What did the 5th Circuit rule?
The clearest outcome of the appeals court decision was that Braidwood Management and Kelley Orthodontics no longer have to offer health benefits to employees that include no-cost coverage of services — including PrEP — that the U.S. Preventive Services Task Force recommended on or after March 23, 2010, which is the date President Barack Obama enacted the ACA.
Under the ACA, most insurance plans are required to cover, at no cost, preventive care endorsed by the U.S. Preventive Services Task Force, the Centers for Disease Control and Prevention's Advisory Committee on Immunization Practices, or the Health Resources and Services Administration's Bright Futures program for children and Women’s Preventive Services Initiative.
The 5th Circuit agreed with the lower court that recommendations from the U.S. Preventive Services Task Force should not have the force of law. The ACA did not abide by the Constitution's appointments clause when designating the body an authority on what preventive services must be covered, the appeals court concluded.
Upholding the district court, the 5th Circuit ruled that the task force exercises power that should subject its members to presidential nomination and Senate confirmation. The Agency for Healthcare Research and Quality, which Kennedy eliminated April 1, previously selected who serves on the panel, subject to secretarial oversight.
"We agree that the unreviewable power it wields — the power to issue preventive-care recommendations that insurers must cover by law — renders its members principal officers of the United States who have not been validly appointed under Article II of the United States Constitution," Judge Don Willett wrote in his opinion.
But the appeals court overturned the district court's similar ruling against the Advisory Committee on Immunization Practices and HRSA. The 5th Circuit referred this question back to O'Connor for further consideration. Those proceedings are on hold awaiting a Supreme Court decision.
The Justice Department did not appeal O'Connor's ruling in 2022 that requiring employers to cover PrEP violated the Religious Freedom Restoration Act of 1993, and the 5th Circuit decision did not address it. O'Connor cited the 2014 Supreme Court decision that the retailer Hobby Lobby did not have to cover contraception on religious grounds.
What were the effects of the appeals court ruling?
Minimal, said Laurie Sobel, associate director of women’s health policy at the research organization KFF.
“If you're not one of the plaintiffs and you're not an employee of one of the plaintiffs, nothing has changed,” Sobel said last June. That amounts to about 70 people, she said.
In addition, preventive care recommendations from the Advisory Committee on Immunization Practices and HRSA remain in force for everyone, and there is some overlap between their guidelines and those from the U.S. Preventive Services Task Force, Sobel said.
The health insurance trade group AHIP emphasized the narrow nature of the 5th Circuit ruling at the time.
"The recent decision does not change coverage of preventive services with no cost-sharing. Preventive care is essential to the health and well-being of the people our members serve and we will continue to monitor any future litigation in this area," AHIP said in a statement last June.
The insurance industry has not seemed eager to scrap no-cost preventive medicine since the district court ruled.
“Blue Cross and Blue Shield companies are committed to helping members access preventive services because they save lives," the Blue Cross Blue Shield Association said in a statement Friday. "No-cost screenings, counseling services and preventive medications are critical to improving overall health and detecting health challenges early. In 2020 alone, more than 150 million Americans benefited from no-cost preventive care."
Insurers wouldn't be likely to immediately change their preventive care benefits if the Supreme Court rules against the government, but that could change over time, Sobel said.
At least 15 states have laws that mirror the ACA preventive care mandate, according to a report the Commonwealth Fund, a think tank, published in 2022. Those are unaffected by the federal lawsuit, but states do not have jurisdiction over large-group health plans.
The court rulings in this case do not apply to Medicare and Medicaid.
What are the arguments?
In a brief filed to the Supreme Court in February, the Justice Department reiterates its position that the preventive care rules are lawful and that the bodies that determine what services are covered shouldn't require presidential nomination and Senate confirmation.
The HHS secretary is ultimately responsible for implementing the panels' recommendations, the government argues.
“The answer is straightforward: Task force members are inferior officers, because the secretary of HHS — a quintessential principal officer — remains responsible for final decisions about whether task force recommendations will be legally binding on insurance issuers and group health plans,” the Justice Department wrote.
The employer plaintiffs restated their case in a brief submitted last month.
“The government’s arguments for inferior officer status are unavailing. Its claim that the secretary can remove task force members at whim — and then use those putative removal powers to control or influence the task force’s recommendations — is incompatible with the guarantees of independence and protection from ‘political pressure,’” the plaintiffs wrote.
What if the Supreme Court rules in favor of the plaintiffs?
Even a $1-$2 copayment would reduce utilization of preventive medicine, leading to sicker patients and higher long-term spending, Eric Waskowicz, senior state policy manager at United States of Care, said after the appeals court decision last year. United States of Care is an advocacy organization that campaigns to support and expand the ACA.
Reintroducing cost-sharing or declining to cover certain services would discourage preventive care and increase costs for those who receive them, according to a report the Employee Benefit Research Institute report published after the district court decision in 2022.
“If the Braidwood decision were to be upheld and employers reimposed cost-sharing on preventive services that are currently free to enrollees, individuals using those services could face a significant increase in out-of-pocket spending,” the Employee Benefit Research Institute wrote. “Although this potentially onerous financial burden could deter care on the individual beneficiary level and likely worsen health inequities, employers would see little impact on their overall spending," the think tank concluded.
“Poll after poll shows that these no-cost services have been some of the most popular provisions of the ACA,” Yael Lehmann, chief administrative officer of the left-leaning healthcare advocacy group Families USA, said in a news release last June. “We know that without a guarantee of coverage for these services, our nation’s families are more likely to risk their lives and skip critical preventive care due to cost.”
What if the Supreme Court rules in favor of the government?
If the Supreme Court sides with the Justice Department, the preventive care mandate would remain in force.
But affirming the secretary's authority to overrule the expert panels may empower HHS to deviate from how this policy has been implemented since 2010.
"The outcome of the case could give the administration broader latitude to shape the recommendations issued by the entities that were originally established with the goal of providing independent analysis and review," Sobel and colleagues wrote in a report KFF published last week.
This is a revised version of an article published on June 25, 2024.
