The Real Death Panel

Obama Grin Reaper

By Robert Romano -

“Death panels” received renewed interest over the Christmas season in a New York Times piece by Robert Pear, “Obama Returns to End-of-Life Plan That Caused Stir.” The story outlines a new 691-page regulation that to puts into place end-of-life counseling, called “advanced care planning,” via the Medicare program.

The regulation is provided for “in the case where an injury or illness causes the individual to be unable to make health care decisions”. This is essentially a living will where the patient and the doctor would come to a determination about what to do if a patient became incapacitated. This provision was originally removed in the Senate version of the bill after public outcry emerged, spearheaded by former Alaska Governor Sarah Palin.

That it has reappeared in regulation after being rejected by Congress is troubling, and has renewed worries that such “counseling” could be utilized to coerce seniors into foregoing life-sustaining treatments. That is certainly cause for concern, but may only be the tip of the iceberg for “death panels”.

Enacted into Section 3403 of ObamaCare was the Independent Payments Advisory Board, an entity whose express responsibility is to “reduce the per capita rate of growth in Medicare spending”.

The whole purpose of this panel is to diminish the amount of money spent on a per beneficiary basis. To hide that, the bill states that “The proposal shall not include any recommendation to ration health care…or otherwise restricts benefits” or restrict eligibility of citizens to access Medicare. This is slightly misleading. The panel is authorized to make near-binding recommendations on Congress to restrict the growth of Medicare spending per individual.

So, as long as spending is increased incrementally per individual, albeit at a slower rate, within the target goals, it is not technically restricting benefits by the letter of the statute. What it can do is “target reductions in Medicare program spending to sources of excess cost growth”. So, if the costs of covering certain treatments grow faster than the target goal percent increases, or if they are deemed medically unnecessary, the panel can recommend access to those treatments simply not be covered, a view of the law shared even by left-wing Paul Krugman who supports the provision.

Technically, not all treatments are covered currently under existing benefits, but all eligible recipients are entitled to benefits. So, they’re not the same things under the law. All benefits will be thought of by the panel is the average cost per individual in the program. Which only means that the panel cannot propose that the average amount of benefits per individual be decreased.

Even if the panel only initially goes after administrative costs and profits to pharmaceutical and other health industry companies, it may still find that the growth in Medicare spending is increasing faster than the target growth caps outlined by the legislation. In that case, the next thing to be cut are costly treatments.

It’s simply rationing by another name. And for individuals with certain conditions, denial of certain life-saving, costly treatments will in fact mean an untimely death.

That’s pretty bad, and will eventually take away decisions from doctors and patients. What makes this particular provision insidious is that Congress saw fit to lock it in. According to a suit filed in federal court by the Goldwater Institute, “the statute limits Congressional review over IPAB proposals by severely restricting the manner in which Congress can debate, amend and vote on IPAB proposals.”

The bill also unconstitutionally binds future acts of Congress. It states that a joint resolution repealing the panel can only be proposed in 2017, that it must be enacted within 7 months, takes three-fifths of both houses of Congress to pass, and even then the repeal would not have effect until 2020. That gives the panel at least ten years to implement almost any changes that it sees fit to the program, and if it is not repealed by August 15th, 2017, it cannot be repealed. That makes it next to unrepealable.

All of which is unconstitutional. Congress has the lawmaking power by virtue of Article I to repeal any duly enacted federal law.

Also, the bill restricts judicial review of the panel. This makes the panel a de facto legislative branch shielded from any constitutional scrutiny. And, here’s the kicker, even if Congress does not approve the panel’s recommendations with affirmative votes, they become law anyway by the decree of the Secretary of the Department of Health and Human Services.

Recommendations can only be rejected with votes in both houses of Congress and the signature of the president. This gives the agency a lot of autonomy to do as it pleases, and nearly guarantees that its recommendations will become law. It also makes the outcome of the 2016 elections critical to how these provisions will be implemented.

For a board that supposedly is not a death panel, and promises not to do anything controversial, that is an awful lot of protection provided to ensure that its “recommendations” are indeed implemented.

While finding cost-savings for programs like Medicare is a laudable goal, the mechanism for doing so under ObamaCare involves an agency that can do so by fiat. It is independent of the other branches of government, and will be so for the next decade. Finally, its cost-cutting measures can indeed include the denial of life-saving treatments. Which is why folks think it’s a death panel.

Robert Romano is the Senior Editor of Americans for Limited Government.

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