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Recent Litigation Challenges the Affordable Care Act Preventive Services Requirement

Client Alert, News Article

The Affordable Care Act (ACA) has been met with numerous legal challenges. The most recent legal challenge, Braidwood Management Inc. v. Becerra, could affect millions of people covered by private health insurance.

Which section of ACA is this litigation challenging?

Section 2713 provides that private health insurers must cover a range of preventive services without cost sharing (deductible, co-pays, etc.). These preventive services include routine immunizations, preventive services for women and children, and more. They also include preexposure prophylaxis (PrEP), which is used to prevent HIV; contraceptives; Syphilis and other sexually transmitted infection screenings and counseling1. The U.S. Preventive Services Task Force (USPSTF) is a body of experts in disease prevention commissioned by the federal Agency for Healthcare Research and Quality that makes the recommendations regarding which preventive services will be covered at no out-of-pocket cost to the patient2.

Braidwood Management Inc. v. Becerra

In Texas, two Christian-owned businesses and individuals argued that the ACA’s no-cost sharing preventive services mandate is unconstitutional. Plaintiffs in Braidwood Management Inc. v. Becerra are specifically challenging the requirement to cover “PrEP, HPV vaccines, contraceptive services, and screening and behavioral counseling for sexually transmitted infections and drug use”3 citing (1) a violation of their religious freedoms and (2) the unconstitutionality of USPSTF.

On September 8, 2022, the District Court judge, O’Connor, ruled partly in favor of the plaintiffs. However, the district court asked for additional briefs before issuing its final decision.

What are the implications if the court rules in favor of Braidwood Management Inc.?

As we wait for the remedy suggestions from the district court, the impact of this case cannot be overlooked. This ruling poses significant risk to preventive services coverage. If the court rules in favor of Braidwood Management Inc., the federal government may not be able to require preventive services at no cost to individuals with private health insurance plans. Although this case is targeting sexual and reproductive health measures, the implications of rolling back such mandates could affect the broad range of preventive services covered in the ACA such as cancer screenings, tobacco cessation, unhealthy alcohol use in teens, and much more. Finally, the loss of preventive services coverage will result in shifting costs from insurers to today's 167 million privately insured individuals4.

For more information, please contact Member Daphne Kackloudis at



NLRB Issues Final Rule on Joint-Employer Status

On October 26, 2023, the National Labor Relations Board (NLRB) issued its final rule on determining joint-employer status, departing from its prior 2020 standard. The final rule provides that two or more entities may be considered “joint employers” if each entity has an employment relationship with employees and if the entities share or codetermine one or more employees’ essential terms and conditions of employment. The final rule goes into effect on December 26, 2023, and will only be applied to cases filed after the effective date.

WEBINAR SERIES RECAP | Employment & Labor

BMD Partner and Co-Chair of the Employment & Labor Law Group, Bryan Meek, presented this four-part webinar series on trending topics in employment law.

Ohio Legalizes Recreational Marijuana; What’s Next for Ohio Employers?

Recent Changes to the No Surprises Act’s Federal IDR Process

Proposed changes to the No Surprises Act’s independent dispute resolution (IDR) process were recently issued by the Department of Health and Human Services, Department of Labor, Department of Treasury, and the Office of Personnel Management. The October 27, 2023, proposed rule overhauls the current Federal IDR process in an effort to create efficiencies and reduce delays relating to eligibility determinations and address feedback from interested parties and certified IDR entities.

What Inpatient Behavioral Health Providers Need to Know About ODM's New Draft Rule for Reimbursements

Ohio Department of Medicaid (ODM) recently released a draft rule that will transform how inpatient behavioral health services are reimbursed for some hospitals. ODM will migrate inpatient payments for behavioral health and substance use disorder services (BH/SUD) provided by freestanding psychiatric hospitals (FSPs) from the APR-DRG payment methodology to a per diem payment methodology derived from the APR-DRG system.