The U.S. Supreme Court announced Monday it would not hear a legal challenge to the Affordable Care Act’s Independent Payment Advisory Board filed by the Goldwater Institute, which sought a repeal of the board and its power over the health care of more than 48 million Americans.
The IPAB is a 15-member board created by the Affordable Care Act that would set reimbursement rates for Medicare. It also has the power to decide which treatments, procedures, and drugs would be covered by Medicare.
Critics of the IPAB have called it a "death panel."
Despite the court’s decision, the institute indicated it would continue to fight the IPAB.
"This case is not dead; we’re simply in a holding pattern," said Christina Sandefur, a senior attorney at the Goldwater Institute, in a statement. "We will bring this challenge again once the Independent Payment Advisory Board takes action."
Rep. Phil Roe (R., Tenn.) has been a vocal critic of the IPAB. His recent legislation to repeal it has garnered bipartisan support and dozens of cosponsors.
Roe said he is undeterred in his fight to repeal the IPAB.
"While I'm disappointed the court has decided not to hear this case, I will continue my efforts to repeal the IPAB legislatively," Roe said in an email. "My repeal bill has 210 bipartisan cosponsors, and I look forward to working with my colleagues in the House and Senate to get this done."
According to the Goldwater Institute, IPAB decisions automatically become law and cannot be challenged in court. Goldwater said the window of opportunity to challenge the IPAB is pertinent because the board cannot be repealed without an unprecedented congressional supermajority—and only during a short window in 2017, according to the law.
"Never in American history has another board been created with such broad authority to make law without Congress’ vote or the president’s signature, and that cannot be challenged in court or repealed," Goldwater said.
Goldwater’s challenge centered on the consolidation of power into one unelected agency. The IPAB has not yet been appointed. In 2014, the Ninth Circuit Court of Appeals said the case did not merit review, and yesterday’s ruling by the Supreme Court did not contradict that ruling.
"We are disappointed we have to wait to bring this challenge before the Court—Americans are subject to IPAB’s limitless decision-making with no recourse," Sandefur said. "Because the board is completely insulted from constitutional checks and balances, without Supreme Court action now, it may be too late to decide the case later."
Since the IPAB has not been appointed, its powers reside with the secretary of health and human services.
As previously reported, 25 members of Congress had filed an amicus brief with the Supreme Court to hear the challenge to the IPAB.
While the court refused to hear this challenge, another ruling on Obamacare is expected in June before the court ends its term. A ruling is expected in King v. Burwell, which is challenging the Affordable Care Act’s subsidies and could affect as many as 8 million enrollees.