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April 12, 2023

Texas Federal District Court Calls USPSTask Force Authority Into Questions

In Braidwood Management, Inc. v. Becerra, a judge in the U.S. District Court for the Northern District of Texas held that the U.S. Preventive Services Task Force’s authority under the Affordable Care Act to recommend preventive services that health plans must cover with no cost sharing when provided in-network violates the Appointments Clause found Article II, section 2, clause 2 of the U.S. Constitution.  The case also involves a Religious Freedom Restoration Act issue.

Writers in Health Affairs Forefront suggest sensible administrative law approaches to repairing the Braidwood Management problem. One example involves having the HHS Secretary authorize AHRQ or the CDC to review and adopt the Task Force’s recommendations, as the CDC director already does with immunization recommendations from the Advisory Committee on Immunization Practices. 

The U.S. appealed the Braidwood Management opinion to the U.S. Court of Appeals for the Fifth Circuit (Case No. 23-10326) without requesting a stay.  Braidwood Management has noticed a cross-appeal. 

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