What’s new? On June 21, 2024, the Fifth Circuit Court of Appeals ruled in Braidwood v. Becerra that the lower court had overreached when it struck down the Affordable Care Act (ACA) preventive services mandate nationwide. The Fifth Circuit held that federal agencies could require that group health plans cover without cost sharing any items and services recommended with an “A” or “B” rating by the United States Preventive Services Task Force (USPSTF) on or after March 23, 2010. However, the three-judge panel agreed that the USPSTF didn’t have constitutional authority to issue recommendations.
Why it matters: Preventive services help people stay well, treat chronic conditions and aid early detection of cancers or diseases, among other benefits. Group health plan participants’ access to preventive services without cost sharing will remain the status quo for now.
Key takeaway: Group health plan sponsors should watch for any DOL guidance on the ACA preventive care requirement in light of this ruling.
Background
ACA requires that all non-grandfathered group health plans and insurers cover certain preventive services without participant cost sharing (i.e., no deductible or copay). The preventive services coverage requirement was intended to ensure affordable access to preventive health care that leads to early detection and treatment of medical conditions, like cancer screenings or drugs to prevent new cases of HIV. In Braidwood, the plaintiffs wanted coverage requirements for preventive services recommended by three bodies struck down: USPSTF, the Advisory Committee on Immunization Practices (ACIP), and Health Resources and Services Administration (HRSA). On March 30, 2023, the United States District Court for the Northern District of Texas struck down one of those three, USPSTF, as unconstitutional. See our previous blog for an explainer on the lower (district) court decision. The Department of Justice filed an appeal to the Fifth Circuit.
Fifth Circuit ruling
The Fifth Circuit ruled that the USPSTF members weren’t properly appointed and deemed the appointment unconstitutional. In the future, members of the USPSTF must be nominated by the president and confirmed by the Senate. In the Fifth Circuit states, the requirement to cover USPSTF recommended services is not enforceable.
The Fifth Circuit agreed that PrEP HIV medication coverage, which was a USPSTF recommendation from 2019, violated the rights of the plaintiffs under the Religious Freedom Restoration Act. Those plaintiffs don’t have to cover HIV preventive medication or the other recommendations that they objected to, like the human papillomavirus (HPV) vaccine as well as screenings and behavioral counseling for sexually transmitted disease and drug use.
Preventive care requirement in Fifth Circuit states: Louisiana, Mississippi and Texas
“[T]he decision that the USPSTF Preventive Care Requirement is constitutionally defective is still binding law in the Fifth Circuit,” Groom attorneys wrote. “[I]t is likely that the USPSTF coverage requirement will not be enforceable against any group health plan in the states of Louisiana, Mississippi and Texas,” per Winston and Strawn analysis.
What the court didn’t decide
The Fifth Circuit didn’t decide whether preventive services recommended by the other two bodies, ACIP and HRSA, had proper authority. This means those recommendations stand for now while the lower court determines whether the requirement to cover ACIP and HRSA recommended services can be enforced.
Litigation continues
There is some uncertainty because the legal challenge on ACA’s preventive services requirement will continue. Next steps could be that the parties wait for the lower court decision, or the parties appeal the Fifth Circuit’s decision to the Supreme Court. This kind of litigation can take years.
Initial impact on plan sponsors
Preventive care without cost sharing will remain the status quo for now. The Fifth Circuit decided that there was no support for the nationwide strike down. This case didn’t fall within any of the narrow categories that merit universal injunctive relief, and that it had “no reason to uphold relief broader than what is necessary to redress the plaintiffs’ injuries,” the court said.
What we’re watching
Group health plan sponsors should watch for any DOL guidance on the ACA preventive care requirement in light of this ruling on USPSTF. Check with plan professionals and monitor court decisions on ACIP and HRSA. It’s possible that Congress could pass a law on preventive coverage requirements, or the Centers for Disease Control (CDC) or other agency could adopt USPSTF recommendations.
Resources
Latest Update to the Ongoing Challenge to the ACA’s Preventive Services Mandate [Groom]
ACA preventive services coverage and litigation continue, for now [Mercer]
U.S. Court of Appeals Partially Upholds Braidwood Management, Inc. v. Becerra: Finds Appointment of USPSTF Unconstitutional [Winston & Strawn]
Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.
