April 24, 2023
On March 30, 2023, the United States District Court for the Northern District of Texas issued an order in Braidwood Management Inc. v. Becerra (“Braidwood”), vacating any and all actions taken by the DOL and other federal agencies (in the past and in the future) to implement or enforce provisions of the ACA that require group health plans and health insurance issuers (“plans and issuers”) to cover certain preventive care services with a rating of “A” or “B” by the United States Preventive Services Task Force (“USPSTF”) without cost sharing. The court found that Congress’ delegation of authority to the USPSTF under the ACA violates the Appointments Clause of Article II of the U.S. Constitution. The Braidwood decision does not impact coverage of preventive care services recommended by the Health Resources and Services Administration (“HRSA”) for infants, children, adolescents, or women, or immunizations for routine use in adults, adolescents, or children recommended by the Advisory Committee on Immunization Practices (“ACIP”), which are also required to be covered without cost sharing.
In response, on April 13, 2023, the DOL and other federal agencies released FAQs that provide guidance regarding how the agencies are interpreting the decision. The FAQs strongly encourage plans and issuers to continue covering preventive services with an “A” or “B” rating by the USPSTF despite the Braidwood decision. The guidance is summarized below.
The Affordable Care Act (“ACA”) requires non-grandfathered plans and issuers to cover, without cost sharing, certain preventive care services. The ACA specifies the categories and agencies who are responsible for determining the preventive care services that must be covered including the frequency, method, treatment, or setting for the recommended service. Three entities were tasked with identifying and recommending preventive care services in four different categories:
Some preventive care items and services cross between the categories listed above and may be recommended by two different agencies.
Members of ACIP and HRSA fall within the purview of HHS such that HHS is responsible for creating and overseeing the members. On the other hand, the USPSTF’s membership is comprised of volunteers who are not affiliated with a federal agency and, unlike ACIP and HRSA, USPSTF is not part of HHS or any other federal agency.
The Braidwood case centers on 2011 HRSA guidance that mandates coverage of all FDA-approved contraceptive methods (including certain birth control methods that have abortifacient properties) and the USPTFs 2019 “A” rating issued for PrEP drugs, which are drugs that prevent the spread of the HIV virus. The plaintiffs alleged that forcing them to pay for insurance coverage for items or services they will either (a) not use due to their religious beliefs, or (b) object to on religious grounds, violates the Religious Freedom Restoration Act, Article II’s Appointments Clause, the nondelegation doctrine, and Article II’s Vesting Clause.
The court dismissed the claims related to the 2011 HRSA guidance recommending coverage of all FDA-approved contraceptives; however, the court determined, among other things, that the ACAs delegation of authority to the USPTF to make recommendations binding on health plans, issuers, and, in turn, participants, violates Article II’s Appointments Clause. The court vacated any prior actions by the federal agencies (since 2010) to implement or enforce the provisions of the ACA requiring plans to cover preventive services with a “A” or “B” rating by the USPSTF without cost sharing and enjoin them from further implementing or enforcing this requirement on plans or issuers in the future.
The Department of Justice, on behalf of the DOL and other federal agencies, appealed the decision on March 31, 2023, and on April 12, 2023, requested that the appellate court issue a stay of the decision while the appeal is pending.
The DOL and other agencies’ guidance provides the following:
It is likely that the District Court’s decision in Braidwood will be stayed pending appeal. In that case, none of the above guidance will be required as the DOL and other agencies can continue with business as usual, consistent with the provisions of the ACA, unless or until a Federal Court of Appeals or the United States Supreme Court determines that this particular provision of the ACA is unconstitutional and unenforceable. Accordingly, employers should consult directly with counsel before making any plan design changes in reliance on the Braidwood decision.
About the Authors. This alert was prepared for The Fedeli Group by Barrow Weatherhead Lent LLP, a national law firm with recognized experts on the Affordable Care Act. Contact Stacy Barrow or Nicole Quinn-Gato at firstname.lastname@example.org or email@example.com.
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