The House has a one-time chance this week to abolish one of ObamaCare’s most dangerous creations: The Independent Payment Advisory Board—what some call the “death panel.” The 2010 health overhaul law would give this unelected, unaccountable board sweeping, unchecked powers to slash Medicare spending.
The rationing board has not yet been formed, and Congress can make sure it never comes to life. But it must act fast: a resolution must pass both houses of Congress and be signed by President Trump by August 15.
If Congress doesn’t act, it will have missed its best chance to repeal one of Obamacare’s most noxious provisions. Time is short. The House plans to leave town this Friday and won’t return until after Labor Day. By then, the August 15 deadline will have come and gone.
If the House does pass the resolution this week, the Senate will have time to follow suit, since it plans to remain in session until mid August.
We explain what’s at stake in an op-ed in today’s Wall Street Journal, The Deadline to Kill the Death Panel.
The IPAB’s powers are extraordinary and vast: If government actuaries find that Medicare spending would exceed statutory caps, the board must write a “bill” cutting Medicare spending by enough to keep it below the caps. Congress can pass its own bill to reach the target if it acts promptly—but if not, the HHS secretary must implement IPAB’s “bill,” which is not subject to judicial review. Once in force, it will be extremely difficult for Congress to overrule IPAB’s decisions.
Christina Maria Sandefur and Naomi Lopez-Bauman at the Goldwater Institute have raised grave concerns about the IPAB’s constitutionality. “It is no exaggeration to say that IPAB is the most dangerous consolidation of unchecked government power in American history,” they write. “No agency can be exempt from democratic processes and the rule of law under the U.S. Constitution. IPAB wields the powers of every branch of government and is accountable to no one.”
The institute is suing: “…[M]y colleagues and I launched a legal challenge to the Board’s dangerous and unconstitutional powers in August 2010. Unfortunately, the courts won’t hear the Coons vs. Lew challenge until the president appoints members to the IPAB board. By that time, it may be too late: The Affordable Care Act says that so long as IPAB remains unstaffed, the Secretary of Health and Human Services wields its vast powers alone,” Sandefur explains in The Federalist.
Although Medicare spending has so far not exceeded the IPAB trigger, it will eventually. IPAB’s rulings would almost certainly result in rationing of care for Medicare beneficiaries—with no legislative or judicial review. While the IPAB statute expressly forbids the IPAB to ration medical care, its cuts to medical providers threaten just that result.
Rep. Raul Ruiz (D-CA), who has cosponsored with Rep. Phil Roe (R-TN) a resolution to repeal the IPAB (H.J. Res. 51), has made this point. Ruiz said that though the requirement for the IPAB to lower Medicare costs was well intended, it focuses on cutting payments instead of strengthening the program through cost savings, leading to arbitrary physician payment cuts that could lead physicians “to stop accepting Medicare patients.”
The Medicare trustees echoed Ruiz’s concerns, recently warning that “approximately half of hospitals, 70 percent of skilled nursing facilities, and over 80 percent of home health agencies” would be losing money by 2040 under IPAB-enforced spending caps, “raising the possibility of access and quality-of-care issues for Medicare beneficiaries.”
Congress needn’t stand by and watch that happen. The same ObamaCare statute that created the IPAB established a one-time, expedited procedure to terminate it. Such a resolution is unamendable and not subject to Senate filibuster. But there are two important stipulations. First, it must be signed into law by August 15 of this year. Second, in order to pass, it must get a three-fifths majority in both the House (261 votes) and the Senate (60 votes).
That means it will require bipartisan support. The resolution sponsored by Reps. Roe and Ruiz counts 24 Democrats among its 202 cosponsors. If all Republicans backed the measure, the votes of just 21 Democrats would be needed for passage. House adoption of the resolution is thus feasible.
Such a resolution would be far easier to pass than a free-standing bill in the Senate, where John Cornyn (R-TX) is the lead sponsor (S.J. Res. 17). A bill – as opposed to an unamendable resolution—could become a political football once on the Senate floor. Democrats—and perhaps some Republicans—would no doubt have dozens of amendments they would offer on everything from drug pricing to single payer health care. Those amendments would be in order and fully debatable.
The bill would likely collapse beneath this truckload of amendments, making its passage doubtful. The resolution, by contrast, would be unamendable and debate would be limited to ten hours. No filibusters. No dilatory amendments.
Mary Grealy, president of the Health Care Leadership Council, made this point last week in her testimony before a House Energy and Congress Health Subcommittee hearing chaired by Rep. Mike Burgess (R-TX). “The Affordable Care Act allows Congress a one-time opportunity to pass a joint resolution to permanently end the IPAB process without being subject to a filibuster by amendment,” said Grealy, representing a coalition of 800 healthcare groups.
Congress should seize this one-time opportunity before it is too late. The crucial first step is for the House to pass the IPAB repeal legislation before leaving for its summer break.