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Health Affairs This Week places listeners at the center of health policy’s proverbial water cooler. Join editors from Health Affairs, the leading journal of health policy research, and special guests as they discuss this week’s most pressing health policy news. All in 15 minutes or less.
Hello, and welcome to Health Affairs This Week. I'm your host, Jeff Beyers. We're recording on 09/16/2025. We have some insider events. September 29 is the new date of our prior authorization event.
Jeff Byers:And hot off the presses, we have a October 15 event on immigration policies and their impact on health care with Arturo Bustamante and more. My guest today moderated one of the insider events on Medicaid's uncertain future this year, Carmel Shakkar from Harvard Law School. Carmel, what was your favorite aspect of that event besides the smooth administration and premier handling of the event?
Carmel Shachar:Gosh. Well, it was certainly an expertly produced event. I think what I really loved was the depth of information as somebody who works in health care policy and thinks a lot about these issues. Each of the speakers had such an interesting perspective, and it really took things from that one zero one level to much, much deeper.
Jeff Byers:Well, thanks. That that's that's great as an endorsement as any can be. And if you, are an insider, you can watch that event on our website and on our YouTube channel. It's called Medicaid's uncertain future. And if you are not an insider and and those events, sound interesting, come on.
Jeff Byers:Join the fun. So, Carmel, you wrote on Health Affairs Forefront an article titled Braidwood's Double Edge Sword and the Dismantling of Preventative Care, and that's what we're here to talk about today. You had a coauthor on that, Richard Hughes the Fourth, friend of the Health Affairs. So every episode could be someone's first episode and maybe in their first foray to health policy. Can you, briefly explain Kennedy versus Braidwood management to us?
Jeff Byers:What were what were its history? What were its stakes?
Carmel Shachar:Sure. So Braidwood is part of the very long line of ACA litigation cases. The ACA is a law that has paid for many lawyers to send their kids to college. That's for sure. And at the heart is the ACA's preventive care mandate, which says that if a certain service is recommended by certain expert committees such as the USPSTF or ACIP that it should be covered by insurers at no cost.
Carmel Shachar:And this is incredibly important because preventive care is really the key to keeping people healthy and controlling costs, and people really hate paying for it. So a survey showed that if people were asked to pay for preventive care services, about 38% of Americans said they would not pay for cancer screenings, and 60% said they would not pay for smoking cessation services. So the no cost preventive care mandate is a really important piece of health policy. And this case is a challenge to that preventive care mandate. It came out of Texas in which several employers challenged the preventive care mandate saying we don't like the fact that we have to cover certain services that we don't agree with, such as pre exposure prophylaxis for HIV.
Carmel Shachar:And I think one thing that's important to appreciate about this case is that depending at which level of our judicial system, it's been a case about very different things. And so when it came to the district court, which is where cases start, it was a case about the Religious Freedom Restoration Act. Were we violating the religious liberties of employers by making them cover services that they didn't agree with? Then when it got to the Fifth Circuit on appeals, it became an appointments clause case, which essentially the appointments clause says that if you have major political actors in the government, they need to be selected through a proper process that includes the administration nominating them and then the senate voting on them. And the fifth circuit said, okay.
Carmel Shachar:For a particular expert committee, we think that they are so important in health care policy that they probably should have gone through this process. And then it gets appealed up to the Supreme Court, and it's still being argued on the appointments clause. But, really, what it is is it becomes a case arguing about, okay, how powerful is the administration in the structure of government?
Jeff Byers:You're seeing a lot of different conversations about that in this year.
Carmel Shachar:Yes. I think this very this is a case that very much fits in to everything that's been going on in 2025. It feels very on trend.
Jeff Byers:A very timely case for eleven year law.
Carmel Shachar:Right? There's a twelve It's amazing.
Jeff Byers:Twelve years.
Carmel Shachar:Yeah. ACA stays current. It's that girl.
Jeff Byers:Yeah. So with your expertise, and background, you know, sidebar real quick, you know, when you see the polarization in this country, is that you know, do you just see money? Do lawyers see money? They're like, oh, this is exciting.
Carmel Shachar:I think that some lawyers certainly see, okay. There's a case for me to make my name for, you know, clients to pay me. I think that working in health policy, what we see is that at the heart of things, everybody kind of wants the same thing, which is when you're sick, you want people to take care of you and to fix whatever's happening with your body. You want the same for your grandma. You want the same for your kids.
Carmel Shachar:But we're seeing a real divide in how people think that we get to that simple common sense goal.
Jeff Byers:And so getting back on track with the case, we talked about the stakes. Can you briefly explain you know, you mentioned your a forefront article, which I encourage listeners to go check out, the function of the US Preventative Services Task Force and ACIP, whose acronyms I can't remember. What are the functions of of those entities?
Carmel Shachar:Okay. So here, I'm first gonna rattle off their very long names. Lawyers, regulators, politicians. We're all bad at naming things. So we are talking about the United States Preventive Services Task Force or USPSTF, which is an expert committee.
Carmel Shachar:The people who sit on it are physicians, public health experts, who look at the evidence to determine which preventive care services are worth the money. We're also ROI. Yes. The ROI. So we're also talking about the advisory committee on immunization practices, ACIP, which does something very similar on the vaccine side.
Carmel Shachar:They are both purposefully structured to be nonpolitical and instead be a way for the federal government to engage with medical and scientific expertise to understand, okay. Where should we put our regulatory might behind?
Jeff Byers:And what was the outcome of Kennedy versus
Carmel Shachar:So Kennedy versus Braidwood was one of the three big health law cases last year at the Supreme Court. And the Supreme Court disagreed with both the district court and the Fifth Circuit because it took a look at USPSTF and decided that they were what we call inferior officers, which means that they didn't have to get appointed through that really complicated appointments process and confirmed by the senate that the secretary could just exercise his statutory authority to appoint all of the members.
Jeff Byers:Yep. HHS secretary.
Carmel Shachar:Exactly. HHS secretary. And here, the way that they got there, which wasn't a foregone conclusion because the ACA has a lot of language about how USPSTF needs to be independent of politics. So there was a good legal argument on the other side to say they're so independent that there are principal officers, that they need to go through this complicated appointments process. But the Supreme Court looked at the underlying statutory powers of the secretary of HHS and said, look.
Carmel Shachar:They have the power to appoint. They have the power to remove members at will, which was really key. And the secretary of HHS also has the power to review the recommendations issued by USPSTF and essentially give a thumbs up or a thumbs down to whether they will adopt these recommendations. And they felt like overall, that was a fair amount of control. I mean, the person who hires me, fires me, and reviews my work to see if it can go out in the world has a lot of control over my work.
Jeff Byers:So, in your forefront piece, you write about this paradox of that outcome of the case, in relation to authority and power. So you kinda already laid it out, like, there's a lot of authority and power over the task force with HHS secretary. Can you go a little bit more into that about, like, why you wrote the piece and and what it says about that paradox?
Carmel Shachar:You know, this case has both glass half full and glass half empty or at least glass concerning aspects to it. The first big takeaway that I wanna emphasize, which really is a win for public health, is that the preventive services mandate was preserved, at least on this front. And as we talked about before, that is a really big thing because it's important that there be as few barriers as possible to encourage people to get these services. And anybody who's listening, you know, go get all of your cancer screenings. Go get all of your vaccines.
Carmel Shachar:Do it all. It's free. Take advantage of it. Don't leave money on the table. The challenging thing and here I go back to this idea that USPSTF was really supposed to be insulated from the political winds, is we want there to be real consistency to the recommendations, and we want those recommendations to be driven by the scientific method, to be driven by evidence, to be put forth by experts who understand how to read the data, which is not everybody.
Carmel Shachar:I mean, I took biostatistics as part of my master's of public health, and even so, I opened studies. And I'm like, I have no clue what these numbers mean. And because the supreme court, in order to reach the conclusion that the members of USPSTF are inferior officers, had to really emphasize all the ways that the secretary of HHS has control over them. There's the real potential that they have undermined that independent scientific review aspect of the USPSTF and of the recommendations that they issue.
Jeff Byers:So you mentioned that the PSTF was set up so it's tried to insulate itself from from politics essentially and and be judged on scientific guidelines. But that task force has not always been absent from controversies. Controversies. Is is that right? Do can you think of anything besides this?
Carmel Shachar:Certainly, there have been questions of expansion. Is the USPSTF over recommending? There's always the challenge of developing modalities, for example, with the development of at home screenings for certain types of cancers, such as colon cancer, as well as how to incorporate what we know about differences between ethnicities and race and how to say, okay, how do we best reflect what the preventative guidelines should be for a particular patient? Those have all been somewhat controversial. So there's no way to get completely independent of human bias, but the structure of the USPSTF was designed to try to get as close as possible to there.
Jeff Byers:And so with this Braidwood Kennedy management case, you know, what do you think the long term impacts of this case could mean considering through that lens?
Carmel Shachar:Yeah. So Braidwood comes at a really interesting time because we have a secretary of HHS, Robert F. Kennedy Jr, RFK, who is really taking a novel approach to a lot of medicine. And I think that there's a lot of value when we think about, okay, how do we attack chronic conditions? But there's a lot of places in which RFK is unorthodox.
Carmel Shachar:And I think the number one area that comes to mind is in issues of vaccine policy. So earlier, we talked about ACIP, which is the expert advisory committee that recommends vaccine policy that also gets incorporated to the no cost preventive care mandate. But because of the way this case evolved, this Braidwood is not about ACEP. But ACEP is a really interesting potential foreshadowing of what could happen with USPSTF because even though when RFK was being confirmed by the senate, because he is a principal officer under the appointments clause, He made a promise that he would maintain ACIP without changes. Within four months, he basically fired everybody and replaced them with people who are vaccine skeptical.
Carmel Shachar:And now there's been a lot of controversy over ACIP's recommendations. And so there's a concern that Braidwood empowers RFK to do a similar revision to USPSTF and a concern that then, okay, USPSTF is going to be perceived as really political. And you're going to see the medical society saying, no. We don't agree with the recommendations anymore. We're issuing different recommendations to see states such as Massachusetts, California, New York issue their own recommendations.
Carmel Shachar:And I think part of the value of the no cost preventive care mandate was that it was really straightforward, that physicians knew what was covered at no cost, that insurers knew what they had to cover at no cost, that patients knew. Okay. If I sign up for this mammogram, I'm not getting a big bill for it. And when you have that fractured landscape because of political upheaval and because of a loss of trust, you're not getting the benefits of the preventive care mandate.
Jeff Byers:Yeah. And, listeners may, remember that we talked about CDC and vaccines on RFK junior on our, episode last week with health affairs Akila Wise. And I wanna give a shout out to producer Shannon who sent me a USA Today article titled which states have taken action on COVID nineteen vaccine access after FDA CDC turmoil, and there's question mark at the end of that headline, and it goes through all the different states and and what they've done. And I think that's a nice resource and a nice highlight. And if you are a behavioral economist, I would love to talk to you about, you know, information diffusion and how it makes people make medical decisions.
Jeff Byers:So reach out communications@healthaffairs.org. So back to the conversation at hand. So we are a bipartisan publication. So you're not an employee of health affairs that I know of. But how might you see this power and authority play out, you know, if there's what some might call overreach?
Carmel Shachar:I think that expert advisory committees are best used when the perception is you have picked truly qualified experts that we can all look at and say, yeah. That guy knows more about environmental pollution or vaccines than I could possibly know, they are the right people to issue recommendations. And they don't work when a big chunk of America looks at who's on the committee and goes, oh, well, that person is a political appointee. They don't actually know that much, or they're very biased. And so there's the concern that RFK will appoint people to USPSTF that look similar to the profile of his ASIP appointees, which, again, has a long history of vaccine skepticism or just haven't been working in the vaccine space significantly.
Carmel Shachar:And then all of their recommendations will be seen as fruit from a poison tree. But I think the same is true if the next administration is democratic and the pendulum swings too far the other way. Like, what we don't want is for a big chunk of the country, especially MAHA, where, frankly, a lot of the ground level public health interest is in MAHA. MAHA's very committed to a healthier America. They just have, again, unorthodox ideas of how to go about there.
Carmel Shachar:And what we don't want is for them to look at USPSTF and the recommendations and just be like, oh, well, those are woke. They're not being motivated by the best evidence. They're being motivated by some sort of political or conflicts of interest motivation. So we really wanna get back to the idea that expert advisory committees are frankly boring.
Jeff Byers:Okay.
Carmel Shachar:Like, I'm a big fan of boring expert advisory committees because we want them to be experts who are really in the weeds of the topic and really understand it in ways that most of us don't.
Jeff Byers:You want people that really alienate others at cocktail parties by their knowledge.
Carmel Shachar:Yes. In each subject. If when people ask you what you do Mhmm. Their eyes glaze over, you are probably right for an expert advisory committee.
Jeff Byers:Yeah. Next week, my colleague Ellen Bayer and I are gonna talk about the MAHA strategy document that was released recently. So listeners can be on the lookout for that. We'll probably dive in mostly into the food nutrition stuff because there's a a large amount of on that on that topic in the document. Carmel, before we wrap up though, I know we're not gonna solve politics and policy within a podcast, but, like, is there anything that you didn't write about in the forefront piece that you think besides just being a a boring knowledgeable person on a panel to make recommendations, like, where can we go from here?
Carmel Shachar:I think a lot about the medical profession because I'm a health law professor. And I think about what is really valuable about the medical profession being a profession, which means that it gets to self regulate. Like, that's what professions do. They set professional standards. They say, okay.
Carmel Shachar:Who gets to be a lawyer? Who gets to be an accountant? Who gets to be a doctor? And for the last a hundred years or so, we've let the medical profession self regulate, and I think it's largely been a good thing. Because, yes, medical practices are constantly evolving.
Carmel Shachar:Like, I would not want the medicine they practiced in nineteen fifties to be the care that I get. But there's agreed upon method. If we look at the evidence, here's how we develop it, here's how we incorporate into practice, here's how we allow people to experiment, here's what we do with people who aren't following best practices, that I think has been really positive. And I think what we've been seeing over the last several years is a real encroachment onto the medical profession by state actors. And it looks like RFK replacing all of ASIP, but it also looks like the Supreme Court in a lot of their health law cases recently allowing the state to make decisions and taking that away from patients and physicians.
Carmel Shachar:We see it in states banning abortion care and the challenge of what do you do when for the life and health of the patient, the evidence based standard is providing abortion care in those states. And I'm very concerned about that because a lot of state actors don't really know much about medicine. I loved the judge who I clerked for. He would be the first to say, he is not a doctor. He doesn't know what medical care you should get.
Carmel Shachar:And so I think that if the state wants to be in the business of deciding what medical care people get, we need to have a better process. We need to figure out a way for the state to be boring like those expert committees so that it's not just, okay. Well, this administration has these politics. We're gonna really push this agenda. And, oh, now there's a new administration, so scratch that.
Carmel Shachar:Because we need that stability, and we need people to get evidence based standard of care.
Jeff Byers:Okay. And now my apologies to producer Shannon as I ask one last question as we wrap up. I two questions, but the first one being, I was looking at your bio on Harvard Law School before we joined today. And so please correct me if it's wrong or I assume it's not wrong, but I hope it's not wrong. You've studied the use of telehealth and digital health products.
Jeff Byers:Is that right? So when you're talking about encroachment onto the medical field, you know, one of the things that's been interesting and when it comes to at least, you know, EHRs or in pop ups maybe in some digital health products. Like, how are, from your view, these new digital health products, you know, enhancing or detracting from the state of medicine today?
Carmel Shachar:So I think you've just invited me on for another episode of the podcast to give you that answer.
Jeff Byers:Fair enough. Fair enough.
Carmel Shachar:I would say, in a nutshell, that we need to use digital technologies really smartly to better extend our existing health resources. There's so much burnout in the physician workforce. There are so many people who have difficulty accessing care. Like, we've gotta use AI in a smart way. We've gotta use telehealth in a smart way.
Carmel Shachar:We've got to use at home testing in a smart way. But the challenge is, are we actually using it in a smart way, or are we just kind of throwing spaghetti at the wall and seeing what sticks? And I think that's where we're really struggling.
Jeff Byers:Well, thanks for that, unprompted question. Carmel, is there anything, you want besides the forefront article that we'll put a link into the show notes? Is there anything that you want the listeners to know about as we head out?
Carmel Shachar:I think that Gregory Kerfman and his coauthors at JAMA had a really good piece immediately summarizing Braidwood that I would recommend people look up, especially because, you know, that is the team from the Journal of the American Medical Association. So getting that perspective on how the medical profession feels about Braidwood, I don't think you could get to a better source than that.
Jeff Byers:Sounds good. Well, Carmel Shakar, thanks again for joining us today on Health Affairs This Week. If you, the listener, enjoyed this episode, send it to the health policy journal competitor in your life. Thanks, and we will see you next week.
Carmel Shachar:Thanks for having me.