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One cheer for this week’s effort to repeal the IPAB

November 3, 2017

By Naomi Lopez Bauman and Christina Sandefur

The Independent Payment Advisory Board (IPAB) is one of the greatest and most disturbing power grabs in American history. While it was created as part of the Affordable Care Act (ACA) to impose cost-saving measures onto the Medicare program, which provides health insurance coverage for our nation’s elderly, the IPAB’s authority is unprecedented. The 15-member board is unelected and unaccountable to the President, Congress, the courts, or the American people.

Even though the House of Representatives overwhelmingly approved legislation this week to repeal the IPAB, this effort offers only scant hope. That is because previous efforts to repeal it ought to have been successful long ago.

The House bill enjoyed strong, bipartisan support with 270 cosponsors, including 45 Democrats. The legislation “so popular that even the U.S. Senate could pass it” has yet to receive a commitment from Senate leadership that it will receive a floor vote.

Well-intentioned, but clever by half policymakers may be wishing to hold up a vote to extract other Medicare cost-saving measures and reforms as an IPAB board substitute. But years after the ACA became law, many policymakers remain disturbingly unaware of the Board’s unchecked and irrevocable power.

Authority not limited to Medicare. IPAB has much broader powers to make law governing both government and private healthcare – whatever the board considers being “related to the Medicare program.” And those decisions are free of any meaningful checks or balances.

Not subject to judicial review. IPAB’s so-called “recommendations” automatically become law and cannot be reviewed by the courts or rejected by Congress, although Congress could present a competing cost-savings plan.

Power to ration. Many, mistakenly, claim that the law prevents the Board from rationing healthcare. But what constitutes rationing? Since that term is undefined, the Board interprets and exercises discretion to make these determinations. What’s more, since IPAB is immune from judicial review, patients and doctors can’t turn to the courts for protection if the Board prevents them from receiving or delivering care.

IPAB is the most extreme example of consolidated, unchecked government power in American history. Under the U.S. Constitution, no agency can be rendered exempt from democratic processes and the rule of law.

That’s why the Goldwater Institute challenged the Board’s dangerous and unconstitutional powers in court to defend the principles of democracy and checks and balances.  Unfortunately, the Ninth Circuit Court of Appeals refused to hear the case until the President appoints members to the board, and the Supreme Court declined to reconsider.

There should be little doubt that rationing will occur one way or another. The real issue is whether those decisions should be guided by individuals, by the political process, or by an administrative agency immune from accountability and oversight.

That lawmakers’ inability or unwillingness to enact needed reforms to the Medicare program would justify our U.S. Senate ceding its constitutionally entrusted lawmaking power, subjecting the American people to the edicts of an unelected, unaccountable board that is immune from judicial oversight, is downright appalling. Americans should think twice about whether they are willing to put these important healthcare decisions in the hands of unelected and unaccountable administrators.

Naomi Lopez Bauman is the director of healthcare policy, and Christina Sandefur is the executive vice president of the Goldwater Institute.




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