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The Biden administration may be able to ensure continued coverage of free preventive services following a Texas ruling late last month that struck down part of the Affordable Care Act.
The big picture: The ruling overturned the preventive services coverage requirement, with a federal judge concluding that the services are chosen by a panel that doesn't have to be appointed by the president or confirmed by the Senate.
- The Biden administration has appealed the ruling and it's possible that the Supreme Court may step in and review the case before the end of its current term.
- But some legal experts say the statute leaves room for administration officials to step in and fix this on its own.
The details: Three attorneys at Epstein Becker Green wrote in Health Affairs this month that the HHS secretary could authorize the Agency for Health Care Research and Quality to review and adopt the U.S. Preventive Services Task Force’s recommendations that the Texas ruling struck.
- AHRQ, which currently provides technical and administrative support to the task force, is a politically accountable agency under HHS' purview.
- The language of the Public Health Service Act shields the task force from political pressure and accountability — to the extent that it’s practicable.
- “I don’t think it’s practicable anymore,” Richard Hughes, a health care attorney at EBG and one of the authors of the paper, told Axios. “I do think the administration actually has the authority, based on that flexible language, to step in and increase accountability.”
How it works: Administration officials could also put the task force recommendations through notice-and-comment rulemaking, or establish a new HHS agency to provide review and approval of recommendations, the lawyers added.
- HHS could direct the CDC director to step in and oversee the Preventive Services Task Force, too, according to the EBG lawyers.
The intrigue: The White House is taking meetings on the decision. Lambda Legal met with administration officials Friday about their initial thoughts on a regulatory fix, said Jose Abrigo, HIV project director of Lambda Legal Defense and Education Fund.
- Outside of the ongoing legal battle, Abrigo said, he’s mostly focused on legislative fixes. That said, “it's a good idea to start getting ready” for other options, he added.
- "Hopefully, a stay will happen, and then that will take the pressure off of the Biden administration or Congress to initiate anything regulatory until something that happens in the courts," Abrigo said.
- The White House and HHS did not respond to requests for comment.
Zoom out: U.S. District Judge Reed O’Connor's ruling covers services including anxiety screenings for kids, hepatitis C screenings and lung cancer screenings. Other services, such as behavioral interventions for weight loss and hypertension screenings, will remain free of charge to consumers.
- O’Connor also ruled it a violation of religious rights to require coverage of PrEP for HIV prevention.
- The Department of Justice appealed the ruling to the 5th U.S. Circuit Court of Appeals and has requested a stay.
- Litigation could continue beyond that: The case will likely make its way to the Supreme Court, said Sara Rosenbaum, a health law and policy professor at George Washington University.
The other side: Nicholas Bagley and A. Mark Fendrick, two health policy experts and professors at the University of Michigan, wrote a Health Affairs article last month urging Congress to pass new legislation that gives the HHS secretary final authority over which preventive services must be covered free of charge.
- “Congress could fix any constitutional defect with the stroke of a pen,” the professors wrote.
Reality check: “There is absolutely no way that you're going to find support for a bipartisan solution to this,” Hughes said. “I think the path is the administration.”
Yes, but: Other experts say the administration’s window of opportunity to change the preventive services coverage recommendations process has passed.
- Legally, HHS could use the administrative authority outlined by Hughes and his colleagues, “but the way politics work, it's too late,” Rosenbaum said. "We're locked in because we're in litigation."
- Additionally, other advocates say it’s important for the administration to stay focused on securing a favorable legal ruling for the coverage recommendations.
- “There is no action [that] substitutes for keeping the law intact,” Leslie Dach, chair of ACA advocacy group Protect Our Care, wrote in an email.
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