Health care analysts predicted this year’s Medicare Hospital Insurance Trustees’ report would show that Medicare spending had grown to a level that would awaken the Independent Payment Advisory Board (IPAB), the Affordable Care Act's sleeping tiger.
IPAB's powers are triggered when the Medicare program’s per capita growth exceeds the target growth rate, which the Trustees' report now predicts will happen in 2017. Just a few days after the Trustee’s report was published, House Speaker Paul RyanPaul Davis RyanPaul Ryan researched narcissistic personality disorder after Trump win: book Paul Ryan says it's 'really clear' Biden won election: 'It was not rigged. It was not stolen' Democrats fret over Trump-district retirements ahead of midterms MORE released his plan for an overhaul of ACA provisions, including a repeal of IPAB.
Repealing IPAB has bipartisan support, but for the wrong reason. The fact that the Board may be the single-biggest threat to health freedom in the U.S. seems to elude many of the same people who have the authority – and obligation – to stop it.
Six years after the Affordable Care Act became law, policymakers remain disturbingly unaware of the Board's unchecked and irrevocable power.
Lawmakers underestimate the Board’s power, erroneously assuming that the single cost-cutting tool at the Board’s disposal is reducing Medicare payments to health care providers. But the Affordable Care Act requires the Board to consider the effect of the private sector on health care costs and empowers the Board to govern both government and private health care so long as the Board says those decisions are “related to the Medicare program.”
But reducing Medicare payments is far from the only cost-cutting item on IPAB’s menu.
ACA architects claim that the law prevents the Board from rationing health care—the granddaddy of all cost-cutting measures. But what constitutes rationing? Since that term is undefined in the law, interpretation and discretion are left to the Board. What’s more, IPAB is immune from judicial review, so patients and doctors can't turn to the courts for protection if the Board prevents them from receiving or delivering care.
Perhaps the most fanciful belief is that Congress can simply present its own cost-cutitng plan if it is dissatisfied with IPAB's. But this so-called "Advisory Board's" powers are far from advisory. The Board’s actions – euphemistically named “proposals” – automatically become law without Congress’s vote, the President’s signature, the public’s input, or a courts’ review. In fact, the Affordable Care Act explicitly prohibits Congress from disturbing the Board's laws unless, within a few months of their issuance, lawmakers pass and the president signs a replacement plan that still meets the Board's spending reductions.
It is no exaggeration to say that IPAB is the most dangerous consolidation of unchecked government power in American history. 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 Goldwater Institute is challenging the Board’s dangerous and unconstitutional powers, but the courts won't hear the case until the president appoints its members. But the Affordable Care Act says that so long as the Board remains unstaffed, the Secretary of Health and Human Services wields the vast powers alone.
The courts will have another opportunity to put an end to this unconstitutional consolidation of power when IPAB makes its first law (perhaps next year), but a final decision will likely take years. Meanwhile, the Board will be free to make vital health care decisions without oversight from Congress, the president, or the people.
Congress has an opportunity to do something about IPAB now, before the Board - or the Secretary of Health and Human Services - flexes its muscles.
Failure to act now could take important decisions about medical care away from individuals and their doctors and turn them over to unaccountable government officials who don’t answer to voters or the courts, and whose main concern is the bottom line, not what's best for an individual patient.
Given that IPAB is one of the greatest and most disturbing power grabs in American history, the previous bipartisan efforts to repeal it ought to have been successful long ago. Any willingness by Congress to cede its constitutionally entrusted lawmaking power and subject the American people to the edicts of an unelected, unaccountable board that is immune from judicial oversight is downright appalling.
Naomi Lopez Bauman is the Director of Healthcare Policy and Christina Sandefur is Executive Vice President of the Goldwater Institute.
The views expressed by authors are their own and not the views of The Hill.