Will Obama Make Recess Appointments to Controversial IPAB?

Over the past several weeks, the White House has been scrambling to gain support for one of the most contentious and central provisions of the Obama Health Care Law, the Independent Payment Advisory Board (IPAB). Now it appears the Administration could ensure the Board’s operation even if the Senate refused or appeared unlikely to confirm those whom President Obama will appoint as its members by making what are called “recess appointments.” In light of a mounting bi-partisan call in the House to repeal the IPAB, this attempt virtually guarantees an immense fight.

Although many news accounts have focused on the Board’s mandate to impose Medicare cuts that a Congressional majority may not reduce, less attention has been given to the IPAB’s role in reducing what all Americans will be permitted to use out of their own private funds for their family’s health care. The Obama law directs the IPAB to issue recommendations to limit what ordinary citizens and their health insurance coverage can pay for medical treatment so as to prevent it from keeping up with the rate of medical inflation.

To implement these recommendations, the federal Department of Health and Human Services is empowered to impose so-called “quality” and “efficiency” measures on health care providers. Doctors who violate a “quality” standard by prescribing more lifesaving medical treatment than it permits will be disqualified from contracting with any of the health insurance plans that individual Americans, under the Obama Health Care Law, will be mandated to purchase. Few doctors would be able to remain in practice if subjected to that penalty.

This means that treatment that a doctor and patient deem advisable to save that patient’s life or preserve or improve the patient’s health, but which exceeds the standard imposed by the government, will be denied even if the patient is willing and able to pay for it.

A bill before Congress for IPAB’s repeal has 144 co-sponsors from both sides of the aisle. The Hill newspaper reports that over 270 medical organizations sent a letter to Congress urging repeal late last week.

However, even if passed by the House, it is nearly certain that repeal this year or next would stall in the Senate, or face an Obama veto.

Now public attention is being drawn to the President’s potential ability to get the Board up and running even in the face of Senate opposition to his appointments to the Board.

Responding to an inquiry from pro-life Senator Tom Coburn (R-OK), the non-partisan Congressional Research Service concluded that President Obama could make enough recess appointments, including a chair, to conduct business. While the law does not require the Board to begin issuing reports until 2014, it provides funding for its operations starting October 1 of this year when federal Fiscal Year 2012 begins.

Both President Obama and Kathleen Sebelius, his Secretary of Health and Human Services, have been insistent in defending the Board. In an April 13 deficit speech, the President advocated directing the Board to limit even further which of their resources private citizens will be permitted to devote to saving their lives and those of their family members. In a recent op-ed piece, Sebelius lashed back at its critics, making the self-contradictory claim that it will be both “independent” and “accountable to Congress and the president.”

To prevent an end-run, the House of Representatives could use its constitutional power to prevent the Senate from adjourning for more than three days without its consent to attempt to prevent the occurrence of a “recess” that would enable Presidential recess appointments. Those concerned about the dangerous rationing in which the IPAB recommendations would play so critical a role would be well advised to urge their Representatives to ensure that the House does so.

More details on the rationing in the Obama Health Care Law are available here.