Barack Obama, 2015, SOTU: "If a bill comes to my desk that tries to do any of these things, I will veto it"

Part One

"Any of these things," that's what president Obama said during his SOTU speech. His meaning was clear: he referred to  four areas where he said that any Congressional amendments would be considered as "tinkering" and would be vetoed. He included immigration and the Affordable Care Act in this category. The promised vetoes revealed that our president was prepared to shift from a government characterized by the consent of the governed to one that would be more autocratic and unilateral. No previous president ever threatened Congress with four, count 'em, four vetoes. 

Our concern in this post is the Affordable Care Act (ACA), popularly known as Obamacare. It has long since been forgotten that the first important "tinkering" with the ACA was by Obama himself when he dropped the public option from the bill -- the public option was an awkward inconvenience at the time so the president "tinkered" with it. He used a hatchet.

Now efforts to improve the bill are either opposed by its far right opposition which would repeal the entire bill or get opposed by supposed supporters in favor of as much giveaway politics as is humanly possible. 

Here's the deal: the ACA contains two parts that are highly controversial, Sections 10320 and 3403. These sections in the ACA create the Independent Payment Advisory Board (IPAB) which has the power to decide what Medicare will actually cover. The IPAB will consist of 15 members; in fact, in 2012 $15,000,000 was appropriated for the IPAB whose members, while ruling on Medicare benefits, would not be obliged to report to Congress. Each member is to be paid about $165,000 annually -- without, one emphasizes again, without the pesky necessity of reporting to Congress which would still retain theoretical control although much abbreviated. 

Here's how it'll work: the IPAB gets the authority to make changes in the Medicare program but Congress retains power to overrule the IPAB's decisions if, and only if, it can muster a supermajority vote.  Otherwise, a gaggle of 15 appointees would make decisions on matters that are life and death to the elderly and to the especially vulnerable, e.g., age limits for surgery, or for insulin, or for renal dialysis. 

The far reaching effects of the IPAB were actually realized as early as 2010. In the second presidential debate, Gov. Romney had the temerity to ask President Obama who would be appointed to the IPAB. Obama's answer was "doctors et cetera."

Wrong. Obama's answer,  stated with finality, was wrong, but Romney didn't know it and let the issue slide by. Meanwhile the president got away with debate mayhem. He answered incorrectly and wasn't called on it by his opponent or the moderator.  The fact is that there is nothing in the language of Sections 3403 or 13020 that requires even a single physician to be appointed to the IPAB. The entire panel of 15 is to be political appointees with some modicum of interest in healthcare, e.g., the now ill famed coterie of "healthcare providers," anybody but knowledgeable physicians and scholars.THAT is what Obama would protect by threatening legislation that he considers "tinkering." 

The intent of the IPAB in its role as supporter of the ACA is to assess if cost projections exceed targeted growth rates. If that happens, then the IPAB without reporting to Congress is supposed to find ways to reduce Medicare spending -- in short, what will amount to deprivation of care from especially vulnerable patients with advanced or incurable disease. This category will include the elderly. It will be the modern day equivalent of the ancient Eskimo custom of turning frail and elderly citizens loose on ice floes. The trouble is that one can easily see that there may come a time when building a highway competes financially with elder care or with younger patients who need expensive care or advanced surgery. 

What could the president have told us about Obamacare that might have given us a little warning of potentially dire consequences that might just be around the corner, say, at tax time which is just around the corner?

That will be our Part 2, so tune in tomorrow.

AFFORDABLE CARE ACT LOSES DEBATE

OBAMA and ROMNEY Debate each other but the loser is The Affordable Care Act.

It appears as though President Obama likes the name, Obamacare, for the Affordable Care Act (ACA). It wouldn't hurt if he understood his own legislation better. On other hand, why should he? He and Congress are exempt from it. Romney simply doesn't need it.

Romney said during the debate of 3 October 2012 that Obamacare "puts in place an unelected board that's going to tell people ultimately what kind of treatments they can have." Romney doesn't like that idea. Except he has incorrectly, some would say on purpose, misconstrued the unelected board,  named  the Independent Payment Advisory Board (IPAB). It will consist of political appointees none of whom need be a physician. Its purpose will be to oversee Medicare costs. The IPAB will have the power to shut down certain costs incurred by Medicare if costs soar out of control and Congress fails to intervene. The IPAB will not be enabled to tell individual physicians what tests to order or what treatment should be used. It will not be allowed to ration care on a patient-by-patient basis. It will not be empowered to raise the Medicare eligibility age or shift costs to retireds. What the IPAB will have will be the power to determine which diagnostic and treatment protocols aren't worth  funding anymore and will in that way ration care for the entire Medicare population, the same as when private insurance companies tell hapless patients that they're seeking what they determined in cloaked boardrooms were actually "non-covered benefits," i.e., you pay for it yourself because this or that benefit is not included in your private health care plan. The IPAB method constitutes a form of sophisticated rationing, but it's not on an individual patient-by-patient basis.

Obama said that the IPAB would be composed of "doctors et cetera." Not necessarily. There's no provision in the ACA that requires doctors to be appointed to the IPAB. Obama himself evidently didn't know that when he made his comment, either that or he sought to hoodwink the audience. The 15 or so appointees to the IPAB will be political appointees who will not need to report directly  to Congress. They will not be elected so they won't represent the public or an electorate. Their job will be to make economic judgments when they decide which diagnostic and treatment protocols will be covered by Medicare and which won't be covered. In short, your doctor can prescribe whatever he wants. But your doctor can't make Medicare pay for it. And neither can you.

The IPAB is empowered by Sections 3403 and 10320 of the ACA.  These sections of the ACA should be repealed. We'll have more to say in due course. So should Obama and Romney. The October 3rd debate showed that both candidates have lots more to learn about the ACA. For instance, they can tell us if it's correct that the members of this board are to be paid $165,000 per year at a total public cost of $2,475,000. Repealing these two sections of the ACA will save taxpayers nearly $2.5 million.

CAN CONGRESS CREATE COMMERCE? That's the question that was asked today in the United States Supreme Court with reference to the Affordable Care Act.

While it was acknowledged that Congress can regulate commerce, it was not accepted that Congress can create commerce. The basic question is whether or not the creation of the Individual Mandate creates commerce. It is this concept, requiring persons to purchase a product, that opponents argue is a step too far. Can government require the purchase of specific products on the grounds that they're good for us, e.g., the now famous broccoli argument, or exercise. What would prevent government from requiring the purchase of this or that vegetable if it were deemed good for the general health? Why not require everyone to buy a gym membership and then police the purchasers to be sure they exercise? The argument is that so doing would be an unconstitutional extension of federal authority even if the argument that "it's good for you" is correct.

WHAT IF THE LAW IS STRUCK DOWN? Will we then get return to policies that allow disqualification from health insurance because of pre-existing conditions?

WHAT IF THE LAW IS UPHELD BUT THEN WE TURN OUT TO HAVE A SHORTAGE OF DOCTORS? A shortage of 20,000 primary care doctors is predicted over the next few years. To this question we have an answer, i.e., government will allow non-physicians to practice medicine by setting up alternative credentialing processes that will allow persons with "alternative credentials" to practice (after all, in stiff white laboratory coats don't they all look alike anyway?).

WHAT ABOUT PIECEMEAL DISMANTLING OR ENABLEMENT OF THE ACA? The court could rule in such a way that insurance companies are precluded from denying insurance to persons with pre-existing conditions. The court could throw out the Independent Payment Advisory Board (IPAB) which many of us see as a thinly veiled ruse to deny access to care without invoking formal rationing (see our previous columns wherein the IPAB as a cost-control mechanism is discussed).

SOME PUNDITS THINK THAT BOTH OBAMA AND ROMNEY ARE ON THE ROPES, Obama because the ACA is largely his doing, Romney because he developed a similar plan in Massachusetts. Although Romney is campaigning against the ACA on a federal level, he avers that so doing within individual states is a matter of states rights, not unlike mandatory automobile insurance. On the other hand, Obama has let several of his health-care promises slip away, e.g., "I will ensure that no government bureaucrat gets between you and the care you need."

The IPAB was inserted into the ACA for cost control, in short, to stand "between you and the care you need." But for now, the ringing question is whether or not cramming mandatory health insurance down our throats is a wise extension of government policy or an unconstitutional creation of commerce as opposed to a regulation of commerce. Stay tuned.

Reference

"What Obama should've said about health reform," Robert L. Weinmann, MD, THE HILL NEWSPAPER, Washington, DC, 16 September 2009