Obamacare Agency Escapes Congressional Oversight

New Medicare payment models have real world consequences

Posted September 7, 2016 at 11:27am

Our constitutional system was carefully designed to prevent any one branch from seizing too much control over the entire government. Only Congress can write legislation; only the President can execute the laws; only the courts can judge whether the laws are constitutional.

This balance of powers, however, does not maintain itself. It is a dynamic equilibrium requiring each branch of government to protect and fully exercise its rightful authorities. When one branch encroaches on another, that balance is endangered — and so are the freedoms the separation of powers were intended to protect.

Regrettably, that is happening right now in a little-known agency with the seemingly benign responsibility of finding ways to control the government’s health care spending. In the process, this entity has effectively assumed the authority to rewrite current law, unilaterally, for the Medicare and Medicaid programs.

The Center for Medicare and Medicaid Innovation (CMMI) is tasked with developing and testing new delivery and payment models for health care providers under Medicare, Medicaid and the Children’s Health Insurance Program. Under the 2010 health care law, Congress authorized CMMI to test models that have the potential to lower costs or improve outcomes. A test phase, or an experiment, is necessary to determine the impact on both costs and outcomes. As such, patients and providers must consent to be willing participants, the common and accepted practice for clinical research involving human beings.

With CMMI, however, the secretary of Health and Human Services has implemented mandatory “demonstrations” that prevent program beneficiaries or providers from opting out of the experiment. In one case, the secretary has proposed a mandatory model that would include fully three-quarters of the country at the outset. This begs the question of whether this can truly be considered a “demonstration,” or whether it is in effect a change in law and an encroachment on Congress’s constitutional authority.

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These mandatory models also cause medical providers to change their practices in ways that directly affect patient care. One proposal, for instance, assumes current payment formulas encourage doctors to prescribe higher-cost drugs for their patients. This alters what is covered in ways that will limit seniors and disabled individuals access to newer, innovative drugs. This is especially problematic for patient populations suffering from complex medical conditions including cancer, rheumatoid arthritis, and those with few treatment regimens available. Moreover, when the government imposes these changes in Medicare or Medicaid, the pattern tends to spread throughout all medical care, affecting all patients, regardless of their level of insurance coverage or none at all.

The broad powers vested in CMMI, and the agency’s interpretation of that authority, have the potential to further degrade Congress’s lawmaking authority by shifting decision-making away from elected officials into the hands of unelected bureaucrats. In addition, CMMI has an automatic appropriation of $10 billion once every 10 years, forever. Consequently, this little agency can spend that money however it chooses — escaping the oversight authority Congress should have through its power of the purse.

Making matters worse is that Congress’s own budgetary scorekeeper, the Congressional Budget Office, has effectively ratified CMMI’s authority. The CBO tells us that any altering of CMMI’s demonstration activities would result in a substantial loss in savings. This conclusion is reached by assuming that CMMI’s ability to produce savings supersede those of Congress. If there is overlap between legislative initiatives and CMMI’s authority, CBO treats legislative proposals as secondary; the agency’s savings assumptions favor CMMI. This makes it virtually impossible for Congress to change policy in this area and have it be seen as ‘right’ from a budgetary standpoint.

Congress established CBO in 1974 precisely to ensure the legislature had its own professional budget analysis operation, independent of the Executive Branch. In this case, CBO’s reasoning — that the executive is more effective at legislating than the Congress — turns that principle on its head. It also jeopardizes the constitutional system itself.

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It is important to understand that this is not a petty squabble among political factions in Washington. It is not a matter of technical interpretations of Medicare reimbursement schemes. It is a bipartisan concern that goes to the heart of our constitutional system. The “new payment models” CMMI is devising and imposing on doctors and their patients are not mere computer simulations or science projects in a lab somewhere. They affect real people and their access to care. We are talking about whether or not seniors on Medicare are able to receive the medications or treatment options that their physicians believe are in the best interest of the patient.

Those are the real stakes of this situation — both medical and constitutional — and they should be of concern to every American.

Price, a Georgia Republican, is chairman of the House Budget Committee.