Breaking: 5th Circuit finally rules on Braidwood/Preventative Services lawsuit...and the decision is... (updated)

It's been another several months since the last time I wrote 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.

Here's Sabrina Corlette's 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 most recent development didn'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. 

...but this afternoon, the 5th Circuit Court issued their verdict, and it's...good, sort of, maybe?

Via Jessie Hellmann of CQ Now & Roll Call:

We have a ruling in the Braidwood case. The Fifth Circuit Court of Appeals rules that members of the US Preventive Services Task Force need to be confirmed by the Senate. But that relief should be targeted to the plaintiffs in the case & a nationwide injunction is not appropriate

If I understand this correctly, it basically means that the specific plaintiff in this case (Braidwood Management) is no longer legally required to provide the specific no-cost preventative services recommended by the USPSTF...however, any other healthcare provider/insurance carrier would have to sue the federal government independently if they wanted to get out of doing so on a case by case basis.

This would of course cost a fortune and tie up the federal court system for years, and in the meantime they'd still have to follow the ACA rules for preventative service coverage.

I'm not a lawyer, of course, so I could be misunderstanding the ruling, but that also seems to be the initial take by others more qualified on this sort of thing, like Raffi Melkonian, who's apparently an appellate lawyer at Wright, Close & Barger in Houston, with a Fifth Circuit and TX appellate practice:

Ca5 issues its opinion in the Braidwood preventative care case, which seems like it mostly leaves things intact? Through I need to read carefully.

— Raffi Melkonian (@RMFifthCircuit) June 21, 2024

Of course, the ruling is no doubt already being appealed up to the U.S. Supreme Court, which will take another year or two to get around to ruling on it regardless.

So...yay, I guess?

Here's the direct link to the ruling itself. I'll update this post if there's any other developments (such as my reading of the decision being dead wrong, for instance).

the final page states:

In sum, we:

• AFFIRM the district court’s judgment insofar as it enjoined the defendants from enforcing the preventive-care mandates against the plaintiffs it found had standing;
• REVERSE its judgment insofar as it entered universal remedial relief; and
• REMAND for further proceedings to consider those arguments we have identified as presented for the first time on appeal.

It's the second bullet which is the positive news: Only these specific plaintiffs get to weasel out of providing some types of preventative care at no out-of-pocket cost to the enrollees; everyone else has to suck it up...for now.

UPDATE: OK, the one & only Nicholas Bagley has cleared up some of the confusion, and while I have the basics correct, it's not as positive an outcome as I thought:

For now, nothing much changes. But there are warning signs ahead, as I'll explain.

...Today, the Fifth Circuit sided with the challengers when it came to PSTF. Its members supposedly have the authority to bind private parties, but those members weren't properly appointed. So PSTF's decisions aren't really official at all; they're just, like, its opinions.

There's a bit of a silver lining, however...for now, the PSTF-related injunction applies only to these plaintiffs, not across the whole country.

That may not be much a reprieve. New plaintiffs could file an APA suit, and these plaintiffs could try to amend their complaint on remand. But the status quo holds, for now.

As for HRSA and ACIP, there's better news. Sort of. The Fifth Circuit says that Secretary Becerra has the authority to review and ratify their decisions. (The court held that he doesn't have such authority over PSTF.)...So Judge Reed O'Connor will now decide whether the ratification was OK.

So we're in for more litigation before this case makes it up to the Supreme Court. How much more? Well, probably a couple of years. Litigation is slow! For now, the status quo holds, but it looks like the preventive services mandate may be in trouble down the line.