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 Axios Pro, in “Biden's Next Steps on Preventive Services Coverage,” by Maya Goldman. (Read the full version – subscription required.) The author refers to a recent Health Affairs article co-authored by Richard and attorneys Spreeha Choudhury and William Walters.
Following is an excerpt:
The Biden administration may be able to ensure continued coverage of free preventive services following a Texas ruling late last month that struck down part of the Affordable Care Act. …
The details: Three attorneys at Epstein Becker Green wrote in Health Affairs this month that the HHS secretary could authorize the Agency for Health Care Research and Quality to review and adopt the U.S. Preventive Services Task Force’s recommendations.
- AHRQ, which currently provides technical and administrative support to the task force, is a politically accountable agency under HHS' purview.
- The language of the Public Health Service Act shields the task force from political pressure and accountability — to the extent that it’s practicable.
- “I don’t think it’s practicable anymore,” Richard Hughes, a health care attorney at EBG and one of the authors of the paper, told Axios. “I do think the administration actually has the authority, based on that flexible language, to step in and increase accountability.”
How it works: Administration officials could also put the task force recommendations through notice-and-comment rulemaking, or establish a new HHS agency to provide review and approval of recommendations, the lawyers added.
- HHS could direct the CDC director to step in and oversee the Preventive Services Task Force, too, according to the EBG lawyers. …
Reality check: “There is absolutely no way that you're going to find support for a bipartisan solution to this,” Hughes said. “I think the path is the administration.”
Yes, but: Other experts say the administration’s window of opportunity to change the preventive services coverage recommendations process has passed.
- Legally, HHS could use the administrative authority outlined by Hughes and his colleagues, “but the way politics work, it's too late,” Rosenbaum said. "We're locked in because we're in litigation."
