While Lamar Alexander and other Republican quislings in the Senate have busied themselves negotiating the terms of surrender on Obamacare, the House Ways and Means Committee quietly approved a bill that could eliminate one of the “reform” law’s most dangerous provisions. The bill, sponsored by Tennessee Republican Phil Roe and California Democrat Raul Ruiz, both of whom are physicians, would repeal the Independent Payment Advisory Board (IPAB), the unelected rationing board that Sarah Palin famously dubbed the “death panel.” And, unlike the Obamacare bailouts cobbled together by Senator Alexander and his accomplices, there is genuine bipartisan support for this legislation.
The Protecting Seniors’ Access to Medicare Act of 2017 (H.R. 849) boasts no fewer than 43 Democrats among its 264 co-sponsors. Moreover, repeal of IPAB is supported by a wide range of advocacy groups representing Medicare beneficiaries, the health care industry, and employers. Obamacare’s apologists were no doubt complacent in the belief that they had long since won the “death panel” debate, and that IPAB would prove as durable as Obamacare’s other outrageous provisions. It has received very little public attention in recent years because the “news” media has studiously ignored it, and the Medicare per capita spending rate hasn’t yet reached the level at which IPAB implementation is triggered.
But the spending rate will inevitably activate IPAB, and the result won’t be pretty. The board was ostensibly created to control costs. But IPAB won’t address costs. Instead, it will simply cut funding for Medicare services. Before 2010, only Congress had the authority to change what Medicare covers and what it pays. When the Democrats passed Obamacare, however, they transferred that power to this unaccountable cadre of 15 Beltway bureaucrats. In theory, IPAB can only propose changes to Medicare payment rates. In reality, its “recommendations” will automatically become law in the absence of extraordinary congressional action as this advisory from the law firm Alston & Bird explains:
Upon receipt of the IPAB recommendations… the [congressional] committees of jurisdiction have until April 1 of the proposal year to report legislation that approves the proposal or alternative legislation that modifies the proposal but achieves the same level of savings. The savings requirement for alternative legislation can only be waived in the Senate with an affirmative vote by at least a three-fifths’ majority. Any separate legislation to repeal the savings requirement (or repeal any IPAB-recommended proposals) would also require a three-fifths’ majority in the Senate.
In the dry vernacular of administrative law, this means that Congress can’t alter or pass alternatives to IPAB’s edicts without mustering a supermajority of 60 votes in the Senate. And the April 1st deadline means our elected representatives will have to be pretty darned quick about it. As the Senate’s recent history has shown, this will be virtually impossible. Thus IPAB will not only wield enormous power, it has ominous constitutional implications. IPAB will be composed of presidential appointees and part of the executive branch of the federal government, which poses a profound threat to the separation of powers. Yet SCOTUS declined to hear Coons v. Lew, the only serious constitutional challenge brought against IPAB.
The Goldwater Institute filed Coons v. Lew in the U.S. District Court in Arizona, which ruled against the plaintiffs on the merits. That ruling was subsequently appealed in the U.S. Court of Appeals for the Ninth Circuit, which ignored the merits of the case but dismissed it as “unripe” for challenge because no one had yet been harmed by IPAB. The Goldwater Institute then took the case to the U.S. Supreme Court, which declined to hear it for the same reason it had been rejected by the Ninth Circuit. The Goldwater Institute responded that the case is in “a holding pattern” until someone experiences real harm because of IPAB: “We will bring this challenge again once the Independent Payment Advisory Board takes action.”
Congress, on the other hand, is not immured by the arcane legal constraints that thwarted the Goldwater Institute. Neither the House nor the Senate has any excuse for waiting until IPAB is fully implemented before taking action. Congress not only has a duty to end the very real threat to its constitutional prerogatives, our elected representatives will be guilty of criminal negligence if they temporize long enough on IPAB repeal that Americans suffer actual harm or even death. And these things are by no means implausible if Congress dithers long enough. If such claims read like the ravings of a rightwing nut, consider what that notorious reactionary Howard Dean wrote about IPAB in the Wall Street Journal:
The IPAB is essentially a health-care rationing body. By setting doctor reimbursement rates for Medicare and determining which procedures and drugs will be covered and at what price, the IPAB will be able to stop certain treatments its members do not favor by simply setting rates to levels where no doctor or hospital will perform them.
Dean isn’t the only Democrat who has expressed grave concerns about IPAB. As far back as 2011, Rep. Allyson Y. Schwartz (D-PA) was among the co-sponsors of a bill that would have repealed IPAB. In a statement released at the time she said, “Congress must assume responsibility for legislating sound health care policy for Medicare beneficiaries.… Abdicating this responsibility, whether to insurance companies or an unelected commission, would undermine our ability to represent the needs of the seniors.” Schwartz is now President and Chief Executive Officer of the Better Medicare Alliance, and as recently as October 3 she was still calling for the repeal of IPAB. She wrote the following in the Hill:
Congress needs to act and repeal IPAB this year.… I ask Republicans and Democrats to act on their bipartisan agreement that IPAB should not be implemented. Millions of Medicare beneficiaries will be grateful that you took action to stop this harmful and unnecessary idea from being a reality.
There you have it. Paul Ryan should get H.R. 849 to the floor of the House for a vote. And, after it passes, the Senate should take it up shortly thereafter. Even self-serving publicity hounds like Rand Paul and bitter old men like John McCain will have trouble justifying a vote against repealing the “death panel.” And the Democrats, who have so often told us they yearn for bipartisanship, will have a chance to put their votes where their mouths are. Let them all come together, clasp hands with their “esteemed colleagues,” and throttle IPAB in the cradle.