Right Now

Congress’ controversial health care overhaul created the Independent Payment Advisory Board (IPAB) –a panel of unelected bureaucrats who will be politically-appointed and charged with developing proposals to "reduce the per capita rate of growth in Medicare spending." Under the law, HHS is forced to implement the panel’s proposals automatically unless Congress intervenes with similar cuts.

There are virtually no checks on the panel, since its members are not answerable to voters and its recommendations cannot be challenged in court. Because the panel is barred from examining common-sense changes like Medicare beneficiary premiums, cost-sharing, or benefit design, many expect that in efforts to control spending, the panel will limit patient access to medical care.

While the law does not provide a date by which the panel of bureaucrats will begin its operations, funding for the Board is authorized as soon as this fall (FY2012). Medicare’s Chief Actuary makes its first determination in 2013 which could set up the trigger and the panel’s recommendations.

Now there is troubling new news: the White House could bypass Congress and its role to confirm members by recess appointing members of this highly controversial panel. When nonpartisan experts at the Congressional Research Service were asked if it is possible for the President to recess appoint a working majority of the IPAB that are only of his political party, and then for those appointees to begin issuing recommendations, they confirmed it was possible. “We do not see why,” CRS staff said, “should the normal conditions for a recess appointment occur, the President could not recess appoint a majority of the 15-member Board with individuals of his choosing as long as those appointments complied with the other limitations established that section — that is, that the appointments include doctors and other health care professionals, that a majority of the board be non-providers, etc.”

This means the White House could nominate political allies, bypass the Senate’s constitutional role to confirm Presidential appointees, and effectively dictate policies through unelected Medicare czars. Since this Administration has already recess-appointed the highly controversial Don Berwick, what’s to stop the White House from pursuing this path?

Key excerpts from the report:

Could the President appoint members of the IPAB using his recess appointment authority?

“There is no constitutional or statutory qualification on the President’s ‘Power to fill up all Vacancies ....’ Because the President’s recess appointment authority is unqualified, it appears that he could fill member positions on the IPAB by recess appointment during any period when he could otherwise make such appointments.”

If so, could he recess appoint enough members of his own political party to give the board a working majority without appointing any members of a party other than his own?

“Were the President to make recess appointments to the IPAB, he could fill whichever positions on the board he chose to, consistent with the statutory requirements described above with regard to consultation, qualifications, and term specifications. He need not ensure that the result of his appointments is a politically balanced board. It is possible that he could, in fact, make recess appointments only to those membership slots that are likely to be filled by members of his own party: the three filled in consultation with the Senate majority leader, the three filled in consultation with the House minority leader, and the three filled without consultation. If the President were to make such recess appointments, 9 of the 15 member positions would be filled, and this number would be, as noted above, sufficient to provide a quorum for the board to conduct business. In addition, he could use his recess appointment power to appoint one of these nine members as chair. Inasmuch as the chair is empowered to ‘exercise all of the executive and administrative functions of the Board,’ this act would facilitate the managerial activities, such as the hiring of personnel and expenditure of funds, that would be necessary to start up the agency.”

What authority does the President have to remove IPAB members?

“Regarding grounds for removal, it should be noted that there is no clear standard clarifying these statutory terms. Congress has stated, however, that a removal for good cause must be based on ‘some type of misconduct,’ as opposed to the refusal to carry out a presidential order….. As a matter of tradition and case law, members of other regulatory and quasijudicial boards and commissions are generally thought to enjoy protection from removal, even where the enabling statute is silent on such matters.”

Read the full report here.