Authors: Obamacare Payment Board Will Have Unlimited Scope, Powers

Thursday, 20 Jun 2013 11:56 AM

By Lisa Barron

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The Independent Payment Advisory Board that is part of the Affordable Care Act will enact deep spending cuts in the Medicare program and is constitutionally suspect, says David Rivkin, a former Justice Department official.

"Obamacare's most disturbing feature may be the [payment advisory board]," Rivkin, now a partner at Baker Hostetler law firm, and Elizabeth Foley, a law professor at Florida International University, write in an opinion piece in The Wall Street Journal.

The board "threatens both the Medicare program and the Constitution's separation of powers," they say.

The panel will oversee a $500 billion budget to "develop detailed and specific proposals related to the Medicare program," including proposals to curb Medicare spending below a statutorily determined level.

Under Obamacare, there "shall be no administrative or judicial review" of the board's decisions.

"Once the board acts, its decisions can be overruled only by Congress, and only through unprecedented and constitutionally dubious legislative procedures," Rivkin and Foley say.

"The [advisory board's] godlike powers are not accidental. Its goal, conspicuously proclaimed by the Obama administration, is to control Medicare spending in ways that are insulated from the political process."

That violates the separation of powers included in the Constitution, the duo writes.

"Congress has willingly abandoned its power to make tough spending decisions (how and where to cut) to an unaccountable board that neither the legislative branch nor the president can control," they say.

"Obamacare mandates that the board impose deep Medicare cuts, while simultaneously forbidding it to ration care. Reducing payments to doctors, hospitals, and other healthcare providers may cause them to limit or stop accepting Medicare patients, or even to close shop."

Giving the board the power to create rules "relating to" Medicare cedes to it "virtually limitless power of the kind hitherto exercised by Congress," Rivkin and Foley write.

"If the [advisory board] exercises these vast powers, political accountability will vanish. … Seniors and providers hit hardest by the board's decisions will have nowhere to turn for relief — not Congress, not the president, not the courts."

To be sure, the Obama administration is showing signs of backing off from establishing the payment advisory board, and its creation is no slam dunk.

It's been three years since Obamacare was enacted, yet the payment advisory board still has no members, Jonathan Oberlander and Marisa Morrison note in a New England Journal of Medicine column.

"Secretary of Health and Human Services Kathleen Sebelius described 'active discussions' about IPAB nominees in February 2012 and said last month that the administration was 'consulting' Congress regarding 'potential members.' But President Obama has not yet nominated anyone for the IPAB, and Republican congressional leaders have refused to provide any recommendations for appointees," Oberlander and Morrison write.

"Even if Democrats settle on nominees, the controversy surrounding the [payment board] will make their Senate confirmations, which are subject to filibuster, extraordinarily difficult."

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