The U.S. Supreme Court ruling upholding the 2010 federal health care law’s individual mandate opens the door for legal challenges to other aspects of the law to move forward. The Phoenix-based Goldwater Institute will immediately move ahead with its lawsuit challenging the Independent Payment Advisory Board, the law’s price-setting board.
The Goldwater Institute’s challenge, Coons v. Geithner, is the only case in the country specifically aimed at the Independent Payment Advisory Board, a 15-person presidentially appointed panel that will set Medicare policy and health care payment rates without the possibility of judicial review or the right for patients to appeal its decisions. Coons v. Geithner has been on hold in federal court pending the outcome of the Supreme Court decision.
The Institute is challenging the Independent Payment Advisory Board under the separation of powers doctrine. Unlike any other federal commission, IPAB won’t have to follow the basic steps for adopting and enforcing administrative rules. The Board’s annual payment schedules and policy proposals can’t be examined by the courts and automatically will become law unless amended by Congress through a difficult and complex procedure. Finally, the Board has been made unrepealable by Congress expect for a two-week window in 2017. If Congress were to approve a repeal of the Board in 2017, following the complex process allowed in the health care law, that repeal automatically would be delayed until 2020.
“Protecting any new federal agency from being repealed by Congress appears to be unprecedented in the history of the United States,” said Clint Bolick, vice president of litigation at the Goldwater Institute. “No possible reading of the Constitution supports the idea of an unelected, standalone federal board that’s untouchable by both Congress and the courts and we will pursue this challenge all the way back to the Supreme Court if necessary.”
If IPAB is allowed to stand, Bolick said, then the idea of checks and balances between the branches of government means nothing.
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