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 the Bloomberg Law Daily Labor Report, in “Obamacare Mandate Battle Shifts After Appeals Court Speaks,” by Mary Anne Pazanowski and Lauren Clason.
Following is an excerpt:
The Biden administration scored a partial win when a federal appeals court lifted a nationwide block against preventive-care mandates under Obamacare. As the case heads back to a conservative district court judge in Texas, it’s unclear how durable the victory will be.
Still at issue is whether two other US Department of Health and Human Services agencies tasked with deciding which services must be covered followed administrative law. The US Court of Appeals for the Fifth Circuit didn’t expressly overrule US District Judge Reed O’Connor’s decision that those boards were validly appointed, but it sent the case back to the lower court judge to decide if they followed proper procedures.
Although the Fifth Circuit largely restored the recommendations issued by one of the agencies, O’Connor must again weigh the validity of the other two agencies’ recommendations.
At stake in the case, which eventually may head to the US Supreme Court, is whether employers and private insurers must follow preventive care coverage requirements under the landmark 2010 health care law. …
For now, the coverage requirements “remain in effect” in most of the country, said Richard Hughes IV, a member of Epstein Becker Green in Washington. That means most employers subject to the Affordable Care Act will have to continue paying for the services.
O’Connor, of the US District Court for the Northern District of Texas, is one of judges often targeted by conservative plaintiffs looking for a sympathetic ear. …
Allowing Amendment
It’s “plausible” O’Connor also would allow the plaintiffs to amend their complaint to add an APA claim against the task force, which would cure the problem that led the appeals judges to set aside his nationwide injunction against its mandates, Hughes said.
Originally, O’Connor said HHS couldn’t require any employer anywhere in the country to pay for services the task force recommended. But that’s an APA remedy, and there was no APA claim, the Fifth Circuit said. Adding an APA claim likely would permit O’Connor to reinstate a nationwide ban.
That would be an unusual step because a procedural doctrine known as the “mandate rule” generally prevents parties from raising issues on remand that were decided by an appeals court, Hughes said.
