Green Room

Repealing the IPAB; Was DeMint right, Will Dems block due to language in law?

posted at 2:18 pm on April 27, 2011 by

The Independent Payment Advisory Board (IPAB) has been covered quite extensively recently by the WSJ, National ReviewHA, Pajamas Media, and more with continued spot-on analysis as the serious nature of the IPAB’s authority is exposed.  From the WSJ piece:

Mr. Obama said that the typical political proposal to rationalize Medicare’s gargantuan liabilities is that it is “just a matter of eliminating waste and abuse.” His own plan is to double down on the program’s price controls and central planning. All Medicare decisions will be turned over to and routed through an unelected commission created by ObamaCare—which will supposedly ferret out “unnecessary spending.” Is that the same as “waste and abuse”?

Fifteen members will serve on the Independent Payment Advisory Board, all appointed by the President and confirmed by the Senate. If per capita costs grow by more than GDP plus 0.5%, this board would get more power, including an automatic budget sequester to enforce its rulings. So 15 sages sitting in a room with the power of the purse will evidently find ways to control Medicare spending that no one has ever thought of before and that supposedly won’t harm seniors’ care, even as the largest cohort of the baby boom generation retires and starts to collect benefits.

I’d like to take you back in time to highlight some important pieces including this one I broke at Big Government where I warned this was being crafted by the Democrats:

The deliberate setup for the White House power grab is built into the each of the health care bills and, if they fail, little-known twin bills called “MedPAC Reform of 2009” are waiting in the wings.  The bills, S.B. 1110 and H.R. 2718, craftily amend the Social Security Act and transfer the Medicare guideline and rule setting processes, from the legislative branch to the executive branch.  These bills offer cover to one another in case one doesn’t pass the House or Senate, respectively.  Remember, Democrats need to gain executive branch authority by amending the Social Security Act over Medicare regulations and physician fee schedules to transform the health care system in a single-payer, socialized system.

More importantly, Medicare’s regulations and physician fee schedules are the keystone to developing payer systems and reimbursement models across the entire health care industry.  And where Medicare goes, insurers follow.

To further reinforce my analysis, former OMB director, Peter Orszag, stated:

The Medicare Commission, or Independent Payment Advisory Board, would have the power to override Congress if it rejected cuts to the entitlements programme for seniors, said Mr Orszag, a key architect of the reforms signed into law this week.

“This could well turn out to be as consequential for health policy as Federal Reserve policy was for monetary policy,” he said in an FT View from DC video interview. “The commission will put its proposals forward and if Congress does not act on them, or if it votes them down and the president then vetoes that bill, they will automatically take effect. Huge change.”

Enter H.R 452.  With 81 Republican and Democrat co-sponsors to date, this bill would repeal the IPAB and give Congress the oversight it had before the lawmakers stupidly inadvently stripped themselves.  And now they want it back.  Now, if you remember there was a story that circulated in December 2009 that bears more coverage when discussing repealing the IPAB. The catch is the language  found in the law where it stipulates:

“It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment or conference report that would repeal or otherwise change this subsection.”

Additionally, back in January 2010, Senator Jim DeMint (R-SC) explained that the Senate:

Would effectively be passing health-care legislation that includes a series of rules on how Congress would handle IMAB recommendations, and simultaneously will be keeping future lawmakers from changing it as they desire.
“We will be passing a new law,” he said, “and at the same time creating a Senate rule that makes it out of order to amend or even repeal the law.
“I’m not even sure that it’s constitutional, but if it is, it most certainly is a Senate rule (and not a law). I don’t see why the majority party wouldn’t put this in every bill. If you like your law, you most certainly would want it to have force to – for — future Senates,” DeMint added.
“(T)his goes to the fundamental purpose of Senate rules: to prevent a tyrannical majority from trampling the rights of the minority — or of future congresses.”
The subsection that cannot be repealed or changed contains a number of other stipulations on how Congress will handle the IMAB recommendations, even setting deadlines for specific committees to consider them, which DeMint said were also new rules. “These provisions not only amend certain rules, they waive certain rules and create entirely new rules out of whole cloth,” DeMint alleged.

The CNS article goes on to document an exchange between DeMint and Senator Jeff Merkley (D-OR) and is a must read; Brian Darling of Heritage also provides terrific analysis.

The money question is:  Will the Democrats enforce this section with regards to H.R. 452 or will they let this come to the floor for a vote?  Because while the whole argument went down and the Republicans warned, the Democrats basically said–hey, forget about it.

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