The Supreme Court today is hearing arguments in a case revolving around the constitutionality of the U.S. Preventive Services Task Force, which determines which preventive services must be covered by the Affordable Care Act at no cost to the patient.
The task force's legality was being brought into question by a group of individuals and small businesses, which filed a lawsuit objecting to the task force's 2019 recommendation to require insurers to cover the HIV-prevention drugs commonly known as PrEP.
Plaintiffs argue that the Affordable Care Act's preventive services requirement is unconstitutional because it violates the Appointments Clause, the nondelegation doctrine, and the Religious Freedom Restoration Act.
According to the O'Neil Institute's litigation tracker, the preventive services requirement is a popular provision of the law that has been in effect since 2010 and extends coverage of evidence-based preventive services – such as cancer screening, tobacco cessation, contraception and immunizations – without cost-sharing, to more than 150 million people each year.
That guaranteed benefit could go away if the courts agree with the plaintiffs, thereby jeopardizing coverage and access to services.
WHAT'S THE IMPACT
Congress has required that most private health insurers and group health plans cover multiple categories of services identified by the Department of Health and Human Services: Insurers and plans have to cover services with "A" and "B" ratings from the task force, preventive services for women and children, and immunizations, according to the O'Neil Institute.
In 2020 alone, more than 150 million people with private health insurance benefited from this provision. It led to increased cancer screening and vaccinations, improved contraception access, earlier detection and treatment of chronic health conditions, and narrowed racial disparities in access to preventive services. Over time, Congress expanded the requirement to include COVID-19 testing and vaccines.
The lawsuit began five years ago when it was initially filed against the first Trump administration. The preventive services requirement has now been defended in court by both the Trump and Biden administrations.
In district court, plaintiffs said the preventive services requirement was unconstitutional because members of the Task Force, Health Resources and Services Administration, and Advisory Committee on Immunization Practices (ACIP) were improperly appointed. Under the Appointments Clause, federal officers can be principal officers, who must be appointed by the president and confirmed by the Senate, or inferior officers, who may be appointed by the president, department heads or the courts and do not require Senate confirmation.
Plaintiffs said the Task Force, HRSA and ACIP members were principal officers because they could unilaterally determine which preventive services must be covered without cost-sharing by insurers and plans. Their appointments were unconstitutional, the lawsuit claims, because these people were not appointed by the president and confirmed by the Senate.
The district court agreed in part, but in the appeal to the Fifth Circuit, that court affirmed the district court's ruling, limiting the scope to just the plaintiffs in the litigation.
THE LARGER TREND
The Biden administration appealed the Fifth Circuit's decision in September, and the Trump administration has continued to defend the preventive services requirement using much of the same reasoning.
Groups that filed briefs in support of the preventive services requirement include the American Public Health Association, the Susan G. Komen Breast Cancer Foundation, the Chronic Illness and Disability Partnership, and various attorneys general and hospital and patient advocacy organizations.
Jeff Lagasse is editor of Healthcare Finance News.
Email: jlagasse@himss.org
Healthcare Finance News is a HIMSS Media publication.