(a) Vacate the Social Security Program Operations Manual System (“POMS”) on (a) Waiver of Hospital Insurance Entitlement by Monthly Beneficiary, POMS HI 00801.002, (b) Withdrawal Considerations, POMS HI 00801.034, and (c) Withdrawal Considerations When Hospital Insurance is Involved, POMS GN 00206.020, (i) as promulgated without the required notice-and-comment rulemaking, and (ii) for mandating (without authority) that AAPS and ANH-USA members and their patients participate in Medicare Part A as a condition to receiving Social Security benefits;
(b) Enjoin the re-promulgation of regulations similar to POMS HI 00801.002, POMS HI 00801.034, and POMS GN 00206.020 as ultra vires;
(c) Enjoin and declare unlawful the Patient Protection & Affordable Care Act (“PPACA”) mandate that businesses with 50 or more fulltime employees and individuals purchase health insurance or pay penalties (collectively, “PPACA insurance mandates”) as outside the authority of Congress to enact and the federal government to enforce;
(d) Enjoin and declare unlawful the promulgation and enforcement of federal standards for health insurance as outside the authority of Congress to enact and the federal government to enforce;
(e) Enjoin and declare unlawful the enforcement of PPACA in its entirety because it lacks a severability clause and cannot be funded without the insurance mandates on businesses of 50 or more fulltime employees and individuals;
(f) Vacate the provisions of the Center for Medicare and Medicaid Services (“CMS”) Manual System and the accompanying Charge Request 6417 and 6421 (collectively, “CR6417/6421”) and Department of Health & Human Services (“HHS”) Interim Final Rule with Comment Period (“IFC”), 75 Fed. Reg. 24,437 (2010), that purport to require physicians and other eligible professionals to have an HHS-approved enrollment or opt-out record in the Provider Enrollment, Chain and Ownership System (“PECOS”) in order to refer under Medicare Part B, as ultra vires HHS authority under Medicare and adopted without APA’s required notice and comment;
(g) Permanently and preliminarily enjoin HHS from requiring non-Medicare providers to enroll with Medicare, to appear in PECOS, or to obtain a National Provider Identifier (“NPI”) absent another criterion – e.g., engaging in HIPAA transactions or eprescribing – that independently requires an NPI;
(h) Declare that nothing in Medicare or any other provision of law requires physicians to opt-out pursuant to 42 U.S.C. §1395(b)’s statutory safe harbor in order lawfully to treat Medicare beneficiaries for payment outside Medicare; and
(i) Order Defendants Sebelius and Astrue to submit an accounting on the solvency of Medicare and Social Security, respectively, to this Court.Most of these are statutory claims, and some of them are procedural statutory claims (arising under the Administrative Procedures Act) concerning the manner in which the regulations were adopted. But claims (c), (d), and (e) are clearly constitutional.
Here are the relevant documents:
* The plaintiffs' second amended complaint is here.
* The United States's motion to dismiss is here.
* The plaintiffs' memorandum in opposition to the motion to dismiss is here.
* The United States's reply brief is here.
The District Court has set the hearing on hearing on the United States's motion to dismiss for October 20 at 10:00 a.m. (in Courtroom 3) before Judge Amy Berman Jackson.