Klink & Pryce: Congress Must Revisit Health Law Provision

Posted October 1, 2010 at 4:53pm

When Congress wrote the sweeping health care bill signed into law by President Barack Obama earlier this year, it included provisions about everything from medical tests to fast food menus. However, when it came to the single largest health care program, Medicare (2010 budget: $453 billion), Congress simply passed the buck and created a new board to dictate the program’s future.

The board, if it’s allowed to begin remaking Medicare, will threaten the quality of care for millions of Americans while doing little about the long-term fiscal imbalances advocates say it will address. Against the backdrop of rising health care costs, voter anxiety, and a still-struggling economy, Congress needs to take action about Medicare’s future itself.

Whatever it does, it should get rid of the board.

Here are the facts.

The new law creates the appointed 15-member Independent Payment Advisory Board with vast powers over certain aspects of Medicare. If costs don’t stay within certain targets, the board will force cuts on the program.

Congressional leaders will have no choice but to propose equally large cuts or resist unilateral board decisions only through supermajority votes. And with many political forecasters predicting Republican gains in both the House and Senate this November, the likelihood of either party generating enough support to override complex health-care-related decisions would be slim to none.

Even worse, we believe nonlegislative mandates will hurt many of the citizens who need care the most. When the board’s recommendations begin to take effect, already-long lines for first visits to specialists could become longer as doctors consider dropping out of the program. Needed drugs will become less available, and life-improving outpatient procedures will be harder to get.

Later on, hospital beds and inpatient surgical procedures may face restrictions. In short, the board structure in the new law comes dangerously close to denying Medicare services for seniors, just as the baby boom generation becomes more dependent on the program. As Rep. Pete Stark (D-Calif.) recently said, “It is a mindless rate-cutting machine that sets the program up for unsustainable cuts.”

As former Members of Congress, we’re also deeply disturbed about what this means for the nation’s legislature as an institution. The board, as currently structured, will be able to make unprecedented decisions regarding Medicare, even though the Constitution grants “all legislative powers” to Congress.

In fact, we both think there’s a pretty good case that Congress overstepped its bounds by giving the board so much power. In the 1990s, courts ruled a line-item veto law unconstitutional because it let the president veto certain spending items without declining to sign an entire bill. While government will never have all the answers, an advisory body that consults with Congress (we’ve seen many over the past decade) would likely withstand any future legal challenge compared with one that possesses all decision-making authority.

As Rep. Cliff Stearns (R-Fla.) said, “this [board] is an unelected body who will be able to force Medicare cuts and reforms throughout the system. But where are they going to cut? Congress can only vote to stop it if three-fifths of the Senate votes to stop the cuts.”

More than anything else, the creation of the board shows a deficit of leadership in Congress. Medicare’s costs need to come down. But Members of Congress themselves — not an unelected, unaccountable board — should do the hard work.

Former Rep. Ron Klink (D-Pa.) is senior policy adviser at law firm Nelson, Mullins, Riley & Scarborough. Former Rep. Deborah Pryce is an Ohio Republican.