Where the Right Shouldn't Go Wrong on the ACA

Written by Naomi Lopez-Bauman and Christina Sandefur

In her recent BloombergView column, Megan McArdle argues that Republicans need not repeal all of the Affordable Care Act. In particular, she argues, “Republicans should consider keeping… the Independent Payment Advisory Board.”

The usually spot-on McArdle misses the mark this time.

It is no exaggeration to say that, because it is immune from judicial, executive and legislative review and oversight, IPAB is the most dangerous consolidation of unchecked government power in American history. That is why it should be a top priority in ACA repeal efforts.

The Affordable Care Act created IPAB to control Medicare costs, but the law requires the Board to consider the effect of the private sector on healthcare costs. The Board is authorized to make rules affecting both government and private health care so long as the Board says those decisions are “related to the Medicare program.” And those rules automatically become law without congressional vote or the president’s signature.

And although the law purports to prohibit IPAB from rationing, the Board’s decisions are immune from judicial review. That means patients and doctors won’t have any legal recourse. They won’t be able to seek protection from the courts if the Board prevents them from receiving or delivering needed care.

McArdle mentions that “Republicans shouldn’t necessarily keep the agency in its current form. But it could be reformed to be a central clearinghouse to make recommendations to insurers, doctors, and patients about what sorts of treatments are apt to work best.”

Multiple taxpayer-funded bureaucracies already evaluate treatments, measure quality and centralize clinical guideline information. Do we need to add yet another federal bureaucracy to the more than one dozen health-related agencies and offices that already operate?

More importantly, we cannot afford to wait around or ponder other ways that IPAB might serve a more worthwhile purpose. The time to act is now. IPAB’s powers are triggered when the Medicare program’s per capita growth exceeds the target growth rate, which the Medicare Hospital Insurance Trustees’ report now predicts will happen this year.

The Goldwater Institute launched a legal challenge to the Board’s dangerous and unconstitutional powers in August 2010. Unfortunately, the courts won’t hear the Coons vs. Lew challenge until the president appoints members to the IPAB board. By that time, it may be too late: the Affordable Care Act says that so long as IPAB remains unstaffed, the Secretary of Health and Human Services wields its vast powers alone.

Dismissing or underestimating this power grab not only cedes Congress’ constitutional authority to an unelected, unaccountable board from judicial and legislative oversight. It will strip important decisions about medical care away from individuals and their doctors — placing them in the hands of unaccountable government officials who don’t answer to voters or the courts, and whose main concern is the bottom line, not what’s best for an individual patient.