Healthcare Legal

Preventive-services coverage mandate for Affordable Care Act plans remains intact following appeals court ruling

The Fifth Circuit court sharply narrowed the scope of an earlier decision that took aim at required coverage of preventive services, but it also left room for the case to continue.

June 24, 2024 1:58 pm

In a decision that could have been consequential for health insurance coverage offered through the Affordable Care Act (ACA) marketplaces, an appeals court limited the immediate impact.

The U.S. Court of Appeals for the Fifth Circuit upheld a lower-court ruling that preventive-care mandates for ACA health plans are unconstitutional. But the appeals court said the ruling should apply only to the plaintiffs, who had objected on religious grounds to providing coverage of services such as pre-exposure prophylaxis medications for HIV.

Vacatur or a universal injunction is not warranted, according to the appeals court.

However, the court also kicked a key question back to the lower court, and that could set the stage for application of a broader ruling.

Why it mattered

At stake in the case, Braidwood v Becerra, was first-dollar coverage of services that have been approved since 2010 by the U.S. Preventive Services Task Force (USPSTF), Advisory Committee on Immunization Practices (ACIP) and Health Resources and Services Administration (HRSA).

The lower court’s 2022 ruling specifically called out coverage requirements related to USPSTF recommendations as being unlawful because the task-force members should be considered principal officers of the United States and thus subject to a congressional confirmation process.

Based on that determination, the lower court in 2023 ordered a universal injunction. The Biden administration appealed, and the plaintiffs countered by appealing the finding that ACIP endorsements and HRSA recommendations should not be similarly enjoined.

The case reverberates in part because ACA marketplace insurance is becoming increasingly prevalent, especially amid the unwinding of Medicaid continuous eligibility starting in April 2023. For 2024, HHS reported that a record 20.3 million people had marketplace insurance.

If marketplace plans were given discretion to require cost sharing for preventive care, providers would face the prospect of having to track down patients’ payments for a wider array of services. Beyond that, patients might be less likely to seek the type of screenings and checkups that support health.

“Evidence-based preventive-care services free from political influence are essential to patient well-being and population health and lead to lower healthcare costs over the long term,” hospital groups wrote in a 2023 amicus brief seeking a stay of the lower-court ruling (the stay was granted, meaning ACA plans have been obligated to continue fully covering preventive services).

A universal injunction also would affect state Medicaid programs that have expanded since passage of the ACA. Those programs would not be obligated to incorporate USPSTF-recommended services in their package of essential health benefits for the expansion population.

Parsing the appellate ruling

A three-judge panel at the Fifth Circuit agreed with the lower court that USPSTF members wield significant, unsupervised authority that should render them principal officers of the U.S. Thus, they should be nominated by the president and confirmed by the Senate, ruled the panel, which consisted of two Trump-nominated judges and one Biden nominee.

But the panel disputed the idea that a remedy should be applied universally, writing, “The district court erred in vacating all agency actions taken to enforce the preventive-care mandates, so we have no reason to uphold relief broader than what is necessary to redress the plaintiffs’ injuries. … We must therefore conclude that it was an abuse of discretion to enter universal injunctive relief after already providing complete relief to the plaintiffs.”

The court also ruled against the plaintiffs’ appeal that ACIP and HRSA recommendations pose the same issues as those issued by the USPSTF. Differences include the requirement for ACIP recommendations to be approved by the CDC director, who in turn is subject to oversight by the HHS secretary. A similar circumstance applies to HRSA.

Why the case isn’t over

The appeals court said the lower court never had an adequate opportunity to consider plaintiffs’ argument that HHS failed to comply with statutory requirements when Secretary Xavier Becerra issued a 2022 memo to ratify ACIP and HRSA recommendations. Among the potential issues was that the ratification memo did not go through notice-and-comment rulemaking, the plaintiffs contended.

The district court should decide the matter, the appeals court said, with the Fifth Circuit available to review the ruling upon appeal.

Given the appeals court’s latest ruling, the lower court seems unlikely to decide that any injunction on mandatory coverage of ACIP- and HRSA-recommended services should apply nationally. But the plaintiffs ultimately could take their case to the Supreme Court in pursuit of a universal injunction. In one scenario, a high-court ruling would affect recommendations from all three bodies if the lower court has said HHS’s ratification of the ACIP and HRSA recommendations was unlawful (and the appeals court has agreed).

The appeals court “left the door open for a future, broader ruling that could undermine the ACA preventive services mandate nationwide,” the Center for Health Law and Policy Innovation at Harvard Law School said in written comments.


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