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 The American Journal of Managed Care®, in “Supreme Court Decision on Braidwood Protects Insurance Coverage of Preventive Care.”
Following is an excerpt:
The Kennedy, Sec. of H&HS v Braidwood Management, Inc., case reached a conclusion with the Supreme Court decision released today, affirming that the US Preventive Services Task Force (USPTSF) are inferior officers and their appointment was constitutional under the Appointments Clause, effectively siding with HHS Secretary Robert F. Kennedy Jr and upholding coverage of preventive care. The case, which has been litigated for multiple years, decided whether insurance companies would be required under the Affordable Care Act (ACA) to cover any preventive services recommended by the USPSTF after 2010, affecting several means of testing for different viral conditions and cancers among other conditions.
The Braidwood case, originally heard under Braidwood Management, Inc., v Becerra, was brought in front of the Supreme Court for oral hearings in April, a little more than 2 years after the case first made headlines in March 2023, when District Judge Reed O’Connor ruled in favor of Braidwood. O’Connor ruled that the USPSTF had no constitutional authority to require that all private insurers cover preventive services, such as pre-exposure prophylaxis (PrEP) and some forms of colorectal cancer screening.
The Supreme Court justices questioned both sides during the hearing, as Braidwood Management Inc. argued that the USPSTF violated the Appointment Clause, which requires all officers of the US who make decisions for the public to be confirmed by the Senate after being appointed by the president. Lawyers for HHS argued that Kennedy has supervising power over the USPSTF, which gives him the ability to appoint and fire those on the task force at will and approve the final recommendations. …
In a Q&A conducted in April alongside the oral hearings, Richard Hughes IV, JD, MPH, a health care attorney at Epstein Becker Green, noted that preventive services graded A or B after March 2010 would be the only services required to be covered by insurance if the court ruled in favor of Braidwood, saying that PrEP would be at risk especially.
“I think that what you're going to see, almost more important than whether the payers cover it—because I do think a lot of coverage will continue—what you're really going to see that's concerning is the imposition of cost sharing,” he said. “What we know is that when a payer imposes cost sharing, patients are more likely to walk away from that service.”
The Supreme Court decision alleviates these concerns as the justices sided with Kennedy. This decision protects insurance coverage of preventive services, which in turn protects those who require preventive services, especially if they cannot afford the treatment without that coverage.
The majority of the justices acknowledged that both the Biden and Trump administrations had argued that the USPSTF were appointed by the Secretary of HHS, which they ultimately agreed with. In the Court opinion, Justice Brett Kavanaugh wrote, "Task Force members are supervised and directed by the Secretary [of HHS], who in turn answers to the President, preserving the chain of command in Article II...As a result, appointment of Task Force members by the Secretary of HHS is consistent with the Appointments Clause."
However, not all Supreme Court justices agreed in the 6-3 decision. In his dissent, Justice Clarence Thomas argued that the decision relies on a "combination of 2 ambiguously worded statutes enacted decades apart [that] establishes that the Secretary of HHS can appoint the Task Force's members." He, along with Justices Neil Gorsuch and Samuel Alito, did not agree with this, stating that Congress had not granted the clarity to establish the meaning of these statutes in this way.
Ultimately, this decision protects more than 30 types of preventive services, including updated methods of cancer screening as well as PrEP. The ruling requires that all private insurance plans cover these methods of prevention, affirming that those who require preventive care will be able to afford necessary treatment.
