Thought the ACA was finally safe? Think again: 5th Circuit hears Braidwood appeal

It's been a whopping nine months since the last time I wrote anything about the seemingly never-ending Braidwood v. Becerra lawsuit which threatens to not only end many of the ACA's zero-cost preventative services, but which could also throw all sorts of regulatory authority into turmoil depending on what precedents it sets.

Over at CHIRblog, Sabrina Corlette has a refresher on this case and what's at stake:

On March 30, 2023, a federal district court judge issued a sweeping ruling, enjoining the government from enforcing Affordable Care Act (ACA) requirements that health plans cover and waive cost-sharing for high-value preventive services. This decision, which wipes out the guarantee of benefits that Americans have taken for granted for 13 years, now takes immediate effect.

...millions could, in very short order, lose access to no-cost early cancer screenings, mental health assessments, statins for heart disease, PreP to prevent HIV, and many more life-saving preventive services.

...One of the ACA's] reforms was a requirement that employer-based health plans and health insurers cover, without cost-sharing, high-value preventive services recommended by any one of three government panels, each composed of physicians and clinical experts. Coverage for more than 100 services has been mandated so far, including cancer screenings, childhood and adult immunizations, contraceptives, and mental health assessments.

Congress included the preventive services provision in the ACA because, when the law was enacted, many insurers did not cover critical preventive measures, or they imposed financial barriers, such as deductibles, copayments, or coinsurance, which limited their use. The preventive services coverage mandate is now one of the ACA’s most widely recognized, and popular, benefits, reaching 224 million people. It has led to the increased use of prevention, improved health outcomes, and reduced racial disparities in access to care.

In Braidwood Management v. Becerra, the plaintiffs challenged the constitutionality of the ACA’s preventive services provision. 

The silver lining is that the 5th Circuit Court put a stay on the ruling pending appeal...and today, another seven months later, that appeal is being heard:

...The appeals court is reviewing a district judge’s ruling that wiped away that requirement for certain preventive services.

...Two of the three circuit judges on the panel hearing arguments in the case, brought by employers and individuals in Texas, have shown previous hostility to former President Barack Obama’s 2010 health care law. Not only will they be weighing whether to uphold the ruling that partially invalidated the mandate, they will also be deciding whether additional coverage requirements targeted by the challengers should be struck down, including no-cost coverage for some vaccines as well as for certain preventive health services for women and children.

...In the case now before 5th Circuit, the Biden administration is asking the appeals court to reverse a ruling by US District Judge Reed O’Connor that jeopardizes access to no-cost coverage for statins, screenings for certain cancers and HIV-prevention drugs, among other services. If allowed to take effect, O’Connor’s ruling would end the mandates for cost-free coverage of preventive care services that were recommended by the US Preventive Services Task Force after Obamacare’s March 2010 enactment.

However, the government’s opponents in the case are arguing to the 5th Circuit that O’Connor did not go far enough.

...If the 5th Circuit upholds O’Connor’s ruling, it could make it harder for Americans to obtain important preventive screenings and services aimed at early detection of diseases.

They include lung cancer screenings for certain current and former smokers; colorectal cancer screenings for adults ages 45 to 49; the use of statins to prevent cardiovascular disease; counseling referrals for pregnant and postpartum women at increased risk of depression; and the offer of HIV-prevention pills, known as PrEP drugs, for those at high risk.

...If the 5th Circuit expands the ruling to encompass recommendations by the other entities, the impact would be much broader. It could wipe out the requirement that insurers provide vaccines for the flu, RSV and shingles at no charge, as well as infant screenings for more than 70 genetic diseases and conditions, testing for post-pregnancy diabetes, and annual checkups for women at no cost.

...More than 150 million people with private insurance can receive preventive services without cost-sharing under the Affordable Care Act.

It's worth noting that some states--including, most recently, my home state of Michigan--have baked these no-cost sharing preventative care/screening services into law at the state level:

...Sec. 3406z. (1) An insurer that delivers, issues for delivery, or renews in this state a health insurance policy shall provide coverage for all of the following:

...

(i) Preventive and wellness services and chronic disease management, as specified by an annual order of the director. The coverage required under this subdivision, as specified by the director's order, includes, but is not limited to, all of the following:

• (i) Evidence-based items or services that are highly recommended for preventive care and wellness purposes. As used in this subparagraph, "highly recommended" means that the director has determined there is a high certainty the net benefit of the item or service is substantial or moderate or there is a moderate certainty the net benefit is moderate to substantial after consideration of the recommendations issued by the United States Preventive Services Task Force, or a similar organization recognized by the director.
• (ii) Immunizations that the director determines are recommended with respect to the individual involved after consideration of recommendations from the Advisory Committee on Immunization Practices of the Centers for Disease Control, or a similar organization recognized by the director.
• (iii) With respect to infants, children, and adolescents, evidence-informed preventive care and screenings that the director determines are supported by the Health Resources and Services Administration, or a similar organization recognized by the director.
• (iv) With respect to women, additional preventive care and screenings not described in subparagraph (i) that the director determines are supported by the Health Resources and Services Administration, or a similar organization recognized by the director.
• (j) Pediatric services, including oral and vision care.

(2) An insurer that delivers, issues for delivery, or renews in this state a health insurance policy shall not impose any cost-sharing requirements for benefits provided under subsection (1)(i).

...but that will be small comfort to anyone living in any state which hasn't (or doesn't) do so as well.

UPDATE: Jessica Karins of Inside Health Policy has a summary of the hearing, and it doesn't sound like great news:

Attorney Richard Hughes of Epstein Becker Green, who filed an amicus brief in the case supporting HHS on behalf of patient advocates, said in an email Monday the Fifth Circuit court seemed poised to uphold the district court decision striking down the preventative coverage requirement, pointing out that the judges extensively questioned attorneys about whether vacatur or an injunction is more appropriate if they make that ruling.

Trump-appointed Judges Don Willett and Cory Wilson seemed skeptical of the arguments made by Department of Justice attorney Daniel Aguilar on behalf of the federal government that the USPSTF members are lawfully appointed and their decisions, rather than being final in themselves, are reviewed by the HHS secretary. Judge Irma Carrillo Ramirez, a Biden appointee participating in her first panel as a member of the court, didn’t ask questions during the argument.

Although HHS Secretary Xavier Becerra formally appointed the members of the task force in response to the court challenge, Aguilar said the court should find that their earlier selection by another HHS official was lawful under the Appointments Clause.

...Jonathan Mitchell, the attorney for the plaintiffs, argued the HHS secretary is not meaningfully reviewing the recommendations, merely signing off on those issued by the USPSTF. He said the members are not subject to the supervision of an official appointed by the president and confirmed by the Senate in any substantial way.

...A ruling on the case is expected within the next few months and it will likely be appealed to the Supreme Court during its 2024-25 term.