Yesterday, the U.S. 5^th Circuit Court of Appeals heard arguments that could determine whether numerous preventive care services performed in the United States continue to be offered on a “no out-of-pocket cost” basis. In 2022, a federal judge for the U.S. District Court for the Northern District of Texas had struck down a key provision that enabled these “no out of pocket cost” offerings: In a ruling in Braidwood Management, Inc., et al. v. Xavier Becerra, et al.,  U.S. Judge Reed O'Connor vacated nationally Section 2713 of the Patient Protection and Affordable Care Act (ACA) which mandated coverage without co-pay or deductible payments for preventive services recommended by the U.S Preventive Services Task Force (USPSTF). Judge O’Connor ruled that because the members of the USPSTF are not Senate confirmed, the task force is not constitutionally permitted under the Appointments Clause of Constitution to wield such authority to determine coverages subject to the ACA's mandate.

The government appealed the judge's ruling, and the plaintiffs have cross appealed in an effort to broaden the scope of the injunction even further. Last summer, the parties to the appeal reached an agreement to not enforce the ruling pending appeal. Oral arguments in the case were heard yesterday at the appellate court house in New Orleans.

Section 2713 of the ACA mandates that group health plans and health insurers cover a long list of preventive health services (like cancer screenings, immunizations and contraceptives) without out-of-pocket, co-insurance and deductible costs to patients. The ACA's list of preventive services recommended by the USPSTF include items like cancer screenings, immunizations and contraceptives that have received a rating of ‘A’ or ‘B’ from that task force. Screening mammography services are unaffected by the ruling since that mandate preceded the ACA.

The ACA delegates to three different entities the power to determine which forms of preventive medical care must be covered by insurers at no additional cost to patients. Judge O’Connor ruled that the members of the USPTF may not wield such authority. The opinion left the authority of two other two groups (the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA)) in question. The plaintiffs seek to strike down the authority of the other two organizations as well.

The appellate court's decision will be much watched. This is a case that will likely be decided by the U.S. Supreme Court. It impacts the health care of over 150 million Americans.

The loss of the ability to receive these services without out-of-pocket costs would be a devastating blow to the delivery of preventive care services to Americans.