Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Law360, in “4 Argument Sessions Benefits Attys Should Watch in March,” by Kellie Mejdrich. (Read the full version – subscription required.)

Following is an excerpt:

The Fifth Circuit is set to decide the fate of preventive services coverage requirements under the Affordable Care Act that provide millions of insured people access to no-cost treatments including HIV medication and early screenings for colon cancer.

A three-judge panel is set to hear arguments March 4 in the federal government's appeal seeking to keep the law in place. Those requirements are on the chopping block after U.S. District Judge Reed O'Connor in March 2023 found that members of a task force setting many ACA preventive care rules — including coverage requirements for the HIV preexposure prophylaxis treatment called PrEP — were unconstitutionally appointed.

Judge O'Connor said the U.S. Preventive Services Task Force's members — a nonprofit, volunteer-only group — were unlawfully appointed in violation of the Constitution's appointment clause under Article II. He thus found that the preventive care coverage requirements they set had to be vacated, leading him to issue a nationwide injunction against the federal government from enforcing the law.

That injunction is now on hold after parties agreed to a temporary stay in June, after a three-judge panel of the appellate court heard oral arguments on a federal stay pause motion over the summer.

Richard Hughes IV, an attorney and health policy adviser at Epstein Becker Green who is representing the HIV+Hepatitis Policy Institute as an amicus in support of the federal government's appeal, said "the decision will be hugely impactful" for health benefits.

Among the issues Hughes is watching on appeal is whether the panel agrees with Judge O'Connor in upholding the constitutionality of two other bodies setting coverage requirements: the Health Resources and Services Administration and the Advisory Committee on Immunization Practices.

Hughes said he's also looking to see if the appellate court takes up religious freedom issues at all, given that the federal government didn't raise the issue on appeal.

"Really, the government may have forfeited on this issue before the Fifth Circuit," Hughes said.

Two Texas-based for-profits that are Christian-owned, Braidwood Management and Kelley Orthodontics, first sued in 2020, seeking to block the ACA mandates requiring them to cover contraceptives and drugs to prevent HIV. They argued that the coverage mandates on businesses violated the Religious Freedom Restoration Act, and should also be set aside under the Administrative Procedure Act because the coverage-setting bodies were unconstitutionally appointed.

The case involves central questions about agency deference that the U.S. Supreme Court could soon reinterpret in the 40-year-old Chevron doctrine requiring judicial deference to regulators in disputes over ambiguous statutes.

Hughes said he also thinks "there's a very high chance that this ends up before the Supreme Court" because of the constitutional questions involved with the appointment of the U.S. Preventive Services Task Force. He said the Fifth Circuit is considering the case at a "very interesting time," taking the issues up at the same time justices are "reconsidering Chevron, which is a very close cousin to the issues in this case." …

The case is Braidwood Management Inc. et al. v. Xavier Becerra et al., case number 23-10326, in the U.S. Court of Appeals for the Fifth Circuit.

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