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 Inside Health Policy, in “DOJ Asks SCOTUS to Reverse Braidwood Ruling, Uphold ACA’s Preventative Mandate,” by Amy Lotven. (Read the full version – subscription required.)
Following is an excerpt:
The Department of Justice Thursday (Sept. 19) filed a petition asking the Supreme Court to review and reverse a lower court decision that threw into question the Affordable Cate Act’s mandate that insurers cover preventative carefree of charge. At issue is the Fifth Circuit’s decision in Braidwood v. HHS that the mandate for insurers to cover preventive services recommended by a federal task force cost-free violates the Appointments Clause.
DOJ argues that HHS does supervise the United States Preventative Services Task Force so the provision is valid, and, as expected, DOJ also says if the judges disagree with that argument, the court should remedy the constitutional flaw as it has in similar cases.
It is exactly what I expected, says Richard Hughes IV of Epstein Becker Green. The question presented is narrowly focused on the task force, the body that the lower court said is unconstitutional; DOJ is essentially saying the task force is constitutional, and if the Fifth Circuit had appropriately applied the severability doctrine, the USPTF’s role should have been confirmed, he said.
At issue is the ACA’s requirement that plans cover without co-pays all services with an “A” or “B” recommendation from USTPF, which Texas business Braidwood Management and several individuals challenged in 2020 as violating the Appointments Clause, which limits key decisions to principal officers. A district court agreed with the plaintiffs and in June, the Fifth Circuit upheld that decision but reversed the lower court’s move to block HHS’ enforcement of the decision nationwide. The appeals court also remanded questions on the constitutionality of the ACA’s contraceptive and vaccine mandates to the Texas District Court.
In filings earlier this month, DOJ revealed that it would seek Supreme Court review of the decision. Hughes said at the time that DOJ would lean in on the argument that the Fifth Circuit should have looked to precedent and fixed the constitutional flaw-- which DOJ does argue in the brief. …
