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A Bad Provision Even by ObamaCare Standards

December 13, 2014
By Senator Tom Coburn (R-OK) and Representative Phil Roe (R-TN)

In the four years since the Affordable Care Act was passed, health care in our country has become more complicated and expensive. The law has many troubling aspects, but the Independent Payment Advisory Board is among the worst and most dangerous. This is why, on Thursday, several members of the House will file an amicus brief asking the U.S. Supreme Court to take up Coons v. Lew. This lawsuit, filed by the Goldwater Institute on behalf of Dr. Eric Novack, an orthopedic surgeon, and Nick Coons, an Arizona businessman, challenges the constitutionality of IPAB.

Why is this board dangerous? Because there is nothing “advisory” about its vast powers. IPAB’s mandate is to deliver on one of ObamaCare’s central promises: Medicare cost-containment. The law gives this board sweeping authority to do so, with virtually no constraints.

The statute says IPAB can take any and all actions necessary to control Medicare costs. Although it is prohibited from “rationing,” that term is nowhere defined in the Affordable Care Act. Hence IPAB can control costs by lowering physician reimbursements—thus driving more doctors away from treating Medicare patients—or by reducing the services eligible for reimbursement. In other words, by rationing care.

The only meaningful statutory limit on IPAB’s power is that its actions must be “related to Medicare.” But this can be construed to include almost anything.

IPAB will consist of 15 members appointed by the president, all of whom may be from the same party. If the president does not nominate anyone to the board, or if the Senate fails to confirm nominees, IPAB’s powers must be unilaterally exercised by the Health and Human Services secretary. In short, the power to alter Medicare potentially can be consolidated in a single individual.

Executive agencies ordinarily are subject to open meetings and to notice and comment procedures. Not IPAB. The Affordable Care Act characterizes IPAB’s actions as “recommendations.” This is a misnomer; its recommendations automatically become law unless Congress acts to stop it.

Finally, the Affordable Care Act insulates IPAB’s decisions from judicial review, thus achieving an unprecedented trifecta of bureaucratic rule: an administrative agency whose actions cannot be checked by the executive, legislative or judicial branches. This setup shreds the separation of powers that is fundamental to the U.S. Constitution, under which no agency can be rendered exempt from democratic processes and the rule of law.

Given its awesome power over a program that touches nearly 50 million Americans, IPAB’s lack of constraints and accountability has raised alarms with advocates for physicians, employers and Medicare beneficiaries. Groups as varied in their missions and beliefs as the American Medical Association, Easter Seals, National Right to Life, Vietnam Veterans of America and the Children’s Rare Disease Network are among the hundreds that have called for IPAB’s repeal.

The House of Representatives voted on a bipartisan basis to repeal IPAB in 2012, but the Senate failed to act. These efforts will be renewed in the new Congress.

The Affordable Care Act even attempts to restrict Congress to eliminating IPAB only within a short window in 2017, and only by a three-fifths vote—and even then, IPAB’s policies still would not cease to exist until 2020. The constitutional reality is that one Congress cannot bind the actions of a future Congress, but that didn’t stop IPAB’s supporters from trying.

The Supreme Court should nonetheless accept review in Coons v. Lew. The plaintiffs challenge the existence of an agency whose actions are uncontrollable and unreviewable. The Ninth Circuit Court of Appeals said it will not hear this case until IPAB takes action. But the unconstitutional provisions of the law, including those claiming to tie the hands of Congress, are already operating. Because the law frees IPAB of any checks and balances, waiting could be dangerous. The Supreme Court should hold that the time to answer these constitutional questions is now, not later.

As physicians, we have taken an oath to do no harm. As members of Congress, we have taken an oath to uphold the Constitution. Those oaths combine to compel us to take all possible actions to fight an agency that violates the separation of powers and threatens the well-being of millions of Americans.

Dr. Coburn is a Republican senator from Oklahoma. Dr. Roe is a Republican congressman from Tennessee.



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