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 Axios, in “ACA Preventive Care Case Reaches Supreme Court,” by Maya Goldman.
Following is an excerpt:
Five years of legal battles over the Affordable Care Act's preventative services mandate will come to a head at the Supreme Court on Monday, in a case that will decide if millions of Americans will continue to have free access to certain screenings, tests, HIV drugs and counseling.
Why it matters: It's the fourth time the high court will review the ACA, this time over a technical question about the constitutionality of the task force that decides which services fall under that requirement.
The Trump Justice Department is defending the law, essentially taking the Biden administration position that there is no constitutional issue because task force members can't unilaterally render legally binding decisions.
Catch up quick: The ACA requires most private health plans to cover certain services recommended by the U.S. Preventive Services Task Force, a long-standing panel of volunteer scientists.
That gives about 150 million people with private coverage access to no-cost cancer screenings, vaccinations, wellness visits and more. Many covered services allow earlier detection and treatment of chronic conditions, such as hypertension and diabetes.
Two Christian-owned companies in 2020 sued the federal government, arguing that task force recommendation that requires them to cover no-cost HIV prevention drugs in their employer-sponsored insurance was unconstitutional and went against their religious freedoms.
A federal appeals court last year sided with the companies, ruling that the required coverage provision is unconstitutional because task force members who dictate which services get no-cost coverage were not appointed by the president and confirmed by the Senate.
Separate claims over the constitutionality of coverage requirements recommended by other Health and Human Services bodies are moving through lower courts and could wind up at the Supreme Court in the future, according to KFF.
State of play: The federal government will argue that the HHS secretary has appropriate oversight over the task force because it can remove members at will and determine when health insurers must start covering its recommendations.
The administration says that if that's not enough, the Supreme Court can "sever" the language in the law that requires the task force to be politically independent, which would allow the secretary to directly approve or deny the task force recommendations.
If that's not enough, the Supreme Court can allow the secretary to directly approve or deny the task force recommendations, the administration believes.
Meanwhile, the companies and individuals that initially sued over the coverage requirement will argue that the task force members should be appointed by the president.
And they'll argue that because the law says the task force has to be politically independent, the court can't just edit the law to give the HHS secretary authority to decide which of the group's recommendations need to be covered.
The decision, expected in June or July, could hinge on how much weight justices attach to language in the law stating the task force has to be free of political influence, said Richard Hughes, a partner at law firm Epstein Becker Green who wrote a brief in support of the government's position.
If the Supreme Court sides with the companies, private health plans could charge beneficiaries co-pays or deductibles for services the task force recommended after the ACA was signed, including PrEP for HIV, statins to prevent heart disease, perinatal depression screening and colorectal cancer screening.
