Nicholas Bagley Discusses Congressional Action That Can Counteract the Braidwood Ruling

Nicholas Bagley, JD, professor at Michigan Law at the University of Michigan, discusses how Congress can help address the consequences of Braidwood v Becerra.

Nicholas Bagley, JD, professor at Michigan Law at the University of Michigan, took the time to discuss how Congress on the federal and state levels can address the consequences of the Braidwood v Becerra ruling.


What is the role of Congress in responding to this decision?

So the scheme that Congress devised here, the judge said that that arrangement of having the [US]PSTF [United States Preventive Services Taskforce] make the important decisions, that arrangement contravenes the Appointments Clause of the US Constitution. But, of course, Congress is free to change up how it delegates authority to make these [decisions].

It's perfectly within Congress's power to fix the statute. And what it could say is something like, "Subject to approval by the Secretary of Health and Human Services, the [US]PSTF makes certain recommendations about which guidelines have to be covered." And if Congress were to make that change, which would be quite modest, it would eliminate the basis for the plaintiff's case and end the case long before we had to deal with the inevitable.

In terms of what the state governments might do, several states have moved, including my state of Michigan, to require insurers to cover the preventive services that [US]PSTF have designated at $0 of cost sharing. And here in Michigan, the insurance industry has lined up behind that and said, "Sure, we're happy to go along with that."

The challenge for states is that those decisions only apply to a small slice of the overall insurance market. So if you buy your insurance through the exchanges, you're going to be covered by that effort on the state's part to extend preventive coverage. But if you work for an employer that self-insures, which means an employer that pays out of its own pocket for your health insurance, [that is subject] to state law in creating a health plan design. And so states can only protect somewhere between a quarter and a third of their residents from the consequence of this decision. There's really got to be something. It's really the federal government's mess to clean up.

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