IPAB lives—for now. Supreme Court rejects challenge to 'death panel'

Decision upholds lower court's ruling throwing out the case

The Supreme Court on Monday decided not to hear Coons v. Lew, a case challenging the constitutionality of the Independent Payment Advisory Board (IPAB) created under the Affordable Care Act (ACA).

Background

IPAB—which became a Republican target after it was framed as a "death panel" and health care-rationing body by prominent conservative politicians—is a 15-member panel of health care experts established under the ACA to make cost-cutting recommendations in Medicare annually if program spending exceeds a target growth rate of 3.03%. The recommendations would take effect unless Congress develops an equivalent alternative.

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Although it was scheduled to convene in 2014, the panel was not required to make recommendations because the projected growth rate is 1.15%, according to CMS. The Obama administration has not yet nominated any panel members.

Further, recent reports have shown that health care spending growth is slowing, suggesting that IPAB will remain unnecessary for the time being, according to Modern Healthcare.

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In August, the 9th U.S. Circuit Court of Appeals dismissed the lawsuit, ruling that IPAB could not be reviewed by the courts because it had not yet been established or issued any recommendations for Medicare.

Details of the lawsuit

The plaintiffs allege the board is unconstitutional. In a court petition, they alleged the board "blurs the boundaries between the three branches of government, usurping power from each, and forsaking the corresponding constraints."

Christina Sandefur, an attorney for the plaintiffs, said, "Because IPAB is completely insulated from constitutional checks and balances, if the Supreme Court doesn't act now, it may be too late to decide the case later."

In response to the challenge, the government has said the Supreme Court has recognized that in order to function, Congress must delegate some of its powers. Doing so is legal as long as it is made clear how the delegated duties are to be done.

Tim Jost, a Washington & Lee University law professor, previously called the case "frivolous" and suggested the likelihood that the justices will agree to hear the case is "probably below zero."

Details of the Supreme Court ruling

In an insight order, the Supreme Court decided not to hear the case, leaving intact the 9th U.S. Circuit Court of Appeals' decision to throw out the case.

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However, attorneys for the plaintiffs said the issue was not settled.  "This case is not dead; we're simply in a holding pattern," said Christina Sandefur, a senior attorney at the Goldwater Institute, adding, "We will bring this challenge again once the Independent Payment Advisory Board takes action" (Schencker, Modern Healthcare, 3/26 [subscription required]; Haberkorn, Politico, 3/30; Hurley, Reuters, 3/30).

The takeaway: The Supreme Court's decision leaves the Independent Payment Advisory Board intact for now. However, it's in unclear whether the board will ever become a reality—and whether a new challenge will proceed if it does.

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