Obamacare Preventive Care Row Gets Temporary Administrative Stay

Health plans nationwide will have to continue providing no-cost coverage for certain preventive health-care services until an appeals court decides if temporarily halting an order that set aside an Obamacare rule is warranted.

Health and Human Services Secretary Xavier Becerra’s motion to stay an order rendering part of the Affordable Care Act’s preventive services mandate unenforceable will be “carried with the case,” the US Court of Appeals for the Fifth Circuit said. Normally, this means that an appellate court has decided that it hasn’t had enough time to issue a ruling and prefers to wait while it considers the briefs.

Becerra had asked the court to decide on the motion by May 18.

For now, the Fifth Circuit granted an administrative stay, which will prevent the order from taking effect until the appeals court rules on the stay motion. The court didn’t give any reason for its action in Monday’s brief two-paragraph unsigned order.

Judges Edith Brown Clement, Leslie H. Southwick, and Stephen A. Higginson issued the order.

Becerra is appealing from a decision by the US District Court for the Northern District of Texas that would have prevented people from freely accessing services such as cancer screenings and HIV drugs. Judge Reed O’Connor held March 30 that one of three boards charged with recommending which services must be fully covered didn’t have constitutional authority to do so.

The secretary’s motion targeted only the nationwide effect of O’Connor’s order. He didn’t ask for a stay of the order as to the plaintiffs, Braidwood Management Inc., Kelley Orthodontics, and several individual plaintiffs.

O’Connor deferred ruling on an emergency stay motion April 20. He ordered the federal defendants to “address their commitment to the assertions that, absent an emergency stay pending appeal, more than 150 million Americans preventive care services coverage will be disrupted; and (2) explain what evidence they have that insureds will lose their coverage as suggested” in their briefing.

Multiple nonparty patient and doctor advocacy groups have filed friend of the court briefs supporting the secretary’s motions in both courts.

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

The case is Braidwood Mgmt., Inc. v. Becerra, 5th Cir., No. 23-10326, unpublished 5/15/23.