Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, authored an article in Health Affairs, titled “Braidwood v Becerra: The Threat to Preventive Services Just Got Worse.”

Following is an excerpt:

The Fifth Circuit Court of Appeals announced its “mixed bag” decision in Braidwood vs Becerra on June 21. The decision leaves the future of the Affordable Care Act’s (ACA's) preventive services coverage requirement murky and the preventive care of hundreds of millions of Americans in jeopardy.

Unsurprisingly, the conservative appeals court agreed with Texas federal district court judge Reed O’Connor that the US Preventive Services Task Force's (“Task Force”) role in determining mandatory preventive coverage under the ACA is unconstitutional.

In a positive turn, the appellate court held at bay any nationwide injunction of the mandate, so the law is, for now, safe. However, the case will now go back to the Judge O’Connor’s trial court where the plaintiffs may find another path to successfully striking down the mandate nationwide. And while the Fifth Circuit did not decide the fate of the Advisory Committee on Immunization Practices (ACIP) or the Health Resources and Services Administration (HRSA)—the bodies that recommend vaccines, contraceptives and other preventive services—it provided new legal ammunition to undermine them.

Near-term, appeal to the Supreme Court is possible, but the case is likely to remain in the courts for years to come. While payers nationwide must continue to cover recommended preventive services, future litigation and decisions will hold implications for PrEP for HIV, disease screenings, vaccines and contraceptives.

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