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Tong v. Secretary of Health and Human Services

United States District Court, W.D. Washington, Seattle

June 20, 2017

ANDREW JOHN TONG, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

          ORDER

          Honorable Richard A. Jones United States District Judge

         I. INTRODUCTION

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

         II. BACKGROUND

         Plaintiff Andrew John Tong wants to terminate his Medicare enrollment, challenging the most recent step of this prolonged process: the decision by the Medicare Appeals Council (“the Council”) that Mr. Tong must remain enrolled in Medicare Part A until October, 2019 and must pay two months of outstanding premiums for his Medicare Part B coverage. Dkt. # 1; Administrative Record (“AR”) 15-16. Mr. Tong claims that he is unable to use alternative insurance while he remains enrolled in Medicare. Dkt. # 1, ¶ 8.

         Mr. Tong is a veteran of the United States Armed Forces. AR 34. He was injured while serving and was therefore entitled to Social Security disability benefits, also known as SSDI. Id. at 5, 34. Based on his receipt of SSDI, Mr. Tong also began receiving Hospital Insurance under Medicare Part A and Supplementary Medical Insurance under Medicare Part B. Id. at 5.

         On April 4, 2011, Mr. Tong began working for Alaska Airlines, work that disqualified him from receiving Social Security Disability benefits. Id. at 71-74. While his work disqualified him from SSDI, the Social Security Agency informed Mr. Tong that he had been granted a trial work period, for nine months after he began working- from April, 2011 through December, 2011. Id. at 73. The SSA further explained that Mr. Tong was eligible for an extended period of eligibility for three years after his trial work period, beginning in January, 2012, and ending in December, 2014. Id. After December, 2014, the extended period of eligibility would end if Mr. Tong's income reached a predefined monthly amount, thereby qualifying as Substantial Gainful Activity, or SGA.[1] Id. at 74. Finally, in the same letter, the SSA informed Mr. Tong that while he was no longer eligible for disability benefits, his Medicare coverage could continue. Id.

         On April 13, 2014, Mr. Tong requested that the SSA terminate his Medicare Part B benefits, effective May 31, 2014. Id. at 5, 34. In response, the SSA informed Mr. Tong that he owed $314.70 to cover his Medicare Part B premiums through June 30, 2014, at which point the SSA would terminate Mr. Tong's Part B enrollment. Id. at 6. On June 10, 2014, Mr. Tong requested a reconsideration of this decision, writing: “I asked that Medicare be stopped on April 8, 2014; it should have been cancelled in March 2014 when you stopped my Social Security Payment.” Id. (quoting AR 43). The SSA wrote back, informing Mr. Tong that its initial decision was correct and he still owed $314.70 for Medicare premiums covering April, 2014 to June, 2014. Id. (citing AR 44).

         On July 10, 2014, Mr. Tong requested the termination of his Medicare Part A benefits. Id. at 6, 34. The next apparent communication from the SSA was a letter, dated August 20, 2014, where the SSA wrote that since Mr. Tong was no longer entitled to Social Security, “we are stopping your hospital insurance [Part A] coverage under Medicare. Your hospital insurance coverage ends on the last day of December 2014. Please destroy your Medicare card after the coverage ends.” Id. at 6 (citing AR 48). This letter is in opposition to the SSA's current position and all further communications the SSA had with Mr. Tong. See Dkt. # 14; AR.

         1. Administrative Hearing

         On March 9, 2015, Mr. Tong filed a timely appeal with the Office of Medicare Hearings and Appeals, requesting immediate termination of his Medicare coverage and arguing that the SSA was erroneously charging him Medicare Part B premiums for months after his coverage terminated. Id. at 35. On May 28, 2015, an administrative hearing was held on Mr. Tong's appeal. See id. at 34-97. The Administrative Law Judge (“ALJ”), Judith Showalter, considered whether (1) Mr. Tong had completed the procedure for terminating his participation in Medicare Parts A and B and (2) was required to pay $314.70 in outstanding Medicare premiums for April 2014 through June 2014. Id. at 35.

         The ALJ found that Mr. Tong had terminated his Medicare enrollment under both Parts A and B. Id. at 37. The ALJ also found that Mr. Tong's Part B enrollment terminated in June, 2014 and his Part A enrollment had terminated in September, 2015. Id. at 37. The ALJ determined that Mr. Tong was entitled to a waiver of any outstanding Medicare premiums. Id. at 37.

         2. Review by the Council

         The SSA referred the ALJ's decision to the Medicare Appeals Council. Id. at 21-22. The Council found that the ALJ had applied the wrong regulations to Mr. Tong's case, applying those regulations for premium Hospital Insurance, which Mr. Tong did not have. Id. at 13. Applying regulations applicable to free Part A benefits, the Council determined that Mr. Tong could not waive entitlement to his Part A Hospital Insurance “without also forfeiting his entitlement to Social Security Disability Benefits and repaying the cost of the disability benefits provided to that point.” Id. at 14. In other words, unless he was able to repay all SSDI payments, Mr. Tong was required to remain enrolled in Medicare Part A through the end of September, 2019. Id. at 14. The Council also found ...


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