Supreme Court upholds ACA preventive services, public health risks remain

The Supreme Court, agreeing with the Trump and Biden administrations, held in Kennedy v. Braidwood Management, Inc. that the members of the US Preventative Services Task Force (USPSTF) are inferior officers who may be appointed by the Secretary of the US Department of Health and Human Services (HHS).

The central question before the Supreme Court was “whether appointment of Task Force members by the Secretary of HHS violates the Appointments Clause.” If the Supreme Court had ruled in favor of the plaintiffs, it would have significantly undermined the requirement that health plans cover certain preventive services without enrollee cost sharing—one of the most popular policies of the Affordable Care Act (ACA).

The ACA required most health insurers and group health plans to cover certain services rated an “A” or “B” by the USPSTF without cost sharing. The USPSTF makes “evidence-based recommendations about clinical preventive services.” The plaintiffs challenged the coverage requirements on the basis that the appointment of the USPSTF members by the Secretary of HHS (Secretary) violated the Appointments Clause of the Constitution, arguing that USPSTF members are principal officers who must be appointed by the President with the advice and consent of the US Senate. 

The Appointments Clause of the US Constitution provides that “officers of the United States” must be appointed by the President, subject to the advice and consent of the Senate. The plaintiffs alleged that the USPSTF (along with the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA)) lacked the authority to determine coverage requirements of preventive services. The plaintiffs argued that the requirements violated the Appointments and Vesting Clauses of the Constitution, the nondelegation doctrine and the Religious Freedom Restoration Act. Judge Reed O’Connor of the US District Court for the Northern District of Texas ruled that the requirement for insurers to cover preventive services recommended by the USPSTF violated the Appointments Clause and that the requirement to cover pre-exposure prophylaxis (PrEP) violated the Religious Freedom Restoration Act. Judge O’Connor rejected the plaintiffs’ remaining arguments, including those based on the nondelegation doctrine.

The US Court of Appeals for the Fifth Circuit affirmed Judge O’Connor’s ruling, holding that the structure of the USPSTF violated the Constitution by finding its members were “principal officers” who must be presidentially appointed with advice and consent of the US Senate. Specifically, the Fifth Circuit held that 42 U.S.C. § 299b-4(a)(6), which requires the USPSTF’s recommendations to be “independent and, to the extent practicable, not subject to political pressure,” “contemplates complete autonomy” with respect to recommendations. The Fifth Circuit also limited the nationwide injunction issued by the District Court to the named plaintiffs. The US Government appealed the Fifth Circuit’s holding that the structure of the USPSTF violates the Appointment’s Clause.

Justice Kavanaugh, writing for the 6-3 majority, held that USPSTF “Task Force members are inferior officers because their work is ‘directed and supervised’ by the Secretary of HHS, a principal officer.” The opinion notes that the Secretary, as a principal officer, has the power to appoint USPSTF members and to remove them at will, which is a “powerful tool for control.”

The Secretary also has the power to “block a Task Force recommendation from taking effect by combining his at-will removal authority with his authority to determine when Task Force recommendations become binding.” The opinion also rejects the plaintiffs’ argument that the Secretary lacked authority to appoint USPSTF members, even if they are inferior officers. The Court found that Congress gave the Secretary authority when it authorized the Director for AHRQ to appoint members in 1999, and that the Reorganization Plan No. 3 transferred the AHRQ Director’s functions to the Secretary. Justice Kavanaugh wrote:

The structure of the Task Force and the manner of appointing its officers preserve the chain of political accountability that was central to the Framers’ design of the Appointments Clause: The Task Force members were appointed by and are supervised and directed by the Secretary of HHS. And the Secretary of the HHS, in turn, answers to the President of the United States.

While immediate reaction to the decision focused on maintaining access to preventive services, the ruling makes clear the Secretary’s authority to remove task force members and to review and block their decisions. The opinion provides a roadmap for Secretary Kennedy to place his imprimatur on the USPSTF and to modify, remove or add preventive services that must be covered by most health insurers and group health plans without cost sharing:

To explain: The Affordable Care Act expressly affords the Secretary the power to “establish a minimum interval” between when the Task Force issues an “A” or “B” recommendation and when insurers must cover the recommended service without cost sharing. 42 U.S.C. § 300gg–13(b)(1). Congress specified that the minimum interval “shall not be less than 1 year,” leaving the Secretary with discretion to set a longer minimum interval. § 300gg–13(b)(2).

So during the minimum 1-year period after the Task Force makes a recommendation before it becomes binding, the Secretary can request that the Task Force reconsider or withdraw a recommendation that he disfavors. He has plenty of time to remove and replace Task Force members who refuse. And he can then request that the reconstituted Task Force modify or rescind the recommendation. Therefore, in this statutory scheme, the Secretary can use his at-will removal power to stop any preventive-services recommendation contrary to his judgment from taking effect.

Time will tell whether Secretary Robert F. Kennedy Jr. will use this decision, and his authority over inferior officers, to revise the preventive services that must be covered. For now, the ACA’s requirement that certain preventive services be covered without cost sharing to encourage their utilization and improve public health remains intact.