Not Well Appointed: Preventive Care Mandate Still in Effect, but Challenges Remain

By: HUB’s EB Compliance Team

On June 21, 2024, the United States Court of Appeals for the Fifth Circuit issued a ruling in Braidwood Management v. Becerra on whether the recommendations made by the US Preventive Services Taskforce (“USPSTF”) on preventive services under the Affordable Care Act (the “ACA”) are still in effect. In summary, employers sponsoring non-grandfathered health plans are required to cover all the ACA preventive mandates recommended by the USPSTF (unless they are a plaintiff in the case). 

Background

As detailed in this prior HUB article, some individuals and business owners challenged various aspects of the ACA preventive services mandates. Their argument was that certain mandates required them to offer coverage for items and services that promote activities (like drug use and extramarital sexual activity) that are inconsistent with their religious beliefs. As part of this challenge, they also argued the mandates were issued by were invalid, and unenforceable, as the members of the taskforce had not been appointed in accordance with the requirements of the Appointments Clause of the U.S. Constitution.

The district court ruled in favor of the plaintiffs as it related to the mandates issued by the USPSTF, finding that their appointments violated the U.S. Appointment Clause of the Constitution. The district court vacated (i.e., struck down) all preventive services requirements issued by the USPSTF and enjoined (i.e., prevented) the Department of Health and Human Services (“HHS”) from enforcing the preventive care recommendations made by the USPSTF. Lastly, the district court ruled that mandating coverage of PrEP for employers with religious objections violated the Freedom of Religion Act.

The Appeal

As is common in these disputes, parties on both sides of the case appealed. The decision of the 5^th Circuit Court of Appeals was mixed. The Appeals Court agreed that the USPSTF had unreviewable power to issue preventive-care recommendations that insurers and group health plans must cover by law. As a result, its members constitute “principal officers” of the United States. This requires them to be appointed by the President and confirmed by the Senate. Since the members of the USPSTF were not appointed in this way, they were unconstitutionally appointed rendering their recommendations unconstitutional. In the appeal, the plaintiffs also argued that the decisions made by the Advisory Committee on Immunization Practices and the Health Resources and Services Administration (the two other bodies that issue preventive care guidelines) were also invalid as their appointment of its members had been complied with the Appointments Clause of the Constitution.

The Court of Appeals found that vacating the preventive care recommendations issued by the USPSTF and the national injunction issued against HHS from enforcing the USPSTF recommendations went too far. First, the Court found that, to vacate the rules, the plaintiffs needed to challenge them under the Administrative Procedures Act, which they did not do. Second, the Court held that, in this case, there was no need to enjoin the rules nationwide while the case was pending. If the appointment of the USPSTF and members of the Advisory Committee on Immunization Practices and the Health Resources and Services Administration is ultimately determined to be unconstitutional, then their recommendations will be vacated, but that decision is not yet final since it could be appealed. There was no immediate need, in the Court’s view, to stop enforcement of these rules while the remaining legal issues are litigated through the courts.

Conclusion

As a result, employers who were not a party to this case are still required to cover all ACA preventive care services in their plans, even those recommended by the USPSTF. While employers should continue to watch this case with interest, no changes to plan coverage should be made at this time.

If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.

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Neither Hub International Limited nor any of its affiliated companies is a law or accounting firm, and therefore they cannot provide legal or tax advice. The information herein is provided for general information only, and is not intended to constitute legal or tax advice as to an organization’s or individual's specific circumstances. It is based on Hub International's understanding of the law as it exists on the date of this publication. Subsequent developments may result in this information becoming outdated or incorrect and Hub International does not have an obligation to update this information. You should consult an attorney, accountant, or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your or your organization’s particular needs.