A case pending before the Supreme Court could jeopardize the Affordable Care Act’s (ACA) mandate that certain preventive services be provided on a first dollar coverage basis to plan members. Kennedy v. Braidwood Management was heard before the Supreme Court in April and is set for decision this month. If the Supreme Court upholds the Fifth Circuit’s decision that U.S. Preventive Services Task Force Members are not inferior officers, the ACA cost-sharing mandate would be jeopardized. Such a decision could impact the business models of digital health and telemedicine companies whose services are classified as preventive. Significantly, the application of co-payments and deductibles to these services are likely to cause a drop in utilization and plan members will likely be forced to pay for part of the cost.
The ACA mandates that most group health plans and insurers cover certain preventive services without imposing copayments, deductibles, or other cost-sharing charges on patients. 42 U.S.C. § 300gg-13. The list of covered services is based primarily on the Task Force’s recommendations. 42 U.S.C. § 299b-4(a). Services that receive a rating of A or B must be covered without any cost-sharing requirements. Since the ACA’s enactment in 2010, private insurers must cover more than 50 preventive services including breast cancer screening, flu vaccines, behavioral health screenings, colorectal cancer screenings, and HIV prevention medications without charging a patient co-payment. Several telehealth companies have implemented a model based on providing these free preventive services to patients. If the Supreme Court agrees with the Fifth Circuit that the Task Force providing these ratings was improperly appointed under the U.S. Constitution’s Appointment Clause because the Task Force was not appointed by the President with the advice and consent of the Senate, the model that these companies use will be at risk.
The Government argued before the Court that the Task Force were inferior officers because they: (1) are subject to removal, (2) perform limited duties, (3) have limited jurisdiction and (4) serve for a limited time. Respondents argued that the ACA language makes the Task Force principal officers because they are impermissibly independent and not subject to political pressure. Respondents also argued that if the Court found that the Task Force were inferior officers there was still a question whether the appointment power was properly vested in the HHS’ Secretary.
Both parties agreed that if the Court determines that the Task Force are inferior officers, the question of what to do with the Task Force recommendations from 2010 to 2023 made by the Agency for Healthcare Research and Quality Director would need to be remanded to the lower court to determine if the recommendations are enjoined or can be ratified by the Task Force. The Task Force has determined that more 50 services should be covered as preventive services under the ACA during that time period.
During oral arguments, the Justices focused their questions on the meaning of “independent,” whether removal authority was enough to classify the Task Force as inferior officers, and whether the HHS Secretary was vested with authority to appoint the Task Force. It is expected that the Supreme Court will issue a decision next month.
