The phantom death panel that won’t die

Just a few weeks ago, the Supreme Court decided not to hear Coons v. Lew, a case that challenged the constitutionality of the Independent Payment Advisory Board (IPAB), a 15-member panel of healthcare experts authorized under the 2010 Affordable Care Act (ACA). IPAB’s mission is to make cost-cutting recommendations for the Medicare program whenever its annual spending exceeds a target growth rate of 3 percent. According to statute, the panel’s recommendations would take effect unless Congress stepped in with similar spending reduction alternatives.

{mosads}From its inception, IPAB generated controversy. Legislators objected to the potential power of a nonelected body, and healthcare providers feared that the board would extract future savings from Medicare payments to doctors and hospitals. Because IPAB was part of ObamaCare, it faced hostility by association. To date, no panel members have been nominated by the Obama administration — indeed, Senate Republicans stated they would filibuster any IPAB appointees — and two-thirds ($10 million) of IPAB’s funding was eliminated in the 2014 omnibus spending bill. Despite this, IPAB lives on, at least in law. Last Aug. 9, the U.S. Circuit Court of Appeals dismissed Coons v. Lew, since IPAB had not yet been established and, as mentioned above, the U.S. Supreme Court refused to take it up on appeal. Nevertheless, plaintiff attorneys from the Goldwater Institute, a libertarian-leaning think tank in Arizona, have refused to let the case die and promise to bring the challenge again if and when IPAB takes action.

So, what’s all the fuss about this unfunded “ghost panel” with no members? Practically speaking, IPAB should be fading away in the national healthcare debate, both because of its diminished capacity and because its cost-cutting job seems more and more unnecessary. Over the last few years, Medicare spending has slowed considerably, and now has a projected growth rate that is half of the IPAB threshold. Symbolically, however, IPAB remains the poster child of ACA opponents eking out the last bits of political currency generated by the legislation’s infamous “death panels.” IPAB is the second-generation “death panel,” following the assignment of the label to the proposed provision to pay doctors for end-of-life counseling. That language was quickly snatched from the draft legislation in 2009 when former Alaska Gov. Sarah Palin (R) enjoined the idea of government remunerated end-of-life discussions with “a downright evil system” that judges whether vulnerable persons “are worthy of health care.” The inflammatory “death panel” moniker evolved over time to include IPAB and its overreaching panel of experts, destined to ration medical care in the Medicare program. Lost in the furor was the fact that Congress did impose limits on IPAB that explicitly rejected rationing by including prohibitions against the reduction of benefits or changes in eligibility, and a promise to safeguard a decade’s worth of hospital payments in the Medicare program.

We sometimes forget that five years ago, when the ACA was passed, Medicare spending had exceeded the IPAB target in 21 of the past 25 years. Federal officials were sending dire warnings about the burden of Medicare spending on the economy over time, particularly as 77 million baby boomers age up (turn 65) over 18 years, starting in 2011. While not the only mechanism to address escalating Medicare spending, IPAB nonetheless was part of a tool kit of ACA strategies to “bend the cost curve,” and promised to save over $15 billion through 2020. Oh, what a difference five years makes. Because of the ravages of a recession-laden sluggish economy and the burgeoning movement toward “value over volume” provider payments under the ACA, Medicare spending has slowed and its growth is now estimated to remain under the IPAB cap until at least 2022. Indeed, some experts are suggesting we may never need IPAB at all if the ACA’s provisions are allowed to play out as intended.

But IPAB fever lives on. Just last week, over 500 groups, largely major medical societies, called on Congress once again to repeal the board. Rep. Phil Roe, M.D. (R-Tenn.), co-chair of the GOP Doctors Caucus, has offered up legislation to repeal the IPAB going back to 2011. Never mind that the shackled panel has little funding and no members; opponents are not taking any chances. The IPAB repeal bill, titled the Protecting Seniors’ Access to Medicare Act of 2015, has 222 co-sponsors, surpassing the threshold of 218 votes needed for House approval. Nineteen of the co-sponsors are Democrats, including Rep. Linda Sanchez (D-Calif.), the other principal sponsor. The Senate is considering an identical measure sponsored by Sen. John Cornyn (R-Texas), which has 38 co-sponsors so far.

It is too bad that this debate can’t be resurrected for better ends, or at least for a more policy-worthy discussion. Since few on either end of the political spectrum love IPAB, its demise could be used as an example of bipartisan cooperation to improve and protect the coverage, cost reduction and quality aims of the ACA, which voters increasingly support. Instead, the proposed legislation relies on scare tactics to reduce IPAB to little more than a Machiavellian mechanism to ration. The larger policy debate, which includes but transcends IPAB, surrounds the wisdom of creating a more agile and dynamic process outside of a politicized, slow-moving Congress that could nudge our health system in new and innovative ways. This kind of national conversation will become increasingly important as ACA-inspired health system changes continue to unfold. No doubt there are valid concerns about the accountability of an independent panel with power to navigate these changes, but oversimplified and fear-based messages add little to the national discourse. As of now, the phantom IPAB remains a proxy for special interests and continues to live on borrowed time.

Engelhard is the director of the Health Policy Program at the University of Virginia School of Medicine’s Department of Public Health Sciences.