June 26, 2024
Braidwood Decision Threatens HIV Progress
The Fifth Circuit Court of Appeals has issued a decision in Braidwood Management v. Becerra, a major legal case that observers have said could fundamentally alter the preventive services provision in the Affordable Care Act (ACA).
By its own declaration, the court’s ruling is “a mixed bag.” Although this ruling does not create a worst-case scenario for HIV advocates and health care providers, it creates the environment necessary for the possible elimination of the United States Preventive Services Task Force (USPSTF).
As well, the court left an unanswered question for the original court that leaves some cost-free preventive care at risk. This question, specifically, is whether Health and Human Services Secretary Becerra followed proper procedures in his ratification of recommendations by two federal entities, the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HSRA).
The Original Ruling and Stay Last June
In the original case, plaintiffs argued that the U.S. Preventive Services Task Force (USPSTF) violated the appointments clause and is not a legally appointed body; therefore, the plaintiffs were not bound to cover the costs of USPSTF-recommended preventive services. The plaintiffs also argued that they do not have to provide insurance coverage for HIV pre-exposure prophylaxis (PrEP) because doing so would violate their rights under the Religious Freedom Restoration Act. The case was heard by U.S. District Court Judge Reed O’Connor, whose previous invalidation of the ACA was overturned by the Supreme Court in 2018.
In March 2023, Judge O’Connor ruled in favor of the plaintiffs. He applied the ruling for the USPSTF universally, meaning that enforcement of USPSTF recommendations were effectively blocked. The government immediately appealed the case to the Fifth Circuit Court of Appeals. In June of 2023, the appellate court issued an administrative stay in the case, allowing health plans to continue providing preventive coverage at no cost pending appeal.
The Cost of Preventive Services and Affordable Care
The ACA transformed American health care by expanding coverage, lowering costs and improving access to care. Despite its positives, the ACA is the most challenged law in American history. Its provisions have been argued before the U.S. Supreme Court three times in 13 years.
Reinstating cost sharing for PrEP could not only result in billions of dollars in avoidable health care costs, but also reverse the progress that we have made toward ending the HIV epidemic.
Findings of the Fifth Circuit
In last week’s ruling, the Fifth Circuit Court agreed in part with the findings of the lower court and disagreed in part.
Remanded to the Trial Court and Next Steps
Although the appellate court found the task force unconstitutionally violated the Appointments Clause, this ruling only applies to the plaintiffs and not the entire nation. Further, it reserved judgment on whether Secretary Becerra effectively ratified guidelines of ACIP and HRSA. Therefore, the appellate court remanded the case back to the trial court to answer that question.
Although the court raised concerns about Becerra’s ratification as contemplated by the ACA, legal experts believe the final decision will be eventually appealed to the Supreme Court.
The scope of this ruling will remain unknown as insurers and government officials continue to litigate their interests in the continuing battle over the ACA and preventive services.
Advocacy Opportunities for Mitigating the Effects of Braidwood
Advocates and health care providers are in a unique position to highlight the unacceptable disparities that will continue and worsen if access to PrEP remains threatened by this decision. As it stands, the Centers for Disease Control and Prevention estimates that only 13 percent of Black people and 24 percent of Latino people who could benefit from PrEP were prescribed it, as opposed to 94 percent of White people.
Additional Braidwood impacts that call us to commit to long-term engagement:
A Call to a Long-Term Commitment to Advocacy
We cannot afford to lose unfettered access to PrEP in our preventive care arsenal as we address the barriers to ending the HIV epidemic. Braidwood reminds us all to remain vigilant as this uncertainty around preventive care has the potential to reshape the coverage gains of the ACA. Diversity in our efforts will exponentially improve our odds of success as we litigate these issues in every forum and every state with policy experts with expertise in public health and the treatment and prevention of HIV.
Starting this summer, the Academy will begin hosting a series of conversations in order to plan our strategic response to this structural threat. At this critical moment we must begin organizing to mitigate the effects of this decision on our continued work to end the HIV epidemic. If you are interested in joining us in these advocacy efforts, please contact us by emailing chauncey@aahivm.org.
View the latest Policy Update here.