ORIENT: Is the payment board a death panel?

Denial of treatment will be curtains for uninformed patients

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The curtain seems to be rising on Act 2 in the saga of piecemeal repeal of the Patient Protection and Affordable Care Act, or Obamacare. The first part to fall was the financially unsustainable long-term care portion, the Class Act. The next target is the Independent Payment Advisory Board.

Even the American Medical Association, which endorsed Obamacare, is calling for repeal of the advisory board, citing worries about “formulaic” payment cuts, lack of stakeholder opportunity for “meaningful dialogue” with Congress and potentially limited access to care. As usual, the AMA is focused on the money.

The AMA avoids strong words like “death,” “dictatorship,” “rationing” and “unconstitutional.” Its concern about the specifics of the Independent Payment Advisory Board is also a diversion from the basic principles and mechanisms already in place, in which the AMA is complicit and heavily invested.

The worst part about the Independent Payment Advisory Board is the absolute power that is vested in an unaccountable 15-member oligarchy. If there ever was an unconstitutional delegation of power, this would be it. But there is no point in investing years and millions of dollars in taking the board’s decisions to the Supreme Court. Congress has ruled out any review of its diktats, either administrative or judicial.

Congress has always had the power to restrict the jurisdiction of the courts, and this instance shows that it has not forgotten. Congressmen usually try to duck their obligation to abide by their oath to uphold the Constitution by pretending that the Constitution is not what the document says but what five Supreme Court justices ultimately rule.

Rep. Peter A. DeFazio, Oregon Democrat, when asked about the constitutionality of the individual health insurance mandate in Obamacare - for which he voted - said: “Well, um, I’m not a lawyer. … That’s why we have courts. Congress often passes laws that are of dubious or questionable constitutionality.”

Congress created the Independent Payment Advisory Board, and it can and must do away with it. That would set a good precedent for a lot of its other ruinous creations, but it wouldn’t rescue Americans from the prospect of death by Medicare rationing.

With the Independent Payment Advisory Board gone, there still would be the Medicare Payment Review Commission and Medicare’s elaborate system of price controls - diagnosis-related groups or hospitals and the Resource-Based Relative Value Scale for physicians. The AMA owns the codes that determine whether Medicare can pay for a procedure, and the AMA/Specialty Society Relative Value Scale Update Committee determines how Medicare dollars shall be divided. The committee has a lot in common with the Independent Payment Advisory Board.

Covert rationing is rampant even now, though largely undetected. Medicare patients can tell when their appointments are denied or delayed, but cannot learn so easily when they are denied access to care because doctors don’t tell them it exists.

Services that can’t be paid for will disappear.

The key, unasked question, which Congress, Medicare and the AMA are trying to duck, is whether Americans have the right to spend their own money to obtain necessary, lifesaving care, even if “covered” (but denied) by insurance. Or must they be at the mercy of the Centers for Medicaid and Medicare Services, the Department of Health and Human Services, Blue Cross or other insurer, the Independent Payment Advisory Board or its successor? May physicians find a way to provide care that their patients value and accept compensation, or must all medical dollars flow through government-approved gatekeepers?

Many Medicare officials, and the AMA, are acting as if their desired answer is no.

What makes the Independent Payment Advisory Board or its equivalent a death panel is not constraints on what Medicare may pay, but the ban on balance billing or private payment.

When Josef Stalin decided to starve Ukraine, he confiscated all the food and exported it to the West or destroyed it. He also made it a crime to buy, sell or exchange things for food. He had a lot of people shot, but the vast majority simply perished of deprivation - the ultimate consequence of socialism.

If Americans lose the liberty to provide for their own medical care, some will get “free” contraceptives, abortions, mental health screenings or whatever else the czars think they should have. Others will get the “red pill” or the “blue pill” on the way to their premature deaths.

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