Monday, March 30, 2015

Court Declines to Hear IPAB, "Death Panel" Case

The Supreme Court today declined to review Coons v. Lew, the Ninth Circuit case holding that the plaintiffs' challenge to the ACA's Independent Payment Advisory Board was not ripe and rejecting the plaintiffs' challenges to the individual mandate. Today's non-action leaves the Ninth Circuit's ruling--and the IPAB and the individual mandate--in place (although it's not a ruling on the merits).

The plaintiffs in Coons challenged IPAB, the so-called "death panel," on the ground that it violated the non-delegation doctrine. IPAB is a 15-member administrative board that will monitor the growth of Medicare spending. If actual growth exceeds expected growth, IPAB will recommend a reduction in the growth rate to the "savings target" set by the Chief Actuary of the Centers for Medicare and Medicaid Services. IPAB's recommendations go to Congress, and Congress must either consider and vote on them, or pass superseding legislation. (If there's no superseding legislation, the Secretary must implement the recommendations as submitted.)

The Ninth Circuit ruled that the plaintiffs' challenge wasn't ripe. In particular, it said that Plaintiff Novack's claims that IPAB would reduce the Medicare payments he receives for treating his patients, and that IPAB would set in motion market displacements that would harm him financially, were speculative.

The Ninth Circuit also rejected the plaintiffs' claims that the individual mandate violated their substantive due process rights (to medical autonomy and informational privacy), and that the ACA did not preempt Arizona's constitutional provision that says that Arizonans can't be forced to buy insurance.

The Supreme Court's decision today is not a ruling on the merits of any of these claims--all of which were far-fetched from the get-go--but it leaves the Ninth Circuit ruling in place.

The decision says nothing about the likely direction the Court will take in King v. Burwell, the case testing whether the IRS exceeded its statutory authority by extending tax credits to individual health insurance purchasers on a federally facilitated exchange.

Cases and Case Materials, Congressional Authority, Due Process (Substantive), News, Nondelegation Doctrine | Permalink

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Just curious on everyone's thought about my opinion.
The constitution does not allow for the federal government to participate in the same commerce they regulate that is left to the states.
No one can argue CMS (Centers for Medicare Services) has been selling Insurance Directly to the Public since 2005. With Their website: The Law is clear and without ambiguity that CMS is violating state insurance licensing laws.
In January 2005 CMS Final rules for Medicare Advantage were adopted and became the law of the land. law established the Medicare Advantage Program. This law preempted all state laws with the exception of state Licensing laws. Section 422.202 Federal preemption of state law was revised to read: “The standards established under this part supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to the MA plans that are offered by MA organizations. It is clear and unambiguous that congress left licensing requirements of Medicare advantage plans in the hands of the states.
In 2010 the Affordable Care Act passed and CMS created another website: in order to sell insurance directly to the public. This law again left licensing Sec. 1101 (5) states: RELATION TO STATE LAWS.—The standards established under this section shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency)
Again it is clear and unambiguous that Congress left licensing requirements for the two federal programs under state control. The controlling laws that allow the state to determine status and authority are the McCarran-Ferguson and the GRAMM-LEACH-BLILEY ACT Act 15 U.S. Code § 6701 - Operation of State law. Which remain the law of the land today.
Mandatory insurance licensing requirements. No person shall engage in the business of insurance in a State as principal or agent unless such person is licensed as required by the appropriate insurance regulator of such State in accordance with the relevant State insurance law, subject to subsections (c), (d), and (e) of this section.
In 2005 most states adopted the Producer Licensing model act act governs the qualifications and procedures for the licensing of insurance producers. This act states in section 3 “A person shall not sell, solicit or negotiate insurance in this state for any class or classes ofinsurance unless the person is licensed for that line of authority in accordance with this act.” In section 2L of the act a “person” is defined as “means an individual or a business entity” Section 2A then defines a “Business Entity as “a corporation, association, partnership, Limited Liability Company, limited liability partnership or other legal entity”. CMS is in fact a Legal Entity and therefore would be considered a Business Entity under this act.
The two sections Define CMS as A “Person” and/or “Business Entity” and therefore should hold a valid insurance producers license issued by the state they sell in. However I can’t find a valid insurance producers license for CMS nor can I find an appointment through any state with the various companies to act as soliciting agents for the various CMS websites.
I feel It is without question that CMS according to Section 3 is selling, soliciting and negotiating insurance without a proper state licenses. CMS is selling insurance plans directly to the consumer.
So the law defines CMS as an entity required to have a license but they cannot get a license without violating the constitution.
By Creating a website on behalf of insurance carriers where potential clients can come and shop the federal government is directly participating in commerce that it is only authorized by constitution to regulate.
Sell is Defined as “Sell” means to exchange a contract of insurance by any means, for money or its equivalent, on behalf of an insurance company
ANY MEANS. CMS has websites where consumers may go to and purchase products directly from the insurance carriers. CMS facilitates that sell and is participating in that sell. Consumers may call directly and talk to a person who then can assist them in enrolling in an insurance plan.
Solicit is Defined as “Solicit” means attempting to sell insurance or asking or urging a person to apply for a particular kind of insurance from a particular company.
ASKING OR URGING. Radio adds, TV adds constant emails telling consumers to sign up for health insurance.
Negotiate is Defined as “Negotiate” means the act of conferring directly with or offering advice directly to a purchaser or perspective purchaser of a particular contract of insurance concerning any of the substantive benefits, terms or conditions of the contract, provided that the person engaged in that act either sells insurance or obtains insurance from insurers for purchasers.
CONFERRING DIRECTLY. Consumers are using a federal website not a state website nor an insurance carrier website to obtain insurance.
Clearly these problems exist because the law as it was written (which has never been followed) was meant for STATES to set up their own exchanges. None of my arguments would hold water in the states that did set up their own exchanges. However because the State that did not set up exchanges the Federal Government stepped in and Created one. This is the Problem, the Federal Government Cannot set up an exchange without violating the US constitution.
in the opinion written by Robertson. In the NFIBA suite he states that the federal government “can exercise only the powers granted to it.” “If no enumerated power authorizes Congress to pass a certain law, that law many not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.” Clearly the Federal Government is not regulating it is actively participating in commerce.

Posted by: Lee Benham | Apr 1, 2015 3:03:04 PM

"IPAB is a 15-member administrative board that will monitor the growth of Medicare spending. If actual growth exceeds expected growth, IPAB will recommend a reduction in the growth rate to the "savings target" set by the Chief Actuary of the Centers for Medicare and Medicaid Services. "

The so-called death panel just looks like a standard committee for assessing the progress of a piece of legislation. Unfortunately, you can't unring a bell and the negative propaganda about death panels still exists in the collective unconscious of the public.

Posted by: Asad Jaleel | Apr 14, 2015 11:15:15 AM

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