Dozens of members of Congress on Thursday joined in a court brief asking the U.S. Supreme Court to take up a challenge to Obamacare’s Independent Payment Advisory Board, the assembly of appointed individuals described by some critics as a “death panel” for its power to impose its will on doctors, hospitals and patients.
The friend-of-the-court brief was filed in support of a case brought against Obamacare by the Goldwater Institute.
The petition focuses on the requirement to buy insurance and the authority that will be vested in IPAB, which was set up to be unanswerable to Congress and unaccountable to the federal courts.
The Obamacare component was described as a way to control Medicare costs, with the authority to approve or disapprove payments for services and set the level of payment.
And that’s dangerous, according to members of the congressional delegation.
“We already know what will happen with IPAB. We had experience with something similar in my home state of Tennessee with TNCARE. As reimbursement rates are cut to doctors, access was reduced for the needy. I fear for Medicare recipients,” said Rep. Phil Roe, R-Tenn., a doctor.
Rep. Paul Gosar, R-Ariz., a dentist, said, “OPAB puts government between me and my patients.”
In a commentary published in the Wall Street Journal on behalf of the effort, Sen. Tom Coburn, R-Okla., and Rep. Phil Roe, R-Tenn., both doctors, warned IPAB is a patient’s nightmare and bad for doctors.
“Why is this board dangerous? Because there is nothing ‘advisory’ about its vast powers. IPAB’s mandate is to deliver on one of Obamacare’s central promises: Medicare cost-containment. The law gives this board sweeping authority to do so, with virtually no constraints,” they wrote. “The statute says IPAB can take any and all actions necessary to control Medicare costs. Although it is prohibited from ‘rationing,’ that term is nowhere defined in the Affordable Care Act. Hence IPAB can control costs by lowering physician reimbursements – thus driving more doctors away from treating Medicare patients – or by reducing the services eligible for reimbursement. In other words, by rationing care.”
The rationing of care is why, critics say, the institution is being called a “death panel.” Members would only need to lower physician reimbursement for a particular life-saving procedure to an impossible level, and doctors would be unable to provide the service, resulting in the deaths of those who might have benefited.
“IPAB will consist of 15 members appointed by the president, all of whom may be from the same party. If the president does not nominate anyone to the board, or if the Senate fails to confirm nominees, IPAB’s powers must be unilaterally exercised by the Health and Human Services secretary. In short, the power to alter Medicare potentially can be consolidated in a single individual,” the two doctors wrote in the Journal.
“Executive agencies ordinarily are subject to open meetings and to notice and comment procedures. Not IPAB. The Affordable Care Act characterizes IPAB’s actions as ‘recommendations.’ This is a misnomer; its recommendations automatically become law unless Congress acts to stop it.
“Finally, the Affordable Care Act insulates IPAB’s decisions from judicial review, thus achieving an unprecedented trifecta of bureaucratic rule: an administrative agency whose actions cannot be checked by the executive, legislative or judicial branches. This setup shreds the separation of powers that is fundamental to the U.S. Constitution, under which no agency can be rendered exempt from democratic processes and the rule of law.”
And they noted that even though a Congress is unable to “bind the actions” of a future Congress, Obamacare writers tried. They said the board could be eliminated only during a short window in 2017 by a three-fifths majority vote, and even then the board would continue to control until 2020.
“As physicians, we have taken an oath to do no harm. As members of Congress, we have taken an oath to uphold the Constitution. Those oaths combine to compel us to take all possible actions to fight an agency that violates the separation of powers and threatens the well-being of millions of Americans,” they wrote.
Members who signed onto the brief are Rep. Phil Roe, M.D., R-Tenn.; Sen. Tom Coburn, M.D., R-Okla.; Rep. Dan Benishek, R-Mich.; Rep. Diane Black, R-Tenn.; Rep. Marsha Blackburn, R-Tenn.; Rep. Paul Broun, R-Ga.; Rep. Mike Coffman, R-Colo.; Rep. John Fleming, R-La.; Rep. Trent Franks, R-Ariz.; Rep. Phil Gingrey, R-Ga.; Rep. Paul Gosar, D.D.S., R-Ariz.; Rep. H. Morgan Griffith, R-Va.; Rep. Tim Huelskamp, R-Kan.; Rep. Thomas Massie, R-Ky.; Rep. Tom McClintock, R-Calif.; Rep. Alan Nunnelee, R-Miss.; Rep. Pete Olson, R-Texas,; Rep. Bill Posey, R-Fla.; Rep. Tom Price, R-Ga.; Rep. Todd Rokita, R-Ind.; Rep, Matt Salmon, R-Ariz.; Rep. David Schweikert, R-Ariz.; Rep. Lee Terry, R-Neb.; Rep. Rob Woodall, R-Ga.; and Rep. Ted Yoho, R-Fla.
“Never in American history has another board been created with such broad authority to impact government rulemaking that cannot be challenged in court or repealed,” the coalition statement said.
Darcy Olsen, president of the Goldwater Institute, said it’s important for the court to take the case because Obama would just veto anything Congress would pass to solve the problem.
“We don’t have time to wait for another president to be elected. If the Independent Payment Advisory Board isn’t stopped before it has a chance to put recommendations in place, it will be too late,” Olsen said.
“I have serious concerns that this unelected, unaccountable bureaucracy could have a devastating impact on seniors’ access to care, and I hope the Court will hear this case,” Roe said.
WND reported when the institute filed its petition to the Supreme Court several weeks earlier.
Obamacare “introduces sweeping intrusions into the personal lives of Americans,” the petition explains. “The Act’s linchpin is the ‘individual mandate,’ which forces virtually every American to purchase government-approved health insurance or pay a penalty for refusing to do so.”
It argues that “to purchase a health insurance plan, a person must disclose medical and other personal information to various third parties, including the insurance company issuing the policy.”
“Once the person relinquishes that information to the insurance company, it is subject to seizure by the government without a warrant under the voluntary relinquishment to private third parties doctrine, and a host of federal and state laws,” the petition says.
“Accordingly, data forfeited to obtain insurance is subject to broad and irremediable government appropriation, and the threat of further dissemination is increased by the many well-publicized incidents of security breaches involving the ACA’s insurance hub, healthcare.gov.”
The case is on behalf of Nick Coons, a small business owner in Arizona, and Dr. Eric Novack.
The case asserts IPAB was given “virtually unlimited power over both public and private health care in America” and would make “recommendations” that automatically would become law without approval of Congress or the signature of a president, the lawsuit explains.
And those decisions specifically are set above “judicial review.”
“Our government is designed to check and balance itself – if one branch overreaches, another branch is there to correct it. Ultimately, we want the court to strike down IPAB,” said Olsen.
