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Zero dollar "out-of-pocket" preventive health care services given a temporary reprieve in Federal court - but future does not look rosey

Last week, the U.S. 5th Circuit Court of Appeals in New Orleans issued its much anticipated ruling on whether numerous preventive care services performed in the United States will continue to be offered to Americans 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. Under review in Braidwood Management, Inc., et al. v. Xavier Becerra, et al. was U.S. Judge Reed O'Connor's ruling to vacate nationally Section 2713 of the Patient Protection and Affordable Care Act (ACA) which mandates coverage without co-pay or deductible payments for preventive services recommended by the U.S. Preventive Services Task Force (USPSTF), as well as the court's decision to accept recommendations of two other entities, the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA).  

On appeal and cross appeal were contentions over whether the members of the USPSTF, ACIP and HRSA, because they are not Senate confirmed are not constitutionally permitted under the Appointments Clause of Constitution to wield the authority to determine coverages subject to the ACA's mandate.

The 5th Circuit Court of Appeals narrowly affirmed a lower court’s ruling that the secretary of the Department of Health and Human Services (HHS) could not force the plaintiff with standing, Braidwood Management Inc., to abide by a preventive care mandate in the ACA. However, the court refused to rule in favor of the government on the critical constitutional question before the court, namely on whether the delegation of the determinations of what are ‘preventive services' to the USPSTF, ACIP and HRSA violates the Constitution.

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 includes 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, but even there could be uncertainty, since current Federal law recognizes the 2002 USPSTF guidelines calling for screening every one-to-two years beginning at age 40. The task force only recently recommended that screening begin at 40.

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. Although ruling against the USPSTF, the district court opinion left in place the authority of two groups - the ACIP and HRSA - to opine on preventive health services, which is relevant to coverage for the HIV prevention drug pre-exposure prophylaxis (PrEP). Ultimately, the 5th Circuit has remanded to the district court to consider the contentions made by the plaintiffs on the constitutionality of the recommendations of all three entities: the USPSTF, ACIP and HRSA.

Importantly, the appellate court did not find any support for the district court’s decision to vacate all agency actions taken to enforce the Task Force’s preventive services recommendations. Thus, it did not find any support for the district court’s universal (or nationwide) injunction, noting that such national injunctions are “viewed with conspicuous skepticism.”  One the other hand, the appellate court refused to embrace the government's rationale that the ACA’s scheme for identification of preventive services is constitutionally sound.

Thus, in remanding these questions back to the district court, the 5th Circuit has set a course for much still to come in this dispute; further arguments in the district court, and likely further appeals to both the 5th Circuit and the U.S. Supreme Court. And, not to be overlooked, the outcome of the U.S. Presidential election all will undoubtedly determine the fate of zero dollar preventive health services for millions of Americans.

We are disinclined to decide questions without sufficient briefing, particularly ones of high stakes and of constitutional import. We also generally prefer to adhere to our policy of being ‘a court of review, not first view


aca, preventive health services, litigatiion