By: HUB’s EB Compliance Team

The Supreme Court recently issued their long awaited decision in Kennedy vs. Braidwood Management, Inc. (“Braidwood”). This decision preserves the requirement that non-grandfathered group health plans cover certain items and services at 100%, without cost sharing. For sponsors of non-grandfathered health plans, this means business as usual, without any changes to the preventive care requirements.

Preventive Care

As a reminder, under the ACA, group health plans are generally required to cover certain preventive services without cost-sharing. These include:

  • Evidence-based items or services that have a rating of “A” or “B” in effect in the current United States Preventive Services Task Force (USPSTF) recommendations, except for USPSTF recommendations regarding breast cancer screening, mammography, and prevention issued in or around November 2009 (because prior recommendations provided broader coverage);
  • Immunizations for routine use in children, adolescents, and adults recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC);
  • For infants, children, and adolescents: evidence-informed preventive care and screenings provided in the comprehensive guidelines supported by the Health Resources and Services Administration (HRSA); and
  • For women: preventive care and screenings provided in comprehensive guidelines supported by the HRSA.

Background

Braidwood was originally filed in 2020. At the time it was titled Braidwood Management, Inc. vs. Becerra in reference to then Secretary of Health and Human Services (“HHS”), Xavier Becerra. Braidwood argued that certain mandates recommended by USPSTF 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.

In 2022, the district court ruled in favor of Braidwood. Their ruling on the specific mandates in question was limited to Braidwood itself and did not have broader implications. The district court also ruled that, of the three bodies listed above (the USPSTF, the ACIP, and the HRSA), the USPSTF was not properly appointed under the Constitution. As a result, their recommendations, which are binding on group health plans, were invalid, as they came from someone with no accountability to the voters.

The federal government appealed this decision to the Fifth Circuit Court of Appeals, which also ruled in favor of Braidwood. This set the stage for the appeal to the Supreme Court.

Future Implications

Though the court’s conclusion may make this case seem like a simple affirmation of the existing requirements, their opinion may also have future implications.

Notably, the court found the USPSTF members to be “inferior officers” of the Secretary of HHS. Inferior officers are those “whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate” (i.e., the Secretary of HHS). As inferior officers, the Secretary of HHS also has the power to remove USPSTF members at will and “review and block Task Force recommendations before they take effect.”

The confirmation of these powers gives (or rather confirms) the Secretary of HHS has broad powers with regard to and ultimate oversight of the USPSTF. Thus, the USPSTF “A” and “B” recommendations should now be viewed as recommendations made to the Secretary of HHS, who has the final say in whether such recommendations are truly requirements for group health plans.

Conclusion

For plan sponsors, this decision means the ACA preventive care requirements from the USPSTF remain as is. In other words, no changes are needed at this time.

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

NOTICE OF DISCLAIMER
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.