The Affordable Care Act (ACA) is the most litigated law in modern history. Lawsuits challenging its entire validity have made it to the Supreme Court three times. The Fifth Circuit ruling in Braidwood Management, Inc. v. Becerra on June 21 represents the latest existential challenge to the ACA’s core provisions — the preventive services requirement, under which virtually all health care plans must provide cost-free coverage of preventive services. The requirement has led to major gains in health access and outcomes. The U.S. Department of Health and Human Services (HHS) estimates that about 151.6 million people benefited from cost-free coverage of preventive services in 2020.
However, the Fifth Circuit recently put those services in limbo when it ruled that the experts within HHS who recommend most of those services were unconstitutionally appointed. The court’s ruling threatens the health of millions of Americans and disrupts the entire health insurance market.
Preventive Services Coverage Under the ACA
Under the ACA, all insurers and group health plans must provide cost-free coverage for preventive health services, such as cancer screenings, statins for heart disease, suicide screening, contraception, and HIV pre-exposure prophylaxis (PrEP). Because Congress does not have expertise in preventive medicine (or in other technical, scientific matters), it did not spell out the specific services that must be covered. Instead, Congress tasked experts within the HHS — the U.S. Preventive Services Task Force (PSTF), the Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA) — with identifying evidence-based preventive services and ensuring they were up to date. Altogether, ACIP, HRSA, and PSTF recommend coverage of over 100 preventive services.
ACA foes, who have repeatedly brought suits against the ACA, challenged the validity of the preventive services requirement on various grounds, including a claim that experts tasked with identifying the preventive services were improperly appointed, violating the Constitution’s Appointments Clause.
Federal employees fall into two categories: principal officers and inferior officers. The Constitution specifies how officers may be appointed. Principal officers must be appointed by the president and confirmed by the Senate. Inferior officers do not require senate confirmation but may be appointed by the president or heads of departments. While the lower court found that the services identified by PSTF, HRSA, and ACIP violated the Appointments Clause, it found that Secretary Xavier Becerra appropriately ratified the services, thus curing some of the constitutional defects. After the Braidwood litigation ensued, Secretary Becerra issued a memo ratifying the agencies’ recommendations.
At the lower court, Judge Reed O’Connor found that the ratification cured HRSA’s and ACIP’s recommendations, but not PSTF’s. Judge O’Connor reasoned that Secretary Becerra could not ratify PSTF’s recommendations because the ACA insulates the PSTF from “political control.” For that reason, he found that the over 50 preventive services recommended by PSTF were unconstitutional and prohibited HHS from enforcing the preventive services requirement nationwide. This ruling was a heavy blow to preventive care as it affected the most common preventive services — including screenings for heart disease, hypertension, lung cancer, cervical cancer, colorectal cancer, hepatitis B and C virus, diabetes, substance use, tobacco cessation, and PrEP to prevent HIV/AIDS. Separately, Judge O’Connor also ruled that coverage of PrEP violated the Religious Freedom Restoration Act.
PSTF’s Recommendations Before the Fifth Circuit
Dissatisfied with Judge O’Connor’s ruling, both parties asked the Fifth Circuit Court to intervene. First, the government asked the Fifth Circuit to stay the nationwide order. The court did so, limiting the prohibition only to the Braidwood litigation parties. The Fifth Circuit ruled that preventive services recommended by PSTF violated the Appointments Clause. The court’s reasoning is likely to precipitate more litigation against the preventive services requirement.
The Fifth Circuit ruled that PSTF members were principal officers because they exercise “substantial power” and are insulated from supervision by the secretary of health and human services. PTSF members recommend the preventive services insurers must cover, and the HHS secretary may not review or revise their recommendations. Since they were not appointed by the president and confirmed by the Senate, their appointment was unconstitutional.
Even so, the government urged the court to find that the recommendations were constitutional because Secretary Becerra cured any Appointments Clause defects when he ratified PSTF’s recommendations. As noted earlier, Secretary Becerra issued a memo ratifying the preventive services recommendations (including PSTF’s), thus adopting them as his own. The Fifth Circuit, however, was unconvinced that Secretary Becerra could cure the defects because he does not have supervisory authority over PSTF. The court reasoned that, without such authority, Secretary Becerra lacks the power to ratify the recommendations. The court took that position, even though PSTF is convened by the director of the Agency for Health Care Research and Quality, who is statutorily subordinate to the HHS director. The statutory hierarchy notwithstanding, the court ruled that PSTF was not under Secretary Becerra’s supervision and control.
The government also urged the court to sever the provision that insulates PSTF from political pressure so that the HHS secretary could review or reject PSTF’s recommendations going forward. Doing so would address the Appointments Clause issues and ensure that insurers were covering services that had the secretary’s approval. However, the court declined to do so. The court reasoned that severing that provision would not solve the problem because it would not empower the secretary to review and issue the recommendations himself.
Prohibiting the Preventive Services Nationwide
Having determined that PSTF members were improperly appointed and that Secretary Becerra lacked the authority to ratify their recommendations, the remaining question was what to do about existing preventive services recommendations. While Judge O’Connor had prohibited all the recommendations nationwide, the Fifth Circuit was not prepared to go that far. Rather than applying the prohibition to all health care plans, the Fifth Circuit ruled that only the plaintiffs in that case would not have to cover PSTF’s recommended preventive services for free.
The use of nationwide remedies — like the one Judge O’Connor issued below — has become a common phenomenon in the courts, especially in litigation affecting health policies. Through a practice known as judge-shopping, litigants strategically file their lawsuits in particular courts, knowing that they will find a sympathetic judge who will provide a sweeping remedy and halt the challenged policy nationwide, in most cases, before even the policy is implemented.
HRSA and ACIP Recommendations
For the preventive services recommended by HRSA and ACIP, the Fifth Circuit found that Secretary Becerra could ratify those services because he has supervisory authority over those agencies. While PSTF is insulated from political pressure, the same does not apply to HRSA and ACIP. In any event, various statutes give HHS control over those agencies, and their recommendations do not become effective before the HHS secretary signs off.
The Fifth Circuit, however, doubted that Secretary Becerra had properly ratified the recommendations when he issued the January 21, 2022, memo. To properly ratify the recommendations, the secretary had to follow an elaborate regulatory rulemaking process, and since he had not done so, the Fifth Circuit returned the case to the lower court. The idea that purely scientific recommendations about cost-effective prevention services would have to go through an elaborate regulatory process would engender delay and uncertainty in the U.S. health care system. In an ideal world, we would want expert scientists to make rigorous, evidence-based, and independent judgments about access to a wide range of prevention services.
Takeaways
The preventive services requirement is a key component of the ACA. By providing access to cost-free coverage of preventive services, the ACA protects health at the population level through risk minimization and early detection of diseases. Consequently, the preventive services requirement not only helps minimize unnecessary deaths, but it also keeps the overall cost of health care low as it is less costly to prevent or treat diseases sooner, which early detection facilitates. Ending cost-free coverage of some of the basic preventive services, such as cancer screenings, will cause millions of people to forgo the use of these services when there are financial barriers. Limiting coverage of preventive care will inevitably create a sicker population, which will harm the nation’s workforce and the overall economy.
Still more, rolling back access to preventive care leads to increased public spending on health care. As people get older and their health conditions worsen (due to lack of timely preventive services), Medicare and Medicaid will have to pick up the tab. Finally, but importantly, limiting or eliminating cost-free prevention services will significantly increase inequities in access to health care, affecting mostly low-income and vulnerable populations.
While the Fifth Circuit ruled that HHS cannot enforce the preventive services requirement only against the Braidwood plaintiffs, there is nothing to stop others from making the same claims. The ruling is thus likely to open a floodgate of suits like Braidwood. Moreover, because the Fifth Circuit cast doubt on the validity of Secretary Becerra’s ratification of HRSA and ACIP’s guidelines and recommendations, those services may equally be vulnerable to fresh challenges — all of which would hamper public health efforts to address infectious diseases, such as COVID-19, mpox, shingles, and HPV.
DISCLAIMER: The views and opinions expressed in this piece are those of the authors and do not reflect the views of the O’Neill Institute.
