William Walters, Associate in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Fierce Healthcare, in “Supreme Court Appears Willing to Save ACA Preventive Services Task Force,” by Noah Tong.
Following is an excerpt:
Following oral arguments Monday, legal onlookers are giving the edge to the federal government in a lawsuit against employer Braidwood Management as the company tries to overturn a provision requiring private insurers to cover certain cost-free preventive services through the Affordable Care Act (ACA) marketplace or in employer-based coverage.
Oral arguments give insight into how Supreme Court justices are viewing a case, sometimes previewing the lawsuit’s eventual outcome. A decision for this case is expected in June.
“We’re optimistic the government’s side will win on this,” said William Walters, an associate healthcare attorney with Epstein Becker & Green. Walters served as pro bono counsel for the HIV+Hepatitis Institute, an organization siding with the government in an amicus brief.
“With oral argument wrapping up, it looks like the government is likely to win in Braidwood, saving the constitutionality of the preventive services mandate,” agreed Nicholas Bagley, professor of law and former attorney in the Civil Division at the Department of Justice, in a post on X.
That’s likely welcome news for hundreds of millions of Americans who rely on free preventive services. Research shows covering preventive services at no cost increases the likelihood individuals pursue care and improve health outcomes, with advocates warning the provision’s demise will spell disastrous consequences.
Braidwood Management, Christian groups and right-leaning think tanks challenged the law about five years ago. They argue companies should not be forced to cover pre-exposure prophylaxis drugs for HIV due to religious objections.
Plaintiffs argued in front of the Supreme Court that the U.S. Preventive Services Task Force (USPSTF), the body recommending which services should be covered cost-free, is unconstitutional because it violates the appointments clause dictating how a president can appoint federal officials.
Walters anticipated the Supreme Court would be sympathetic to this view but possibly be in support of “severing” the task force’s independence to allow it to remain functional.
“If you think about the constitutionality of how the task force’s members are appointed as step one and then severability as step two, we never actually made it to step two,” he explained. “It seemed like if we had to guess a majority of the justices would actually vote to hold the constitutionality of the task force members at their appointment.”
Structurally, if the Supreme Court rules this way, there is no change with how the USPSTF operates. However, the authority of the Department of Health and Human Services (HHS) secretary would be more official and transparent.
The defendants argue the authority to disregard recommendations or remove members has always existed, and, now, the court can settle the issue. Taking this approach means the task force is not an independent entity.
