Another of Obamacare’s Unloved Provisions Is Gone

When congressional Republicans were hoping to repeal the entire Affordable Care Act, they often railed against its least popular features as a sign of the structure’s overall dysfunction.

Now that several big legislative repeal efforts have failed, they’ve instead started picking off those pieces, one at a time. The law’s individual mandate, the rule that anyone who can afford insurance must obtain it or pay a penalty, was effectively repealed in last year’s tax bill. A few weeks ago, Congress suspended or postponed enactment of several unloved taxes raised by the bill, including one on expensive employer health plans.

This week, Congress did away with another unpopular provision: the law’s Independent Payment Advisory Board. The IPAB, which has been unfairly labeled a rationing board or “death panel,” was designed to help tame runaway Medicare costs, should they ever arise. (The legislation explicitly precluded rationing, and the board would have had no authority about any individual’s health care choices. But after Democrats removed the health law’s end-of-life planning provision originally tagged the “death panel,” Republicans affixed the label to this one instead.)

The 15-member board has always been more theoretical than actual. Medicare spending has grown at record-low rates in the years since the bill passed, meaning that its use has never been triggered. (The trend of low Medicare spending growth is so profound, and so mysterious, that we put it on a mug.) And the Obama administration, eager to avoid a political fight over the board, didn’t nominate a single person to sit on it. Neither has the Trump administration.

The idea behind the IPAB was that Congress often has little appetite for cost control. So, the thinking went, if Medicare spending took off, the board would develop a plan to get that spending back under control. If Congress hated the idea, it could pass an alternative that saved the same amount by a deadline — or ignore the cuts altogether if it could muster a supermajority vote to do so. But if it did nothing, the board’s will would become law.

As other features of this week’s bill reveal, cost control can be politically difficult. While Congress has no shortage of organizations providing advice about where to save money in Medicare — including the Government Accountability Office and the Medicare Payment Advisory Commission — Medicare spending has historically outpaced the growth of the overall economy.

Like Odysseus lashing himself to the mast before encountering the seductive Sirens, the 2010 Congress was, in effect, protecting itself in advance from its tendency to avoid painful choices that might upset health care lobbies or Medicare beneficiaries.

But the idea was never particularly popular, even in the Congress that voted for it. The IPAB would have taken away Congress’ power to make the cost-saving choices it wanted — or its choice to avoid them.

As part of the Affordable Care Act, lawmakers could swallow it. And as part of a repeal package, it was a rallying cry. But on its own, it fell quietly.

“You take the sour with the sweet in a big bill,” said Rodney Whitlock, a vice president at ML Strategies, who remembers the development of the IPAB when he was a Republican health staffer for the Senate Finance Committee. “But then when somebody comes back and says, ‘Did you enjoy this part of it?’ you’re forced to say, ‘Not so much,’ and take it out.”

The loss of IPAB won’t gut Obamacare in any major way, though it may stymie its cost containment agenda. But it’s another sign that, now that big repeal-and-replace ambitions are on the shelf, the law will face instead a series of minor cuts.