ACA Preventive Services Mandate Challengers Appeal Partial Loss

Employers who partially prevailed in a lawsuit to do away with the Affordable Care Act’s requirement that health plans must pay in full for certain preventive services are appealing on issues they lost.

A win for the challengers on appeal could result in the invalidation of three specialty boards’ recommendations that plans provide cost-free coverage for birth-control services, immunizations, and screenings for chronic conditions.

Some court-watchers predict that the US Court of Appeals for the Fifth Circuit won’t be the last stop for the case. Several US Supreme Court justices have indicated that they would like to take a look at the nondelegation doctrine—an administrative law principle that prevents Congress from delegating its power to other entities. This might be the case in which they do it, legal experts say.

Coverage Vacated

Judge Reed O’Connor, of the US District Court for the Northern District of Texas, ruled March 30 that the US Health and Human Services Department can’t force employers and plans to pay for services recommended by the US Preventive Services Task Force.

Those services include certain cancer screenings, diabetes care, sexually transmitted disease screenings, and the distribution of pre-exposure prophylactic drugs that prevent HIV and are taken by many gay people.

The decision was widely criticized, with many major medical and patient groups arguing that it jeopardizes health care for millions of Americans, especially low-income people. It will lead to preventable deaths and higher costs for treating diseases that could have been detected earlier by free screenings, they said.

The US appealed that portion of the decision March 31, and some people closely watching the case predicted that the preventive services mandate challengers also would appeal.

Braidwood Management Inc., Kelley Orthodontics, and several individual plaintiffs filed their notice of cross-appeal Thursday.

The Affordable Care Act empowered three HHS-affiliated boards—the PSTF, the Health Resources and Services Administration, and the Advisory Committee on Immunization Practices—to determine what preventive services health plans must cover in full, O’Connor said.

The plaintiffs argued that the members of these boards weren’t constitutionally appointed and that their actions were void. O’Connor partially agreed, saying that the PSTF recommendations weren’t enforceable because that board wasn’t subject to agency review.

But he left in place the contraceptive care and vaccine recommendations made by the HRSA and ACIP because they had been ratified by HHS.

The court also dismissed the religious and nonreligious objectors’ contraceptive mandate claims.

Jonathan Mitchell of Austin, Fillmore Law Firm LLP, and America First Legal Foundation represent the challengers. The US Department of Justice represents the government.

The case is Braidwood Mgmt. Inc. v. Becerra, N.D. Tex., No. 20-cv-283, notice of cross-appeal filed 4/6/23.