Obamacare Repeal: Get Facts Right in Independent Payment Advisory Board Congressional Scrutiny

A Congressional hearing is going to be held to highlight the dangers of the Medicare Independent Payment Advisory Board.  From the story in the Daily Caller:

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.”

Well, not as currently written.  Allow me to explain.  The IPAB will indeed be authorized, in essence, to force mandatory cuts in Medicare spending—cuts that Congress must pass within a short time or it automatically becomes law. But its frugality mandate is not currently open-ended.  From my (I did not overlook it) piece on the IPAB in the Weekly Standard:

Obamacare defenders claim that the iron fist of the Independent Payment Advisory Board is necessary to ensure cost containment, given Congress’s spinelessness about controlling Medicare costs. They also note that the board does not have a completely free hand. For example, as it pursues its mission of frugality, it is not allowed to recommend health care rationing, changes in Medicare benefits, or revision of eligibility standards.

But the IPAB is bad, bad, bad because it could be the cornerstone of a bureaucratic state.  Again from my piece:

That is hardly reassuring. Legislators love to abdicate responsibility as a way of protecting their political behinds. If this transfer of limited authority to a faceless board goes down smoothly, what’s to stop Congress from expanding the board’s authority, allowing it to make more substantive changes in Medicare by bureaucratic fiat? Think of all the questions legislators could sidestep at town hall meetings by pointing an accusatory finger at the board!

Nor is there any reason to believe that the Independent Payment Advisory Board’s undemocratic approach to governance would long remain limited to Medicare. If our controversy-averse elected officials ever think they can protect their jobs by delegating their most difficult decisions to unaccountable commissions—as Congress did with regard to setting its own salaries—independent “advisory” boards could proliferate. In this sense, the success of Medicare’s new cost-containment board could portend the construction of an unaccountable bureaucratic state.

The story also says that under the law, it can only be repealed during a 6 month period beginning in 2017.

To repeal the IPAB, a lawmaker must introduce a bill between Jan. 1, 2017 and Feb. 1, 2017. Then, the Obamacare legal language says that Congress must pass the IPAB repeal bill with a supermajority of three-fourths of all members of Congress. The president must then sign the bill into law before August 15, 2017 – or the board will remain indefinitely.

Not exactly: A second fast track procedure is indeed laid out in the law to suspend the IPAB’s work.  However it isn’t as dire as the story stays.  First, the 2017 procedure only applies to a “fast track” repeal.  There is nothing in the law that prohibits the IPAB from being repealed in the ordinary method of legislating (which I doubt would pass constitutional muster, in any event).  Second,  the fast track repeal language is set out precisely in the law, so it would not require any legislative crafting or language maneuvering—just a harnessing of the votes.  Finally, even this statutory plan would probably be considered a procedural rule that Congress can change at will.  From the Congressional Research Service Report on the IPAB (p. 23, my emphasis):

The “fast track” parliamentary procedures established by the Act for the consideration of both types of IPAB legislation are considered to be rules of the respective houses of Congress even though they are codified in statute. As such, Congress has traditionally viewed them as subject to change in the same manner and to the same extent that any House or Senate rule can be altered by the Members of that chamber. In other words, Congress is not required to amend or repeal the statute to change the procedures. The House or Senate can change the procedures by unanimous consent, by suspension of the rules, or by special rule reported by the House Committee on Rules and adopted by the House.

The IPAB is an arcane but dangerous part of Obamacare—both because it could one day be given rationing powers it doesn’t currently possess, but primarily because it directly subverts representative democracy.  But in defanging it, Congress and media must get the details right.  Otherwise, their criticisms—even though righteous—will lack credibility.