ACA Preventive Health Services Mandate to Remain in Effect During Braidwood Appeal

A federal appellate court has paused a portion of the trial court’s ruling in Braidwood v. Becerra while the ruling is appealed, following an agreement by the parties. At issue is the constitutionality of the Affordable Care Act’s preventive health services mandate—specifically, coverage requirements triggered by recommendations of the United States Preventive Services Task Force (USPSTF). A group of employers and individuals challenged the mandate, arguing that it is unconstitutional as a whole and that a 2019 USPSTF recommendation requiring employers to cover HIV preexposure prophylaxis (PrEP) under their health plans (and denying individuals the opportunity to obtain insurance that excludes coverage for PrEP) violates the Religious Freedom Restoration Act (RFRA). The trial court held that requiring plan coverage of PrEP violates the RFRA and that members of the USPSTF were unconstitutionally appointed and therefore lacked the authority to determine the preventive services that must be covered by private health plans (see our Checkpoint article). The same court subsequently vacated all HHS, IRS, and DOL actions taken on or after March 23, 2010, to implement or enforce the preventive health services mandate in response to USPSTF recommendations (see our Checkpoint article).

The government appealed and asked the appellate court to “stay” (i.e., put on hold) the trial court’s ruling during the appeal. The appellate court has now issued an order allowing the USPSTF preventive health services recommendations and the corresponding coverage mandate to remain in effect while the appellate court decides the case. In conjunction with the order, the government agreed not to seek penalties or take enforcement action against the employers who brought the lawsuit (or the insurers of the individuals who brought the lawsuit) for their refusal to cover otherwise-required preventive services during the stay.

EBIA Comment: The appellate court’s order avoids, for now at least, a wholesale invalidation of agency actions taken since the ACA’s enactment in response to the USPSTF’s preventive services recommendations and keeps intact the related coverage requirements. It is important to remember that not all preventive services are affected by this litigation. For example, the lawsuit does not affect items and services recommended by the USPSTF before March 23, 2010; nor does it affect the Health Resources and Services Administration (HRSA) guidelines for women’s and children’s preventive services or the Advisory Committee on Immunization Practices (ACIP) immunization recommendations (see our Checkpoint article). For more information, see EBIA’s Health Care Reform manual at Section XII.C (“Coverage of Preventive Health Services”) and EBIA’s Group Health Plan Mandates manual at Section XIV.C (“Required Preventive Health Services Coverage”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.C.1 (“Preventive Health Services”).

Contributing Editors: EBIA Staff.