{"id":1789,"date":"2025-07-18T08:54:45","date_gmt":"2025-07-18T08:54:45","guid":{"rendered":"https:\/\/www.insuracarelife.com\/blog\/explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra\/"},"modified":"2025-07-18T08:54:45","modified_gmt":"2025-07-18T08:54:45","slug":"explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra","status":"publish","type":"post","link":"https:\/\/www.insuracarelife.com\/blog\/explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra\/","title":{"rendered":"Explaining Litigation Challenging the ACA\u2019s Preventive Services Requirements: Braidwood Management Inc. v. Becerra"},"content":{"rendered":"
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On June 27,2025, the U.S. Supreme Court issued the opinion for Kennedy v. Braidwood Management<\/em>, finding that the ACA requirement that most private insurers and Medicaid expansion programs cover preventive services recommended by the United States Preventive Services Preventive Task Force (USPSTF) with no cost-sharing is constitutional.\u202fIn its decision, the Court affirmed that\u202fUSPSTF members are appointed constitutionally, and\u202fthe Secretary of Health and Human Services can remove USPSTF members at-will\u202fand directly\u202freview and block Task Force recommendations before they take effect.<\/p>\n

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In this case, the Supreme Court narrowly considered whether the structure of USPSTF violates the Appointments Clause, but did not review the litigants\u2019 other claims about the Advisory Committee on Immunization Practices (ACIP<\/a>), and the Health Resources and Services Administration (HRSA<\/a>). The federal district court will now resume briefing on the consideration of the plaintiffs\u2019 claim that the Secretary of Health and Human Services\u2019 ratification of HRSA and ACIP recommendations violates the Administrative Procedure Act. For more analysis of the Court\u2019s decision please see Kennedy v. Braidwood: The Supreme Court Upheld ACA Preventive Services but That\u2019s Not the End of the Story<\/strong>.<\/p>\n<\/div>\n<\/div>\n

Since the enactment of the Affordable Care Act (ACA) in 2010, more than 2,000 legal challenges<\/a> have been filed in state and federal courts contesting part or all of the ACA. The most recent challenge involves the ACA requirement that most private insurance plans cover recommended preventive care services without cost sharing. In this case, Braidwood Management v. Becerra<\/em>, Christian owned businesses and six individuals in Texas assert that (1) the requirements in the law for specific expert committees and a federal government agency to recommend covered preventive services is unconstitutional, and that (2) the requirement to cover preexposure prophylaxis (PrEP), medication for HIV prevention, violates their religious rights. If the plaintiffs prevail on either the constitutional or the religious claims, the government\u2019s ability to require insurance plans to cover evidence-based preventive services without cost-sharing may be limited.<\/p>\n

On September 7, 2022, Judge Reed O\u2019Connor at the US District Court in the Northern District of Texas ruled<\/a> partly in favor of the plaintiffs and partly in favor of the Department of Health and Human Services (HHS), which is defending the ACA. On March 30, 2023, Judge O\u2019Connor issued a ruling<\/a> for the remedy<\/a> in this case, Braidwood Management v. Becerra<\/em>, striking down part of the ACA\u2019s requirement for no cost coverage of preventive services recommended or updated by the U.S. Preventive Services Task Force (USPSTF) on or after March 23, 2010 and finding that the requirement to cover PrEP medications for HIV prevention violates the rights of the plaintiffs who have religious objections to PrEP. The federal government appealed<\/a> this decision and on May 15, 2023 the 5th<\/sup> Circuit Court of Appeals issued an administrative stay of the district court\u2019s ruling. This means that the federal government can continue enforcing the preventive services requirement while the 5th<\/sup> Circuit considers the Department of Justice\u2019s motion for a stay pending appeal. This brief explains the preventive services coverage requirements, the basis of the lawsuit, next steps in the litigation, and the potential implications.<\/p>\n

Preventive Services Provision<\/h3>\n

The ACA requires most private health insurance plans to cover a range of recommended preventive services\u00a0without any patient cost-sharing. Preventive services include a range of services including screening tests, immunizations, behavioral counseling, and medications that can prevent the development or worsening of diseases and health conditions. The preventive services that private plans and Medicaid expansion programs must cover are based on those receiving an A or B level recommendation by\u00a0the U.S. Preventive Services Task Force (USPSTF<\/a>), vaccines recommended by the Advisory Committee on Immunization Practices (ACIP<\/a>), and the Health Resources and Services Administration (HRSA<\/a>) based on recommendations issued by the Women\u2019s Preventive Services Initiative<\/a> and issued by the Bright Futures for Children program. As new recommendations are issued or updated, coverage must commence in the next plan year that begins on or after exactly one year from the recommendation\u2019s issue date.<\/p>\n\n\n\n
U.S District Judge Reed O\u2019Connor, an appointee of President George W. Bush, has been the \u201cgo-to\u201d judge for plaintiffs challenging the ACA. In 2018, he ruled that the entire ACA was unconstitutional because Congress zeroed out the tax penalty. The Supreme Court ultimately ruled the other way and upheld the ACA. In June 2019, Judge O\u2019Connor issued a permanent injunction against the ACA\u2019s contraceptive coverage requirement, blocking the federal government from enforcing it against employers and individuals who object to contraceptive coverage. Judge O\u2019Connor has also ruled in favor of the plaintiffs in challenges to the ACA Section 1557.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Preventive Services Litigation<\/h3>\n

In the current case, Braidwood Management Inc. v. Becerra<\/em>, the plaintiffs claim that the preventive services requirements for private health insurance are unconstitutional and the requirement to cover PrEP-specific coverage requirement violates the Religious Freedom Restoration Act (RFRA) (Table 2<\/strong>). The plaintiffs are six individuals and Christian owned businesses. Braidwood Management, a for-profit closely held organization, owned by a trust, with Dr. Steven F. Hotze, a religious Christian, as the sole trustee and beneficiary. Braidwood is self-insured and provides health insurance to its 70 employees. The other plaintiff is Kelley Orthodontics, a Christian professional association owned by plaintiff John Kelley. The plaintiffs are asserting both economic harm for having to pay more money for a health plan that includes services they do not want or need, and religious harm for having to include services they object to.<\/p>\n

Plaintiff Claims<\/h4>\n
Position 1: The Preventive Services Provision violates the Appointments Clause<\/h5>\n

The plaintiffs contend that the ACA provisions violate the Appointments Clause of the US Constitution, which provides that \u201cofficers of the United States\u201d may only be appointed by the president, subject to the advice and consent of the Senate. They claim that the members of USPSTF, ACIP and HRSA are \u201cofficers of the United States\u201d who have not been appointed in conformity with the Appointments Clause because they were not nominated by the President and approved by the Senate. Rather, members of these bodies are appointed by the heads of agencies within HHS (Table 1<\/strong>). The plaintiffs are asking the court to declare all preventive-care mandates based on recommendations or guidelines issued by USPSTF, ACIP or HRSA after March 23, 2010 (the day the ACA was signed into law) as unconstitutional. The plaintiffs contend that the ACA does not allow the Secretary of HHS or the directors of the agencies within HHS to reject the recommendations made by the committees and is thus insufficient oversight.<\/p>\n

Conversely, HHS contends<\/a> that \u201cthere are numerous statutes that incorporate by reference independent recommendation without creating any requirements that the heads of the recommending bodies be appointed as officers of the United States.\u201d They cite examples such as a public health regulatio<\/a>n related to water standards for consumer products that outsources the development of those standards to a non-governmental organization. Similarly, they cite a law<\/a> requiring states and designated database providers to use a format for an electronic database approved by an expert panel<\/a> that is not subject to approval by the head of a federal agency.<\/p>\n\n\n\n\n\n\n\n
Recommending Entity<\/strong><\/td>\nRole of the Agency<\/strong><\/td>\nProcess for Appointments and Oversight<\/strong><\/td>\n<\/tr>\n
United States Preventive Services Task Force (USPSTF)<\/td>\nThe U.S. Preventive Services Task Force<\/a> is an independent, volunteer panel of national experts in disease prevention and evidence-based medicine. The Task Force works to improve the health of people nationwide\u00a0by making evidence-based recommendations about clinical preventive services.<\/td>\n\n
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  • USPSTF members appointed by the Director of AHRQ to serve 4-year terms.<\/li>\n
  • USPSTF recommendations are not subject to AHRQ oversight or approval.<\/li>\n<\/ul>\n<\/td>\n<\/tr>\n
Advisory Committee on Immunization Practices (ACIP)<\/td>\nThe ACIP<\/a> shall provide advice and guidance to the Director of the CDC regarding use of vaccines and related agents for effective control of vaccine-preventable diseases in the civilian population of the United States.<\/td>\n\n
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  • The Secretary of the U.S. Department of Health and Human Services selects the members following an application and nomination process.<\/li>\n
  • Recommendations made by the ACIP are reviewed by the CDC Director, and if adopted, are published as official CDC\/HHS recommendations which determines insurance coverage policy.<\/li>\n<\/ul>\n<\/td>\n<\/tr>\n
Health Resources and Services Administration (HRSA) \u2013 Women\u2019s Preventive Services Initiative<\/td>\nHRSA<\/a> is an agency of the U.S. Department of Health and Human Services that operates programs intended to provide equitable health care to people who are geographically isolated and economically or medically vulnerable.<\/td>\n\n
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  • HRSA contracts with an external organization, currently ACOG, to convene a panel of experts, the Women\u2019s Preventive Services Initiative (WPSI) to make and update recommendations for women\u2019s preventive services.<\/li>\n
  • HRSA can accept or reject recommendations which determines insurance coverage requirements.<\/li>\n<\/ul>\n<\/td>\n<\/tr>\n
HRSA \u2014 Bright Futures for Children<\/td>\nHRSA (see above)<\/td>\n\n