As discussed in our April 11 Benefits Update, on March 30, 2023, the United States District Court for the Northern District of Texas blocked all agency actions to implement or enforce preventive care coverage requirements recommended by the U.S. Preventive Services Task Force (“USPSTF”) on or after March 23, 2010, and enjoined future agency action to implement or enforce USPSTF recommendations. In that case, Braidwood Management Inc. v. Becerra, the District Court ruled that the appointment of members of USPSTF violated the Constitution’s Appointments Clause. There have been two significant developments since the Braidwood ruling. First, on April 13, 2023, the Departments of Labor, Health and Human Services, and Treasury (“Departments”) published frequently asked questions (“FAQs”) to address questions resulting from the Braidwood decision. Additionally, on May 15, 2023, the United States Court of Appeals for the Fifth Circuit temporarily stayed the nationwide injunction issued by the District Court.
In the FAQs, the Departments clarified that the Braidwood decision applies only to recommendations made by the USPSTF on or after March 23, 2010 and does not affect either: (a) USPSTF recommendations made prior to March 23, 2010; or (b) recommendations made by either the Health Resource and Services Administration or the Advisory Committee on Immunization Practices. The Departments also clarified that the decision does not prevent states from enacting or enforcing their own laws requiring insurers to provide coverage for USPSTF recommendations. The Departments explained that high deductible health plans may continue to provide benefits for USPSTF-recommended services before a deductible is met, regardless of whether such services must be covered without cost sharing. The Departments also explained that if a Plan elects to discontinue coverage or change cost sharing for preventive services, ERISA’s notice requirements still apply, including the 60-day advance notice requirement for changes to a plan’s Summary of Benefits and Coverage. Throughout the FAQs, the Departments strongly encourage plans to continue providing coverage for USPSTF recommendations, noting that the Government has appealed the District Court’s decision and requested a stay of its nationwide injunction.
On May 15, 2015, the Court of Appeals granted an administrative stay of the District Court’s nationwide injunction, which means that non-grandfathered health plans must, at least for now, continue to cover USPSTF-recommended services without cost sharing. Significantly, this is an administrative stay only, to prevent the forced implementation of a nationwide injunction while the Court of Appeals decides the merits of the motion for partial stay. The Court of Appeals has scheduled oral argument on the Government’s motion for a partial stay for June 6. It is likely that the Court of Appeals will issue a decision on the motion for partial stay this summer, potentially as early as June. Pending possible future Supreme Court action, the Court of Appeals’ decision ultimately will dictate whether the status quo remains in effect for now or the Braidwood nationwide injunction is restored while the underlying appeal continues.
The appeal of the substance of the Braidwood decision also is pending before the Court of Appeals, although it will likely be decided after resolution of the motion for partial stay. The Government’s opening brief on its full appeal is currently due by June 20. A further appeal to the Supreme Court by whoever loses before the Court of Appeals is likely. There also could be an appeal to the Supreme Court on the Government’s motion for partial stay.
We will continue to provide updates on the Braidwood litigation as it proceeds. Please contact Slevin & Hart for more information about this case and how it affects your plan.
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