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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



The NLRB Limits the Reach of Confidentiality and Non-Disparagement Provisions in Severance Agreements Overruling Trump-Era Policies

Employers should exercise caution and closely examine the content of severance agreements to ensure compliance with a recent National Labor Relations Board (“NLRB”) decision.  On February 21, 2023, the NLRB restricted the breadth of permissible language of confidentiality and non-disparagement clauses when it issued its decision in McLaren Macomb and overruled its Trump-era decisions in Baylor University Medical Center and IGT d/b/a International Game Technology.

Ohio Medical Board Releases New Telehealth Rules

On Tuesday, February 21, 2023, the State Medical Board of Ohio released its final telehealth rules to implement Ohio’s telehealth statute (O.R.C. 4743.09) for physicians, physician assistants, dieticians, respiratory care professionals and genetic counselors. Ohio’s advanced practice registered nurses (“APRNs”) should also take note of these rules. While the Medical Board does not govern APRNs directly, those APRNs who are required to have a collaborating physician and standard care arrangement (namely nurse practitioners, certified nurse midwives, and clinical nurse specialists) are still affected by the rules. Generally, if an APRN’s collaborating physician is limited in their practice, then the APRN will also be limited.

The End of the Public Health Emergency is (Finally) Here

The COVID-19 Public Health Emergency (“PHE”) that has been in effect for over three years is finally slated to end on May 11, 2023.[1] With the end of the PHE will come many changes for healthcare providers to be aware of; however, some changes may not come until much later.

Multi-340B Contract Pharmacy Locations on the Brink? The Third Circuit’s Ruling Gives a Hint.

The 340B drug discount program requires pharmaceutical manufacturers to offer to sell their products at significant discounts to safety net providers called “covered entities.” In 1996, the Health Resources and Services Administration (HRSA) issued guidance authorizing covered entities to enter into a contract pharmacy arrangement with a single third-party contract pharmacy, to which the manufacturer would ship 340B medications but bill the covered entity. In 2010, HRSA issued revised guidance permitting covered entities to enter into an unlimited number of contract pharmacy arrangements.

Five Opportunities for Operations and Compliance Excellence in 2023

With the holidays behind us and the rest of the year ahead, now is the perfect time to get your operational/compliance house in order! Though your list might be a mile (or an inch) long, here are five places to start.