Washington — The Supreme Court on Monday considered a case that could impact whether Americans have to pay out-of-pocket for preventive-care services such as diabetes screenings, HIV-prevention drugs and statins, which are currently provided to patients at no cost under the Affordable Care Act.

The legal battle is the latest to land before the high court that involves the landmark health care overhaul signed into law by then-President Barack Obama in 2010. But this dispute turns on how to classify the 16 members of the U.S. Preventive Services Task Force, which sits within the Department of Health and Human Services and has been making recommendations on preventive medical services to avoid serious health conditions since 1984.

But last year, a federal appeals court in New Orleans found that the task force’s structure violates the Appointments Clause of the Constitution because its members are principal officers who were not properly appointed. Principal officers must be appointed by the president and confirmed by the Senate.

If the Supreme Court affirms the decision of the U.S. Court of Appeals for the 5th Circuit, major hospital associations and leading nonprofits advocating on behalf of breast cancer and HIV patients have warned it would limit access to life-saving medical care for millions of patients, as insurers would no longer be required to cover at no cost to patients the services recommended by the task force.

“Patients who relied on the promise of preventive care without out-of-pocket costs for a variety of lifesaving interventions and screenings may now need to bear those costs themselves,” a coalition of trade groups, led by the American Hospital Association, wrote in a friend-of-the-court brief file with the Supreme Court. “Realistically, this means that patients will not seek out essential preventive care or adhere to preventive medications after they are prescribed.”

While the Preventive Services Task Force has for more than three decades been making recommendations on preventive medical services, its role was codified by Congress in 1999. The task force’s volunteer members are selected by the health and human services secretary and appointed to a four-year term. There are no restrictions on a member’s removal, though Congress has said that all members and its recommendations “shall be independent and, to the extent practicable, not subject to political pressure.”

With passage of the Affordable Care Act, Congress required health insurers and group health plans to cover certain preventive services that are recommended by the task force without imposing co-pays, deductibles or other cost-sharing charges on patients. 

Congress did not create a list of covered preventive services when it passed the ACA, but instead provided for categories of services that must be covered based on the recommendations of medical experts, including the task force. The Biden and Trump administrations have both estimated that millions of Americans have received these services for free through their insurance plans.

Among the preventive services currently recommended by the task force are screenings for lung, cervical and colorectal cancers, as well as diabetes; statin medications to reduce the risk of heart disease and stroke; and medication to prevent HIV, known as PrEP, which gave rise to the legal battle currently before the Supreme Court.

During arguments on Monday, Justice Brett Kavanaugh suggested the language of the statute that established the task force is different from others involving the structure of independent agencies, which specify its officers are appointed by the president and confirmed by the Senate, and limit a president’s ability to remove members to certain grounds.

“All of that’s missing here,” he said.

Kavanaugh told Jonathan Mitchell, who argued that the task force’s members are unlawfully appointed, that his argument hinges on the Supreme Court treating the task force as a “massively important” agency that makes “critical decisions” that affect a key segment of the economy, without any supervision or direction by the secretary.

“Normally, before that kind of thing would happen, Congress would’ve provided stronger indications that this task force is enormously important,” he said, adding that he doesn’t see any indicators that the entity is “more powerful than the secretary of Health and Human Services or the president in terms of how these recommendations are going to affect the health care industry.”

Justice Elena Kagan also questioned why the secretary’s power to remove task force members at will is not enough to show that they are accountable to the leader of the Department Health and Human Services, Robert F. Kennedy, which would undercut Mitchell’s characterization of the members as principal officers who must be appointed by the president and Senate-confirmed.

“If you read this court’s decisions, it seems often to be the end-all and the be-all that the court has suggested on many occasions that removal power is really the essence of control: If you have it, you have control. If you don’t have it, you don’t have control,” she said.

Kagan also said it would be “odd” for Congress to set up a task force, but not say who picks its members.

Other justices questioned the scope of the word “independent,” and whether that puts the task force outside of the secretary’s supervision.

Justice Sonia Sotomayor likened the task force, which gives technical advice, to her law clerks, who may offer independent judgments but are hired to “help the decision-makers come to a conclusion.”

If the Supreme Court finds that the task force members are inferior officers, one possible outcome that was raised during the arguments was sending the case back to the 5th Circuit for more proceedings to decide whether Congress gave the Health and Human Services secretary the authority to appoint them.

Justice Neil Gorsuch first raised that option and noted that the lower court didn’t address whether the secretary has that power. 

While inferior officers must be appointed by the president and Senate, Congress can choose to vest this appointment power elsewhere, to an agency leader, for instance.

The dispute before the high court arose after the task force recommended in June 2019 that PrEP be included among the preventive services covered without cost-sharing arrangements. A group of four individuals and two small businesses filed a lawsuit targeting the Preventive Services Task Force, and objected to the ACA’s requirement that insurers cover certain HIV-prevention drugs that are recommended by it on religious grounds.

The plaintiffs argued that providing coverage of PrEP “encourages and facilitates homosexual behavior,” which conflicts with their religious beliefs, and said they want to purchase or provide plans that exclude coverage of that medication.

Five of the six challengers do not participate in the health insurance market, and the sixth, Braidwood Management, provides coverage to 70 employees through a self-insured plan.

The lawsuit, filed in the Northern District of Texas, argued that the task force’s structure violates the Constitution’s Appointments Clause because its members are principal officers who therefore must be nominated by the president and confirmed by the Senate.

The district court sided with the plaintiffs, finding that the task force members were improperly appointed. U.S. District Judge Reed O’Connor also invalidated all preventive-care coverage recommendations that had been implemented since the ACA was signed into law in March 2010, and barred the government from enforcing the health care law’s coverage requirements in response to the task force’s recommendations going forward.

The 5th Circuit affirmed the lower court’s finding that the task force’s structure is unconstitutional, but disagreed with the universal relief it provided as to the task force’s prior requirements for preventive-care coverage.

In concluding that the task force’s members are principal officers, the 5th Circuit said they were not properly appointed because they wield “unreviewable power” — issuing preventive-care recommendations for services that insurers, in turn, must cover under the Affordable Care Act.

The Biden administration appealed to the Supreme Court and the Trump administration has continued to defend the board’s structure.

Hashim Mooppan, principal deputy solicitor general, told the justices that the task force members are inferior officers because they are “subject to ample supervision” by the Health and Human Services secretary when issuing recommendations on preventive care services that must be covered by insurers and group health plans.

Additionally, the task force members can be removed by the head of the Health and Human Services Department at-will, and the secretary can review its recommendations and prevent them from taking effect, Mooppan said.

Given these “collective powers of supervision,” the task force can’t issue recommendations that bind the insurance industry unless the secretary permits it to do so, he said.

In court filings, the Trump administration also noted that even if the task force members were principal officers who had to be appointed by the president and confirmed by the Senate, the constitutional violation would be remedied by severing a provision of federal law that the 5th Circuit found insulates it from the Health and Human Services secretary’s supervision. 

Doing that would allow the task force to “make recommendations that will have legal effect only under appropriate supervision by the secretary,” then-acting Solicitor General Sarah Harris wrote in a February brief.

But lawyers for Braidwood Management have said that the task force members are principal officers who must be appointed by the president and confirmed by the Senate in part because federal law dictates that their recommendations be kept “independent” and “not subject to political pressure.”

“Congress has chosen to create an independent task force and shield it from political pressure,” Mitchell, who argued on behalf of Braidwood Management, told the justices. 

He said that it’s “not clear” Congress would even have approved a regime under which the secretary — a political appointee — rather than an independent task force decides the preventive care that insurers have to cover.

Even if the Supreme Court finds that the members are inferior officers, as the Trump administration argues, Mitchell said that category of executive branch officials still requires appointment by the president and Senate, unless Congress says otherwise.

He also disputed that the court can fix these constitutional violations by separating out the problematic provision of the law and empowering the secretary to veto the task force’s recommendations for mandated preventive-care coverage. The task force, Mitchell said, would still have unreviewable discretion when it decides not to require coverage of a particular service.

In filings with the Supreme Court, outside medical organizations have warned that a decision invalidating the structure of the task force would have significant ramifications for access to preventive care.

The Susan G. Komen Breast Cancer Foundation said that the elimination of cost-sharing for breast cancer preventive-care measures has had a “profound impact” on public health because screenings lead to earlier detection and treatment, and fewer deaths.

“The costs of such preventive care — if not fully covered by insurance, which is the effect of the district court’s decision — dissuade individuals from utilizing the services, and thus lead to later detection, later-stage diagnoses, more aggressive treatment plans, higher treatment costs, and more deaths,” the organization said in a brief. 

The HIV and Hepatitis Policy Institute said the task force’s recommendations have been “essential” to preventing HIV, hepatitis and other infectious diseases for millions of patients.

“Without continued access to the no-cost prevention assured under the ACA and consequent new transmissions, our nation will witness a reversal of decades of progress as HIV resurges,” the group said in a brief, joined by 19 other organizations.

But groups backing Braidwood have argued that the task force is insulated from political accountability, as the ACA left no room for supervision by the Health and Human Services secretary or any other principal officer who answers to the president.

A decision from the Supreme Court is expected by the end of June or early July.