‘Real death panels’ set to face heat in Congress, courts

Matthew Boyle Investigative Reporter
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An often-overlooked portion of President Barack Obama’s prized health care law, the creation of the Independent Payment Advisory Board (IPAB), will face heat in the coming months from Congress and from the courts. Congressman Phil Roe, Tennessee Republican, told The Daily Caller the IPAB is the “real death panel” in the health care law, as compared to “end-of-life counseling” provisions in Obamacare that former Alaska Gov. Sarah Palin once deemed “death panels.”

“This one is the real baby right here – and most people missed this,” Roe told TheDC. “What everybody was talking about, when you saw Sarah Palin and so forth, what they were talking about these advanced directives where you sit down and there’s sort of mandatory counseling – and Medicare paid for it. This IPAB got missed – and it’s the real death panel.”

The board would cap the total amount of money Medicare recipients could get for care. Roe,  a practicing doctor before he entered politics, said that means health care decisions will end up being based solely on cost, instead of what the best possible option is for Medicare patients.

“Basically, there’s a certain amount of money that’s allocated for Medicare spending each year,” Roe said in a phone interview. “Once you hit that amount that’s been appropriated, this board, this bureaucratically-appointed board, can then decide, not based on quality or need, but based on strictly cost.”

Congress can recommend different spending amounts, but has to offset any increase in one area with a decrease in another. If Congress doesn’t change anything in the board’s “recommendations” for how much money should be spent per Medicare recipient, their recommendations become law – even without congressional approval or the president’s signature.

The Goldwater Institute, a conservative think tank based in Arizona, says the IPAB would, when implemented, have more control over Medicare payment rates than the “Federal Reserve has over banking or the Environmental Protection Agency has over the environment.” The institute is challenging the IPAB provision in the Obamacare legislation in the courts – and has countered the Obama administration’s motion to dismiss with a motion for summary judgment, which means the case is likely to move forward with some form of a judicial decision mid-summer.

Diane Cohen, the Goldwater Institute’s lead attorney on the lawsuit, told TheDC that of the more than 150 boards and commissions the health car law creates, she believes the “most notorious of those 150 boards is the Independent Payment Advisory Board.”

“There was a lot of controversy over it [IPAB] when Obamacare was being considered in Congress by both sides of the aisle,” Cohen said, referring to more than 50 Democrats who wrote to then-House Speaker Nancy Pelosi voicing their opposition to it. “It was very controversial and made its way into the law just because of the manner in which the whole law was passed to begin with. Even the American Medical Association, who has supported Obamacare for some reason, had come out and opposed the establishment of the Independent Payment Advisory Board.”

At the beginning of the 112th Congress, Roe introduced legislation to repeal the IPAB provisions in Obamacare, and has several cosponsors on board with him, including three Democrats — Shelley Berkley of Nevada, Larry Kissell of North Carolina and Michael Capuano of Massachusetts.

Congress can repeal IPAB under its legislative powers by enacting a new law (either with the President’s signature, or by overriding his veto), but the recommendations of the board automatically become law unless Congress passes a joint resolution disapproving of the recommendations in a one-month window in 2017.

Additionally, a Nov. 30 Congressional Research Service (CRS) report says the strict rules for the process by which Congress may disapprove of the recommendations in 2017 may run afoul of each congressional chambers’ authority to revise its own rules.

“How these entrenching provisions will be reconciled with the well-established constitutional right of each chamber of Congress to make the rules of its own proceeding, and how or if one Congress can broadly regulate the actions of a future Congress in this way, will likely only be clarified in practice,” the report says.

The Goldwater Institute is attacking the provision in a lawsuit saying it improperly constricts Congress’s authority. Arizona Republican Reps. Jeff Flake and Trent Franks are on board with the Goldwater Institute’s lawsuit as plaintiffs, in addition to a small business owner in the state.

In its legal documents filed in response to the Goldwater Institute’s lawsuit, the Obama administration said the path provided in the health care law is a “fast track” to repeal, but it isn’t the only way to repeal the board. Cohen laughs at that.

“I guess, only in Washington, would waiting until six years from today, within the short window of time to pass the resolution that wouldn’t take effect until 2020 – only in Washington would that be considered ‘fast-tracking,’” Cohen said. “The administration believes this is not anti-repeal provision, but, the problem is, we believe it very clearly says that.”

Legal jargon and power-grabs aside, though, Roe told TheDC that the major issue with IPAB is that it’s more focused on cost-cutting than what’s in the best interests of patients. He said it starts with private practice physicians and, in five years, will include all hospitals as well – which he said means all Medicare recipients’ care decisions will eventually be based solely on cost instead of what they need or what their doctors think is best for them.

“It [IPAB] is bad for patients in this country,” Roe said. “I’m looking at it not only as a congressman but also as a physician trying to practice medicine and provide care patients need and deserve.”

The IPAB members have yet to be appointed, but each will make more than $160,000 a year in salary. Their salary is slated to come out of the Federal Hospital Insurance Trust Fund and the Federal Supplementary Medical Insurance Trust Fund, funds that pay for medical costs for some Medicare recipients. Annually, about $2.5 million that would normally cover Medicare patients’ medical costs would go toward paying the salaries of the 15 IPAB members.

The White House remains confident in IPAB’s constitutionality, and an administration official told TheDC the Obama administration expects the courts to rule in its favor.

“Just last week, a judge issued a schedule on our motion to dismiss this case,” the Obama administration official said in an e-mail to TheDC. “We look forward to making our arguments in court. We’re confident the Independent Payment Advisory Board is constitutional.”

The IPAB is scheduled to make its first recommendations by July 2014 and its first proposals are required to be implemented by 2015, assuming Obamacare is not fully repealed by then.

Ed. note: This article has been corrected: the President’s health care law does not prevent Congress, through its legislative power, from repealing IPAB.