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 AIS Health, in “News Briefs: Court Upholds ACA Preventive Services Coverage Mandate, for Now,” by Peter Johnson. (Read the full version – subscription required.)
Following is an excerpt:
The U.S. Court of Appeals for the Fifth Circuit on June 21 found that the federal government can still require health plans to provide some preventive services to plan members free of charge under the Affordable Care Act — for now.
Prior to Braidwood v. Becerra, federal regulators relied on recommendations for preventive services from medical experts in several federal agencies, especially the U.S. Preventive Services Task Force (USPSTF), the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA). Based on those recommendations, non-grandfathered health plans governed by the ACA would have to cover certain preventive services free of charge, including vaccinations and contraceptives. In their ruling in Braidwood, the Fifth Circuit's judges agreed with Texas District Court Judge Reed O'Connor's earlier finding that USPTF did not have the constitutional authority to recommend preventive services coverage mandates to federal regulators. In further litigation in O'Connor's court, the other agencies could come under the same scrutiny. According to Richard Hughes IV, partner at Epstein Becker Green, the Fifth Circuit "agree[s] that there's a constitutional problem with the [USPTF]." In addition, he says, "they just raise more questions with respect to whether the other bodies' roles are constitutional." For the time being, Hughes says, other than the plaintiffs, "all other private payers and employers subject to the ACA requirements must continue to provide zero [cost] out-of-pocket coverage for recommended preventive services, including PrEP for HIV." But going forward, Hughes says, "the requirement to cover vaccines and contraceptives could be in jeopardy."
