emember “death panels”? They may be back.
As soon as Thursday, Trump administration officials may have to launch the process that inspired that phrase — and that is aimed at making cuts to Medicare.
Under Obamacare, a provision calls for the establishment of a wonky board of experts to reduce how much Medicare pays doctors or other health professionals — or even how much the program pays for prescription drugs — if Medicare spending surpasses a certain rate of growth.
The panel, known as the Independent Payment Advisory Board, or IPAB, has never had to meet or make a decision about spending.
But Medicare experts have warned that this year’s data, which is widely expected to be released as soon as Thursday, might trigger the panel — setting off a new political firestorm in the midst of congressional Republicans’ efforts to overhaul the rest of the health care system. If it is triggered, the panel is tasked with finding a way to cut enough money from the Medicare program to slow the growth rate. Last year’s data suggested the panel would only need to cut a very small amount, around 0.2 percentage points.
“We won’t know until we know,” Tricia Neuman, a senior vice president for the Kaiser Family Foundation, told STAT Wednesday. “But if the actuary tomorrow says yes, then the law says that the IPAB would issue recommendations to the president and Congress for congressional action by January of 2018.”
That timeline might be tough — because, right now, there is no IPAB.
Under the law, 15 presidentially appointed members would suggest cuts and submit those recommendations to Congress to pass into law. Congress, within only a few months, must either approve the cuts or find its own solution for savings, or the cuts would automatically take effect. The idea was to insulate tough decisions about spending cuts from lobbying efforts and political considerations, especially as Medicare approaches insolvency.
But because the panel is wildly unpopular politically, former President Barack Obama never appointed anyone to sit on it, and neither has President Trump. And without a panel, Health and Human Services Secretary Tom Price has wide latitude to suggest the cuts himself.
There is an escalating effort, however, to repeal the entire panel and revoke the authority before Trump can appoint anyone or Price can issue his own recommendations.
That effort can’t simply be tucked into the Republican package to repeal and replace other parts of Obamacare. The IPAB can’t be touched using the fast-track procedure Republicans are using to bypass the Senate’s 60-vote threshold and advance that measure. Neither the House nor Senate repeal measures include it.
IPAB, however — or rather, the repeal of the panel — is one of the rare health care policy efforts with bipartisan backing. Dozens of Democratic lawmakers have co-sponsored bills that would repeal the panel, and 11 House Democrats joined Republicans in a 2015 vote to repeal it even though the measure included other provisions party leadership didn’t support. The Trump administration also included the repeal of IPAB in its fiscal year 2017 budget proposal earlier this year.
The panel is also widely despised across the broad health care industry. Doctors, pharmaceutical companies, and hospitals, in particular, have panned the idea of an unelected panel making decisions about their reimbursements. Some 760 provider groups signed on to a letter earlier this summer that called for repealing the panel, an effort led by the Healthcare Leadership Council.
“I can’t imagine they couldn’t get rid of IPAB if they want to,” said Tim Jost, an emeritus professor at the Washington and Lee School of Law. “Frankly they could probably get a supermajority to do so if they wanted. Nobody’s ever liked it other than economists.”
Repeal will indeed require a supermajority, according to the original text of the Obamacare statute. The language includes an uncannily specific provision that says Congress can repeal the panel if it passes a joint resolution before Aug. 15, 2017. The law requires a three-fifths vote in both chambers — a 261-vote threshold in the House and a 60-vote threshold in the Senate.
“It’s such an unusual aspect of the legislation that created IPAB, but Congress put in this one-time-only off-ramp that they could just stop the IPAB process from moving forward,” said Mike Freeman, executive vice president of the Healthcare Leadership Council. “There’s bipartisan agreement that IPAB is a bad idea. … The most efficient and easy way to get rid of it is to just enact this resolution before that Aug. 15 deadline hits.”
The resolutions have already been introduced. A bipartisan House measure, led by Reps. Phil Roe (R-Tenn.) and Raul Ruiz (D-Calif.) tracks closely with separate measures from Sens. John Cornyn (R-Texas) and Ron Wyden (D-Ore.).
If it’s not repealed before the deadline, overruling any proposed cuts recommended under IPAB authority would likely also require a supermajority vote.