Category: IPAB

Yet 3 years after the ACA’s enactment, the IPAB still has no members. Secretary of Health and Human Services Kathleen Sebelius described “active discussions” about IPAB nominees in February 2012 and said last month that the administration was “consulting” Congress regarding “potential members.” But President Obama has not yet nominated anyone for the IPAB, and Republican congressional leaders have refused to provide any recommendations for appointees. Even if Democrats settle on nominees, the controversy surrounding the IPAB will make their Senate confirmations, which are subject to filibuster, extraordinarily difficult. Presidents historically have made appointments when the Senate is in recess, and President Obama conceivably could fill some IPAB slots in this manner. But recess appointments are temporary, lasting only until the end of the next congressional session. Moreover, in January 2013, the U.S. Court of Appeals for the District of Columbia issued a ruling severely restricting the President’s constitutional authority to make such appointments. The Obama administration is appealing that decision to the Supreme Court; meanwhile, in May, another federal appeals court echoed the D.C. Circuit’s narrow interpretation of recess-appointment power. Even if the legal obstacles are circumvented, relying on recess appointments could undermine the IPAB’s theoretically nonpartisan character. However, if no members are appointed, the power to recommend changes to Medicare when spending targets are exceeded does not disappear: it reverts to the secretary of health and human services.

Since Medicare spending is currently not projected to exceed the ACA’s targets, there is no need for the administration to appoint members now. Yet the difficulties in launching the IPAB point to a more fundamental problem. The board’s appeal lies largely in its aspiration to remove politics from Medicare — to create a policymaking process that is informed by experts and insulated from electoral pressures, interest-group demands, financial considerations, and partisan divisions. But given Congress’s extreme partisan and ideological polarization, the ongoing fight over the ACA, the legacy of mythic “death panels,” and recriminations over Medicare reform, the IPAB’s rough start should not be surprising. This is not the sort of political environment in which an independent board charged with making controversial decisions about one of America’s most popular social programs is likely to thrive. These dynamics are unlikely to recede soon, which means that the IPAB is stuck in purgatory, neither operational nor canceled — an institution designed to be above politics that cannot escape the political binds holding it back.

The longer-term picture is, as always, cloudier. Perhaps President Obama will pursue recess appointments. A new president and Congress could, in 2017 and beyond, unshackle the IPAB in response to deficit pressures and the search for Medicare savings. And if Medicare spending growth accelerates, the IPAB’s role could expand. Yet a new president could also refuse to appoint any members or enforce the spending targets, and Congress could repeal the IPAB in 2017. The IPAB’s demise would, in that scenario, deal a symbolic blow to health care reform and cost containment. But the impact on Medicare expenditures and national health spending would be negligible. For all the hype, the Congressional Budget Office currently forecasts no savings from the IPAB over the next decade.

Regardless of the IPAB’s future, one thing is clear: rather than removing politics from Medicare, the board’s difficult early journey has underscored just how entrenched politics are in health care policy.

Failure to Launch? The Independent Payment Advisory Board’s Uncertain Prospects — NEJM

The Independent Payment Advisory Board — Congress’s “Good Deed” | Health Policy and Reform:

“Among the most important attributes of legislative statesmanship is self-abnegation — the willingness of legislators to abstain from meddling in matters they are poorly equipped to manage. The law creating the Federal Reserve embodied that virtue. Congress recognized the abiding temptation to use monetary policy for political ends and realized that it would, at times, prove irresistible. To save themselves from themselves, wise legislators created an organization whose funding and operations were largely beyond the reach of normal legislative controls. Short of repealing the law, Congress denied itself the power to do more than kibbitz about monetary policy.

“In establishing the Independent Payment Advisory Board (IPAB) in section 3403 of the Affordable Care Act (ACA), Congress may once again have shown such statesmanship. For several reasons, however, it is too early to be sure. The board must surmount major challenges — first to survive and then to function effectively. Harold Pollack has neatly summarized the problem, the solution, and the problem with that solution: “Every Democratic and Republican policy expert knows that we must reduce congressional micromanagement of Medicare policy. Unfortunately, every Democratic and Republican legislator knows that mechanisms such as IPAB that might do so would thereby constrain their own individual prerogatives.”1

“Medicare’s founding legislation stated that “Nothing in this title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine.”2 Duly warned, Medicare administrators have largely forborne from using coverage policy or financial incentives to discourage ineffective or needlessly costly methods of care. Members of the legislative branch have not, however, displayed similar restraint. They have pressured those same administrators on coverage policies and passed laws to impose them.

“In the view of many observers, both executive inactivity and legislative intrusiveness have been unfortunate — the former because the leverage that the country’s largest single buyer of health care could wield to effect reforms has gone largely unused, the latter because few members of Congress are well enough informed to make such decisions wisely, and some are in thrall to campaign contributors and producers and suppliers of medical services.”

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