The Supreme Court on Monday scheduled arguments for April 21 in a case that could decide the legality of the Affordable Care Act’s (ACA) requirement that insurers cover certain preventive services.
In a surprising move, the Trump administration said it will continue the Biden White House’s defense of that requirement.
But some legal experts said the arguments being presented by the Justice Department indicate a desire to give Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. substantial control over an independent government task force.
“Probably what has contributed to the administration’s comfort level is their ability to assert this position, that they do have political oversight over the task force,” said Richard Hughes IV, an attorney with Epstein Becker Green.
The Justice Department in a brief last week argued that an independent government panel — the U.S. Preventive Services Task Force (USPSTF) — is legally allowed make coverage recommendations because the HHS secretary has the ultimate say over both the recommendations and the individual members of the panel.
“Task Force members are inferior officers, because the Secretary of HHS — a quintessential principal officer — remains responsible for final decisions about whether Task Force recommendations will be legally binding on insurance issuers and group health plans,” the Justice Department wrote.
The secretary can remove the members at will, and the threat of removal is “the ultimate tool for control over final decisions on recommendations,” the administration wrote.
Additionally, the HHS secretary has the ultimate authority to decide whether USPSTF recommendations should become binding on health-insurance issuers, the administration argued. The secretary may directly review — and deny legal force to — any recommendations. He can also request that the Task Force reconsider or modify its recommendations.
The task force is a volunteer panel of national experts in disease prevention and evidence-based medicine.
ObamaCare requires insurers to cover, without cost-sharing, more than 100 preventive health services recommended by the task force.
The preventive services requirement has been in effect since 2010 and extends coverage of evidence-based preventive services such as cancer screening, tobacco cessation, contraception, and immunizations, without cost-sharing, to more than 150 million people each year.
The U.S. Court of Appeals for the Fifth Circuit had concluded that the task force’s structure is unconstitutional because its members are not Senate-confirmed but still decide which services are covered. However, the panel declined to issue any nationwide injunction of the preventative care mandate.
The Biden administration appealed the ruling to the Supreme Court.
The Trump Justice Department’s arguments were substantially similar to what the Biden administration said.
But Andrew Twinamatsiko, director of the Center for Health Policy and the Law at Georgetown University’s O’Neill Institute, said they have new implications given Kennedy’s open skepticism about vaccines and Food and Drug Administration policies.
“If you have a secretary imposing and countermanding evidence-based recommendations by a field of experts, then you’re going to have a problem with faith in the health care system,” Twinamatsiko said.
Still, Twinamatsiko said it’s essential that the Supreme Court uphold the panel’s constitutionality, and “it’s a great thing” that the Trump administration is defending ObamaCare despite years of hostility and efforts to end it.
“I think there’s likely to be a continued fight on what services get covered, what services don’t get covered … how is that the administration is going to keep up with the science as it develops, and how do we remain faithful to the purposes of the ACA to ensure that people get evidence-based services covered?” Twinamatsiko said.
