Supreme Court finally hears Braidwood case & it may be a Monkey's Paw situation...

(sigh) it's been nearly another full year since the last time I wrote about the seemingly never-ending Braidwood v. Becerra lawsuit which threatens to not only end many of the ACA's zero-cost preventative services, but which could also throw all sorts of regulatory authority into turmoil depending on what precedents it sets.

Here (once again) is Sabrina Corlette's refresher on this case and what's at stake:

On March 30, 2023, a federal district court judge issued a sweeping ruling, enjoining the government from enforcing Affordable Care Act (ACA) requirements that health plans cover and waive cost-sharing for high-value preventive services. This decision, which wipes out the guarantee of benefits that Americans have taken for granted for 13 years, now takes immediate effect.

...millions could, in very short order, lose access to no-cost early cancer screenings, mental health assessments, statins for heart disease, PreP to prevent HIV, and many more life-saving preventive services.

...One of the ACA's] reforms was a requirement that employer-based health plans and health insurers cover, without cost-sharing, high-value preventive services recommended by any one of three government panels, each composed of physicians and clinical experts. Coverage for more than 100 services has been mandated so far, including cancer screenings, childhood and adult immunizations, contraceptives, and mental health assessments.

Congress included the preventive services provision in the ACA because, when the law was enacted, many insurers did not cover critical preventive measures, or they imposed financial barriers, such as deductibles, copayments, or coinsurance, which limited their use. The preventive services coverage mandate is now one of the ACA’s most widely recognized, and popular, benefits, reaching 224 million people. It has led to the increased use of prevention, improved health outcomes, and reduced racial disparities in access to care.

In Braidwood Management v. Becerra, the plaintiffs challenged the constitutionality of the ACA’s preventive services provision. 

The most recent development (from June 2024) seemed like kind of, sort opositive news...

We have a ruling in the Braidwood case. The Fifth Circuit Court of Appeals rules that members of the US Preventive Services Task Force need to be confirmed by the Senate. But that relief should be targeted to the plaintiffs in the case & a nationwide injunction is not appropriate

...however, the Nicholas Bagley cleared up some of the confusion, and it wasn't as positive an outcome as I thought:

For now, nothing much changes. But there are warning signs ahead, as I'll explain.

...Today, the Fifth Circuit sided with the challengers when it came to PSTF. Its members supposedly have the authority to bind private parties, but those members weren't properly appointed. So PSTF's decisions aren't really official at all; they're just, like, its opinions.

There's a bit of a silver lining, however...for now, the PSTF-related injunction applies only to these plaintiffs, not across the whole country.

That may not be much a reprieve. New plaintiffs could file an APA suit, and these plaintiffs could try to amend their complaint on remand. But the status quo holds, for now.

As for HRSA and ACIP, there's better news. Sort of. The Fifth Circuit says that Secretary Becerra has the authority to review and ratify their decisions. (The court held that he doesn't have such authority over PSTF.)...So Judge Reed O'Connor will now decide whether the ratification was OK.

So we're in for more litigation before this case makes it up to the Supreme Court. How much more? Well, probably a couple of years. Litigation is slow! For now, the status quo holds, but it looks like the preventive services mandate may be in trouble down the line.

So, all of that was last summer. Skip ahead ten months and voila, the U.S. Supreme Court did indeed hear arguments in the case yesterday...and while the headline from the AP makes it sound positive, there's a potentially very dark lining as well:

 The Supreme Court seemed likely to uphold a key preventive-care provision of the Affordable Care Act in a case heard Monday.

Conservative justices Brett Kavanaugh and Amy Coney Barrett, along with the court’s three liberals, appeared skeptical of arguments that Obamacare’s process for deciding which services must be fully covered by private insurance is unconstitutional.

The case could have big ramifications for the law’s preventive care coverage requirements for an estimated 150 million Americans. Medications and services that could be affected include statins to prevent heart disease, lung cancer screenings, HIV-prevention drugs and medication to lower the chance of breast cancer for high-risk women.

OK, so on the surface it sounds promising for shooting down the plaintiff's claims. If so, it would mean that the US Preventive Services Task Force can indeed continue to decide which preventative services ACA insurance policies have to cover at no out of pocket cost after all. Great news, right?

Well, yes...except for one thing:

...The Trump administration defended the mandate before the court, though President Donald Trump has been a critic of the law. The Justice Department said board members don’t need Senate approval because they can be removed by the health and human services secretary.

WARNING, WARNING, DANGER WILL ROBINSON!!

In other words, the good news is that the PSTF can continue to do its job. The bad news is that anti-vaxxer & complete nutjob Robert F. Kennedy Jr. is now the one who gets to decide who serves on the PSTF.

According to the PSTF website itself:

The Task Force is made up of 16 volunteer experts in the fields of preventive medicine and primary care, including internal medicine, family medicine, pediatrics, behavioral health, obstetrics/gynecology, and nursing. Most of our members are practicing clinicians. To develop recommendations, we use our own expertise and routinely invite the input of disease experts and specialists. We also invite input from stakeholders and the public.

And who decides who those 16 experts are?

The Agency for Healthcare Research and Quality (AHRQ) convenes the Task Force and provides scientific, administrative, and dissemination support.

OK, fine...and who decides who's in charge of the AHRQ?

The 20-member panel is comprised of private-sector experts who contribute a varied perspective on the health care system and the most important questions that AHRQ's research should address in order to promote improvements in the quality, outcomes, and cost-effectiveness of clinical practice. The private-sector members represent health care plans, providers, purchasers, consumers, and researchers.

Also serving in an ex-officio capacity are principal representatives of seven Federal agencies that address health care system issues: The National Institutes of Health (NIH); the Department of Defense (Health Affairs) (DoD); the Centers for Disease Control and Prevention (CDC); the Department of Veterans Affairs (VA); the Office of Personnel Management (OPM); the Food and Drug Administration (FDA); the Centers for Medicare & Medicaid Services (CMS, formerly the Health Care Financing Administration [HCFA]); and the Assistant Secretary for Health.

All of those ex-officio capacity members are, of course, appointed by the President...in this case Donald Trump. Lovely. But what about the private-sector members who actually have the authority to...

Private-sector members are appointed by the Secretary, HHS, to serve 3-year terms. A list of current members follows. Biographies are available by selecting the member's name.

Oh. Never mind.

Meanwhile, what's been happening with the AHRQ recently?

On April 1, the Trump administration slashed the organization that supported that research — the Agency for Healthcare Research and Quality, or AHRQ — and fired roughly half of its remaining employees as part of a perplexing reorganization of the federal Health and Human Services Department.

Got it.

(sigh)

In any event, it looks like this case could still drag out even longer:

Justices Samuel Alito and Clarence Thomas seemed likely to side with the plaintiffs. And some suggested they could send the case back to the conservative U.S. 5th Circuit Court of Appeals. That would likely leave unanswered questions about which medications and services remain covered.

A ruling is expected by the end of June.