Obamacare Lawsuit Challenges Legality Of 'Death Panel' | Eastern North Carolina Now

One of the attorneys hoping to dissolve Obamacare through a lawsuit challenging the health reform act's Independent Payment Advisory Board said the deaths and mismanagement recently reported at Veterans Administration hospitals are "a great preview" of what lies in store if the health care law is...

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    Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.

9th Circuit will hear case testing IPAB and separation of powers


    RALEIGH     One of the attorneys hoping to dissolve Obamacare through a lawsuit challenging the health reform act's Independent Payment Advisory Board said the deaths and mismanagement recently reported at Veterans Administration hospitals are "a great preview" of what lies in store if the health care law is not overturned.

    Christina Sandefur, a staff attorney at the Scharf-Norton Center for Constitutional Litigation at the Phoenix-based Goldwater Institute, said oral arguments in Coons v. Geithner are scheduled June 10 in San Francisco before a three-member panel of the 9th U.S. Circuit Court of Appeals.

    The case is on appeal after Arizona U.S. District Court Judge Murray Snow dismissed the lawsuit. Coons is the only legal challenge among many to the Affordable Care Act challenging the constitutionality of IPAB, whose 15 members would be appointed by the president. The panel would have virtually unlimited power to design Medicare policy and set health care payment rates.

    Sandefur says congressional creation of IPAB violates the separation of powers clause of the Constitution because it transfers congressional authority to an unelected executive branch agency. The language establishing the panel insulates it from congressional and judicial oversight.

    Michael Cannon, director of health policy studies at the free-market Cato Institute, called IPAB "a superlegislature" during his March appearance in Raleigh at the Civitas Institute's Conservative Leadership Conference. "It is a body that writes laws without Congress' consent, and it scares the hell out of me."

    In a recent Forbes article, Cannon noted that some critics of the law have called IPAB Obamacare's "death panel," but in his view, it also could be considered a "life panel," given its powers to determine allowable treatments and payments.

    Sandefur said that IPAB's lack of accountability should be of concern amid the growing revelations that VA hospitals in Phoenix, Colorado, Chicago and elsewhere falsified records to make it appear that veterans' wait times for service were days, when in some cases they were months. Dozens of veterans' deaths in Phoenix are linked to the delays.

    As the scandal grows and scrutiny escalates, two employees of the Durham VA Hospital recently were suspended over records irregularities reporting wait times going back to 2009, and calls are increasing for VA Secretary Eric Shinseki to resign.

    "I think unfortunately what's happening in the Veterans Administration is a preview of what we're going to get with IPAB," Sandefur said.

    The VA is a single-payer system, and she believes IPAB would be the mechanism to shift the entire U.S. health care system toward single-payer delivery if Obamacare eventually crowds out private insurers and puts the government more directly in charge of medical services, an outcome critics of the law fear and supporters encourage.

    "That's why it is so important that our lawsuit proceeds," to prevent the IPAB model from becoming the future standard for administrative agencies, Sandefur said.

    "This is exactly why we have the constitutional system that we do. This is exactly why we have separation of powers. This is the very reason that the founders believed that it was dangerous to put government in charge of these decisions, and that it was dangerous to put one entity in charge of decisions like these," Sandefur said.

    "If the court finds that IPAB is unconstitutional, we would ask them to strike the entire law," Sandefur said. To do that, the court would have to determine whether severing the unconstitutional portion of the law would allow the rest of the law to stand and still meet Congress' intent.

    Sandefur contends the president and congressional Democrats who voted unanimously for the law continually emphasized during legislative debate Obamacare's ability to reduce medical costs as the primary reason to approve it.

    "The only mechanism that is really designed to cut costs in health care is IPAB, and so without IPAB Obamacare can't really achieve one of its overarching goals of near-universal health care coverage — cost-cutting," Sandefur said. "So our argument is that the whole thing has to fall because you can't really have one without the other."

    The lawsuit further challenges the individual mandate, which Supreme Court Chief Justice John Roberts determined to be a tax. It forces an individual to purchase government-approved health insurance or else pay a penalty.

    The insurance mandate forces individuals to turn over private, personal information to a private third party, "which is even more disturbing than forcing you to turn it over to the government," Sandefur said.

    That heightens privacy concerns because the Supreme Court has ruled that when individuals "voluntarily" give information to a third party, "then it's fair game for basically any government agency for criminal or regulatory purposes to come and confiscate that information."

    Chris Conover, a professor at Duke University's Center for Health Policy and Inequalities Research, said IPAB was created because Medicare has been mishandled for decades when it comes to controlling costs. A major reason is because Congress routinely shuns advice of the current Medicare Payment Commission, he said.

    So IPAB's goal was to put experts, instead of politicians, more in control of Medicare policy.

    "It's a very questionable sort of constitutional legitimacy to create this unaccountable set of people who have pretty extraordinary powers, but those powers are triggered if and only if spending goes above some certain target," Conover said.

    The Centers for Medicare and Medicaid Services does not foresee Medicare spending rising above the trigger amounts anytime soon, Conover said.

    Nor does he see any advantages to IPAB over the Medicare Payment Commission, comprising the "best minds from academia," Conover said.

    "From the standpoint of democracy theory, if you want accountable government that is governed for the people, by the people, this seems to be a little bit off track from that," Conover said of IPAB.

    "There's no law that can't be repealed" by a succeeding Congress, he said.

    But Sandefur said repealing IPAB or limiting its powers is, by design, a complex and nearly insurmountable hurdle.

    According to the law, legislation repealing IPAB can be introduced only between Jan. 1 and Feb. 1, 2017. It must pass both houses of Congress, and be signed by the president before Aug. 15 of that year. And to pass Congress, it must be approved by three-fifths of all members, not just three-fifths of the members present on the date of the vote.

    "As far as we can tell, that is one of the most severe supermajority requirements ever in the history of this country," Sandefur said. "That is an even more severe requirement than to sign a treaty with a foreign nation."

    Sandefur isn't convinced Obamacare's authors intended IPAB triggers to be activated immediately. Instead, the law is "designed to be implemented little by little to avoid problems in elections" if voters were to see all of its harmful effects at once, she said.

    IPAB has no defined scope of written powers, "and if you think that what it's doing is not related to Medicare, or is rationing care, you cannot challenge its proposals that automatically become law in court because it's not subject to judicial review," Sandefur said.

    None of IPAB's 15 members has been nominated or confirmed. Sandefur speculated that President Obama wants to avoid Senate confirmation battles over those nominations and draw more attention to Obamacare so close to the midterm elections.

    But the lack of appointments is troubling, Sandefur said, because the secretary of Health and Human Services would wield all IPAB's powers if no positions on the board are filled.

    "Having only one person in charge instead of 15 is a disregard of the checks and balances" that come with differing opinions of board members and eventual bipartisanship when a Republican president appoints members to the board's staggered terms, Sandefur said.
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