Death Panels, the Coverage, and the Board Congress Quietly Repealed

Here is how you run a perfect news cycle. Somebody says something that is not quite right. The cameras rush to explain, at length and with visible delight, exactly how it is not quite right. The explanation takes up the whole week. And by Friday nobody remembers that there was an actual thing, sitting in the actual bill, that nobody got around to explaining at all.

That, folks, is the story of 2009's "death panels" and of the board that nobody covered. Let me be fair to everybody, because this is a story where both sides have something to answer for. I will tell it in order, say what the phrase got wrong and what the coverage left out, and then walk through the real board, which was created by the Affordable Care Act, never had a single member seated and was repealed by Congress in 2018. It is a story about what happens when a legislature decides that the hardest vote in Washington, the vote to cut a popular program, is a vote it would rather not cast.

The summer of 2009

In the summer of 2009 the House and Senate were writing what became the Affordable Care Act, and the town halls were loud. On August 7, 2009, Sarah Palin, the former governor of Alaska, wrote on her Facebook page that she would not want her parents or her baby with Down syndrome to stand in front of a "death panel" of bureaucrats who would decide whether they were worthy of health care. The phrase spread within days.

I will be straight with you about what the phrase was aimed at, because it matters for fairness. The House bill at the time, H.R. 3200, included a provision, in section 1233, that would have allowed Medicare to pay doctors for voluntary consultations about advance care planning, the conversations about living wills and what a patient wants if he becomes too ill to say. The fact-checkers who examined the claim, including PolitiFact, which named it its "Lie of the Year" for 2009, concluded that the provision did not create panels that decide who lives or dies, and that the consultation was voluntary. The provision was dropped from the Senate bill that became law. On the narrow claim, that the bill created government committees to decide whether grandma lives, the verdict of the fact-checkers was that it was false, and I'd say they had the text on their side.

So I will not defend the phrase. But I would like to ask a different question. If you are a reporter, and you have just spent a week showing that the phrase is wrong, what do you do next? Do you go and read the rest of the bill to see what else it does with Medicare's money? That is where the real story was, and it is a story the coverage did not give anything like the same attention.

What the coverage chose

Think about the incentives of a news cycle. The phrase was vivid, short, easy to repeat and easy to debunk. The board in the bill was dull, bureaucratic and hard to explain in a sentence. One makes a segment. The other makes a headache. So the segments ran. The coverage became a story about a controversy over a phrase, and the question that mattered, who in this law gets the power to decide what Medicare pays, drifted off the screen.

I want to be careful not to overstate. There were reporters who did cover the board, and the trade press, the health policy journals and the hospital and physician groups covered it extensively. My claim is narrower. In the general coverage that most Americans saw, I'd argue that the phrase got more attention than the institution. And when a debate is framed around who said something unfair, the structure of the law goes unexamined. That is a framing choice, and framing is fair game.

The real board: the Independent Payment Advisory Board

Now to the actual machinery. Section 3403 of the Affordable Care Act created the Independent Payment Advisory Board, usually called IPAB, by adding a new section, 1899A, to the Social Security Act. Here is what it did, from the text of the law.

The board would have fifteen members, appointed by the president and confirmed by the Senate. Its job was to keep the growth of Medicare spending under a target set by the statute. Each year, officials would project whether Medicare spending per person was going to grow faster than the target. If it was, the board was required to propose a package of cuts to bring it back, and the proposal went to the president and then to Congress.

And here is the part that matters. The board's recommendations did not simply sit on a shelf waiting for a vote. Under the law, they would take effect automatically unless Congress passed an alternative that saved the same amount. In the language lawmakers use, the default was action, and the burden fell on Congress to stop it. The board was, in effect, set up to make a decision that would become law if the legislature did nothing.

The law also placed limits on what the board could recommend. It was barred from proposals that would ration care, raise taxes or raise premiums, increase cost sharing, restrict benefits or change eligibility. That left one main lever: what Medicare pays to providers. Because of the way the law was written, the board's main task was to cut payments to doctors and other providers. Supporters said that was a way to hold down costs without hurting patients. Critics said that when you squeeze payments hard enough, access eventually suffers.

I want to stress the other thing the law did. It set up unusually strict rules for undoing the board. The statute made it hard to undo: a repeal had to follow a narrow fast-track procedure in 2017, and changing the board's targets in ordinary legislation faced a three-fifths threshold in the Senate. One Congress tried to bind later ones to a hard route for undoing its work. Whatever you think of the policy, the design says something. The people who built the board wanted it to survive their own successors.

The case for the board, fairly stated

I promised to state the other side, and the defenders of the board had a case.

Congress, they said, had a long record of failing to control Medicare costs. For years it had used a formula for physician payments, the sustainable growth rate, that called for deep scheduled cuts, and then every year it voted to postpone those cuts, because nobody wanted to be the member who cut doctors' pay. The formula was a fiction that Congress kept alive and then overrode. The system was a recipe for deferred decisions and rising debt. An expert board, insulated from lobbying and election-year pressure, could do what politicians would not: make hard choices on the basis of evidence. Experts would draft the cuts. Congress would keep the right to substitute something better. And the board was prohibited from making the kinds of cuts that harm patients directly.

That is a good argument, and I'd say it comes from an honest frustration. Medicare's finances are a serious problem, and the program's trustees have said so for years. Medicare's Two Trust Funds and the 45 Percent Warning Congress Keeps Ignoring lays out that warning. Anyone who has watched Congress postpone a hard vote is entitled to wish for a mechanism that would force the issue.

The answer: four problems with the design

1. It was a way of not voting. That is the core of it. The reason to create a board with automatic power was that members of Congress did not want to vote for the cuts. The Constitution's design places the taxing and spending power in the elected legislature precisely so that voters know whom to blame. A body that makes the cuts, and lets members point at it, is a machine for diffusing responsibility. A member who says "I did not cut Medicare; the board did" has taken a vote and avoided its consequence. Article I, Section 1 vests "All legislative Powers herein granted" in Congress. The idea of a board that writes cuts, with Congress needing a supermajority-style effort to stop them, strained that principle.

1. It stretched the limits on delegation. The courts have allowed Congress to delegate rule-making to agencies, so long as Congress supplies what the Supreme Court has called an "intelligible principle," a standard dating to J.W. Hampton, Jr. & Co. v. United States in 1928 and repeated in Whitman v. American Trucking Associations in 2001. The board came with a principle, a spending target. But the combination of a binding default, a hard path to override, and a thin set of constraints made it an unusually strong case of lawmaking by appointees. I will not tell you how a court would have ruled, because the board never operated and the question was never tested. I will tell you that the structure invited the question.

1. It chose one target. The statute limited the board to the area where the cut was least visible to voters, payments to providers, and forbade it from touching benefits or cost sharing. Notice what a mandate like that does. It does not remove the tradeoff. It hides it. If payments are pushed below the cost of care, the pressure shows up somewhere else: in doctors who stop accepting patients, in hospitals that cut services, in longer waits. The cost of a hidden cut still lands on someone. It just lands out of sight.

1. It put a faceless body between the people and the choice. Medicare belongs to the people who pay into it and rely on it. Decisions about it should be made by representatives those people can remove. For a program of that size, accountability is not a technicality. It is the whole point.

The strange career of a board that never met

Now for the part that makes this a good story. IPAB was supposed to be a powerful new institution. It turned out to be a ghost.

The board's job was triggered only if projected spending growth exceeded the target. In the years the board was supposed to be active, the growth in Medicare spending stayed below the line, and the official determinations did not trigger it. And the second piece is stranger still: no member was ever appointed. The law called for fifteen members chosen by the president and confirmed by the Senate, and, according to the Congressional Research Service, none had even been nominated. The board never had a membership, never held a meeting and never issued a recommendation. It existed in the statute books and nowhere else.

There is a lesson in that for people on every side. An institution designed to override politics ran into politics at the first step, and its members were never even named. The public debate went on around an empty set of chairs.

The opposition, bipartisan

What interests me is who opposed it. It is easy to imagine the objections came only from Republicans, who had opposed the whole law. They did not. Physician groups, hospital groups and organizations representing seniors and patients all lined up against the board, and members of both parties took up repeal, including Democratic Senator Ron Wyden, who sponsored repeal measures. The House passed a repeal bill in June 2015 by 244 to 154, and another in November 2017 by 307 to 111. Few people who study Congress doubt that bipartisan opposition to a program is the surest sign it is in trouble, because a program with no friends can be repealed when a vehicle comes along.

The vehicle came in February 2018. The Bipartisan Budget Act of 2018, signed on February 9, 2018, a big spending and budget agreement that also kept the government open, included a provision that repealed IPAB. It was tucked into a must-pass bill, and it passed without the kind of public drama that surrounded the original phrase. A board that had never met was removed from the law without much ceremony.

I think that quiet repeal is telling. I'd argue that the general press gave the institution far less attention, when it was created and when it was abolished, than it gave the phrase. The board was born in a footnote and died in one.

What it means

Let me draw out the point so that you can use it.

• When a phrase gets all the attention, look for the thing it is not describing. A debunked slogan can be an excellent camouflage for a real provision.
• Look for the default. The most important question to ask of any new law is what happens if Congress does nothing. In IPAB's case the answer was that the board's cuts took effect.
• Watch who is spared a vote. If a mechanism exists so that members of Congress do not have to vote for something, ask why the voters should accept that.
• Do not confuse the repeal of a bad idea with the end of the problem. Medicare's financing gap is real. The board was a bad answer, and the right answer requires members of Congress to vote, in the open, on how to pay for the program.

For the history of how the program was sold in the first place, What the Medicare Debate of 1965 Promised and What the Program Became is the place to start, and The Affordable Care Act From the 2009 Town Halls to a Zero-Dollar Penalty takes the ACA story from 2009 onward. Medicare Advantage Proves Seniors Will Choose Private Plans When Allowed shows what seniors choose when they can.

The Founding anchor

Madison wrote in Federalist 51 that the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The point is that responsibility must be placed where it can be traced. A board that writes the cuts and a Congress that avoids them is a design in which nobody can be traced. That is a flaw whether the board is wise or not.

And Federalist 62 warns against the evils of laws so voluminous and changeable that a people cannot know them. A Medicare policy made by a rolling board's recommendations is not a recipe for a people who can read, understand and judge their own laws. Federalist 62 Warned That Mutable Laws Betray a Free People covers that warning in full.

The case in brief

1. The 2009 phrase "death panels" aimed at a voluntary end-of-life consultation provision, and the fact-checkers were right that it did not create panels deciding who lives.
2. The real institution, the Independent Payment Advisory Board in Section 3403 of the ACA, had power to write Medicare cuts that took effect unless Congress passed an equal-savings alternative.
3. Its design let Congress avoid a hard vote, strained the delegation principle and hid its tradeoffs in provider payments.
4. It never seated a member, drew bipartisan opposition and was repealed in the Bipartisan Budget Act of 2018, signed February 9, 2018.
5. The lesson is to follow the default: ask what happens if Congress does nothing, and insist that the cuts, if any, be voted in public.

What you can do: read the Medicare trustees' latest annual report summary on the Social Security Administration's website, then ask your representative in writing how they would close the program's gap in a recorded vote.