The Independent Payment Advisory Board is set to go into action later this year. The IPAB is a Medicare cost-cutting board of “experts” legally possessing the power to impose its advise, even over the desires of Congress or the president.
It has been derisively referred to as a death panel because so many have called for it to have health care rationing powers and because its decisions could result in cost-cutting measures that deny lifesaving medical treatment. The Independent Payment Advisory Board was one of the most controversial parts of the Obamacare legislation — mainly because it puts 15 unelected strangers in charge of health decisions for most Americans.
In the name of “cost-certainty,” IPAB would have the authority to limit which specialists you see, what treatments are available, and in some cases, whether you’re eligible for care at all.
Integral to the Obama Administration’s stated mission to drive down what Americans choose to spend for life-saving and health-preserving health care, the IPAB is charged with a key role in suppressing health care spending by limiting what treatment doctors are allowed to give their patients.
David Rivkin, a former Justice Department official during the Reagan administration who represented 26 states in challenging ObamaCare, and Elizabeth Foley, a professor of constitutional law at Florida International University, issued a hard-hitting piece in today’s Wall Street Journal about how the IPAB is gearing up to launch.
Signs of ObamaCare’s failings mount daily, including soaring insurance costs, looming provider shortages and inadequate insurance exchanges. Yet the law’s most disturbing feature may be the Independent Payment Advisory Board. The IPAB, sometimes called a “death panel,” threatens both the Medicare program and the Constitution’s separation of powers. At a time when many Americans have been unsettled by abuses at the Internal Revenue Service and Justice Department, the introduction of a powerful and largely unaccountable board into health care merits special scrutiny.
For a vivid illustration of the extent to which life-and-death medical decisions have already been usurped by government bureaucrats, consider the recent refusal by Health and Human Services Secretary Kathleen Sebelius to waive the rules barring access by 10-year old Sarah Murnaghan to the adult lung-transplant list. A judge ultimately intervened and Sarah received a lifesaving transplant June 12. But the grip of the bureaucracy will clamp much harder once the Independent Payment Advisory Board gets going in the next two years.
The board, which will control more than a half-trillion dollars of federal spending annually, is directed to “develop detailed and specific proposals related to the Medicare program,” including proposals cutting Medicare spending below a statutorily prescribed level. In addition, the board is encouraged to make rules “related to” Medicare.
The ObamaCare law also stipulates that there “shall be no administrative or judicial review” of the board’s decisions. Its members will be nearly untouchable, too. They will be presidentially nominated and Senate-confirmed, but after that they can only be fired for “neglect of duty or malfeasance in office.”
Once the board acts, its decisions can be overruled only by Congress, and only through unprecedented and constitutionally dubious legislative procedures—featuring restricted debate, short deadlines for actions by congressional committees and other steps of the process, and supermajoritarian voting requirements. The law allows Congress to kill the otherwise inextirpable board only by a three-fifths supermajority, and only by a vote that takes place in 2017 between Jan. 1 and Aug. 15. If the board fails to implement cuts, all of its powers are to be exercised by HHS Secretary Sebelius or her successor.
The IPAB’s godlike powers are not accidental. Its goal, conspicuously proclaimed by the Obama administration, is to control Medicare spending in ways that are insulated from the political process.
What hope is there of stopping the IPAB’s implementation?
While the board is profoundly unconstitutional, it is designed to operate in a way that makes it difficult to find private parties with standing to challenge it for at least its first several years in operation. An immediate legal challenge by Congress might be possible, but also faces standing difficulties. Unless and until courts rule on IPAB’s constitutionality, Congress should act quickly to repeal this particular portion of ObamaCare or defund its operations.
The dangers of Obamacare’s IPAB are real, as attorney Jennifer Popik of the National Right to Life Committee explains.
“The health care law instructs the IPAB to make recommendations to limit what all Americans are legally allowed to spend for their health care to hold it below the rate of medical inflation. The health care law then empowers the federal Department of Health and Human Services to implement these recommendations by imposing so-called “quality” and “efficiency” measures on health care providers,” she says.
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“What happens to doctors who violate a “quality” standard by prescribing more lifesaving medical treatment than it permits? They will be disqualified from contracting with any of the health insurance plans that individual Americans, under the Obama Health Care Law, will be mandated to purchase. Few doctors would be able to remain in practice if subjected to that penalty,” Popik continues.
She concludes: “This means that a treatment a doctor and patient deem advisable to save that patient’s life or preserve or improve the patient’s health–but which exceeds the standard imposed by the government–will be denied even if the patient is willing and able to pay for it. Repeal of IPAB is critically important to prevent this rationing of life-saving medical treatment.”
Republicans have taken steps to stop the IPAB, but the Senate must act or be held accountable in the next election.
