What’s the news: The U.S. Supreme Court has ruled 6–3 that the process for appointing members to the influential U.S. Preventive Services Task Force (USPSTF) is constitutional. That ruling will have the effect of maintaining a critical provision of the Affordable Care Act (ACA) that helps about 100 million privately insured Americans access USPSTF-recommended services without paying for them out of pocket.
The nation’s highest court reversed a 5th U.S. Circuit Court of Appeals ruling in Kennedy v. Braidwood Management Inc.—previously known as Braidwood Management v. Becerra (PDF). That lower-court ruling had the effect of putting in jeopardy an ACA provision that is credited with saving 100,000 U.S. lives annually and that requires most insurers to fully cover services recommended by the USPSTF. The appeals court had sided with plaintiffs who said the president must nominate task force members and the Senate then must confirm those members, a procedure that had not previously happened.
While the case was initiated by a plaintiff challenging the inclusion of pre-exposure prophylaxis (PrEP) for HIV as a preventive essential health benefit under the ACA, the lawsuit threatened coverage for all services the USPSTF recommends.
In an amicus brief that was filed by the Litigation Center of the American Medical Association and State Medical Societies in the Supreme Court with more than two dozen other physician, patient and health care groups, the organizations told the court “the ACA’s preventative care mandate has saved lives and should continue to do so.”
Why it’s important: “All Americans use or will use health care services, and the lifetime risk that an individual American will contract a serious or chronic disease or condition is high,” said the brief, which is available in full from the American Cancer Society Cancer Action Network. “Preventive services aid in prevention, early detection and treatment of many conditions, increasing patients’ chances of recovery and extending life expectancies. Preventive care also helps control costs of treating these conditions.”
The AMA Litigation Center has filed amicus briefs in the Braidwood Management case as it wound its way through the court system. For the most recent brief filed in the Supreme Court, the AMA Litigation Center teamed up with the American Cancer Society, American Academy of Family Physicians, American College of Obstetricians and Gynecologists, National Medical Association, National Hispanic Medical Association, American Medical Women’s Association, American Cancer Society, American Kidney Fund and others.
“The ACA preventive services provision requiring private insurers cover task force-recommended services without cost-sharing increases patients’ ability to receive care that can prevent disease outright, identify conditions early, and reduce the physical and financial burdens of treating severe illnesses,” said the organizations’ Supreme Court brief. “Detecting severe diseases early allows for less invasive, more effective, and lower-cost treatment options and substantially improves patient outcomes. The ACA’s preventive-care requirements have enabled millions of Americans to obtain preventive care and improved utilization of these vital services nationwide for more than ten years. Reducing insurance coverage for preventive services will lead to worsening patient outcomes, resulting in preventable deaths and creating higher long-term medical costs."
The brief noted research showing that millions of commercially insured patients would lose access to no-cost cancer screenings if the lower-court decision had been allowed to stand. Researchers determined that these are the people who risked losing no-cost coverage:
- 9 million people now getting screened for breast cancer; another 5 million who are eligible for it.
- 3 million now screened for colorectal cancer; 11 million more eligible.
- 500,000 now screened for lung cancer; 2.5 million more eligible.
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In its ruling, the Supreme Court sided with patients, physicians and the federal government on the question of whether the process for appointing members to the USPSTF violated the Constitution’s appointments clause. That clause says that “officers” of the U.S. can only be appointed by the president and must go through the advice-and-consent process in the Senate—something which members of the task force do not undergo.
But not every person who works in the executive branch or is appointed by the president must get formally nominated and approved by the Senate. Ultimately, the Supreme Court majority held the task force’s structure does not run afoul of the Constitution’s appointment clause.
The Health and Human Services (HHS) secretary “has the power to appoint (and has appointed) the Task Force members … and no statute restricts removal of Task Force members. Therefore, ‘there can be no doubt’ that the Secretary may remove Task Force members at will,” says the majority opinion, written by Associate Justice Brett Kavanaugh. Some physician experts have expressed concern about the potential downstream implications of that power in the HHS secretary’s hands on the USPSTF’s independence as a decision-making body informed by the medical evidence.
Learn more: Explore the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.
In a Leadership Viewpoints column published in April, AMA Immediate Past President Bruce A. Scott, MD, explained why maintaining preventive coverage is vital to public health.
Also, watch this “AMA Update” episode on fighting for PrEP medication coverage under the ACA.
