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 “Affordable Care Act Preventive Services Under Threat: Previewing Braidwood Oral Arguments,” by Noah Tong.

Following is an excerpt:

A core provision of the Affordable Care Act (ACA), responsible for ensuring hundreds of millions of Americans receive free access to preventive services, faces a serious legal challenge March 4.

On Monday, the Fifth Circuit Court of Appeals will listen to oral arguments for Braidwood v. Becerra. In September 2022, a lower court ruled that nonprofit Christian-owned Braidwood Management should not be required to cover PrEP drugs for HIV as it violates their rights under the Religious Freedom Restoration Act.

The lower court decision was appealed by the federal government in March 2023. While the lower court's ruling is not yet in effect, the Fifth Circuit's decision later this year could spell trouble for one of the most critical aspects of the ACA. Regardless of the outcome, the case will almost certainly get appealed up to the Supreme Court, experts told Fierce Healthcare.

The appeal will judge whether the preventive services provisions in the ACA are unconstitutional. Since 2010, private plans and Medicaid expansion programs are mandated to cover preventive products and services without cost sharing. …

Plaintiffs argued in the district court that officials within the U.S. Preventive Services Task Force (PSTF), the Advisory Committee on Immunization Practices and the Health Resources and Services Administration were not properly appointed, meaning they must be appointed by the president, a court or senior department head, therefore violating the appointments clause. The lower court declared that only PSTF violated this clause.

They also argued all three entities violated the nondelegation doctrine, which forbids Congress from delegating responsibilities to administrative agencies under some cases. The district court ruled the ACA did not violate the nondelegation doctrine, though it left open the possibility a higher court could disagree.

Preventive services have positively impacted nearly 152 million people in 2020 and have led to increases in disease screenings and detections, according to the Commonwealth Fund.

What to expect

"I don't think the arguments will be anything unpredictable," said Richard Hughes IV, a healthcare attorney for Epstein Becker Green and lead counsel for the HIV+Hepatitis Policy Institute. The organization submitted an amicus brief with 24 other groups in support of the federal government in June.

He said the plaintiffs will continue to argue members of each of the three governmental entities were unlawfully appointed, effectively putting the authority of these bodies in the spotlight. They will also bring up the religious rights they have, though Hughes anticipates the feds will avoid this topic.

The government may suggest the court sever a statutory provision of the PSTF that says it must be insulated from political influence, allowing the task force to be preserved, he said. …

Hughes also sees a parallel between this case and the cases involving the Chevron deference that the Supreme Court has already heard oral arguments about, an idea that allows federal agencies to administer laws that are ambiguous and require expert opinion when law is not abundantly clear. It allows civil servants to create technical rules, in agencies like the Centers for Medicare & Medicaid Services, when expertise is required.

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