Supreme Court to consider dispute involving ACA's preventive-care coverage

The Supreme Court on Monday will consider a case that could impact whether Americans have to pay out-of-pocket for preventive-care services such as diabetes screenings, HIV-prevention drugs and statins, which are currently provided to patients at no cost under the Affordable Care Act.

The legal battle is the latest to land before the high court that involves the landmark health care overhaul signed into law by then-President Barack Obama in 2010. But this dispute turns on how to classify the 16 members of the U.S. Preventive Services Task Force, which sits within the Department of Health and Human Services and has been making recommendations on preventive medical services to avoid serious health conditions since 1984.

But last year, a federal appeals court in New Orleans found that the task force's structure violates the Appointments Clause of the Constitution because its members were not properly appointed.

If the Supreme Court affirms the decision of the U.S. Court of Appeals for the 5th Circuit, major hospital associations and leading nonprofits advocating on behalf of breast cancer and HIV patients have warned it would limit access to life-saving medical care for millions of patients.

"Patients who relied on the promise of preventive care without out-of-pocket costs for a variety of lifesaving interventions and screenings may now need to bear those costs themselves," a coalition of trade groups, led by the American Hospital Association, wrote in a friend-of-the-court brief filed with the Supreme Court. "Realistically, this means that patients will not seek out essential preventive care or adhere to preventive medications after they are prescribed."

While the Preventive Services Task Force has for more than three decades been making recommendations on preventive medical services, its role was codified by Congress in 1999. The task force's members are selected by the Health and Human Services secretary and appointed to a four-year term. There are no restrictions on a member's removal, though Congress has said that all members and their recommendations "shall be independent and, to the extent practicable, not subject to political pressure."

With the passage of the Affordable Care Act, Congress required health insurers and group health plans to cover certain preventive services that are recommended by the task force without imposing co-pays, deductibles or other cost-sharing charges on patients. 

Congress did not create a list of covered preventive services when it passed the ACA, but instead provided for categories of services that must be covered based on the recommendations of medical experts, including the task force. The Biden and Trump administrations have both estimated that millions of Americans have received these services for free through their insurance plans.

Among the preventive services currently recommended by the task force are screenings for lung, cervical and colorectal cancers, as well as diabetes; statin medications to reduce the risk of heart disease and stroke; and medication to prevent HIV, known as PrEP, which gave rise to the legal battle currently before the Supreme Court.

After the task force recommended in June 2019 that PrEP be included among the preventive services covered without cost-sharing arrangements, a group of four individuals and two small businesses filed a lawsuit targeting the Preventive Services Task Force.

The plaintiffs argued that providing coverage of PrEP "encourages and facilitates homosexual behavior," which conflicts with their religious beliefs, and said they want to purchase or provide plans that exclude coverage of that medication.

Five of the six challengers do not participate in the health insurance market, and the sixth, Braidwood Management, provides coverage to 70 employees through a self-insured plan.

The lawsuit, filed in the Northern District of Texas, argues that the task force's structure violates the Constitution's Appointments Clause because its members are principal officers who therefore must be nominated by the president and confirmed by the Senate.

The district court sided with the plaintiffs, finding that the task force members were improperly appointed. U.S. District Judge Reed O'Connor also invalidated all preventive-care coverage recommendations that had been implemented since the ACA was signed into law in March 2010, and barred the government from enforcing the health care law's coverage requirements in response to the task force's recommendations going forward.

The 5th Circuit affirmed the lower court's finding that the task force's structure is unconstitutional, but disagreed with the universal relief it provided as to the task force's prior requirements for preventive-care coverage.

In concluding that the task force's members are principal officers, the 5th Circuit said they were not properly appointed because they wield "unreviewable power" — issuing preventive-care recommendations for services that insurers, in turn, must cover under the Affordable Care Act.

The Biden administration appealed to the Supreme Court and the Trump administration has continued to defend the board's structure.

"Task force members are inferior officers, because the secretary of HHS — a quintessential principal officer — remains responsible for final decisions about whether task force recommendations will be legally binding on insurance issuers and group health plans," then-acting Solicitor General Sarah Harris told the Supreme Court in a February filing.

She said that Health and Human Services Secretary Robert F. Kennedy, Jr., appoints task force members, can remove them at will, and can review their recommendations, including deciding not to give them "legal force" under the Affordable Care Act before they have binding effect.

"Taken together, those controls give the secretary, not the task force, ultimate responsibility for whether task force recommendations become final, binding decision," Harris wrote.

She also noted that even if the task force members were principal officers who had to be appointed by the president and confirmed by the Senate, the constitutional violation would be remedied by severing a provision of federal law that the 5th Circuit found insulates it from the Health and Human Services secretary's supervision. 

Doing that, Harris wrote, would allow the task force to "make recommendations that will have legal effect only under appropriate supervision by the secretary."

But lawyers for Braidwood Management have said that the task force members are principal officers who must be appointed by the president and confirmed by the Senate in part because federal law dictates that their recommendations be kept "independent" and "not subject to political pressure."

Even if the Supreme Court finds that the members are inferior officers, they said that category of executive branch officials still requires appointment by the president and Senate, unless Congress says otherwise.

"Anyone could have appointed the task force prior to the ACA, and this congressional indifference means that the President and Senate must appoint now that the ACA has converted the task force members into officers of the United States," Jonathan Mitchell, who is representing the plaintiffs, said in a filing.

He also disputed that the court can fix these constitutional violations by separating out the problematic provision of the law and empowering the secretary to veto the task force's recommendations for mandated preventive-care coverage. The task force, he said, would still have unreviewable discretion when it decides not to require coverage of a particular service.

In filings with the Supreme Court, outside medical organizations have warned that a decision invalidating the structure of the task force would have significant ramifications for access to preventive care.

The Susan G. Komen Breast Cancer Foundation said that the elimination of cost-sharing for breast cancer preventive-care measures has had a "profound impact" on public health because screenings lead to earlier detection and treatment, and fewer deaths.

"The costs of such preventive care — if not fully covered by insurance, which is the effect of the district court's decision — dissuade individuals from utilizing the services, and thus lead to later detection, later-stage diagnoses, more aggressive treatment plans, higher treatment costs, and more deaths," the organization said in a brief. 

The HIV and Hepatitis Policy Institute said the task force's recommendations have been "essential" to preventing HIV, hepatitis and other infectious diseases for millions of patients.

"Without continued access to the no-cost prevention assured under the ACA and consequent new transmissions, our nation will witness a reversal of decades of progress as HIV resurges," the group said in a brief, joined by 19 other organizations.

But groups backing Braidwood have argued that the task force is insulated from political accountability, as the ACA left no room for supervision by the Health and Human Services secretary or any other principal officer who answers to the president.

A decision from the Supreme Court is expected by the end of June or early July.