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 Fierce Healthcare, in “‘A Mixed Bag’: Fifth Circuit Rules on ACA Preventive Services Legal Case,” by Noah Tong. (Read the full version – subscription required.)

Following is an excerpt:

The Fifth Circuit Court of Appeals has issued a decision in a major legal case that observers have said could fundamentally alter the preventive services provision in the Affordable Care Act.

The plaintiffs, Braidwood Management, argued the preventive services provision, which private plans and Medicaid expansion programs are required to cover without cost-sharing, is unconstitutional.

“Our decision today is something of a mixed bag,” the court said in its final opinion.

Its ruling upholds a lower court's decision declaring nationwide coverage through the Preventive Services Task Force under the ACA as unconstitutional, and said the plaintiffs in this case do not need to cover these preventive services through their health plans.

The nationwide injunction imposed by the lower court was overturned, effectively keeping the provision temporarily intact for the majority of Americans.

Additionally, the court determined members of the task force must now be nominated by the President and confirmed by the Senate.

The Fifth Circuit said HHS Secretary Xavier Becerra and the department has the right to ratify guidelines set forth by the Advisory Committee on Immunization Practices (ACIP) and Health Resources and Services Administration (HRSA) under the Appointments Clause, but is “reserving judgment” on if the department “has effectively done so.”

That issue will be sent back to the district court. The Fifth Circuit is not recommending universal injunction.

“The decision leaves free preventive services at risk as the case proceeds through the legal system and opens the door to further litigation,” said left-leaning healthcare advocacy group Protect Our Care in a statement.

A lower court previously determined Braidwood Management is not required to cover PrEP drugs for HIV because it violates their rights under the Religious Freedom Restoration Act. That ruling has not been in effect because the decision was appealed by the federal government in March 2023.

“The court did not decide the fate of ACIP or HRSA, but raised concerns about the constitutionality of their roles as contemplated under the ACA,” said Richard Hughes IV, a healthcare attorney for Epstein Becker Green and lead counsel for the HIV+Hepatitis Policy Institute, in an email immediately following the court’s decision. Patients needing PrEP for HIV, disease screenings, vaccines or contraceptives will be impacted as the litigation unfolds, he explained.

Legal experts told Fierce Healthcare in March that any decision is likely to be appealed to the Supreme Court.

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