On September 12, 2023, the Congressional Research Service issued report LSB11040 describing the Braidwood case and suggesting a possible action that Congress could take to address the issues raised by it.
This case was the subject of an article in the October 13, 2022, edition of Compliance Corner. On September 7, 2022, the US District Court for the Northern District of Texas issued a ruling in Braidwood Management Inc. v. Becerra, in which the court ruled that certain ACA preventive care mandates violated the Constitution as well as the Religious Freedom Restoration Act (RFRA). In particular, the court determined that the ACA preventive-care mandates violate the Constitution's Appointments Clause because the appointment process for members of the US Preventive Services Task Force (PSTF), the body that reviewed preventive services in order to determine whether they are subject to the ACA mandate, did not satisfy the constitutional method for appointing officers of the United States. The court agreed with the plaintiffs in the case that the actions of the PSTF, whose decisions bind those subject to the ACA mandate (such as insurers and employers in self-insured plans), are actions that must be done by persons appointed using the process under the Constitution (or actions that must be ratified by someone who was so appointed). Since the members of the PSTF are not appropriately appointed and their actions are not ratified by someone so appointed, their involvement in the ACA preventive care mandate was unconstitutional.
Noting this and other issues in the case, the report suggests that Congress could amend the preventive services requirement to indicate further that all preventive services, or at least those recommended by PSTF, must be approved by the HHS secretary or another official that has been nominated by the president and confirmed by the Senate.
The report does not directly affect the administration of either fully insured or self-insured plans. However, it serves as a reminder that the issues concerning the ACA preventive care mandate are still controversial, so employers should keep an eye on developments.
Congressional Research Service Report LSB11040 »
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