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. The case, Braidwood Management Inc. v. Becerra, was brought by individuals and businesses who challenged the preventive care mandates implemented by the Affordable Care Act (“ACA”) as violating the U.S. Constitution and the Religious Freedom Restoration Act (“RFRA”). Among the legal challenges made, the plaintiffs challenged the preventive care recommendations issued by the USPSTF, as well as recommendations made by the Health Resource and Services Administration (“HRSA”) and the Advisory Committee on Immunization Practices (“ACIP”), on the basis that appointment of members of these advisory groups violated the Constitution’s Appointments Clause because they were not appointed by the President with the advice and consent of the Senate. Certain plaintiffs also sued on religious grounds, objecting to having to provide or pay for certain preventive coverage, including preexposure prophylaxis (“PrEP”) drugs to help reduce the risk of HIV infection. Other plaintiffs objected on non-religious grounds to being required to purchase health insurance for preventive care they do not want.
The USPSTF members are appointed by the Director of the Agency for Healthcare Research and Quality. Therefore, in the first ruling in this case in September 2022, the court found that because USPSTF’s recommendations had the force and effect of law under the ACA, USPSTF’s appointment procedures violated the Appointments Clause. However, the court found that, unlike USPSTF, the recommendations made by HRSA and ACIP were subject to ratification by the Secretary of the Department of Health and Human Services, who is appointed by the President with the advice and consent of the Senate. As a result, actions taken to implement HRSA and ACIP recommendations remain in effect.
The court concluded in its most recent decision that, rather than the narrow approach of severing the ACA provisions that violated the Appointments Clause, it was appropriate to instead grant universal relief by vacating all agency actions that implemented USPSTF’s recommendations on or after March 23, 2010 and enjoining agencies from implementing USPSTF recommendations in the future. USPSTF recommendations include not only PrEP drugs but a wide variety of additional preventive care treatment, including cancer, diabetes, and heart disease screenings. A list of the USPSTF’s most recent recommendations is available here.
In both the September ruling and its most recent decision, the court also ruled that requiring religious objectors to pay for PrEP drugs violated RFRA, finding that the government had not demonstrated a compelling government interest in requiring religious employers and individuals to pay for such coverage or that the PrEP mandate was the least restrictive means of furthering such a compelling interest.
The federal government is expected to appeal this decision and to seek to have it stayed pending appeal either by the District Court and, if not granted by the District Court, by the Fifth Circuit Court of Appeals, which would also hear any appeal of the merits.
Please contact Slevin & Hart for more information about this case and how it affects your plan.
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