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 “Supreme Court to Hear ACA Preventive Coverage Suit,” by Noah Tong.

Following is an excerpt:

The U.S. Supreme Court has agreed to hear a lawsuit that will determine whether preventive services will remain fully covered by group health plans under the Affordable Care Act (ACA).

Arguments will commence this spring, and a decision (PDF) is expected by July.

Texas-based employer Braidwood Management argued before the Fifth Circuit Court of Appeals the ACA's preventive services provision is unconstitutional. Initially, Braidwood Management did not want to cover pre-exposure prophylaxis drugs for HIV, saying it violates its rights under the Religious Freedom Restoration Act.

That court opted to uphold a lower court’s decision finding coverage through the U.S. Preventive Services Task Force (USPSTF) unconstitutional—because the task force is not elected or “politically accountable” yet decide which services are covered—but it overturned a nationwide injunction, mandating plans cover preventive services with cost-sharing until otherwise determined.

If the preventive services provision is eliminated, access to disease screenings, mental health appointments and certain prescription drugs would no longer be covered.

The government petitioned the Fifth Circuit’s ruling, hoping the Supreme Court would not find the USPSTF unconstitutional in determining coverage requirements through the ACA.

“Under the court’s severability doctrine, it would seem they would uphold the role of the task force,” said Epstein Becker Green healthcare attorney Richard Hughes IV in an email shared with Fierce Healthcare. “But SCOTUS is not predictable and the trend toward curtailing the role of experts and the administrative state could win the day.”

Overturning of the Chevron deference in June is a flagship example of the nation’s top legal arbiters seemingly siding against federal agencies, and Republicans are hoping a series of recent decisions foreshadow future favorable rulings.

“Another likely factor that will impact the case's outcome is whether the government maintains its position in support of the USPSTF following the upcoming change in administration,” added Hughes.

It’s possible the federal government will not remain in favor of the preventive services coverage requirement now that President-elect Donald Trump, a longtime opponent of the ACA, is retaking the White House.

Supreme Court justices will not determine whether the Department of Health and Human Services appropriately set guidelines for the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA), though that issue was sent back to a lower court in June. Plaintiffs claimed the ACIP and the HRSA were not delegated the authority to set guidelines. …

In October, the Biden administration proposed a rule requiring health plans to cover over-the-counter contraceptives for free, without cost sharing. The rule has not been finalized. Another proposed rule, which would have made it more difficult for health plans to claim a religious or moral exemption with regards to contraception, was rescinded by HHS in late December.

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