Still time to excise the death panels

By Wesley J. Smith

Editor’s note. This is excerpted from a post that appeared at the Weekly Standard and is reposted with permission.

…There is still time to excise the Independent Payment Advisory Board from the Affordable Care Act before it is up and running.

IPAB’s stated purpose is to contain Medicare costs, a laudable goal. But the powers granted to the presidentially appointed and confirmed commissioners subvert democratic accountability and violate our constitutional system of separation of powers. They could, one day, be weaponized to implement invidious medical discrimination mandates—e.g., health-care rationing.

Unlike members of most bureaucratic boards, IPAB commissioners do not have to comply with such typical administrative procedures as obtaining public comment. Rather, when projected Medicare expenses exceed a given amount—which has not yet happened since Obamacare’s passage, hence its quiescence—IPAB is required to submit a cost-cutting proposal to Congress by the following January 15, which, in turn, must be introduced as enabling legislation without change by House and Senate majority leaders the same day it is received.

By April 1, the relevant committees must complete their consideration of the legislation. Any committee that fails to meet that deadline will be discharged from further involvement in the matter. Congress is handcuffed from considering any legislation or amendment that does not meet the IPAB financial targets or that would repeal or change the fast-track process without a three-fifths majority (60 votes) of the Senate. Non-germane amendments are not permitted.

In its area of jurisdiction, IPAB is more powerful than the president, Congress, and the courts. If Congress does not pass the proposal before August 15—or if the president vetoes the proposal passed by Congress—the original IPAB recommendations automatically go into effect. And take note: Once enacted, the IPAB mandate is not subject to administrative or judicial review. This is not what the Founding Fathers had in mind.

At present, IPAB is precluded from changing Medicare benefits or revising eligibility standards—i.e., it cannot ration care. That leaves few means of reducing costs other than altering reimbursement formulas to doctors and hospitals. But these limitations should not make us sanguine, as they were politically necessary for IPAB to be included in the ACA. There is every reason to believe that IPAB was never intended to remain so constrained.

Not long after the ACA went into effect, President Obama called for the “strengthening” of IPAB’s power, while former members of his administration urged that IPAB be given more authority. Christina D. Romer, the former chair of Obama’s Council of Economic Advisers, argued in the July 21, 2012, New York Times that IPAB be allowed to “suggest”—which would really mean “impose,” as the board’s “suggestions” are quasi-mandates—“changes in benefits or in how Medicare services are provided.” That sure smells like health-care rationing to me.

Steven Rattner, a counselor to the treasury secretary during the Obama years—and a frequent panelist these days on MSNBC’s Morning Joe—more explicitly advocated granting IPAB the power to ration. In 2012, he took to the pages of the Gray Lady to declare, “We need death panels,” lamenting that IPAB’s inability to ration care was a “problem” requiring a remedy:

Medicare needs to take a cue from Willie Sutton, who reportedly said he robbed banks because that’s where the money was. The big money in Medicare is in .  .  . reducing the cost of treating people in the last year of life, which consumes a quarter of the program’s budget.

And get this:

No one wants to lose an aging parent. And with the price out of the equation, it’s natural for patients and families to try for every treatment, regardless of expense or efficacy. But that imposes an enormous societal cost that few other nations have been willing to bear. Many countries whose health care systems are regularly extolled—including Canada, Australia and New Zealand—have systems for rationing care.

Extolled by technocrats like Rattner, perhaps. But I doubt many Americans want rationing.

Ezekiel Emanuel, one of the country’s most influential bioethicists and a prime architect of Obamacare, wrote as far back as 1996 that health care “services provided to individuals who are irreversibly prevented from being or becoming participating citizens are not basic and should not be guaranteed. An obvious example is not guaranteeing health services to patients with dementia.” This is a typical mindset among bioethicist “experts” who would likely be appointed to create IPAB’s cost-cutting mandates.

IPAB’s autocratic power makes it the perfect health-care rationing board, impervious to popular—and even elected officials’—objections. That is why it must be excised from the law regardless of the ultimate fate of Obamacare. The good news is that the administration generally supports IPAB’s repeal. And a measure to do just that, the Protecting Seniors’ Access to Health Care Act (HR 849) introduced by physician Phil Roe (R-Tenn.), has passed the Ways and Means Committee and enjoys bipartisan support, with some 265 cosponsors in the House—including 43 Democrats.

Let us hope that the bill soon makes it to the president’s desk. The best time to slay a dragon is when it is still in its egg.