What's at Stake as Oral Arguments Are Presented in the Braidwood Case? Q&A With Richard Hughes IV

Oral arguments in the Kennedy vs Braidwood case, originally Braidwood v Becerra, will be presented starting on April 21, with all eyes on the Supreme Court as it determines whether the US Preventive Services Task Force (USPSTF) has the constitutional authority to mandate that preventive services be covered by insurance under the Affordable Care Act (ACA). The American Journal of Managed Care® (AJMC®) spoke with Richard Hughes IV, JD, MPH, health care attorney at Epstein Becker Green, about what we should expect from Monday's proceedings and the implications of the case.

This transcript was lightly edited for clarity.

AJMC: Oral arguments in the Braidwood case will be presented on Monday, April 21. What can we expect to occur during this stage of the appeal?

Hughes: The 2 sides will present their oral arguments at the court, and they will be arguing as to whether the role of the USPSTF under the ACA violates the appointments clause. They'll be arguing as to whether they are principal officers under the Constitution, and they'll be arguing as to whether, if there is an appointments clause violation, whether the court can apply severability to the statute that basically insulates political interference. The case will determine the fate of the preventive services coverage requirements under the ACA. I'll be really watching the justices slightly to the right of Chief Justice [John] Roberts, so Justice [Brett] Kavanaugh, Justice [Amy] Coney Barrett, really to see how they're asking questions, mostly about severability.

AJMC: Now that oral arguments are starting, what can we expect the timeline of this case to be?

Hughes: The court's term ends at the end of June. And so I would expect that we'll see a decision probably at the very end of the term. We could see it, maybe potentially coming out in July—very, very early in July. Sometimes there are some opinions that continue to trickle out and so that's certainly a possibility as well.

Richard Hughes IV, JD, MPH | Image credit: George Washington University Law

AJMC: How can health care payers remain compliant with the decision, should the Task Force be deemed unconstitutional?

Hughes: The coverage requirements would be rolled back to what they were when the ACA was passed. Basically, the recommendations that were in effect before March of 2010, that's what payers would have to cover. New coverage requirements, like PrEP [pre-exposure prophylaxis] for HIV, would be something that payers would not be required to cover. I think that what you probably won't see is sort of an overnight scenario where they stop covering screenings. I do think that PrEP for HIV is very much at risk. I think that what you're going to see, almost more important than whether the payers cover it—because I do think a lot of coverage will continue—what you're really going to see that's concerning is the imposition of cost sharing. What we know is that when a payer imposes cost sharing, patients are more likely to walk away from that service.

AJMC: What is the impact on health care providers and manufacturers who offer preventive services or market tests or products? Who will this affect the most?

Hughes: I think it's tremendously impactful for patients, especially people at risk of acquiring HIV. I think if the requirement to cover PrEP goes away, you might lose access to PrEP altogether. You might lose access to long-acting injectable PrEP. I think for health care providers, it really just creates a lot of confusion. It's incredibly disruptive to providers when they don't really know what a patient's health insurance plan is going to cover. That can really create some issues in clinic when a provider is recommending a service to a patient, and the payer might potentially not cover it. You could certainly have some surprise bills that patients receive because the payer comes back and says, “Well, we're not going to cover that.”

I think it discourages innovation [as well]. You look at the great innovation around long-acting injectable PrEP, we've come so far, and these products are so effective, and so it's a very competitive market. Are you going to see continued investment? I think it's questionable. It's really questionable. That's one of my biggest concerns.