Fate of IPAB may rest with Supreme Court

Bob GattyWashington-You can expect the new Congress, now controlled in both the House and Senate by Republicans, to take a shot at repealing the Independent Payment Advisory Board (IPAB).

But that’s not the only line of attack some lawmakers are taking against the IPAB, established by the Affordable Care Act (ACA) specifically to control Medicare costs.

On Dec. 4, 2014, Rep. Phil Roe, MD (R-TN), and 24 other members of Congress joined the Pacific Legal Foundation (PLF), a conservative public interest legal group, in an amicus brief asking the U.S. Supreme Court to take up a case filed by the Goldwater Institute challenging the constitutionality of the IPAB. Included as a co-signer of the brief was Sen. Tom Coburn, MD (R-OK).

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The AUA and other physician organizations have vehemently fought the IPAB, and the AUA has made its repeal one of the organization’s top political priorities. The AUA and other critics contend the ACA gives the panel virtually unfettered authority to control Medicare costs without appropriate congressional oversight.

Dr. Roe pointed out that the IPAB would consist of 15 “unelected bureaucrats who are granted substantial power to reduce Medicare spending.” IPAB’s proposals, he said, could cut reimbursement for specific services that it determines not to be of high value.

‘Troubling mindset’

“As a physician, I can tell you first-hand how troubling this mindset can be-every case is unique and must be treated that way. The IPAB is a serious threat to seniors’ access to medical care, and I will continue to fight it both in Congress and by supporting legal challenges like the one the Goldwater Institute filed [in November],” Dr. Roe said.

Eric Novack, MD, an orthopedic surgeon who is one of the plaintiffs in the case, alleges in a petition filed with the Court that the IPAB violates the Constitution because it “blurs the boundaries between the three branches of government, usurping power from each and forsaking the corresponding constraints.”

The Obama administration, however, contends that the provision does not limit the authority of Congress, which it says is free to amend the law or the rules governing consideration of the IPAB’s recommendations.

Dr. Novack was unable to convince the U.S. Court of Appeals for the 9^th Circuit in San Francisco to consider the case. The court said he had not suffered any harm as a result of the IPAB. The Supreme Court has not indicated yet if it will consider the matter.

The lawmakers who filed the brief with the PLF contend that the issue before the court is whether the IPAB’s power to make law is constitutional, not about any particular act by the IPAB. The brief notes that the IPAB’s powers currently are in the hands of the secretary of Health and Human Services.

“That’s an incredible amount of power for one person to have,” said Dr. Roe. “It takes it away from the 535 of us that are in the Senate and House of Representatives.”

Next - Op-ed piece: IPAB 'dangerous'

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Op-ed piece: IPAB ‘dangerous’

In an op-ed opinion article published Dec. 3 in The Wall Street Journal, Drs. Coburn and Roe said the board is “dangerous” because of its vast powers.

“IPAB’s mandate is to deliver on one of Obamacare’s central promises: Medicare cost-containment,” they wrote. “The law gives this board sweeping authority to do so, with virtually no constraints.”

The lawmakers pointed out that the statute gives the IPAB the power to take any actions necessary to control Medicare costs. It could do so, they wrote, by lowering physician reimbursements, driving more doctors away from treating Medicare patients, or reducing services eligible for reimbursements.

“In other words,” they argued, “by rationing care.”

They pointed out that the IPAB will consist of 15 members appointed by the president, all of whom may be from the same party. If the president does not nominate anyone, or if the Senate fails to confirm nominees, the IPAB’s power must be unilaterally exercised by the HHS secretary.

“In short, the power to alter Medicare potentially can be consolidated in a single individual,” they wrote.

In their article, Drs. Coburn and Roe noted that executive agencies typically are subject to open meetings, notice, and comment procedures. This however, does not apply to the IPAB because the ACA characterizes IPAB’s actions as “recommendations.”

“This is a misnomer,” they wrote. “Its recommendations automatically become law unless Congress acts to stop it.”

Finally, they wrote, the ACA insulates the IPAB’s decisions from judicial review. “This setup shreds the separation of powers that is fundamental to the U.S. Constitution, under which no agency can be rendered exempt from democratic processes and the rule of law,” they said.

Drs. Coburn and Roe pointed out that in 2012, the House of Representatives voted on a bipartisan basis to repeal IPAB, but the Senate, controlled by Democrats, did not act.

“These efforts will be renewed in the new Congress,” they wrote.

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