In the midst of the controversy surrounding President Obama’s Supreme Court nomination, it’s important to remember another group of presidential appointments that require Senate confirmation, the Affordable Care Act’s 15-member Independent Payment Advisory Board. IPAB, which remains unstaffed since its creation in 2010, is dormant but not extinct. The Board is charged with controlling Medicare costs, and its so-called "recommendations" to advance that goal automatically become law and cannot be reviewed by the courts or rejected by Congress, although Congress could present a competing cost-savings plan.
John R. Graham, Senior Fellow at The Independent Institute, writes that “IPAB is a sleeping dragon” and “Congress should kill it before it wakes up.”
Earlier this month, James C. Capretta, Visiting Fellow at the American Enterprise Institute, warned that IPAB, “the perfect embodiment of belief in technocratic expertise . . . would have great power and little accountability.”
Supporters of IPAB insist that it is no danger because the ACA explicitly prohibits the Board from rationing healthcare. The law does, indeed, say that — but it never defines "rationing care." Would it qualify as rationing if IPAB set the price of a lifesaving surgery so low that no doctor would perform it? Or taxed a drug or device so much that no patient could pay for it? The law doesn't answer these questions, and because IPAB's actions cannot be reviewed by courts, there's nothing anyone could do about it if IPAB did take these steps.
In 2010, my Goldwater Institute colleagues and I filed a lawsuit challenging IPAB’s unprecedented consolidation of power in an unelected, unaccountable agency. Even L.A. Times columnist Michael Hiltzik, an outspoken supporter of the ACA, deemed the case “the anti-Obamacare lawsuit that just might deserve to win.”
But in 2014, that lawsuit was dismissed as unripe by the Ninth Circuit Court of Appeals, which refused to hear the case until the president appoints members to the board. But the ACA says that so long as IPAB remains unstaffed, the secretary of health and human services wields the board's vast powers alone. Nevertheless, the Supreme Court declined to reconsider.
The courts will have another opportunity to hear a constitutional challenge to this unprecedented consolidation of power when IPAB makes its first law. In the meantime, patients will be left without recourse if (or, as some argue, when) the Board starts rationing their care.