The Supreme Court recently announced that it will hear Becerra v. Braidwood Management Inc, a case with enormous stakes for the future of preventative services coverage and the role of expert recommendations in policymaking. This case, originally filed in the U.S. District Court for the Northern District of Texas in 2020, challenges the constitutionality of the ACA’s preventative services provisions, which require most commercial health insurance plans, and by extension Medicaid expansion enrollees, to provide recommended preventive services without patient cost sharing. The District Court held the provisions unconstitutional, and the Fifth Circuit affirmed that holding on appeal in 2024. The Supreme Court will weigh in this year, and the risks for patients couldn’t be higher.
AcademyHealth has actively monitored and engaged with this case because of our commitment to supporting evidence-based policymaking, including through expert institutions such as the United States Preventative Services Task Force (USPSTF).
Preventative care coverage under the ACA
Under the ACA, insurers must provide cost-free coverage for preventative services that have been recommended by the USPSTF, a longstanding body that makes expert, evidence-based recommendations to clinicians. These preventative care recommendations, such as lung and colorectal cancer screenings , behavioral counseling, maternal depression screenings, well baby visits, and many more, are covered by health plans in the ACA marketplace at no cost to the patient. Patients who have care under the Medicaid expansion would also be affected, as they must also cover Essential Health Benefits (EHBs), which are defined by CMS as the benefits required by the marketplace plans.
The Legal Challenge
The plaintiffs in this case argue that the ACA’s cost-free coverage mandate is unconstitutional. Because the mandate incorporates USPSTF’s preventative services recommendations, the plaintiffs argue that the USPSTF’s members are acting as principal officers of the state. The Appointments Clause in the Constitution requires that such officers be appointed by the President and confirmed by the Senate, which the USPSTF’s members have not been.
As an independent and volunteer panel of national experts, USPSTF members are appointed by the Director of the Agency for Healthcare Research and Quality (AHRQ) to serve four-year terms. Since 1984, the USPSTF has employed rigorous methodologies and significant public input to formulate recommendations based on research, data, and evidence. These recommendations reflect the findings from thousands of scientific studies every year on preventative services. The Task Force is independent to shield its work from political pressure. As the recommendations are based on the latest evidence, the USPSTF is able to react and change which services have a high value for health outcomes without Congress having to pass new laws individually adding or eliminating them. The requirement that plans cover recommended services without cost-sharing is one of the most popular provisions of the ACA, enabling over 150 million people to access free preventative care and improve their health outcomes.
The plaintiffs contend that the requirement that insurers provide cost-free coverage for any USPSTF preventative care recommendations that were not already in effect at the time of the ACA’s enactment in 2010 is unconstitutional because the Task Force members are not confirmed by the Senate. Plaintiffs also argue that the HHS Secretary – who is Senate-confirmed – is unable to remedy any constitutional deficiency by ratifying the USPSTF’s recommendations because, according to the plaintiffs, he has no statutory authority to reject the recommendations of the USPSTF. HHS has responded that the Secretary has constitutionally sufficient oversight over the USPSTF and that it is not uncommon for Congress to create recommending bodies that are not constituted by officers of the United States. Additionally, the HHS Secretary formally accepted the recommendations the USPSTF has previously made and retains the ability to fire the Task Force for unacceptable recommendations going forward.
The Biden Administration filed an appeal after the District Court ruled in favor of the plaintiffs as to the constitutionality of the ACA’s incorporation of the USPSTF’s post-2010 recommendations, and in June 2024 the Fifth Circuit issued a mixed ruling, holding that the members of the Preventive Services Task Force are federal officers who have not been properly appointed and that the Secretary of HHS lacks authority to ratify the Task Force’s recommendations. At the same time, the court limited relief to just the plaintiffs in the case, such that all other employers and insurance plans in the nation are still subject to the ACA preventative care requirements. However, the court’s constitutional precedent will be binding in future lawsuits filed within its jurisdiction, thus creating a pathway for other plaintiffs to further chip away at the ACA’s requirements.
Notably, the Fifth Circuit ruled somewhat paradoxically that the Task Force members were principal officers who had not been constitutionally appointed due to their unreviewable power to issue recommendations that insurers must cover (page 2) while also noting that the Secretary can remove them at will (page 17), which would make them inferior officers and not subject to Senate confirmation. The Secretary can appoint the Task Force members through AHRQ, fire them at will, and supervise them through the Public Health Service – they are clearly inferior officers, if they are even officers at all, which is not clear.
The Department of Justice appealed this decision to the Supreme Court. In October 2024, AcademyHealth joined an amicus brief to the Supreme Court requesting that they grant cert and hear the case. It is our opinion that the Fifth Circuit incorrectly held that the USPSTF violated the Appointments Clause and that they are unduly insulated from the HHS Secretary’s supervision.
From its initial litigation at the District Court level to preparing for the Supreme Court arguments, AcademyHealth has proudly and continually worked with our peer organizations in drafting and submitting multiple amicus briefs supporting the work of the USPSTF and expert convenings generating evidence-based recommendations for health care professionals and policymakers. The USPSTF is constituted with the top experts in health services research, clinical research, public health, epidemiology, and more, which gives them the ability to independently evaluate data, assess the quality of studies, and weigh the benefits and harms of preventive interventions.
Additionally, the evidence is clear that no cost preventative care improves health outcomes by reducing the incidences and severity of many health conditions – an ounce of prevention is worth a pound of cure is more than just a saying. Even if some plans continue to cover some number of these preventative interventions, inconsistency across plans will create confusion, cost hazards, and worsen health disparities as patients may skip preventative care with cost sharing.
There is a risk that the Supreme Court will rule for the plaintiffs and find that the USPSTF is unconstitutionally staffed, but this is also an opportunity for the Court to correct the mistakes made by the Fifth Circuit. Regardless, this ruling will have far reaching health implications for Americans.