White House defends MedPAC 'replacement' panel in Supreme Court brief

The federal government this week argued to the Supreme Court that a lower court was correct when it dismissed challenges to a payment review provision in the Affordable Care Act. Long-term care providers are among those who had hoped the challenges would be successful.

Government attorneys on Feb. 20 filed a Supreme Court brief in the Coons v. Lew case, agreeing with a federal appeal court's decision to jettison legal efforts to strike the establishment of the Independent Payment Advisory Board. Opponents of the Obama administration have on occasion called IPAB a “death panel," in reference to a provision that would fund patients' consultation with providers on end-of-life care practices.

More to the core of its mission, the IPAB would be called upon to make recommendations for setting Medicare reimbursement rates when the Medicare growth rate exceeds a certain target. IPAB would, in effect, take MedPAC, and subsequently lawmakers, out of much of the Medicare rate-recommending business. Plaintiffs are expected to respond to the government's brief soon.

In their argument, government attorneys said physician Eric Novack, who treats Medicare patients, could not challenge the law under an “anti-delegation” doctrine because he hadn't suffered an actual, concrete injury by reason of the provision's enactment. Novak said the provision unlawfully delegated lawmaking authority to an administrative body.

Coons v. Lew is among the latest high-level judicial challenges to the ACA. Plaintiffs in that case were unsuccessful in convincing the high court to eliminate the ACA's individual mandate provision. In 2014, the same court struck down the government's effort to preserve the ACA provision requiring all employers to provide contraceptive benefits. Additionally, a case being heard next week, King v. Burwell, has dominated the news because, should the Supreme Court decide Affordable Care Act exchange subsidies are illegal, 9.3 million Americans would potentially lose their health insurance.