ACA preventive services ruling: Insights and key takeaways for plan sponsors

The recent court decision in Braidwood Mgmt., Inc. v. Becerra, upended the certainty employers and health plan participants were accustomed to regarding which items and services fall under the Affordable Care Act (ACA) preventive services mandate and who pays for them.

A federal judge in Texas struck down a key provision that insurers and employers cover free preventive screenings for cancer, heart disease, HIV and other diseases. The decision threatens access to over 100 million Americans who use these services, which include mammograms and STD testing.

Both sides in the Braidwood litigation have filed notices of appeal indicating their desire for the U.S. Court of Appeals for the Fifth Circuit to review the district court’s March 30, 2023, decision, and there is no shortage of issues the parties can potentially raise on appeal.

What is certain is that the appellate court will be called upon to address a host of complex legal issues and, when deciding those issues, will have the views of not only the parties in the case but also from an array of interested third parties who will file briefs attempting to influence the outcome of the appeal.

Here are some of the issues likely to be raised on appeal in this high-profile case.

Plaintiffs’ standing

Both sides will likely appeal the district court’s decision that the plaintiffs had standing to bring some of, but not all, the claims in the lawsuit.

Some of the Braidwood plaintiffs alleged they were harmed by the government’s preventive services mandate because they could no longer purchase lower-cost insurance that did not include items and services they did not want or need. Some alleged harm by being forced to “underwrite coverage” for items and services to which they have a religious objection. In particular, some of the plaintiffs claimed that the mandate requiring coverage without participant cost-sharing for preexposure prophylaxis (PrEP), a medication for HIV prevention, violated their free exercise of religion because it worked to “facilitate and encourage homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”

Appointments clause

A central issue before the district court was whether the U.S. Preventive Services Task Force (PSTF) and two other health entities were operating in violation of the Appointments Clause of the Constitution.

Unlike the PSTF, those two other entities, the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA), are housed within the Department of Health and Human Services (HHS) and report, directly or through intermediary HHS officials, to the HHS Secretary.

The Appointments Clause governs the processes for appointing “Officers of the United States” and states that “principal Officers” must be nominated by the president and confirmed by the Senate.

According to the court, the PSTF members must be appointed by the president and confirmed by the Senate, a holding that if left to stand could politicize PSTF recommendations. The government will very likely appeal these rulings.

Nondelegation doctrine

The plaintiffs alleged that the PSTF, ACIP, and HRSA all violate the nondelegation doctrine in Article I of the Constitution by exercising decision-making authority with respect to preventive care mandates without proper legislative direction or guidance from Congress.

The plaintiffs claimed that the ACA’s preventive services mandate violates the nondelegation doctrine because it does not contain standards to guide the decisions of the PSTF, ACIP, and HRSA as to which services, immunizations, and screenings to recommend.

Religious objections to PrEP for HIV

The government will likely consider an appeal of the district court’s decision that the inclusion of PrEP for HIV violated the religious objector plaintiffs’ rights under the Religious Freedom Reformation Act (RFRA). The court found that the defendants did not show that the government would be unable to assume the cost of providing PrEP drugs to those who are unable to obtain them due to their employers’ religious objections, which it offered as a less restrictive means of furthering the government’s interest.

This reasoning applied outside the contraception context to PrEP invites additional lawsuits that could ultimately shift the cost of and responsibility for providing certain items and services like vaccines, genetic screening and counseling, and sexually transmitted disease (STD) screening and treatment, among other things, to the government whenever a bone fide religious objection is raised.

Remedies

The district court banned the government from implementing or enforcing anywhere in the nation the PSTF recommendations issued after the passage of the ACA, instead of limiting that relief to only the plaintiffs in the case.

Related: Free preventive services will continue while ACA ruling is appealed, say insurers

The government asserted that the appropriate remedy on the Appointments Clause claims was to sever from the ACA the portion of the statute stating that the PSTF’s recommendations were independent or, alternatively, to issue an injunction barring enforcement of the PSTF’s recommendations only as to the plaintiffs in the case. The court rejected all the government’s arguments in support of a more limited remedy and the government is likely to appeal on this issue.

Next steps

On April 12, 2023, the government filed a request to stay the injunction issued by the court on the Appointments Clause claim to the extent it applies to parties other than the plaintiffs. That motion is pending and thus far the district court has shown no inclination to grant it.

As it currently stands, the nationwide injunction is in full force, with many employers and insurers opting to wait out the appeals process before considering whether to make changes to their health plans’ coverage of the PSTF’s recommended preventive services. Plans and issuers have no obligation to make coverage changes or take any other action in response to the Braidwood decision, but some may opt to do so to lower health plan costs.

Joanne Roskey is Member in Miller & Chevalier’s ERISA & Employee Benefits practice. Prior to her current role, Joanne served as Chief of the Division of Health Investigations for the DOL’s Employee Benefits Security Administration.