February 03, 2017

Congress Initiates DualTrack IPAB Repeal Effort

A legislative effort to disband the Independent Payment Advisory Board (IPAB) has received a major boost in late January and early February following the introduction of legislation and joint resolutions designed to permanently repeal the Medicare payment advisory board.

On Jan. 31, Sen. Ron Wyden (D-OR), ranking member of the Senate Finance Committee, introduced S. 251, “The Protecting Medicare from Executive Action of 2017 Act” and a joint resolution of Congress, S. J. Res. 16, to authorize the board’s permanent repeal.

Current bipartisan support for repeal is reflected in the reintroduction of S. 260, a Senate bill by Majority Whip Sen. John Cornyn (R-TX) to rescind IPAB’s authorization. In the House of Representatives, Rep. Raul Ruiz, MD (D-CA) has introduced a companion joint resolution (H.J. Res. 51), and Rep. Phil Roe, MD (R-TX) is expected to file a House companion bill to S. 260.

The American College of Radiology (ACR) is a strong supporter of eliminating IPAB either via legislation or the joint resolution. The ACR applauds Wyden’s leadership on this important issue.

Created by the Patient Protection and Affordable Care Act (PPACA), IPAB is a 15-member board comprised of appointees who will be charged with making recommendations to cut Medicare expenditures if spending growth exceeds certain thresholds. If future Medicare spending is expected to exceed these statutory targets, IPAB will then propose recommendations to Congress and the president to reduce growth.

Both Democrats and Republicans oppose IPAB due to its statutorily mandated “fast track” legislative procedures that are designed to ensure that Congress quickly implements its pending recommendations. IPAB proposals automatically become law unless three-fifths of the Senate votes against the recommendations or if Congress passes legislation that changes the manner in which IPAB achieves targeted savings. Otherwise, the legislative branch is prohibited from passing bills that potentially save more or fewer Medicare dollars than originally stipulated by the IPAB. In addition, IPAB recommendations are not subject to executive or judicial branch review.

Complicating IPAB’s effectiveness is the fact no one has been confirmed to serve on the panel. Neither former President Barack Obama nor President Donald Trump has nominated anyone to serve on this controversial board. Obama decided against wasting political capital on IPAB nominees with the knowledge that his nominations would result in many long, politically damaging Senate confirmation fights, which would likely prove unsuccessful. President Trump is not expected to nominate IPAB participants because of his likely fundamental disagreement with the transfer of legislative authority to an unelected panel.

Unfortunately, the lack of nominees does not preclude the implementation of statutorily mandated draconian cuts to Medicare reimbursement when fiscal thresholds are breached. In the event that the president or Senate fail to either appoint or confirm IPAB nominees, PPACA mandates that the secretary of Health and Human Services (HHS) develop and submit legislative proposals for reducing Medicare spending to Congress. The proposals solely developed by the HHS secretary are also granted the same fast-track legislative procedures reserved for IPAB.

To date, the Medicare spending thresholds have not been breached since PPACA was signed into law in 2010 and, therefore, IPAB has not been required to issue any recommendations. Economists, however, expect this string of good luck to end this year meaning that either IPAB or the HHS secretary will be required to initiate the process of developing and submitting spending reduction proposals for fast-track consideration by Congress.

In light of this reality, Wyden introduced legislation to permanently repeal IPAB. In addition, PPACA included provisions permitting one-time fast-track consideration of a joint resolution to dissolve the IPAB. However, the deadline for the resolution’s introduction was Feb. 1. Wyden’s decision to introduce the joint resolution ensures that this alternative method of eliminating the board remains an option for Congress.

Sen. John Cornyn (R-TX) and Rep. Phil Roe, MD (R-TX), two longstanding IPAB opponents, have also pledged to continue their effort to repeal the panel. Cornyn reintroduced his repeal bill, S. 260, on Feb. 1 and Roe is expected to follow suit with a House companion bill shortly. It’s unclear at this time which legislation or resolution, if any, will receive consideration from Congress.

ACR members are encouraged to follow Advocacy in Action eNews for updates about IPAB. Questions and comments may be directed by email to Chris Sherin, the ACR director of Congressional affairs.