Feature:Opinion

IPAB: the part of Obamacare that can’t be repealed

Photo of Wesley J. Smith
Wesley J. Smith
Senior Fellow, The Discovery Institute
  • See All Articles
  • Subscribe to RSS
  • Bio

      Wesley J. Smith

      Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. He also consults for the Patients Rights Council and is a special consultant to the Center for Bioethics and Culture.

There is much talk in the wake of the recent Supreme Court “it’s a tax” indigestion that the Senate can now repeal the individual mandate without fear of filibuster. Perhaps. But repealing the mandate/tax wouldn’t rid us of one of Obamacare’s most dangerous big-government intrusions: the Independent Payment Advisory Board (IPAB). And therein lies a significant rub for accountable governance.

IPAB is a mini government within the federal bureaucracy. Not only does it create rather than merely implement Medicare cost-cutting policy, but it has greater power within its realm than elected officials — including the president of the United States. Indeed, its “advice” is really a mandate that literally can become law over a presidential veto.

Not only that, but IPAB began this year, with $15 million to be spent getting the board’s infrastructure up and running. Soon, the president will be nominating its 15 “expert” members of the board of directors, each of whom is subject to Senate confirmation.

Expect these nominations to be among President Obama’s first actions should he be re-elected. Indeed, he will have little time to waste. According to the terms of the Affordable Care Act, IPAB must submit its first draft recommendations to the health and human services secretary by September 1, 2013. Its first Medicare cost-cutting goals must become law by August 15, 2014.

Why did I write “must” become law” instead of “may”? IPAB’s unique “fast track” authority divests Congress of discretion regarding the amount of money to be cut from Medicare once IPAB has submitted its “advice.” Get a load of these legislative handcuffs:

  • By January 15, 2014, IPAB must submit a proposal to Congress and the president for reaching Medicare savings targets in the coming year.
  • The majority leaders in the House and Senate must introduce bills incorporating the board’s proposal the day they receive it.
  • Congress cannot “consider any bill, resolution, amendment, or conference report … that would repeal or otherwise change the recommendations of the board” if such changes fail to meet the board’s budgetary target.
  • By April 1, all legislative committees must complete their evaluation. Any committee that fails to meet the deadline is barred from further consideration of the bill.
  • If Congress does not pass the proposal or a substitute plan meeting the IPAB’s financial target before August 15, or if the president vetoes the proposal passed by Congress, the original Independent Payment Advisory Board recommendations automatically take effect.

Not only that, but Congress cannot consider any bill or amendment that would repeal or change this fast-track congressional consideration process without a three-fifths vote in the Senate. And to put the icing on the autocratic cake, implementation of the board’s policy is exempted from administrative or judicial review.

On the positive side, (for now) IPAB is not allowed to recommend health care rationing, changes in Medicare benefits, or revision of eligibility standards. But that could easily change. Indeed, President Obama has already called for “strengthening” IPAB’s policy-making power. One needn’t be paranoid to see where this could eventually lead.