This past Friday, the  U.S. Supreme Court accepted an appeal from U.S. 5^th Circuit Court of Appeals that can be expected to determine the constitutionality of offering numerous preventive care services with “no out-of-pocket cost” to patients in the United States. The outcome of the appeal could impact whether many preventive health services recommended by the U.S. Preventive Services Task Force (USPSTF), as mandated in the Patient Protection and Affordable Care Act (ACA), can continue be offered on a no-cost basis. 

In 2022, U.S. Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas struck down a key provision that enabled these no cost preventive health offerings. The Government's Petition for a Writ of Certiorari in Xavier Becerra, Secretary of Health and Human Services, et al. v. Braidwood Management, Inc., et al., addresses Judge O'Connor's ruling to vacate nationally Section 2713 of the Affordable Care Act which mandates coverage without co-pay or deductible payments for preventive services recommended by the USPSTF.  Judge O'Connor ruled the the members of the USPSTF, 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 decision narrowly affirmed a Federal District Court 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 violated the Constitution. The Supreme Court will address that issue.

Section 2713 of the ACA mandates that group health plans and health insurers cover a long list of preventive health services 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 mostly 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. 

One assumes that this case, now accepted, will be heard with the ruling of the U.S. Supreme Court sometime in 2025. But, not to be overlooked, the outcome of the U.S. Presidential election may come into play. The Biden Administration has sought to uphold the availability of zero dollar preventive health services for millions of Americans. What impact will the ushering in of the Trump Administration have on this appeal?