ObamaCare's Independent Payment Advisory Board is everything its critics say and worse. It is a democracy-skirting, Congress-blocking, powers-unseparating, law-entrenching, tax-hiking, fund-appropriating, price-controlling, health-care-rationing, death-paneling, technocrat-thrilling, authoritarian, anti-constitutional super-legislature. Its very existence is testament to government incompetence. It stands as a milestone on the road to serfdom.
The Congressional Research Service has now confirmed what HHS Secretary Kathleen Sebelius pretends not to know but what Diane Cohen and I explained here:
[I]f President Obama fails to appoint any IPAB members, all these powers fall to Secretary of Health and Human Services Kathleen Sebelius.
That's an awful lot of power to give any one person, particularly someone who has shown as much willingness to abuse her power as Sebelius has.
I would also like the Congressional Research Service to address a feature of IPAB that Cohen and I first exposed. According to the statute, we write:
Congress may only stop IPAB from issuing self-executing legislative proposals if three-fifths of all sworn members of Congress pass a joint resolution to dissolve IPAB during a short window in 2017. Even then, IPAB’s enabling statute dictates the terms of its own repeal, and it continues to grant IPAB the power to legislate for six months after Congress repeals it. If Congress fails to repeal IPAB through this process, then Congress can never again alter or reject IPAB’s proposals.
You read that right. For more, read our paper, especially Box 3 on page 9.
CRS, I'm interested to know what you think. Take a close look at the law and get back to me.
The GOP can try and keep the implementation from being done effectively, in part by refusing to authorize the needed funds. Then they can capitalize on the problems they create to weaken the law, or at least weaken Democrats up for reelection in 2014.
In other words, step one: Create problems for Obamacare. Step two: Blame Obamacare for the problems. Step 3: Political profit!
It never ceases to amaze me how people who want government to plan our lives are horrified when government then interferes with their plans. Here's one way to summarize Klein's attempt to blame ObamaCare's opponents for ObamaCare's failures:
Step one: Pass a law the public opposes.
Step two: Act surprised when the public continues to oppose it.
Step three: Blame the public for the law's failures.
Step one: Enact an immense law requiring lots of implementation funding.
Step two: Don't include any implementation funding.
Step three: Blame opponents for not funding the implementation.
Ooh, this is fun:
Step one: Give government new powers.
Step two: Express frustration when those powers fall into the hands of your political opponents.
Step three: Put your political opponents in camps.
I wonder if Mike Pompeo will pen a letter to Klein, too.
Cato-at-Liberty readers who are enjoying—or, at least, chronicling—our nation's slide down The Road to Serfdom will have to add Neil Irwin's Washington Post Outlook piece, "Why the financial crisis was bad for democracy," to their travelogue:
In a democratic society, there will always be tension over which decisions should be made by expert appointees, and which by those with the legitimacy and accountability that come with competing for citizens’ votes. The technocrats can make complex decisions quickly, quietly and efficiently. The words “quick, “quiet” and “efficient” are rarely applied to the U.S. Senate or the Italian Parliament — but these institutions are imbued with an authority that comes directly from the people, the explicit consent of the governed.
So, in a crisis, which do you want: unaccountable decisiveness or inefficient accountability?
Consciously or not, we’ve made our choice: The financial crisis and its long, ugly aftermath have marked the triumph of the technocrats...
None of this is a great way to run a society. Like most journalists, I believe in transparency and accountability. I wish the Federal Reserve’s policy meetings were broadcast on C-SPAN. Instead, we get written transcripts five years later. (That still beats Europe, where such information is under lock and key for 30 years.)
Yet, when the world is on the brink, decisive problem-solving trumps the niceties of democratic process. I won’t like it much — but I’ll take it.
Authoritarianism cannot take hold without intellectual support, and Friedrich Hayek couldn't have described the rationale better himself. Just equally well. Almost verbatim, actually.
For more, see my paper (with Diane Cohen) on IPAB and this Cato policy forum on IPAB and Dodd-Frank. And of course, read Hayek's The Road to Serfdom while it's still legal.
Secretary of Health and Human Services Kathleen Sebelius has been campaigning so enthusiastically for President Obama that she -- whoops! -- broke a federal law that restricts political activities by executive-branch officials. Federal employees are usually fired for such transgressions, but no one expects that to happen to Sebelius. Heck, she got right back in the saddle.
Every cabinet official (probably) wants to see the president reelected, and no president relishes dismissing a cabinet official. But in this case, there's an additional incentive for Sebelius to campaign for her boss and for Obama not to fire her.
ObamaCare creates a new Independent Payment Advisory Board that -- "fact checkers" notwithstanding -- is actually a super-legislature with the power to ration care to everyone, increase taxes, impose conditions on federal grants to states, and wield other legislative powers. According to legend, IPAB will consist of 15 unelected "experts" who are appointed by the president and confirmed by the Senate. Yeah, good one.
In fact, if the president makes no appointments, or the Senate rejects the president's appointees, then all of IPAB’s considerable powers fall to one person: the Secretary of Health and Human Services. The HHS secretary would effectively become an economic dictator, with more power over the health care sector than any chamber of Congress.
If Obama wins in November, he would have zero incentive to appoint any IPAB members. The confirmation hearings would be a bloodbath, not unlike Don Berwick's confirmation battle multiplied by 15. Sebelius, on the other hand, would not need to be re-confirmed. She could assume all of IPAB’s powers without the Senate examining her fitness to wield those powers. If Obama fired her, or the voters fire Obama, then the next HHS secretary would have to secure Senate confirmation. Again, bloodbath. That makes Kathleen Sebelius the only person in the universe who could assume those powers without that scrutiny.
No wonder she’s campaigning so hard. No wonder Obama won't fire her.
I blogged previously about Mitt Romney's claim that ObamaCare creates “an unelected board that’s going to tell people ultimately what kind of treatments they can have.” President Obama conceded the point when he responded that the Independent Payment Advisory Board “basically identifies best practices and says, let’s use the purchasing power of Medicare and Medicaid to help to institutionalize all these good things that we do.” The president admitted the whole point of IPAB is to let a bunch of experts decide what practices are "best," and to stop paying for what isn't.
I am not aware of a single fact-checker who has grasped that basic point. Not PolitiFact, not the Associated Press, not FactCheck.org, not The Washington Post's Fact-Checker, not this Washington Post health reporter. The Los Angeles Times called Romney's claim "erroneous" and writes:
This is a myth advanced repeatedly by critics of the Affordable Care Act and debunked consistently by independent fact-checkers...the panel is explicitly prohibited from cutting benefits for people on Medicare. And there is no provision in the law that empowers the advisory board to make any decisions about what treatments doctors may provide for their patients.
The media "fact check" business is incredibly tiresome given how pedantic and downright inaccurate it is, but I wanted to weigh in on this one before it hardens. The LA Times somehow thinks that the ACA (aka Obamacare) will have no effect on determining what care patients can get, and consequently dings Romney for saying it will. There isn't a single honest health economist out there who agrees with the LA Times on this one.
Bhattacharya explains that IPAB will be able to influence care by cutting payments to providers. But that's not the half of it. IPAB has the power to do exactly what the fact-checkers think it can't: deny specific treatments to Medicare enrollees. It can even raise taxes and do other things the fact-checkers think it cannot.
I explain why the fact-checkers are wrong at this Cato Institute policy forum at noon on Thursday (October 11). Join us. Pre-register now at that link.
In Wednesday night's presidential debate, Mitt Romney claimed that ObamaCare's Independent Payment Advisory Board is “an unelected board that's going to tell people ultimately what kind of treatments they can have.”
President Obama officially denies it, yet he confirmed Romney's claim when he said, "what this board does is basically identifies best practices and says, let's use the purchasing power of Medicare and Medicaid to help to institutionalize all these good things that we do."
In this excerpt from his column in today's The Washington Post, George F. Will quotes my coauthor Diane Cohen and me to show that IPAB is even worse than Romney claimed:
The Independent Payment Advisory Board perfectly illustrates liberalism’s itch to remove choices from individuals, and from their elected representatives, and to repose the power to choose in supposed experts liberated from democratic accountability.Beginning in 2014, IPAB would consist of 15 unelected technocrats whose recommendations for reducing Medicare costs must be enacted by Congress by Aug. 15 of each year. If Congress does not enact them, or other measures achieving the same level of cost containment, IPAB’s proposals automatically are transformed from recommendations into law. Without being approved by Congress. Without being signed by the president.
These facts refute Obama’s Denver assurance that IPAB “can’t make decisions about what treatments are given.” It can and will by controlling payments to doctors and hospitals. Hence the emptiness of Obamacare’s language that IPAB’s proposals “shall not include any recommendation to ration health care.”
By Obamacare’s terms, Congress can repeal IPAB only during a seven-month window in 2017, and then only by three-fifths majorities in both chambers. After that, the law precludes Congress from ever altering IPAB proposals.
Because IPAB effectively makes law, thereby traducing the separation of powers, and entrenches IPAB in a manner that derogates the powers of future Congresses, it has been well described by a Cato Institute study as “the most anti-constitutional measure ever to pass Congress.”
Our paper is titled, "The Independent Payment Advisory Board: PPACA's Anti-Constitutional and Authoritarian Super-Legislature." It broke the news that, as Will writes, ObamaCare "precludes Congress from ever altering IPAB proposals" after 2017.
In today's Washington Post, columnist Bob Samuelson writes:
Then there’s the Independent Payment Advisory Board (IPAB), a body of 15 experts charged with limiting Medicare spending if it passes certain targets. But the law handcuffs IPAB. It can’t increase patient cost-sharing, restrict benefits, modify eligibility requirements or — in any one year — cut spending by more than 1.5 percent, reports the Kaiser Family Foundation.
All four of those assertions about supposed limitations on IPAB's powers are false, as Diane Cohen and I explain here.