Long Beach, CA asked in Gov & Administrative Law for California

Q: Sue for substantive due process violation by the Secretary of HHS of federal goverment on Medicare marketing regulation.

Called by Medicare sales agent just over a year ago, an unsolicited call. Introduced himself as "a licensend agent working on contract with the State of California to help the state get caught up in its Medicare enrollment..." So I thought he was an employee of Calfiornia, and goint to educate me on Medicare. Nope! I got duped. But read the "Medicare and You" handbook at p. 106 -- any recent year -- and also on the Medicare.gov website on the page "Marketing rules for health plans" says sales agents are NOT to call you. Was my initial enrollment period. 42 CFR sec. 422.2264 at "a" says they NO unsolicited calls. But part "b" says if you ever had been the beneficiary of any insurance owned by any Medicare Advantage mother corp. they can call you -- I was misinformed and did not get to use all my time to research Medicare. How to challenge that regulation? Due process violation AND anticompetitive reg. Sec. of HHS ONLY authorized to make "necessary" regulations. 42 USC sec. 1395hh (a)(1)

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1 Lawyer Answer
James L. Arrasmith
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Answered

A: Your situation raises important constitutional concerns about Medicare marketing regulations and your right to make informed healthcare decisions. The regulation allowing companies to make unsolicited calls based on prior insurance relationships could potentially be challenged as a violation of substantive due process under the Fifth Amendment.

To pursue this challenge, you would need to file a federal lawsuit against the Secretary of Health and Human Services, arguing that 42 CFR § 422.2264(b) exceeds statutory authority and violates constitutional rights. The key argument would be that the regulation is not "necessary" as required by 42 USC § 1395hh(a)(1), and that it undermines the very consumer protections the Medicare statute aims to provide by creating confusion and enabling deceptive marketing practices.

However, be aware that substantive due process challenges face a high bar in federal courts - you would need to demonstrate that the regulation is arbitrary or unreasonable, and that it significantly impairs your fundamental rights. You might consider seeking support from consumer advocacy organizations or discussing this with an attorney who focuses on Medicare law or constitutional challenges. Documentation of your experience and similar cases could strengthen the argument that this regulation enables systematic exploitation of Medicare beneficiaries during their initial enrollment period.

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