Health Care Legislation, Part 13:
Would the Senate bill prevent a future Congress from repealing the law?

6 Jan 2010 in Regulatory Policy, Legislation

It has been reported widely that the version of health care legislation passed by the Senate (HR 3590, as amended) includes provisions that would prevent a future Congress from changing or repealing it.

A careful review of the bill shows that these reports are incorrect.

This language is alleged to be part of new Section 3403, which would create the Independent Medicare Advisory Board.The claim that this text restricts future Congresses appears to have originated on December 21st in a post by activist Erick Erickson at RedState.Com, who vigorously opposes the bill. Erickson cites Sen. Jim DeMint (R-SC) as having raised an objection on the Senate floor concerning how the bill exempts certain actions of the Board from the rules of the Senate.

Erickson's report was picked up the next day by former AK Governor Sarah Palin, who extended Erickson's analysis saying that "the section of the bill dealing with this board can’t be repealed or amended without a 2/3 supermajority vote." Other bill opponents have amplified Erickson's or Palin's claims, or both, some adding new claims that the provision is unconstitutional.

The mechanism by which opponents claim that Section 3403 would bind future Congresses is succinctly set forth in a Washington Examiner editorial:

Section 3403 reads in part: "... 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."

In other words, if President Obama signs this measure into law, Reid intends that no future Senate or House will be able to change a single word of Section 3403, regardless whether future Americans or their representatives in Congress wish otherwise.

WHAT DOES THE TEXT ACTUALLY SAY?

Section 3403 consists of the following major parts:

1. Provisions creating the Board, including such matters as who would be eligible to serve on it, how members would be selected and under what conditions they could be removed, what procedures the Board would follow in conducting its affairs, and how it would be funded.
2. The substantive tasks assigned to the Board, which consist of making recommendations concerning how to "reduce the per capita rate of growth in Medicare spending." The Board is prohibited from recommending any action to "ration health care, raise revenues or Medicare beneficiary premiums ..., increase Medicare beneficiary cost-sharing (including deductibles, coinsurance, and copayments), or otherwise restrict benefits or modify eligibility criteria."
3. Procedures for the Congress to act on these recommendations.

The text that elicited controversy concerns only the third part. It requires each House of Congress to act on the Board's recommendations. It limits the ways Congress can alter the Board's recommendations, prohibits certain amendments including those that are not germane, sets forth expedited procedures each House must use, limits debate, and generally takes away much of Congress' otherwise unbounded ways to avoid decision-making.

Section 3403 even includes a practical deadline for Congress to act. If it fails to do so, the Secretary of the Department of Health and Human Services is directed to implement the Board's recommendations. Finally, the text prohibits judicial review of the Secretary's actions.

These provisions are characteristic of policy decisions Members believe that they need to make, but which Congress is politically incapable of making them under its existing rules and procedures. Reducing per capital outlays on Medicare is clearly one such policy. For decades, Congress has either voted to increase Medicare benefits or allowed them to increase without control. Previous efforts, such as the Sustainable Growth Rate formula for reducing payments to providers, have failed. Every year since the SGR was enacted, Congress has waived promised cuts in provider reimbursements. (This year, the Senate leadership tried to eliminate the SGR in a way that would have avoid counting its $246.9 billion in estimated outlays out of the health care bill. The Senate rejected S 1776 47-53 vote. See item #4 in this post.)

DOES SECTION 3403 PREVENT CONGRESS FROM ABOLISHING THE BOARD?

Erickson and others say Section 3403 ties Congress's hands with respect to the Board, making the Independent Medicare Advisory Board permanent irrespective of the wishes of a future Congress. They misread the text.

The language to which opponents refer, and which the Washington Examiner explicitly cited, changes the rules of each House to limit Congress' ability to change the recommendations of the Board.

(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.

Congress can overturn this rule with a 3/5ths majority vote, in which case nothing would stand in the way of Congress changing the recommendations of the Board and voting on the changed version.

Section 3403 also includes language saying that the Secretary of Health and Human Services must not implement the recommendations of the Board if Congress acts to discontinue it using certain specified procedures. Nothing in the text says, nor could it constitutionally say, that Congress cannot enact new law terminating the Board, or for that matter, repealing any or all of the bill. The text does not restrict Congress's ability to terminate the Board; it creates a mechanism whereby Congress could terminate the Board more easily.

ARE THERE PRECEDENTS FOR CONGRESS TO TAKE ACTIONS SUCH AS THIS?

In his original post, Erickson acknowledged that many of his readers thought he was "making a mountain out of a mole hill." He disagrees, saying that his critics, though like-minded, "miss the point."

[H]ere 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 fact, Congress has previously enacted laws that require it to take actions on politically unpleasant recommendations from independent commissions. The most notable example is the Defense Base Closure and Realignment Act of 1990, which created the Defense Base Closure and Realignment Commission (BRAC). The BRAC process is explained succinctly here. It follows procedures similar to Section 3403 except that, unlike Section 3403, the Defense Base Closure and Realignment Act does not allow Congress to amend the Commission's recommendations. Section 2908 of the law only provides an expedited process whereby Congress may disapprove the Commission's recommendations. Indeed, much of the language in Section 3403 is so similar to BRAC that BRAC almost certainly provided the model text.

The BRAC process has gone through multiple rounds; it has been painful to many communities that have had to endure facility closures; and it has achieved the purposes Congress established for it: "provide a fair process that will result in the timely closure and realignment of military installations inside the United States."

WHAT IS THE SUBSTANTIVE IMPORTANCE OF SECTION 3403?

The Board's statutory charge would be to make recommendations concerning how to "reduce the per capita rate of growth in Medicare spending." However, Section 3403 imposes severe constraints on the range of alternatives the Board can consider. It cannot recommend anything that would:

• Directly ration health care
• Raise taxes
• Increase Medicare beneficiary insurance premiums
• Increase Medicare beneficiary cost-sharing through higher deductibles, higher coinsurance rates, or larger copayments
• Otherwise restrict Medicare benefits or modify program eligibility criteria

What's left? Reducing payments to physicians, other health care providers, and hospitals. In short, the purpose of the Board is to recommend new Sustainable Growth Rate formula reductions -- the same thing Congress enacted years ago but suspended each year.

Will it work? Maybe, but it's not a sure thing. Sustainable Growth Rate reductions are automatic under existing law, but every year Congress prevented them from going into effect. What's different is that Members of Congress can defend these cuts by appealing to the external authority and expertise of the Board. They would no longer appear to be arbitrary.

If Section 3403 were to succeed in reducing payments to providers, the numbers of providers willing to serve Medicare beneficiaries would fall, possibly by a lot. It's falling now, under current law--most poignantly, in the Mayo Clinic's decision to decline patients relying on Medicare at its Glendale Arizona facility, effective January 1, 2010 (Blooomberg, ABC15, Wall Street Journal).

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Would the Senate bill prevent a future Congress from repealing the law?

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