Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, co-authored an article in Health Affairs, titled Braidwood v Becerra’s Vaccine Access Threat.”

Following is an excerpt:

Free coverage of immunizations recommended by experts is on the line in Braidwood Management v Becerranow pending in the United States Court of Appeals for the Fifth Circuit. The lower court decision struck down coverage recommendations by the United States Preventive Services Task Force (USPSTF) adopted after the date of ACA enactment. On appeal, however, plaintiffs have revived their initial claims and once again challenge all of the coverage recommendations made by multiple expert bodies, spanning women’s health, child health, and immunizations.

Were the Fifth Circuit to roll back preventive coverage to pre-enactment levels, such a ruling would eliminate hundreds of benefits adopted post-enactment. Here, we focus on what a ruling overturning the free immunization guarantee would mean. Given the complexities of insurance markets and the particular nuances of immunization coverage, Braidwood’s impact across public and private insurance will vary. In the non-grandfathered private insurance and employer plan markets, a decision in plaintiffs’ favor would have an immediate, direct impact on coverage. In the case of the Medicare and the traditional Medicaid markets, a favorable decision likely will create a strong legal precedent for equally damaging claims. All told, the direct and indirect effects of Braidwood would impact coverage for over 150 million Americans with private health coverage as well Medicaid expansion plans covering 20 million lives.

Braidwood Challenges The ACA’s Preventive Services Coverage Requirement

The ACA amended federal law to require non-grandfathered private insurers, employer health plans, and plans enrolling the Medicaid expansion population to cover preventive services without cost sharing. The amendment primarily focused on four separate service categories: child health recommendations by the Health Resources and Services Administration (HRSA), HRSA-recommended women’s health services, services with an A or B rating recommended by the USPSTF, and immunizations recommended by the Advisory Committee on Immunization Practices (ACIP). At the time of enactment, dozens of services were recommended by these bodies and translated to no-cost coverage under the law.

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