Background
On March 30, 2023, the Braidwood decision was issued by a US District Court in TX which effectively meant that certain preventive care requirements could not be enforced. However, we had mentioned in our April alert, shortly after the Braidwood decision was issued, that it was very likely to be challenged in court (it was promptly appealed) and thus too early for employers to act on.
To recap what happened with the March verdict, the US District Court made two decisions:
- the USPSTF was not properly appointed by Congress to issue coverage mandates after the law was implemented March 23, 2010, so all updates and new preventive care mandates issued since then cannot be enforced as mandates; and
- employers with a sincere religious objection to covering HIV PrEP should be exempt from the mandate under the Religious Freedom Restoration Act (RFRA).
On Monday, June 12, 2023, the Biden administration, as defendant in the case, finalized a deal with the plaintiffs to leave the two challenged preventive care mandates intact nationwide while the Fifth Circuit Court of Appeals does its due diligence reviewing the case, with the understanding the plaintiffs will not be penalized for non-compliance if the mandates are ultimately upheld as lawful.
The next day on Tuesday, June 13, 2023, the Fifth Circuit affirmed that decision.
As a result, non-grandfathered plans still must keep providing coverage for USPSTF “A” and “B” preventive care recommendations, including those issued/updated after March 23, 2010, and there is currently no express RFRA protection for non-grandfathered plans to exclude coverage of HIV PrEP.
