The U.S. Supreme Court in Washington. Photo: Diego M. Radzinschi/ALM
The U.S. Supreme Court is preparing to hear oral arguments Monday on a case that could decide what preventive services the Affordable Care Act requires employers' health plans to cover.
But analysts at the Congressional Research Service are telling members of Congress and their aides that the question at the heart of the case, Kennedy v. Braidwood Management, has nothing to do with the services themselves.
Related: Supreme Court takes up challenge to Affordable Care Act task force
Instead, the key question has to do with whether the process for putting people on the U.S. Preventive Services Task Force, an advisory panel that helps create the ACA preventive services package, violates the U.S. Constitution appointments clause.
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If the Supreme Court agrees the process violates the appointments clause, Congress could save the preventive services package by changing the rules for how the task force works, according to CRS analysts.
CRS is an arm of Congress that helps lawmakers understand the issues they face.
The Affordable Care Act preventive services package: Part of the ACA requires all major medical plans established or changed since March 2010 to cover some high-value medical services without imposing deductibles, copayments or other charges on the patients.
The ACA calls for the federal Advisory Committee on Immunization Practices to choose the vaccines included in the preventive services package and for the Health Resources and Services Administration develop the recommendations for the pediatric and women's health services included in the package.
The U.S. Preventive Services Task Force is supposed to choose the other services in the preventive services package.
A 1999 federal law puts the Agency for Healthcare Research and Quality, part of the U.S. Department of Health and Human Services, in charge of choosing the members of the task force. The 16 members of the task force are supposed to be volunteers with expertise in preventive medicine and primary care.
The ACA updated the rules for choosing the task force members and says the task force members should be "independent" and "to the extent practicable, not subject to political pressure," according to the CRS report.
The U.S. Constitution appointments clause: The appointments clause says the officers of the United States should be appointed by the president and approved by the Senate.
The Supreme Court has ruled that the Senate must confirm principal officers but that a presidential administration can employ "inferior officers" without having the inferior officers approved by the Senate.
The conflict: Braidwood Management — a company that employs people who work for several businesses owned by Dr. Steven Hotze — and Braidwood allies contend that the ACA preventive services items picked by the U.S. Preventive Services Task Force should be thrown out because the Agency for Healthcare Research and Quality picks the task force members without getting them approved by the Senate.
If the task force members really are independent actors, not simply employees of the officials confirmed by the Senate, then they should go through a Senate confirmation process, according to Braidwood and the firm's supporters.
A federal judge in Texas sided with the plaintiffs in 2022. The 5th U.S. Circuit Court of Appeals upheld the lower court ruling in 2024.
The Trump administration view: Robert F. Kennedy, the Health and Human Services secretary, argues in a brief filed last week that the U.S. Preventive Services Task Force member selection process is constitutional because the task force members are inferior officers and the HHS secretary has unfettered authority to remove task force members.
The future: Depending on how the Supreme Court rules and how Congress reacts, the case could have little or no effect on employers' preventive services coverage rules or a big effect.
If the case has a big effect on ACA preventive benefits, it could also turn out to have major, hard-to-predict effects on many different federal government activities that involve use of advisory panels.
President Donald Trump picked Kennedy to run HHS.
The Trump administration might be able to use the arguments that Kennedy is making in connection with the Braidwood case to justify efforts to remove members of other federal advisory panels.
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Allison Bell
Allison Bell, a senior reporter at ThinkAdvisor and BenefitsPRO, previously was an associate editor at National Underwriter Life & Health. She has a bachelor's degree in economics from Washington University in St. Louis and a master's degree in journalism from the Medill School of Journalism at Northwestern University. She can be reached through X at @Think_Allison.
