Who Should Decide?

Original Article

Medicare is going broke, almost everyone agrees.  But there, the comity ends. The big and very controversial question is, what do we do about it? How we answer that question will materially impact the health and wellbeing of our seniors, the economy’s continuing viability, and the ethical values that serve as the foundation for the practice of medicine—and it turns out, the very future of American self governance.

Self governance? Let me explain. Politicians hate volatile issues such controlling Medicare cost inflation because of “third rail” controversies can rouse voters to kick them out of office. According to this careerist mindset, far better to protect their own political health by delegating responsibility for these difficult decisions to unelected bureaucrats. And here’s the beauty part from the POV of the cynical politician: If regulators enact unpopular policies, they can self righteously point fingers against the very bureaucrats the elected officials empowered.

That is why the Affordable Care Act (sometimes called “Obamacare”) legally established a new and popularly unaccountable bureaucratic method of controlling Medicare costs—the benignly named Independent Payment Advisory Board (IPAB). Worse the law grants IPAB an unprecedented concentration of near-authoritarian power to make law in its area of jurisdiction. Made up of 15 “experts” nominated by the president and approved by the U.S. Senate, beginning in 2014, the IPAB won’t merely “advise” policy makers as its name would imply. Nor is its power limited to implementing law that has already passed Congress and been signed by the president—the usual bureaucratic role. Rather, the IPAB will be a virtual mini government onto itself with the power to force Congress to legislate. Even more startlingly, the IPAB’s decisions surmount a presidential veto and will be exempted from judicial oversight!

IPAB’s power flows from its almost unchecked “fast track” authority to force the Congress to enact an annual accelerating cost-cutting agenda. Here’s how it will work:

  • By January 15 each year, 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.
  • The secretary of health and human services must implement the Independent Payment Advisory Board’s proposal, as passed by Congress and signed by the president, on August 15 of the year in which the proposal is submitted.
  • If Congress does not pass the proposal or a substitute plan meeting the Independent Payment Advisory Board’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.

Further demonstrating the Star Chamber-like powers of the Independent Payment Advisory Board, Congress cannot consider any bill or amendment that would repeal or change this fast-track congressional consideration process without a three-fifths vote (60) in the Senate. And making the IPAB even more removed from democratic control, it can only be dismantled by a 3/5 vote of Congress, introduced between January 3-February 1, of 2017, and passed by August 15 of the same year, meaning after that date, its powers remain in perpetuity.

Defenders of IPAB blithely assure that the board does not have the power to ration care or cut benefits. True for now, but for how long? Even before the IPAB is up and running—beginning 2014—President Obama has stated he wants to increase its scope of policy options. Moreover, the influential New England Journal of Medicine has even proposed legally expanding IPAB’s jurisdiction beyond Medicare to include “all payers,” which would mean the private health insurance sector as well as public programs.

IPAB is anti democratic in that it removes lawmaking power from popularly elected officials to unelected and unaccountable bureaucrats. It already has the power to detrimentally impact the delivery of health care to Medicare recipients—say, by reducing compensation to doctors and hospitals, which could make it far more difficult for seniors to obtain care. Moreover, once cowardly politicians see that people will accept rule by bureaucrats, look for them to grant the IPAB even more muscular methods of cutting costs, such as the ability to ration care, perhaps even to altar benefits.

Worse, if Medicare costs can be controlled by bureaucratic fiat, why not delegate decision making about other volatile issues that cause politicians electoral headaches to all-powerful appointed boards of “experts?” In this sense, unless it is repealed or its powers reduced to the truly advisory, the IPAB could become the cornerstone of a new and democratically unaccountable bureaucratic state.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.