ACA preventive care case reaches Supreme Court

• The Trump Justice Department is defending the law, essentially taking the Biden administration position that there is no constitutional issue because task force members can't unilaterally render legally binding decisions.

Catch up quick: The ACA requires most private health plans to cover certain services recommended by the U.S. Preventive Services Task Force, a long-standing panel of volunteer scientists.

• That gives about 150 million people with private coverage access to no-cost cancer screenings, vaccinations, wellness visits and more. Many covered services allow earlier detection and treatment of chronic conditions, such as hypertension and diabetes.
• Two Christian-owned companies in 2020 sued the federal government, arguing that task force recommendation that requires them to cover no-cost HIV prevention drugs in their employer-sponsored insurance was unconstitutional and went against their religious freedoms.
• A federal appeals court last year sided with the companies, ruling that the required coverage provision is unconstitutional because task force members who dictate which services get no-cost coverage were not appointed by the president and confirmed by the Senate.
• Separate claims over the constitutionality of coverage requirements recommended by other Health and Human Services bodies are moving through lower courts and could wind up at the Supreme Court in the future, according to KFF.

State of play: The federal government will argue that the HHS secretary has appropriate oversight over the task force because it can remove members at will and determine when health insurers must start covering its recommendations.

• The administration says that if that's not enough, the Supreme Court can "sever" the language in the law that requires the task force to be politically independent, which would allow the secretary to directly approve or deny the task force recommendations.
• Meanwhile, the companies and individuals that initially sued over the coverage requirement will argue that the task force members should be appointed by the president.
• And they'll argue that because the law says the task force has to be politically independent, the court can't just edit the law to give the HHS secretary authority to decide which of the group's recommendations need to be covered.
• The decision, expected in June or July, could hinge on how much weight justices attach to language in the law stating the task force has to be free of political influence, said Richard Hughes, a partner at law firm Epstein Becker Green who wrote a brief in support of the government's position.

If the Supreme Court sides with the companies, private health plans could charge beneficiaries co-pays or deductibles for services the task force recommended after the ACA was signed, including PrEP for HIV, statins to prevent heart disease, perinatal depression screening and colorectal cancer screening.

Zoom out: A 2022 survey from the Employee Benefits Research Institute found that the majority of employers said they would still cover recommended services in full even if it wasn't required.

• Still, if some employers started scaling back coverage, out-of-pocket costs for preventive services could become more standard, due to competition between carriers and a need to reduce costs, according to Katherine Hempstead, senior policy officer at the Robert Wood Johnson Foundation.
• "If any sort of action by the Supreme Court were to roll back that mandate [for no-cost coverage] in any form, even for just a certain number of services — we feel that that could really deter people from accessing care," said Eric Waskowicz, senior policy manager at the United States of Care.

Between the lines: The Trump administration briefs so far emphasize the HHS secretary's ability to remove task force members and delay their coverage recommendations.

• Progressive advocacy groups remain concerned that the Trump administration could use its authority to limit coverage of vaccines, contraception and other scientifically backed preventive services.
• "We're going to have to remain very, very vigilant in seeing how the administration, which thankfully is defending the law now, behaves when the power is in their hands," Leslie Dach, chair of Protect Our Care, told reporters last week.