Seniors Can Speak Out – Except When It’s Not Convenient

One of the basic tenets of our constitution is the checks and balances that limit the power of each of the branches of our government. I see red flags when legislation or rules or guidance are proposed that seek to bypass these checks and balances or when the implementation of a signed law does not adhere to the law’s provisions.

This happened a little over 13 years ago when the Affordable Care Act (ACA), often called Obamacare, was being debated. The ACA established an Independent Payment Advisory Board – an unelected, administration appointed board, to make healthcare cost and payment decisions without any judicial oversight or control. It was this lack of adherence to the basic checks and balances that caused me to fight against that part of the ACA and advocate for it to be fixed. I’m thankful that this board was never formed and was ultimately eliminated.

I’m beginning to see this lack of adherence to the statutes and protocol in the implementation of the Inflation Reduction Act (IRA) and I’m not the only one who’s concerned. Senator Joe Manchin (D-WV), in an opinion piece in the Wall Street Journal, said that he was concerned President Biden wasn’t implementing the IRA as the bill instructed. In reference to the IRA Senator Manchin said;

“Yet instead of implementing the law as intended, unelected ideologues, bureaucrats and appointees seem determined to violate and subvert the law to advance a partisan agenda that ignores both energy and fiscal security. Specifically, they are ignoring the law’s intent to support and expand fossil energy and are redefining “domestic energy” to increase clean-energy spending to potentially deficit-breaking levels.”

I tend to pay attention when a Democrat calls out his party’s administration for not following legislation that was legally signed into law.

I also see the administration ignoring the accepted protocol for the release of rules and guidance as the IRA is implemented. The agency responsible for the healthcare portions of the IRA is the Centers for Medicare & Medicaid Services (CMS). Either through bill language or by direction of the administration, CMS was instructed to use administrative guidance to implement the negotiation provisions. Using administrative guidance means that they can bypass the notice-and-comment requirement of the Administrative Procedure Act or Medicare statute. This process does not require comment periods for public input which means that some significant areas of the guidance are being issued as final and immediately effective. But, CMS states that it is “voluntarily soliciting comment on certain topics” in the guidance. This seems to be the reverse of the bait-and-switch technique, they switch the rules and then try to bait you into forgetting about it by offering a chance to comment on certain topics in a short amount of time.

This approach was used when CMS released the Medicare Drug Price Negotiation Program: Initial Memorandum a few weeks ago on March 15^th. This 91-page document revealed details and rules that could have a huge impact on the amount of money that will be invested in the future toward discovering medicines that could improve or extend our lives. Yet we are given only 30 days to analyze this complex document and then we can only comment on certain parts of the memorandum. Page two of the memorandum states, “In the revised guidance, CMS may make changes to any policies, including policies on which CMS has not expressly solicited comment, based on the agency’s further consideration of the relevant issues.” CMS is not obligated to seek input from stakeholders, like me and you, and they can make changes to any policy based on their “further consideration of the relevant issues”. This is a perfect example of the government giving seniors a chance to speak out – except when it’s not convenient.

I know that many organizations are working to comment on this possibly life changing document. It is a complicated document and is lacking in detail in some areas and contradictory in others. I will try to keep you abreast of these comments.

There is a way you can be heard, a way you can speak out. You can write your Senators and member of the House of Representatives to tell them that the CMS is misusing its power when it dictates on what policies we can comment on and ignoring the notice-and-comment requirement of the Administrative Procedure Act. You can do this by clicking here which will take you to our Seniors Speak Out – contact your lawmaker web page.

You can also make an appointment to speak face-to-face with your lawmakers. It is a great way to get to know them and for them to get to know you. I can guarantee it will be a rewarding experience.

Also, I invite you to join me for our Facebook Live event on April 18 at 2:30 PM ET. Former Speaker of the U.S. House of Representatives Newt Gingrich will sit down with me to discuss the importance of seniors advocating for healthcare policies that will impact their lives. We plan to use this conversation as a time to review Congress’ recent legislative activity, such as the Inflation Reduction Act, and how this would affect seniors’ access to innovative treatments and medicines. You can find the event details by clicking here. Mark yourself as “going” on the event page if you plan on tuning in to our live event.

I hope you decide to speak out, no matter how inconvenient our government may make it. It’s an important way we can make democracy work.

Best, Thair