Judges on the U.S. Court of Appeals for the Fifth Circuit in New Orleans questioned whether the members of the U.S. Preventive Services Task Force have the legal power to make recommendations, since its members are not appointed by the president or confirmed by the Senate.  

The task force is a volunteer panel of national experts in disease prevention and evidence-based medicine. The ACA requires insurers to cover, without cost-sharing, more than 100 preventive health services recommended by the task force, like certain cancer screenings and HIV prevention. 

A federal judge in Texas last year ruled against that coverage mandate. The ruling also invalidated the law’s requirement that employers cover preexposure prophylaxis (PrEP), a medication for HIV prevention.  

If the appeals court upholds the decision, it could put patients on the hook for the full cost of potentially lifesaving treatments and screenings that are currently free, reshaping the health coverage landscape.   

Without the requirement, health plans and employers can pick and choose which preventive services they cover. Cost-sharing will likely deter patients — particularly those of limited means — from scheduling those procedures.   

Much of the panel’s questioning of Department of Justice attorney Daniel Aguilar focused on potential remedies for the situation, rather than the substance of the case. Aguilar argued the members of the panel and its recommendations are accountable to the Health and Human Services Secretary.   

But Aguilar said if the court finds otherwise, there shouldn’t be a nationwide injunction against the recommendations. The lawsuit was brought by one company and a handful of individuals who live in Texas, he argued, and the ruling should only apply to them. 

A decision is likely to come later this summer, and then could be appealed to the U.S. Supreme Court.