Ruling could give Kennedy more power over health care coverage

WASHINGTON — A looming Supreme Court decision could result in Health and Human Services Secretary Robert F. Kennedy Jr. wielding more control over the body that recommends preventive health services insurers must fully cover — a possibility that alarms health advocates.

The Supreme Court heard arguments Monday in Kennedy v. Braidwood Management Inc., a case that will decide the fate of the 2010 health care law’s requirement that insurers cover preventive health services recommended by an independent task force with no cost-sharing to patients.

The Trump administration argued the task force is constitutional because the HHS secretary has the power to fire its members and reject its recommendations — a power the secretary has not exercised before.

That could set up a scenario where a secretary rejects recommendations for coverage of health services or drugs like preexposure prophylaxis, or PrEP, which prevents HIV infection.

“Under RFK Jr., will we see what is looking more and more like a concerted effort to suppress HIV prevention services?” asked Jeremiah Johnson, executive director of PrEP4All, referring to Kennedy’s potential power over the task force.

The arguments Monday come as the Trump administration appears to be deprioritizing the federal government’s HIV response by terminating grants to organizations that provide care for and research HIV. A leaked draft of the HHS budget “passback” suggests the administration is considering eliminating the “Ending the HIV Epidemic” initiative, which Donald Trump launched during his first term.

It is not clear what the administration’s goal is on HIV.

While Trump vowed to end new infections in his first term, his second term saw the firing of nearly all Centers for Disease Control and Prevention staff working on HIV prevention. Trump has also favored allowing employers to opt out of covering health services they have religious objections to, like contraception.

Advocates have worried that could eventually extend to PrEP.

“All of this seems to be adding up to a deeply concerning pattern. This administration may be uniquely focused on trying to undermine HIV prevention going forward, which would be a huge loss to the progress we have seen in the last couple of years,” Johnson said.

The case

The plaintiff — Braidwood Management Inc., based in Texas — originally argued that the law’s required coverage of PrEP violated the owner’s religious beliefs. A lower court sided with the employer, but did not extend the ruling more broadly, and the Biden administration did not appeal that part of the ruling.

A Supreme Court ruling in favor of the Trump administration, which is now defending the 2010 law, could result in the HHS secretary having more power over the task force and its recommendations, said William Walters, an associate at Epstein Becker Green, which wrote an amicus brief on the behalf of HIV advocacy organizations.

It’s not clear how Kennedy would wield that power — or if he would be interested in doing so.

“In order for the Task Force members’ appointment to be constitutional, the Secretary likely needs to have the authority over the Task Force such that he can approve/deny recommendations, and remove members at will,” Walters said in an email.

“Practically speaking, however, it’s not entirely clear that Secretary Kennedy would exercise this authority in a way that alters the Task Force all that much,” he wrote, adding that Kennedy appears more interested in vaccines that preventive services and screenings.

In the arguments Monday, Hashim Mooppan, the Department of Justice attorney representing the administration, said: “the secretary can review task force recommendations and prevent them from taking effect … He can direct the task force to rescind a recommendation, and he can replace task force members as needed to ensure that happens. In addition, he can require the task force to obtain his pre-approval before they issue any recommendation at all.”

Overall, the justices seemed unlikely to overturn the task force as requested by the plaintiff, which argued it is unconstitutional because its members weren’t confirmed by the Senate. The Trump administration’s view is that the task force doesn’t violate the Constitution because the secretary, who must be confirmed by the Senate, controls it.

But if the court did overturn the task force, it could set insurance coverage of preventive care on its head.

Siding with the plaintiff could invalidate all recommendations made by the task force after the 2010 passage of the health care law, impacting insurance coverage of preventive health services from PrEP to HIV screening and testing and some cancer screenings.

In 2019, the task force recommended the use of PrEP for people at high risk of contracting HIV, and insurers were required to cover it without cost-sharing beginning in 2021.

Depending on the Supreme Court’s ruling, insurers could be allowed to again reduce coverage and require cost-sharing — something that could pose challenges in accessing PrEP.

It could also impact insurance coverage of HIV screening; an estimated 13% of people with HIV are undiagnosed.

“Should this court remove the requirement that health insurance cover Task Force-recommended HIV screening, the number of undiagnosed individuals — who will not know to seek treatment and will, therefore, unknowingly transmit the virus — will inevitably increase,” dozens of HIV advocacy groups wrote in a brief to the court. “When patients are forced to bear the cost of preventative services, they are less likely to utilize such services.”

Any reductions in coverage would occur as PrEP science is improving. The FDA recently approved a long-acting injectable form of PrEP that promises to improve adherence compared to pills that must be taken daily. Forgetting doses can reduce effectiveness and make someone susceptible to infection again.

The task force expanded its recommendation in 2023 to include those new options, including the injectable form.

However, depending on the ruling, people at risk of HIV could face more challenges accessing these scientific advancements.

Uptake of PrEP is still lagging, experts say. About 1.2 million people in the U.S. are eligible for PrEP, according to the CDC, but less than one-third accessed it in 2021.

A study published in HealthAffairs in 2024 found that people don’t fill PrEP prescriptions when copays increase from $0 to $10. “Abandonment” rates are substantially higher if out-of-pocket costs increase to more than $100, according to the study.

“Even a small increase doubled the risk that people would not pick up PrEP,” said Lorraine T. Dean, a social epidemiologist at Johns Hopkins University, who co authored the study.

People were also more likely to pick up PrEP when their out-of-pocket costs dropped.

“There’s a clear relationship showing cost is really part of the deciding factor for people here,” she said.