Supreme Court to Hear Braidwood Preventive Services Case, DOJ Maintains Biden Administration’s Position

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The Supreme Court announced that it will hear oral arguments in the preventive services case Kennedy v. Braidwood (“Braidwood”) on April 21. The question in Braidwood is whether U.S. Preventive Services Task Force (USPSTF) members are appointed in a constitutional manner, which is necessary to continue the Affordable Care Act's (ACA) requirement that its recommendations must be covered without cost sharing by commercial health plans. If the Supreme Court strikes down the USPSTF coverage requirement, commercial health plans would no longer be required to cover USPSTF-recommended services (at least those enacted since March 23, 2010) or could add cost-sharing requirements. A decision is likely by June or July.

The ACA requires that nongrandfathered insurance issuers and group health plans cover the USPSTF’s “A” and “B” recommendations without cost sharing. Employers challenged this rule, arguing that the USPSTF members wield so much power that they are “principal” officers of the federal government under the Appointments Clause of the U.S. Constitution and must be nominated by the president and confirmed by the Senate, which is not the case today. 

The U.S. Court of Appeals for the Fifth Circuit sided with the employers in ruling that USPSTF members are principal officers and that, since they were improperly appointed, their recommendations cannot be automatically applied to insurance coverage. The Department of Justice (DOJ), under President Biden, petitioned the Supreme Court, which agreed to hear the case.

On February 18, DOJ a brief with the Supreme Court that echoes the Biden DOJ position, arguing that the USPSTF members are inferior officers that may be appointed by the HHS Secretary. Emphasizing the HHS Secretary’s control over the USPSTF, DOJ made clear the government’s position that “the Secretary can remove Task Force members at will, for any reason” and that removal can occur “before the end of their term, because there are no statutory restrictions on a member’s removal.” DOJ argued that the HHS Secretary is ultimately “responsible for final decisions about whether Task Force recommendations will be legally binding” and “can review the Task Force’s preventive-service recommendations and decide to deny them legal force under the ACA before those recommendations have binding effect.”

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