Preventive Care Benefits Threatened by New Lawsuit
TL/DR –
A three-judge panel of the US Court of Appeals for the Fifth Circuit is expected to affirm a lower-court ruling that strikes down the Affordable Care Act’s requirement for private insurance plans to cover preventive services at no cost to patients. The argument against this requirement revolves around whether presidential advisers must be appointed by the president and confirmed by the Senate, which would apply to appointments to the US Preventive Services Task Force. If the right-wing arguments prevail, this could jeopardize the Federal Advisory Committee Act, which oversees the appointments and actions of advisory committees that provide advice to every executive branch agency, including the Environmental Protection Agency and the Food and Drug Administration.
US Circuit Court Could Strike Down ACA’s Free Preventive Services Law
This month, the US Court of Appeals for the Fifth Circuit hinted that they might uphold a lower-court decision nullifying the Affordable Care Act (ACA)’s provision that private insurance must cover preventive services at no charge to patients. Following the expected ruling from the Fifth Circuit, it’s likely that the Supreme Court will have another opportunity to deliver a significant setback to public health.
Last September, the US District Court in the Northern District of Texas ruled against using the US Preventive Services Task Force to decide which services would be covered by the mandate, a ruling that the government subsequently appealed to the Fifth Circuit. This is the same court that questioned whether the United Airlines’ COVID-19 vaccination requirement for employees infringed upon their religious rights last year.
Prominent legal journalist, Jeffrey Toobin, observed in the New York Review of Books that these actions suggest the Fifth Circuit is trying to declare significant portions of the executive branch unconstitutional.
Braidwood Case Impact on Public Health
In the Braidwood Management v. Becerra case, the debate wasn’t around the impact on health, but rather the constitutionality of Presidential counsel appointments to the US Preventive Services Task Force.
Jonathan F. Mitchell, the lawyer representing Braidwood and a recipient of over $400,000 in 2022 from America First Legal Foundation, made the anti-prevention argument.
If this argument succeeds, the structure of the Federal Advisory Committee Act, governing over 900 committees that provide advice to executive branch agencies, could be thrown into question. The 16-member US Preventive Services Task Force, was established in 1984 to evaluate the efficacy of clinical prevention services.
Nicholas Bath, who contributed to the drafting of the ACA and currently serves as a lawyer with Manatt, Phelps & Phillips, warned that ruling the Task Force unconstitutional could lead to payers setting their own rules.
The Future of Preventive Health Services
Since the introduction of the ACA, the use of preventive services has increased due to the elimination of co-pays, with about 75% of all adults now undergoing routine cardiovascular screening. However, preventive measures still lag in many areas, such as screening for substance abuse and mental health conditions.
If the Supreme Court follows the Fifth Circuit’s expected ruling, a Congressional act would be required to rectify the situation. A legislative solution could either codify that the US Preventive Services Task Force is advisory or initiate a law subjecting task force members to the presidential appointment and Senate confirmation process.
However, any fix would rely on a Congress willing to conduct meaningful confirmation hearings and a Health and Human Services secretary committed to making science-based medical decisions. In the event of a Trump/Miller government, the coverage of important preventive services could be at risk.
The ongoing right-wing assault on the administrative state under the guise of “freedom” could not only worsen the health of the American people but also potentially increase healthcare system costs, as prevention is generally cheaper than treatment.
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