The health care Medicare Advisory Board that can not be challenged

Early this morning news broke about Section 3403 of HR 3590 that could not be changed in the future. This afternoon, I’ll take a shot and working through the legislation and detailing what’s going on.

As some background, here is the video that was posted this morning and played on the big show today. Sen. Jim DeMint’s (R-S.C.) comments are most relevant around six minutes into the video.

httpv://www.youtube.com/watch?v=EnmvVo_itT0

Now I’m not an expert, but my guess is similar language has been used in previous legislation. As a matter of fact, Gabriel Malor over at Ace of Spades notes …

… a quick glance at the Library of Congress website and Google shows that language similar to that used here to except these provisions from the Standing Rules has been used dozens of times in the past thirty years in both the Senate and the House, including in the 109th Congress when Republicans controlled both chambers.

Erick Erickson over at RedState wants us to redirect our focus.

Here is where I think the people saying we’re overreacting are totally missing the point.

In the case at hand, an objection was raised and very clearly the rules were being changed. The Senate President, however, ruled that the rules were not being changed, just procedure, despite the clear wording of the change being a rules change.

This is, in fact, done in contravention to Senate procedure.

But here is what everyone saying this is no big deal is missing: to my knowledge and the knowledge of those who I have consulted with on this issue, there has never been any legislation passed by the Congress with a prohibition on future Senates considering changes to previously enacted laws or regulations.

In the video above, DeMint refers to the House bill, H.R. 3590 and Section 3403, specifically paragraphs starting here. For reference, I’ve copied and pasted the paragraphs here, with my emphasis added.

(3) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS

‘(A) IN GENERAL- It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, or amendment, pursuant to this subsection or conference report thereon, that fails to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).

‘(B) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS IN OTHER LEGISLATION- It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report (other than pursuant to this section) that would repeal or otherwise change the recommendations of the Board if that change would fail to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).

‘(C) LIMITATION ON CHANGES TO THIS SUBSECTION- It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.

‘(D) WAIVER- This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.

‘(E) APPEALS- An affirmative vote of three-fifths of the Members of the Senate, duly chosen and sworn, shall be required in the Senate to sustain an appeal of the ruling of the Chair on a point of order raised under this paragraph.

…‘(i) TIME LIMITATION- Debate in the Senate on any amendment to a bill under this section shall be limited to 1 hour, to be equally divided between, and controlled by, the mover and the manager of the bill, and debate on any amendment to an amendment, debatable motion, or appeal shall be limited to 30 minutes, to be equally divided between, and controlled by, the mover and the manager of the bill, except that in the event the manager of the bill is in favor of any such amendment, motion, or appeal, the time in opposition thereto shall be controlled by the minority leader or such leader’s designee. …

So right at the top, they are referring to limitations to changes of the recommendations of the board. Which board are we talking about? It’s the Medicare Advisory Board, which has also been referred to as the infamous “death panel.” This boards charge is to simply reduce the per capita rate of growth in Medicare spending. Members would be “experts” nominated by the president, confirmed by Congress and serve five years.

If they are unable to keep the rate of growth within goal, the board must propose additional recommendations to again try to reduce the rate of growth. The proposals must meet certain requirements.

…the proposal shall include recommendations so that the proposal as a whole (after taking into account recommendations under clause (v)) will result in a net reduction in total Medicare program spending in the implementation year that is at least equal to the applicable savings target established under paragraph (7)(B) for such implementation year.

Further …

(ii) The proposal shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums under section 1818, 1818A, or 1839, increase Medicare beneficiary cost-sharing (including deductibles, coinsurance, and copayments), or otherwise restrict benefits or modify eligibility criteria.

And …

(iv) As appropriate, the proposal shall include recommendations to reduce Medicare payments under parts C and D, such as reductions in direct subsidy payments to Medicare Advantage and prescription drug plans specified under paragraph (1) and (2) of section 1860D-15(a) that are related to administrative expenses (including profits) for basic coverage, denying high bids or removing high bids for prescription drug coverage from the calculation of the national average monthly bid amount under section 1860D-13(a)(4), and reductions in payments to Medicare Advantage plans under clauses (i) and (ii) of section 1853(a)(1)(B) that are related to administrative expenses (including profits) and performance bonuses for Medicare Advantage plans under section 1853(n). Any such recommendation shall not affect the base beneficiary premium percentage specified under 1860D-13(a).

For reference, the rate of growth goal seems to peg the rate of increase to the five year average of the urban consumer price index before 2018, and the nominal gross domestic product after 2017.

We can now return to the limitations of changes listed near the top of this post. What I read this to be is a “take it or leave it” approach to federal legislation. When the recommendations come from the board – or the Health and Human Services secretary if the board fails – Congress is not allowed to tack on amendments or make changes to the recommendations at all.

But I think it would be possible for Congress to refused to fund the changes if they need to be paid for. That could be their only recourse.

Exit questions for those who know the architecture of legislation better than I…

1. If the board is unable to “ration health care, raise revenues or Medicare beneficiary premiums”, how the heck will they be able to reduce costs to stay within the requirement?
2. Is the power of the board limited to reworking Medicare payment schedules or can they do other things like setting priority of care requirements?
3. If they are limited to reducing payment under Medicare Part C, D, and Medicare Advantage, what will the immediate result to the health care provider and prescription drug market be? I’m talking simple economics here … what will happen to the supply of products and services when payments are reduced?
4. If the supply of products and services is reduced as a result of lower payments, is that not de facto rationing of care?
5. Will physicians and other health care providers accept the lower mandated rates? If they do – or are required to – what will happen to the premiums of those who will be forced to chip in more to cover the entitlements?

Others writing include Investor’s Business Daily, Sister Toldjah, Hot Air and Sweetness & Light.