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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



House Bill 249: Key Updates to Involuntary Hospitalization Law for Mental Health Providers

House Bill 249 (HB 249) proposes changes to Ohio Revised Code (ORC) Sections 5122.01 and 5122.10 to expand the conditions under which a person with a mental illness can be involuntarily hospitalized.

Starting an Advanced Practice Provider Practice

Advanced practice providers (APPs), which includes non-physician providers such as nurse practitioners, physician assistants, and nurse anesthetists, commonly start their own healthcare practices. Practices may provide, for example, service offerings such as primary care, anesthesiology, mental health, and aesthetics (medical spas). However, there are a number of considerations and steps that must be taken for APPs to compliantly function independently.

FTC Increases Targeting of Companies Lacking Cyber Protection

The Federal Trade Commission (FTC) recently released a comprehensive cybersecurity report outlining key findings and recommendations based on emerging threats, trends in data breaches, and strategies for businesses to enhance their cybersecurity posture observed over the last year.

New Federal Medical Conscience Rule and Its Implications

The Department of Health and Human Services Office for Civil Rights issued a Final Rule to clarify protections for healthcare providers who refuse services based on religious or moral beliefs. This includes protection against discrimination for refusing procedures like assisted suicide or abortion. The OCR can receive complaints, conduct investigations, and enforce these protections. Entities are encouraged to update policies accordingly and display a model notice provided by the OCR.

Marijuana Reclassification and APRN/PA Prescribing

Marijuana is expected to be reclassified by the Drug Enforcement Administration (DEA) from a Schedule I controlled substance to a Schedule III controlled substance as a result of efforts by the Biden administration.