medicare, whether or not they wanted the coverage. Id. In many ways,

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Mr. Tong is subject to the same prohibition on terminating his Medicare Part A

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entitlement, with the exception that because Mr. Tong’s SSDI benefits have terminated,

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ORDER - 6

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his entitlement to Medicare Part A will also terminate after Mr. Tong has finished a

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predefined number of months of additional entitlement.

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The Council accurately described Mr. Tong’s journey through the several stages of

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Medicare Part A entitlement since he began working in 2011. AR 13-14. These stages

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are defined in the SSA’s Program Operations Manual System (“POMS”), an SSA

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handbook designed for internal use by SSA employees in processing claims.

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00820.025A POMS HI. First, Mr. Tong was enrolled in a trial work period for nine

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months, giving him time to investigate whether he was able to sustain employment in

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light of his disability. AR 13, 73; 00820.025A.4 POMS HI. Following the trial work

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period, Mr. Tong was enrolled in an extended period of eligibility, during which time he

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continued working, engaging in substantial gainful activity that disqualified him from

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receiving any further SSDI payments. AR 13, 74; 00820.025A.4 POMS HI. Finally,

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because Mr. Tong was engaged in substantial gainful activity before the 14th month of

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his extended period of eligibility, he is now enrolled in an additional 57 months of

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Hospital Insurance under Medicare Part A. AR 13, 74; 00820.025A.4 POMS HI. As

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found by the Council, this final enrollment period is set to terminate in October, 2019.

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AR 10.

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Given the applicable regulations and Mr. Tong’s work history, the Court finds that

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the Council correctly characterized the law and the status of Mr. Tong’s entitlement to

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Medicare Part A.

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ORDER - 7

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2. Medicare Part B

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Mr. Tong also challenges the Council’s conclusion that he owes Medicare Part B

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premiums for March through April, 2014. Dkt. # 1, ¶¶ 9-10; AR 14-16. The Council

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found that Mr. Tong “took reasonable appropriate and timely measures” to terminate his

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participation in Medicare Part B. AR 14 (internal quotations omitted). On April 13,

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2014, Mr. Tong requested termination of his Part B benefits, seeking a final termination

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date of May 31, 2014, which comports with the relevant statutory provisions regarding

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voluntary withdrawal from Medicare Part B. Id. at 54. By regulation, an individual may

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“at any time give [the Council] or SSA written notice that he or she no longer wishes to

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participate in . . . [Medicare Part B] and request disenrollment.” 42 C.F.R. § 407.27(c).

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“[E]ntitlement ends at the end of the month after the month in which the individual files

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the disenrollment request.” Id.
Because the Court finds that under the applicable regulation, Mr. Tong’s Medicare

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Part B coverage ended in May, 2014—the termination date that Mr. Tong himself

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requested—the Court concludes that the Council’s decision is supported by both the law

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and substantial evidence in the record.

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ORDER - 8

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IV.

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CONCLUSION

For the reasons stated above, the Court DENIES Plainiff’s Motion for Summary

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Judgment, Dkt. # 13 and GRANTS Defendant’s Motion for Summary Judgment, Dkt.

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# 14.

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Dated this 20th day of June, 2017.
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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER - 9