In a recent self-assessment of the Affordable Care Act (ACA), President Obama made a recommendation to Congress to refrain from interfering with the rulings of the Independent Payment Advisory Board (IPAB) (Journal of the American Medical Association; published online July 11, 2016). I found this curious since the way the ACA is currently written, Congress has already severely limited its right to overrule this Board. The only explanations I could come up with to explain this contradiction were (1) the President did not know this fact of the ACA, or (2) the President, being a Constitutional scholar, knew that this section of the law would be at risk of severance; it may be unconstitutional due to the violation of the Constitutional doctrine of "Checks and Balances."
A review of the IPAB is thus, timely.
The Affordable Care Act calls for the formation of an Independent Payment Advisory Board. The idea is to have a group of experts with health care knowledge make decisions to reign in the cost of health care. The Board has not yet come into existence because the necessary triggering condition of a projected 5-year Medicare per capita growth rate that exceeds the targeted Medicare per capita growth rate has yet to occur.
Members of this Board will be appointed by the President with the advice and consent of the Senate. Surprisingly, any appointed member may be "removed by the President for neglect of duty or malfeasance in office, but for no other cause" (IPAB Membership requirements in the ACA). This is very different from other executive branch members who serve at the pleasure of the President; he can remove them at any time and for any reason. This gives the IPAB members significant power and pretty much makes them immune from second guessing. Even Secretaries of the Cabinet do not have this kind of immunity.
The intent of the Board is to decide what and how much will be paid for various medical procedures and treatments. The IPAB is required to make specific recommendations to the President and Congress; the goal is "to slow the growth" in national health care expenditures. If Congress does not act on these recommendations or does not come up with alternative recommendations, then the Secretary of Health and Human Services must implement them. Only a supermajority of the Congress will be allowed to overrule the decisions of this Board. This is a high bar, especially with a Senate that is pretty evenly divided between the two major parties. Of note, the Secretary's actions cannot be modified by any administrative body. Under the provisions of the ACA, the President does not have veto power over the recommendations and the recommendations are not subject to judicial review.
By giving the IPAB such power, it allows the President and members of Congress to be immune from criticisms of the electorate. They can claim that the IPAB made the decision and there is nothing they can do about it; and they're right. This seems like a pretty clever way for the elected officials to get around the will of the people and then try to avoid accountability.
The Board members will be independent of the President, independent of Congress, and they will not be subject to Judicial Review. This may be a violation of the Separation of Powers and the doctrine of Checks and Balances, but I am not holding my breath on this claim. The Constitution requires Checks and Balances with each branch of government keeping an eye on the other. I suppose that the Congress being able to override the Board's decisions with a supermajority, while unusual, would allow the Congress to claim they are maintaining their oversite.
As for Judicial review, I would predict that the Supreme Court would hold that they could overrule any Board decisions and that the law's preclusion of judicial oversite was meant for the lower courts, not the Supreme Court. This would be consistent with the Marbury v. Madison decision which gave the Supreme Court the power to decide on a law's constitutionality (Marbury v. Madison, 5 U.S. (1 Cranch) 137, (1803).
The IPAB has been directed to not ration care. In fact, rationing is explicitly forbidden. I am concerned, however, that the Independent Payment Advisory Board may decide to limit (ration?) Health care anyway.
Care may be denied based on financial as opposed to clinical reasons. It reminds me of societies that would send their elderly adrift in a canoe or be left alone in the wilderness with the intent of letting them die as opposed to being a financial burden on the remaining younger generation. I would hope that we, the people, would not tolerate this kind of behavior.
But if the law specifically forbids rationing of care, how could rationing still occur? For one thing, the law does not define the meaning of "rationing" in the context of the Affordable Care Act. If care is denied to everyone, then the definition of rationing is not met. The definition of "ration" is to distribute equitably or use sparingly (Merriam-Webster's Collegiate Dictionary, eleventh edition). If the thing is not distributed at all, or not used at all, then it is not being rationed.
If the IPAB decides to cut payments to doctors and hospitals such that money would be lost for those who provide the care, then those providers may decide to stop seeing new Medicare patients. This denial of care to a specific population would amount to a de facto rationing.
I also believe that our Constitution, if we will continue to follow it, would not allow this as it would clearly violate the Due Process Clauses of the Fifth and Fourteenth Amendments. In fact, suits have already been initiated in about 20 States challenging the constitutionality of the IPAB. However, it would be unusual for a court to strike down an "advisory board" created by the Congress and signed off on by the President.
Am I being alarmist? I don't think so. In a Wall Street Journal Article from January 23, 2015, entitled Dr. Death Makes a Comeback , the writer discussed the distinct possibility that a "right to die" may be mistaken for a "duty to die." The fact that this issue was even being raised is very concerning. What if the IPAB decides that it would be cost effective to only offer "assisted suicide" or hospice care for those elderly or disabled who otherwise would require very expensive care; even if the care would be curative? As of this writing, Oregon, Washington, Montana, California, and Vermont do allow for assisted suicide.
It goes against the very premise of our free society when the government forces changes on life and liberty interests without recourse by the unwilling electorate. I suppose that we can vote in a whole new group of politicians, but this would take time. My faith in meaningful change is fading rapidly.
Dr. Weiman's website is www.medicalmalpracticeandthelaw.com