Kathleen Sebelius is an IPAB of One

Published May 16, 2013

The non-partisan Congressional Research Service has confirmed that Health and Human Services Secretary Kathleen Sebelius, who already has been invested with enormous power under President Obama’s health care law, is essentially empowered as the rationer in chief should the Independent Payment Advisory Board fail in its mission.

The board, known as IPAB, is empowered with the ability to end-run cost-control measures around the Congress should Medicare’s spending grow faster than targets approved in the law. But should the board fail in this respect – either because it can’t come to a conclusion, or because the positions haven’t been filled – then Sebelius can decide for herself how to proceed, with just as much power to avoid traditional Congressional review.

Sen. Tom Coburn’s office, which requested the CRS examine the issue, is very concerned:

The Congressional Research Service (CRS) already confirmed in a memo to Dr. Coburn that the President could recess appoint a functioning majority of IPAB nominees. Dr. Coburn’s summary of that is here.  (Note that this CRS analysis predates more recent court action related to the recess appointments at the National Labor Relations Board.)  

CRS confirmed in a memo to Dr. Coburn what many had feared: under section 3403(d) of PPACA, if the relevant spending threshold is met but IPAB fails to make a recommendation, the Secretary of HHS must make the recommendation, and the Secretary’s recommendation contain the same fast-track procedures that effectively circumvent Congress.

Here’s what CRS said:

“This memorandum responds to your request to CRS for clarification of what would happen under the terms of the Patient Protection and Affordable Care Act (ACA) in the event that the Independent Payment Advisory Board (IPAB) established by that Act failed to submit a legislative proposal to Congress for its consideration as required in years in which specific fiscal conditions are met….In short, should the IPAB fail to submit a package of recommendations in a required submission year, the Secretary is obligated by law to do so. In either event, such legislation would be governed by the ‘fast track’ procedures established by the Act.”

This is hardly the only problem with IPAB, but it certainly appears to be a significant amount of power invested in just one individual.