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 Law360, in “Feds' 5th Circ. Win on Preventive Care May Imperil ACA,” by Kellie Mejdrich. (Read the full version – subscription required.)
Following is an excerpt:
The Fifth Circuit's decision to knock out a national injunction against preventive services coverage requirements under the Affordable Care Act left healthcare advocates breathing a sigh of relief, but attorneys say even more of those requirements may be on the chopping block.
The appellate panel's June 21 opinion partially reversed a March 2023 decision from U.S. District Judge Reed O'Connor that said the members of the U.S. Preventive Services Task Force — a volunteer group of experts setting ACA coverage requirements on things like lung cancer screenings and preexposure prophylaxis for HIV/AIDS — had been appointed unconstitutionally.
The Fifth Circuit's conclusion that Judge O'Connor had gone too far by slapping a nationwide injunction on the U.S. Department of Health and Human Services barring it from enforcing the USPSTF's requirements won plaudits from health advocates. But attorneys cautioned that the appeals court may have teed up a broader invalidation of the ACA's preventive care mandates. …
But more broadly, many attorneys have their eyes on the U.S. Supreme Court as the ultimate destination in the Braidwood case, given that debates over congressional intent on preventive care are coinciding with fights about constitutional issues related to government bodies that affect federal regulation.
Some attorneys see justices eventually debating the question of how to balance congressional intent on preventive care under the ACA with the need to ensure government officials are constitutionally appointed. …
Richard Hughes IV, an Epstein Becker Green attorney who advises on health policy, said health plans should continue, for now, to follow the law as it's written and provide the recommended coverage for immunizations and contraceptives.
"I'm focused on either direction it could go," said Hughes, who represented the HIV+Hepatitis Policy Institute as an amicus supporting the government in the Braidwood case. "It could go to the lower court, and you could get worse outcomes, or it could go to the Supreme Court, and you could get better or worse outcomes."
