The “Death Panel” Buried Deep Inside the Health Care Law

Whatever else you may want to say about him, economist Robert Reich is a man who tells it like it is—or as he would like it to be. The former Clinton administration Labor secretary gave a taped lecture at Berkeley University in 2007 explaining how the “honest” candidate for president would sell health care reform to the American people.

The candid candidate would tell Americans, Reich ventured, that health care reform will mean young people will pay more, the elderly will die sooner, and medical innovation will suffer. When it comes to seniors, Reich’s not-poll tested stump speech would go like this:

If you’re very old, we’re not going to give you all that technology and all those drugs for the last couple of years of your life to keep you maybe going for another couple of months. It’s too expensive. So we’re going to let you die.

They applauded in Berkeley but advocates of health care reform were livid two years later when Sarah Palin offered an equally honest assessment of pending health care legislation, charging that it would introduce rationing and “Obama’s ‘death panel’” into American medicine.

The New York Times scoffed at the “death panel” claim, labeling it a “stubborn, but false rumor” and then-Newsweek editor Jon Meacham called it “a lie crafted to foment opposition to the president’s push for reform.”

Now we learn that buried deep within the health care law’s 2801 pages of foggy prose is a provision to create a panel of bureaucrats with final authority on what treatments will and will not be paid for by Medicare, the federal insurance program that serves nearly 48 million seniors and disabled individuals. It’s called the Independent Payment Advisory Board (IPAB), a 15-member committee whose cost-cutting edicts are not subject to review by the courts or the people.

The health law gives this board of presidentially appointed and unaccountable “experts” the power to use price controls and other cuts to achieve spending reduction targets prescribed in the law. And there is very little Congress can do to stop the binding “recommendations” of this Independent Payment Advisory Board from taking effect. Its proposals are law unless Congress says “No,” which requires a majority House vote, an unlikely 60-vote Senate supermajority, and presidential approval.

Douglas Holtz-Eakin, a former director of the Congressional Budget Office, calls IPAB a “dramatic policy error” and “possibly the most dangerous aspect of the Patient Protection and Affordable Care Act.”

The threat from IPAB, Holtz-Eakin points out, is that “It will effectively determine that patients should have coverage for one particular treatment option, but not another, or must pay much more for one of the treatment options.”

Rep. Phil Roe (R-TN) has practiced medicine for more than 30 years and calls IPAB the “real death panel.” His bill to repeal the health care cost-reduction board has won enough Republican and Democrat co-sponsors to pass the House. The Senate outcome is less certain.

Opposition to IPAB reaches across the aisle, as well. Arch liberals Rep. Barney Frank (D-MA) and Rep. Pete Stark (D-CA) both want IPAB to go away. Stark, who voted for the health care overhaul, called IPAB “a mindless rate-cutting machine that sets the program up for unsustainable cuts.” On the same day that health care reform passed Congress, Stark warned that IPAB “will endanger the health of America’s seniors and people with disabilities.”

Still, IPAB has more than a few supporters.

Former Senate Majority Leader Tom Daschle, President Obama’s first choice for Secretary of Health and Human Services, has praised the creation of the Independent Payment Advisory Board because it makes possible the tough choices that Congress has dodged. And he wants it to have even more power, telling the New York Times that IPAB’s authority should grow to deal with the world of private health insurance.

Peter Orszag, who stepped down in 2011 as director of the Obama administration’s Office of Management and Budget, is one of IPAB’s most ardent fans. He has called it a “very promising structure” for limiting Medicare costs and counts it a virtue that IPAB’s decrees are very hard for Congress to overturn. Orszag is happy to take the hard questions in government away from politicians and let the “experts” call the shots. “Radical as it sounds,” Orszag writes, “we need to counter the gridlock of our political institutions by making them a bit less democratic.”

IPAB is more than a “bit less democratic.” It is, as its name declares, truly “independent.” Unlike other federal commissions IPAB is not subject to the normal rules requiring public notice, the opportunity for public comment, and public review. And if an American citizen disagrees with an IPAB cost-cutting ruling, too bad. He or she has no legal recourse. As the law states, “There shall be no administrative judicial review.…”

Diane Cohen, an attorney for the Goldwater Institute, an Arizona think tank which has challenged IPAB in court, blasted IPAB in testimony to Congress as “the most sweeping delegation of congressional authority in history....”

It’s also a real threat to life and health as a recent round of Medicare cost-cutting in Arizona illustrates. Two people waiting for organ transplants in Arizona died after the state Health Care Cost Containment System put a halt to seven types of organ transplants. The system made the decision after the state legislature, faced with a severe budget shortfall, cut Medicaid funding in 2010.

“No private insurance company would dare unilaterally deny a previously qualified patient life-saving surgery, as Arizona did,” Culture of Death author Wesley J. Smith, told Truth in Action Ministries. “Only government can get away with something like that.”

More of the same could be just ahead once the Independent Payment Advisory Board, with its power to limit Medicare spending and treatment options, begins issuing its cost-cutting rulings in 2014.