Braidwood Opinion: Preserving Preventive Services and Bolstering Secretarial Power

A longer version of this analysis was originally published in Manatt’s subscription service, , on Saturday, June 28.

The Big Picture

On June 27, the Supreme Court that the members of the U.S. Preventive Services Task Force (USPSTF) are properly appointed by the Secretary of the Department of Health and Human Services (HHS), preserving the legal requirement for commercial health plans to cover USPSTF recommended preventive services without cost sharing. The 6-3 decision the lower court’s judgment in Kennedy v. Braidwood Management (Braidwood), ending a dispute over whether the USPSTF members are improperly appointed under the Constitution. The opinion clarified the Secretary’s power to remove at will the Task Force members and to review or block USPSTF recommendations, emphasizing the ability of political appointees to supervise the USPSTF.

Background

In a June 2024 decision, the U.S. Court of Appeals for the Fifth Circuit that USPSTF members are principal officers and that, since they had not been appointed by the President with advice and consent of the Senate, their recommendations were not enforceable as insurance benefit mandates.The Department of Justice (DOJ), under President Biden, the Supreme Court, which agreed to hear the case.The DOJ under President Trump a brief that echoed the prior administration’s position, with a forceful emphasis on the HHS Secretary’s control over the USPSTF.

Key Points in the Decision

• The Court reversed the Fifth Circuit’s decision, holding that Task Force members are inferior officers because their work is “directed and supervised” by the HHS Secretary.
• The Court concluded that, at least as of June 2023, the USPSTF had, in fact, been properly appointed by the Secretary. In holding that the USPSTF members are inferior officers, the Court explained the breadth of authority the Secretary has to supervise the USPSTF—powers that have not previously been exercised.
• In addition to appointing and removing members, the Secretary can block a recommendation using his authority to determine when Task Force recommendations become binding. The ACA specifies that the USPSTF’s recommendations are applicable to health coverage after a minimum of one year but sets no maximum interval before effectuation.
• The Secretary can also establish a formal review process through rulemaking “providing that no Task Force recommendation shall be deemed ‘in effect’ until he or his designee has affirmatively approved it.” Here, the Court cites HHS rulemaking doing the same for the Advisory Committee on Immunization Practices (ACIP), which has been the subject of recent news with the removal of the panel and appointment of new members.

Conclusion

More than 40 preventive items and services currently have an A or B USPSTF recommendation. Most of those were adopted or amended since 2010 when the ACA was enacted and before June 2023 when the Secretary began appointing USPSTF members. While the USPSTF recommendations since June 2023 are enforceable as benefit mandates, Braidwood is silent about whether the same is true for recommendations from 2010 through June 2023. Given that the USPSTF periodically updates its recommendations, the number of recommendations with this vulnerability will diminish over time – and the current USPSTF could choose to ratify its earlier recommendations en masse to eliminate any doubts.

The decision makes the USPSTF process and recommendations newly vulnerable to influence from the political process, with the Court laying out the various ways the HHS Secretary can control the outcome. Just as Secretary Robert F. Kennedy Jr. has recently fired all ACIP members, he or a future Secretary now have been told they have similar control over USPSTF.

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