Good News (for now)! 5th Circuit issues stay of #Braidwood preventative services ruling!

There's been another development in the long, winding saga of the Kelley / Braidwood v. Becerra federal lawsuit, which seeks to strike down the Affordable Care Act's preventative services provisions requiring health insurance providers to cover a long list of preventative healthcare services at no out of pocket cost to enrollees.

For the full backstory behind this case (and why a plaintiff win against the government here would be far more devastating than "just" the specific provisions being struck down), read my prior post (with many updates) on the case.

The most recent development prior to today came on March 30th, 2023:

Judge Reed O'Connor STRIKES DOWN a major provision of the Affordable Care Act requiring insurers to cover a vast amount of preventive care cost-free (contraception, cancer screening, PrEP, a ton of pregnancy-related care). The ruling applies nationwide.

— Mark Joseph Stern (@mjs_DC) March 30, 2023

As stern goes on to note:

Here is a list of the many, many preventive care treatments that insurers must cover cost-free under the ACA. Reed O'Connor just struck down the entire section of the law mandating this coverage. This is a gigantic blow to the ACA and U.S. health care.

O'Connor rules that the U.S. Preventive Services Task Force—the federal agency that decides which medical care all insurers must cover—is unconstitutional because it violates the Appointments Clause, and invalidates its power to enforce anything against anyone nationwide.

I anticipated this decision in September when O'Connor first telegraphed it. It is nothing short of catastrophic to the U.S. health care system. Millions of Americans, including many pregnant women, will have to forgo basic care if it is upheld.

As I noted at the time:

It's important to note that this ruling could very well be overturned/reversed on appeal...but it might not be.

It's also important to note that insurance carriers are already legally contracted to keep providing these services through the end of 2023; the question is what happens when 2024 rolls around. The final deadline for those contracts to be signed is sometime in September, I believe.

A couple of other important things to keep in mind:

  • As Michael Capaldo notes, there are currently 14 states (+DC) which mandate the same preventative service coverage without cost sharing to individual market enrollees as the ACA itself: California, Colorado, Connecticut, Delaware, District of Columbia, Maine, Maryland, Minnesota, New Mexico, New Jersey, New York, Oregon, Virginia, Vermont and Washington State.

The three bodies which make recommendations for which services should be covered at no charge are the U.S. Preventative Services Task Force (USPSTF), the Advisory Committee on Immunization Practices (ACIP) and the Health Resources & Services Administration (HRSA). O'Connor's ruling appears to only strike down services recommended by the USPSTF after the ACA was signed into law in March 2010, as well as coverage of HIV pre-exposure prophylaxis (aka HIV PrEP) medication.

In practice, however, this could change depending on how the appeals process goes, so stay tuned.

Well, today there's been another twist; via Chris Geidner of LawDork News:

BREAKING: The 5th Circuit has issued an administrative stay of the nationwide scope of the ACA preventative care case while it considers DOJ's motion for a partial stay pending appeal. This means Judge Reed O'Connor's nationwide ruling is on hold for now.

— Chris Geidner (@chrisgeidner) May 15, 2023

The actual DOJ motion for a partial stay pending appeal is "carried with the case," meaning that the merits panel of the Braidwood appeal — as opposed to this motions panel — will decide it.

— Chris Geidner (@chrisgeidner) May 15, 2023

While this hot potato keeps getting bounced around at the federal level, in addition to the 14 states +DC listed above, some states like Massachusetts are battening down the hatches by locking in these types of $0-cost preventative services at the state level, something I wish every state (including my own home state of Michigan) would do.

Stay tuned...