GOP Haunted by Phantom Health Advisory Board

Posted December 8, 2014 at 2:17pm

It seems cynical or pointless to kill a medical advisory board that doesn’t have any members and hasn’t issued a single recommendation. But in the caustic battle over President Barack Obama’s health law, Republicans are now asking the Supreme Court to do just that.

Congressional Republicans are renewing focus on the Independent Payment Advisory Board, a 15-member panel created by the overhaul (PL 111-148, PL 111-152). The panel is supposed to recommend ways to lower Medicare spending.

The board is, however, so far a phantom organization: Medicare’s spending hasn’t grown fast enough to trigger it into existence, and Obama has not nominated any board members.   

Why ask the Supreme Court to slay a phantom?  

The answer lies not just in critics’ principled dislike of the board. It lies also in the worry that the president could breathe it into life at any moment — hard to imagine since nominees need Senate confirmation — and find fiscal benefits to justify his action.

The principle is that critics say the board proves the health care law puts the government in charge of personal care decisions, a situation they contend will lead to rationing. 

Two dozen House Republicans and Sen. Tom Coburn, R-Okla., asked the Supreme Court to take up a lawsuit challenging what plaintiffs say is the board’s ability to usurp Congress and make law with immunity from judicial and administrative review.

The U.S. Court of Appeals for the 9th Circuit ruled the suit was too speculative because the board hasn’t done anything. But GOP lawmakers say even a memberless IPAB has powers and thus merits review.

Republicans could find that rejection of the panel by the Supreme Court is much neater than the second prong of the party’s attack: legislation to kill the board.

Republicans plan to revive a bill early next year by Rep. Phil Roe, R-Tenn., that would abolish the board. House Republicans tried that in 2012, but the obstacle of a Democratic Senate will be gone next year.

Republicans may even find Democratic support. No less than Frank Pallone Jr. of New Jersey, the next ranking Democrat on the House Energy and Commerce Committee, backed repealing IPAB in 2012. More than two dozen Democratic lawmakers cosponsored Roe’s repeal bill (HR 351) when it reappeared in the current session.

Powerful lobbies such as the American Medical Association, the Pharmaceutical Research and Manufacturers of America and the American Hospital Association have each called for its demise.

Which leads back to the question: With all that firepower, why turn to the Supreme Court to do the job? The answer is that the political path may not be as clear as it looks.

Obama has so far shown support for the panel. His recent budget requests recommended strengthening it by lowering the target Medicare growth rate for recommendations to take effect.

That could save the government $12.9 billion over a decade. The president could cite the fiscal benefits as justification for vetoing an IPAB repeal bill. He risks exposing rifts in his own party, but the president could also put heat on Republicans by forcing them to pass up billions in savings when they say Medicare is helping drive the budget deficit.