Update
In a closely watched decision, the Supreme Court upheld a key part of the Affordable Care Act (ACA) related to preventive care coverage. Specifically, the decision affirmed the authority of the U.S. Preventive Services Task Force (USPSTF or Task Force). This preserves the ACA requirement that health plans cover Task Force-recommended preventive services at no cost. For most employer-sponsored health plans, this means business as usual.
Background
The Task Force was originally established by the HHS in 1984 and consists of a panel of 16 volunteer experts appointed by the HHS Secretary. The purpose of the Task Force is to issue evidence-based recommendations on preventive health services.
The passage of the ACA brought a mandate to cover preventive care services without cost sharing, and the bill leveraged the existing Task Force to define the preventive care services that are required to be covered at no cost. The Task Force’s recommendations come in the form of “grades” given to each potential service as outlined below. Under the ACA, services with a Grade of “A” or “B” must be covered as preventive care by health plans with no cost sharing.
| Grade |
Description |
| A |
The USPSTF recommends the service. There is high certainty that the net benefit is substantial. |
| B |
The USPSTF recommends the service. There is high certainty that the net benefit is moderate or there is moderate certainty that the net benefit is moderate to substantial. |
| C |
The USPSTF recommends selectively offering or providing this service to individual patients based on professional judgment and patient preferences. There is at least moderate certainty that the net benefit is small. |
| D |
The USPSTF recommends against the service. There is moderate or high certainty that the service has no net benefit or that the harms outweigh the benefits. |
What’s The Challenge About?
The challenge to the preventive care coverage mandate is rooted in religious freedom. Certain employers argued that the mandate required them to cover services that violated their religious beliefs. One such service is pre-exposure prophylaxis medication (known as PrEP) which is used to prevent HIV. The employers argued that covering PrEP required them to offer coverage to prevent health conditions that they believe result from lifestyles that are in conflict with their religious beliefs.
How is the Task Force Involved?
Braidwood Management, Inc., served as lead plaintiff challenging the ACA’s preventive care mandate (Kennedy v. Braidwood Management, Inc.). The plaintiffs argued that the Task Force members were not properly appointed under the Constitution's Appointments Clause because they were not nominated by the President and confirmed by the Senate. They claimed that this invalidated the Task Force’s recommendations, and, by extension, the ACA’s entire preventive care requirement.
Case Details
The U.S. District Court for the Northern District of Texas and the Fifth Circuit Court of Appeals agreed with the plaintiffs, ruling that the Task Force members were improperly appointed under the Constitution’s Appointments Clause.
Despite the change in administration, the current Trump administration continued to pursue the appeal of the Fifth Circuit decision to the Supreme Court, defending the ACA’s preventive care provisions and appealed to the Supreme Court.
The Supreme Court’s Decision
The issue before the Supreme Court was whether the appointment of Task Force members by the Secretary of HHS was consistent with the Appointments Clause (in Article II of the Constitution). The challenge turned on the question of whether Task Force members are considered “principal officers” or “inferior officers.” The titles are key distinctions addressing the level of oversight and control of higher-ranking officials and the scope of their duties.
The Supreme Court disagreed and reversed the Fifth Circuit’s decision. Writing for the court majority, Justice Kavanaugh indicated, "Task Force members are supervised and directed by the Secretary, who in turn answers to the President, preserving the chain of command in Article II." Essentially, they confirmed that Task Force members are inferior officers who are appointed by the HHS Secretary. The HHS Secretary is the principal officer who is accountable to the President. As such, Task Force member appointments are not inconsistent with the Appointments Clause.
Takeaway for Employers
No changes will result for employer-sponsored group health plans. Plans must continue to provide coverage for preventive care services deemed “Recommended” by the Task Force.
It should be noted that there may still be exemptions from ACA mandates for employers with sincerely held religious beliefs.
