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Agreement in Braidwood Litigation Partially Stays Court's Preventive Health Services Ruling, Pending Appeal
Practical Law Legal Update w-039-7783 (Approx. 5 pages)
Agreement in Braidwood Litigation Partially Stays Court's Preventive Health Services Ruling, Pending Appeal
by Practical Law Employee Benefits & Executive Compensation
| Published on 14 Jun 2023 • USA (National/Federal) |
In ongoing litigation under the Affordable Care Act (ACA), the Fifth Circuit has stayed part of a Texas district court ruling that barred all agency administrative actions to implement or enforce preventive health services requirements taken in response to an "A" or "B" recommendation by the US Preventive Services Task Force (USPSTF) on or after March 23, 2010 (that is, the enactment date of the Patient Protection and Affordable Care Act (PPACA)).
In litigation involving the ACA's preventive health services rules, the Fifth Circuit has stayed part of a Texas district court ruling that barred all administrative agency actions taken to implement or enforce preventive health requirements in response to an "A" or "B" recommendation by the US Preventive Services Task Force (USPSTF) on or after March 23, 2010 (that is, the enactment date of the Patient Protection and Affordable Care Act (PPACA)) ( (June 13, 2023); (June 12, 2023); Braidwood Mgmt. Inc. v. Becerra, (N.D. Tex. Mar. 30, 2023) ("Braidwood ruling"); see Legal Update, Texas District Court Blocks Enforcement of ACA's Preventive Health Services Requirements (in Part), Including PrEP). Objecting employers and individuals in the case agreed to withdraw their opposition to the stay in return for protection from administrative enforcement actions and statutory penalties while the district court's judgment is in effect.
For more information on the ACA's preventive health services requirements, see Practice Note, Preventive Health Services Under the ACA, Other Than Contraceptives.
Preventive Health Services Under the ACA: USPSTF Recommendations
As background, the ACA requires non-grandfathered group health plans and health insurers to cover numerous preventive health services and screenings without cost-sharing. Plans and insurers must provide first-dollar coverage for the following four categories of preventive health services:
- Evidence-based items or services with a rating of "A" or "B" under current USPSTF recommendations, except USPSTF recommendations regarding breast cancer screening, mammography, and prevention issued in or around November 2009 ("Part One").
- Routine immunizations for children, adolescents, and adults recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC) ("Part Two").
- Preventive care and screenings for infants and children through age 21 under guidelines supported by the Health Resources and Services Administration (HRSA) ("Part Three").
- Preventive care and screenings for women under HRSA guidelines, including contraceptives (see Practice Note, Contraceptives Coverage Under the ACA: Overview and Abortion and Contraceptives Services for Group Health Plans Toolkit) ("Part Four").
Texas District Court Bars Implementation and Enforcement of USPSTF Recommendations
In September 2022, a Texas district court held that compulsory health plan and insurance coverage for ACA preventive health services based on A or B ratings under USPSTF recommendations (Part One), made on or after March 23, 2010, violated the US Constitution's Appointments Clause (Braidwood Mgmt. Inc. v. Becerra, (N.D. Tex. Sept. 7, 2022); see Legal Update, District Court: ACA's HIV/PrEP Coverage Mandate Violates the RFRA). In its September 2022 ruling, the court requested briefing on appropriate remedies. Regarding ACIP and HRSA, however, the district court held that HHS ratified the challenged ACIP recommendation and HRSA guidelines (therefore curing any improper appointments).
The court also concluded that the preventive health services requirement to cover PrEP (with antiretroviral therapy for persons who are at high risk of acquiring HIV) violated an objecting employer's rights under the Religious Freedom Restoration Act (RFRA). As a result, the court prohibited the Departments of Labor (DOL), Health and Human Services (HHS), and Treasury (collectively, Departments) from implementing or enforcing the PrEP coverage requirement regarding the employer.
In a later Braidwood ruling (March 2023), the district court:
- Vacated all actions taken by the Departments to implement or enforce the Part One preventive health requirements (that is, in response to A or B recommendations by the USPSTF on or after March 23, 2010).
- Enjoined the Departments from implementing or enforcing these requirements in the future.
The Departments appealed and requested to stay the Braidwood ruling.
In April 2023, the Departments issued preliminary guidance addressing group health plans' and health insurers' coverage obligations in light of the Braidwood rulings (see Legal Update, Departments Address Court's Ruling Blocking Enforcement of Certain ACA Preventive Health Services).
Partial Stay of District Court Judgment Pending Fifth Circuit Appeal
Under the June 2023 agreement, the Departments and objecting employers/individuals reached a compromise regarding the status of the disputed preventive health services while the Fifth Circuit appeal is being litigated. The agreement acknowledged that the district court's order would not protect the objecting employers and individuals from statutory penalties or enforcement actions by the Departments if the Fifth Circuit reverses the district court on appeal—even for violations occurring while the district court's judgment is in effect.
For their part, the objecting employers and individuals agreed to withdraw their opposition to the Departments' request to stay part of the Texas district court's order pending the Fifth Circuit appeal. Specifically, this referred to the part of the district court's order that:
- Vacated all actions taken by the Departments to implement or enforce the preventive care coverage requirements in response to Part One recommendations by the USPSTF on or after March 23, 2010.
- Prohibited the Departments from implementing or enforcing compulsory coverage requirements in response to Part One recommendations from USPSTF in the future.
This part of the district court's order is now stayed pending the Fifth Circuit appeal.
In exchange for the objecting employers' and individuals' agreement regarding the stay, the Departments agreed not to take enforcement action or seek penalties (until the Fifth Circuit issues its ruling on appeal):
- Against an objecting employer for refusing to cover, or imposing cost-sharing for, Part One preventive health services under USPSTF recommendations issued on or after March 23, 2010.
- Due to a Texas-based health insurer offering coverage that excludes PrEP to objecting individuals.
- Against objecting individuals for purchasing health insurance that excludes coverage for PrEP.
However, the parties' agreement does not protect objecting employers (or anyone else) from Department enforcement actions or penalties resulting from Part One violations occurring after the Fifth Circuit's ruling on appeal (if the Fifth Circuit vacates or reverses the district court). The agreement also does not protect objecting individuals—including as to their RFRA claims—from Department enforcement actions or penalties from Part One violations occurring after the Fifth Circuit's ruling on appeal (if the Fifth Circuit vacates or reverses the district court).
On June 13, 2023, the Fifth Circuit granted a stay pending appeal.