• Is it still unclear to people what the IPAB cannot do?

    Judging from some of the commentary (even by lawmakers) explicitly or implicitly about the IPAB, perhaps it is still unclear what it can and cannot do. Fortunately, the information is not hard to find. It isn’t even necessary to read the law, though that would be one source. Another is the Kaiser Family Foundation’s paper on the IPAB. It says,

    IPAB is prohibited from including any recommendation that would: (1) ration health care; (2) raise revenues or increase Medicare beneficiary premiums or cost sharing; or (3) otherwise restrict benefits or modify eligibility criteria.

    Is it still unclear? The IPAB cannot ration. The IPAB cannot ration. The IPAB cannot ration. Get it?

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    • Hi Austin,

      Yes, but I still don’t get how you can be OK with the IPAB rationing health care.

      • So long as we’re willing to fund the government sufficiently so it can do what it is we expect it to do in the long-term, I don’t have any problem (short-term deficits are not a problem, e.g., during times of emergency, war, or economic downturns).

    • Austin, Since “rationing” is not defined in ACA, I think it would be premature to insist that the IPAB won’t recommend any form of rationing. I would be with you in saying that the IPAB can’t/won’t recommend making it illegal for certain populations to access certain services (even with their own money). That would be a form of rationing, and I doubt anyone thinks IPAB could/should do it. But rationing comes in many forms, right? Consider the USPSTF’s recommendation against mammography for women 40-50. As I understand it, the Task Force did *not* make this recommendation on the premise that such screening “doesn’t work.” Indeed, it concedes that net lives would be saved. The recommendation was, rather, based on “the adverse consequences for most women—who will not develop breast cancer—and therefore [USPSTF] use[s] the number needed to screen to save 1 life as its metric” [1].

      Is this rationing? I don’t know, since that term is so slippery. One thing it is *not* is a recommendation based on “pure comparative effectiveness” research. It goes beyond that, and thus begins to walk toward the category of recommending against beneficial treatments because of the opportunity costs for 3rd parties (another sense of rationing).

      If (contrary to fact) all the clinical facts were the same for women 65-75, then for all we know the ACA definition of “rationing” won’t apply to an IPAB recommendation to cease paying for mammograms for women of that age. But even if that’s not rationing in the statutory sense, it would still be “otherwise restricting benefits,” which (as you point out) IPAB is also not allowed to recommend.

      It is my hope that the regs will define “rationing” in a way that allows IPAB to recommend against *expanding* coverage to include certain beneficial services. This is clearly rationing (do you disagree?). But can we really achieve adequate cost-containment while paying for any and all proven beneficial service? If the regs do end up allowing this form of rationing, this form would also pass the other test, since a refusal to expand coverage is not the same as restricting (current) benefits. So much seems to hang on how the regs define “rationing.”

      [1] http://www.uspreventiveservicestaskforce.org/uspstf09/breastcancer/brcanrs.htm

      • Rationing would be for the courts to decide. Until then, the language of the bill is as clear as it can be. Whatever rationing is, the IPAB cannot do it. Quoting the law (Pub. L. 111-148, § 3403),

        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 costsharing (including deductibles, coinsurance, and copayments), or otherwise restrict benefits or modify eligibility criteria. [Bold mine.]

    • I’ve read and tried to understand — unsuccessfully, I’m afraid — the IPAB-relevant sections of Public Law 111-148, the Patient Protection and Affordable Care Act. The paragraph Austin cited makes it clear what IPAB cannot do. What’s not at all clear to me is what, exactly, IPAB can do.

      It appears IPAB can limit the size of Medicare payments to doctors and, beginning in 2020, to hospitals. But if this leads doctors and hospitals to turn away Medicare patients, doesn’t that have the same practical effect as rationing? Or, if Medicare patients have to make up the difference out-of-pocket isn’t that like cost sharing?

      Can IPAB specify treatments for which Medicare will not pay? I think not but I’m uncertain. If so, however, that seems precisely to be rationing.

      It seems that almost any thing IPAB can do may be construed as rationing, increasing Medicare beneficiary costs, or otherwise restricting benefits.

      Can anyone provide a concrete, illustrative list of what IPAB may do to control Medicare costs?

    • Austin, I detect a tension in your position here. On the one hand, you insist that it’s absolutely clear that the IPAB can’t recommend rationing. On the other hand, you seem to concede that it’s an open question what “rationing” means in the context of the ACA’s section on IPAB. To say that “whatever rationing is, the IPAB cannot do it” is all well and good. But it carries no information whatsoever. And yet you seem to want people to stop wondering out loud whether the IPAB can do this thing (which some people call rationing) or that thing (which others call rationing). But until we know what “rationing” is in this context, I don’t see how rhetorically asking “Is it still unclear?….Get it?” is of any help whatsoever.

      • If saying that the IPAB cannot ration (which is in the law) is devoid of meaning because we don’t know what “ration” means then saying that the IPAB can and will ration (which is illegal) is even more suspect. Yet we have members of Congress saying just that. All I ask is that they choose language that isn’t in obvious conflict with what the law says. What is it, precisely, that they think the law will do and how is that consistent with what the law says? Just using the term “rationing” doesn’t cut it, not for you and not for me either.

        • Put this another way. People were concerned about “rationing.” In response, those who crafted the law forbid the IPAB from doing just that. Now it is being attacked for rationing. Huh?

        • Perhaps it’d help to know what you think about the hypothetical situation in which some new form of screening would save lives (and cause no harm), but would cost $10 millon per QALY (or pick your own number that makes it too expensive).

          There are two questions here. (1) Is it wrong for the federal government to refuse to pay for the new screening as part of Medicare? (2) Would it be illegal under ACA for the IPAB to recommend against adding the screening to the baseline Medicare benefits package?

          I assume we agree that it is not necessarily morally wrong for the federal government to judge that the benefits of this kind of screening do not justify its cost. But now what about question (2)? Many believe that this is precisely the kind of question we need a body *like* IPAB to decide. But if it is rationing to recommend against expanding Medicare benefits to include the screening, then IPAB perforce cannot recommend it.

          I believe this would constitute rationing, but I’m also hoping that the the IPAB can do it. This is why I’m hoping that “rationing” (in the statutory sense) will be defined in a specific way. How about you? Do you believe it’s rationing? And do you believe this means the IPAB would proscribed from recommending against including this (hypothetical) screening service Medicare?

          • It should be clear from my history of posts that I am not opposed to Medicare making precisely the decisions you outline. Call it rationing or whatever. I think it is more than reasonable to set limits on taxpayer spending on a cost/QALY basis.

            Separate from that, there is the law, the wording in the law, and what others say about the law. I think when the law says “no rationing” a member of Congress should not say “it says rationing.”

            You’ll find that I like to stick to the facts, even when I don’t like where they may lead. I’m a scientist, not a politician.

            • Austin, what you say I’ll find from you on this blog is indeed what I always do find. There is no question about that. My only point has been that it matters immensely what statutory interpretation “rationing” is given. Since ACA does not define “rationing,” and since it’s such a slippery term, there is always the possibility that one or other form of rationing will be permitted by whatever statutory definition emerges (whether that be from the regs or via the courts).

              A totally separate question is whether IPAB can carry out its central mission without rationing:

              In developing and submitting each proposal under this section in a proposal year, the Board shall, to the extent feasible…include recommendations that target reductions in Medicare program spending to sources of excess cost growth.”

              I grant you that the prohibition on “rationing” may make targeting certain sources of excess cost growth not feasible.

            • I agree. I did post a follow up to this. In it, I tried to express that my more refined point here is that the law says “no rationing” while a member of Congress has said, in language that suggests 100% certainty, that there will “deep rationing” (or similar) that will be massively disruptive to beneficiaries. Sounds like he knows exactly what rationing is and what the law will do. I don’t know how he can possibly know that based on what the law says.

              But, again, yes, I agree with you.