5th Circuit Appears Open to Upholding Nationwide Bar on ACA Preventive Care Requirements

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit recently heard arguments in the federal government’s appeal of a lower court’s decision to vacate various Affordable Care Act (ACA) preventive care requirements. U.S. District Court Judge Reed O’Conner also issued a nationwide injunction preventing the Biden administration from enforcing the ACA preventive care requirements. The court based its decision on a finding that since recommendations from the U.S. Preventive Services Task Force (USPSTF) weren’t subject to approval by the U.S. Department of Health and Human Services (HHS), then the members of USPSTF were unconstitutionally appointed in violation of Article II of the U.S. Constitution.

Currently, insurers are required to offer coverage without cost-sharing for any preventive services that USPSTF gives an A or B recommendation rating, which now includes mammograms and HIV prevention medication. The parties agreed to a stay of the lower court’s order, as long as the federal government took no enforcement action against the plaintiff businesses – Braidwood Management and Kelley Orthodontics – for failing to provide coverage for some preventive services as required, including HIV exposure prophylaxis, or PrEP.

On appeal, the federal government argued that the lower court’s actions in vacating the requirements under the Administrative Procedure Act (APA), as well as issuing a nationwide injunction, were unnecessarily sweeping, broad, and drastic remedies. They also claimed that the plaintiffs’ concerns were limited to the Texas insurance market, which didn’t justify a nationwide injunction. Still, the Fifth Circuit panel appeared skeptical, inquiring whether a nationwide injunction was any broader than vacatur under the APA, as vacatur would apply nationwide, as well.

Nonetheless, the Fifth Circuit panel appeared less open to broadening the lower court’s ruling to the panels that it upheld as constitutional. The lower court explicitly found that while the recommendations of the USPSTF were invalid under the APA due to the unconstitutional appointment of its members, the same reasoning did not apply to coverage requirements set by other bodies. More specifically, Judge O’Conner’s ruling did not invalidate the recommendations of either the Health Resource and Service Administration or the Advisory Committee on Immunization Practices. The judge found that those bodies were subject to several layers of government supervisory authority.

The case is Braidwood Management Inc. et al. v. Xavier Becerra et al., case number 23-10326, U.S. Court of Appeals for the Fifth Circuit.

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