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Court Declines Medicare Payment Board Challenge

By Melissa Attias, CQ Roll Call

March 30, 2015 -- The Supreme Court has declined to weigh in on a Republican-backed challenge to a controversial Medicare cost-cutting board authorized by the health care law, leaving congressional repeal efforts as opponents' best chance for action.

Justices denied the Goldwater Institute's petition for review of an appeals court dismissal of a challenge to the constitutionality of the Independent Payment Advisory Board, or IPAB. A group of 24 House Republicans and former Sen. Tom Coburn, R-Okla., filed a friend of the court brief in December asking the court to take up the case.

Rep. Phil Roe, one of the lawmakers on the brief, said in a statement that he was disappointed with the decision and pledged to press on with legislative repeal efforts. The Tennessee Republican and Linda T. Sánchez, D-Calif., introduced repeal legislation (HR 1190) earlier this month that currently has 210 cosponsors, including 17 other Democrats.

Established in the Affordable Care Act (ACA), IPAB is charged with making annual cost-cutting recommendations if Medicare spending exceeds a target growth rate, which would be implemented automatically unless Congress passes legislation with the same level of cuts. The conditions that trigger the panel's recommendations haven't been met and Obama hasn't appointed any members.

As a result, the U.S. Court of Appeals for the 9th Circuit ruled that the legal challenge's "allegations of future injury are too speculative to satisfy the constitutional requirement of ripeness" and the Supreme Court's decision not to review the case leaves that decision intact.

"This case is not dead; we're simply in a holding pattern," Christina Sandefur, a senior attorney at the Goldwater Institute, said in a release. "We will bring this challenge again once the Independent Payment Advisory Board takes action."

In a brief submitted March 10, the plaintiffs argued the challenge is valid, even though the board hasn't acted. "The unconstitutional provisions governing IPAB are already operating now, and because the ACA frees the Board of any meaningful checks and balances, waiting to consider this constitutional challenge could cause irreparable injury," the brief states.

The plaintiffs also maintain that the statute of the health law "completely insulates IPAB from repeal and forever prohibits Congress from replacing IPAB proposals" outside of a narrow window in 2017 when the board can be repealed by super majority vote. Immediate action is necessary because doctors will otherwise be left without recourse, they argue.

But in a February brief, the Justice Department says in a footnote that Congress can override the board's proposals by repealing or suspending the rules for congressional consideration, followed by a vote on superseding legislation. It also maintains that "nothing prevents Congress from abolishing the board altogether" by repealing the statute as multiple bills have proposed.

Roe spokeswoman Tiffany Haverly acknowledged the controversy over repeal but pledged to push ahead. "We had serious concerns about the constitutionality of a provision in the law that tries to prohibit its own repeal, but regardless of whether that provision is deemed constitutional or not, we do not believe future Congresses can be bound by previous Congress' action and will be pushing for full repeal," she said in an email.

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