Congress, cut loose ObamaCare's notorious Medicare board
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The debate over repealing and replacing ObamaCare has caused a political divide on policies affecting how every American will receive and access healthcare. However, “repeal and replace” isn’t the only legislative option available that will contribute to dismantling the Affordable Care Act. This year, repealing the Independent Payment Advisory Board (IPAB) has received a surprising amount of bipartisan support in Congress, and the deadline for off-ramping this powerful but not-yet-established body is quickly approaching.

Section 3403 of the Affordable Care Act provides the IPAB shall be established if the chief actuary for the Centers for Medicare & Medicaid Services (CMS) determines the five-year average per-capita growth rate for Medicare spending exceeds its annual target. Once exceeded, the president of the United States, with the consent of the Senate, shall appoint a 15-member federal board which will have the authority to propose ways to reduce Medicare spending.

While the board is prohibited from rationing care, they are required to make “hard decisions” that will amount to a reduction in access to healthcare for older Americans, with very little accountability.

Once the IPAB has determined how Medicare spending should be reduced, the decisions of the IPAB cannot be challenged in court, and are free from the normal federal administrative rules processes such as requirements of public notice, public comment, or review.

IPAB recommendations carry the full force of the law and will be difficult for Congress to override, as an override requires a supermajority vote of 2/3 passage in both the House and Senate, the same number of votes required for extraordinary actions such as impeaching the president of the United States or amending the Constitution. Unilateral federal action rarely results in implementing policies that encourage greater competition, choice and free-market principles. This, combined with the lack of oversight and accountability of the IPAB, has set off alarm bells and great opposition to the appointment of this board.

A provision included in Section 1899A of the Social Security Act provides if Congress passes legislation to discontinue the process for automatic implementation no later than August 15, 2017, the IPAB will be wiped from the statute. Pulling the trigger on an escape hatch for repealing automatic implementation of the IPAB is timely and necessary to relieve Americans of harmful provisions of the Affordable Care Act.

Congressional action has already been put in motion. House Joint Resolution 51 was introduced by Representative Phil Roe, M.D. (R-Tenn.) and Senate Joint Resolution 17 was introduced by Senator John CornynJohn CornynSenators huddle on Russia sanctions as tensions escalate Momentum builds for new COVID-19 relief for businesses Senate panel advances bill blocking tech giants from favoring own products MORE (R-Texas) and serves to dissolve the potential for the IPAB. The resolutions have attracted robust bipartisan support in Congress, and been referred to the committees required to move forward in the legislative process. When comparing the lack of partisan agreement on the ‘repeal and replace’ legislation being considered in Congress, this level of cooperation is remarkable.

Once a board, entitlement or governing body is statutorily in place, it is very difficult to justify removing it as we are seeing play out in the debate on repealing Medicaid Expansion and ObamaCare subsidies. Congress needs to capitalize on this moment and pass House Joint Resolution 51 and Senate Joint Resolution 17 to discontinue the process for IPAB implementation before the August 15 deadline. Failing to do so will be a missed opportunity of monumental proportions.

Few argue the level of spending growth in healthcare is sustainable over the long term, and policymakers need to act on striking harmful regulatory constraints on private industry wherever and whenever they can. Solutions sought to bring down the cost of care should be rooted in reducing regulation while incentivizing competition and choice in the market, not governing boards of unelected bureaucrats who are accountable to no one.

Mia Palmieri Heck is the director of Health and Human Services at the American Legislative Exchange Council.

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