Braidwood v. Becerra Update: ACA preventative services should be safe until SCOTUS weighs in

Last week Amy Lotven of Inside Health Policy noted that the 5th Circuit Court panel was trying to come up with some sort of stopgap solution to the ongoing Braidwood v. Becerra lawsuit until such time as the case winds its way up to the U.S. Supreme Court. 

As Lotven reported:

One judge on the federal appeals court panel considering whether an order blocking HHS from enforcing the Affordable Care Act preventive services coverage mandate should continue to be partially stayed through its appeal is urging the parties to pursue a workable resolution, and legal expert Tim Jost says the panel appeared open to the government’s suggestion the court issue a narrow solution that only applies to insurers in Texas.

...Klein said the normal response to an unconstitutional statute is to apply a solution for the plaintiffs. One idea, therefore, would be to only prevent HHS from enforcing the mandate in Texas’ market. Under that concept, assuming that there would be a provider willing to sell a plan without the cost-free coverage of PrEP, that plan would be allowed to do so.

In Jost’s view, the panel seemed poised to give the plaintiffs all of the relief they request and seemed amenable to the idea of narrowing the order to apply only to the Texas market.

As I noted at the time, it would still suck for Texas residents if this ends up being how it plays out, but it would at least limit the damage to around 9% of the total U.S. population.

Of course when it comes to PrEP in particular, if a single carrier offered coverage of it at zero OOP cost while every other carrier charged co-pays, that carrier would quickly be flooded with every potential PrEP patient in the state and would likely see its claims expenses shoot through the roof via adverse selection...so it'd be pretty likely that every carrier would start charging OOP for PrEP if they could do so.

Since then, however, it looks like the parties have come up with a different resolution for the time being, a rather interesting one at that. Again, via Amy Lotven:

The federal government and Texas plaintiffs have agreed on a proposal to put on hold a controversial district court order that shot down the ACA’s preventive services mandate as the case works its way through the appeals court: Under the plan, the plaintiffs acquiesce to a stay on the district order as the case is appealed and the government agrees that in the event the district ruling were to be vacated or reversed it still would never enforce the preventive services requirement against the Texas plaintiffs.

Sure enough, this arrangement has been agreed to and approved by the panel, as confirmed by Nicholas Bagley:

Due to a joint stipulation, Judge O'Connor's nationwide injunction has been put on hold while the underlying merits of the dispute are resolved on appeal.

In exchange, the federal government has agreed not to penalize Braidwood if it drops coverage for any of the post-2010 services, including coverage for PrEP, while the appeals are pending.

Similarly, the government promises not to penalize the other plaintiffs in the case during the pendency of the lawsuit if they somehow manage to buy insurance that excludes coverage of PrEP.

But these are modest concessions. The key point is that the ACA's preventive-services mandate remains in force across the entire country -- and will likely remain in force unless and until the Supreme Court holds that it's unconstitutional.

Bagley also provides some insight into why the plaintiffs agreed to this arrangement given that it favors the government:

Why did the plaintiffs back off on their remedial demands? They're worried about what might happen if they drop preventive services coverage and then later lose the case. The government could probably still penalize them, even if they were relying on the injunction.

As a result, Braidwood decided that it couldn't make any changes to its self-insured plan unless the government committed to not enforcing the ACA against it during the pendency of the lawsuit. Which the government has now done.

Again, the key takeaway here is that the ACA's preventative service requirements should be locked in until the Supreme Court weighs in, which I assume could take another year or longer.