ACA Litigation Round-Up, Part 2: Which 2019 Payment Rule Changes Were Legal? Plus, More From Judge O’Connor On The ACA

Litigation continues over implementation of the Affordable Care Act (ACA) and ACA-related issues. A prior post provided a status update on many ACA-related lawsuits that are pending before the Supreme Court or that have been put on hold given new agency leadership under the Biden administration. This post takes a deeper dive into several recent ACA-related court decisions and oral arguments, including a district court decision in the “take care” lawsuit that set aside several Trump administration policy changes; a Fifth Circuit Court of Appeals decision regarding the health insurance tax as it applies to Medicaid managed care entities; and a district court decision allowing constitutional and other challenges to the ACA’s preventive services mandate to proceed.

All but the “take care” case involve district court decisions from Judge Reed O’Connor, a federal judge in Texas who is no stranger to ACA litigation. Among his many ACA-related rulings, Judge O’Connor held that the entire ACA was invalid in what is now known as California v. Texas, a global challenge to the ACA pending before the Supreme Court. A third post will summarize a recent decision by the Fifth Circuit to remand to Judge O’Connor litigation over an Obama-era rule implementing Section 1557 of the ACA.

“Take Care” Case

On March 4, 2021, Judge Deborah K. Chasanow of the federal district court for the district of Maryland set aside as arbitrary and capricious or contrary to law several changes made under the Trump administration’s 2019 payment rule. This lawsuit, known as the “Take Care” case, was brought against the Trump administration by five cities and two individuals—led by Columbus, Ohio—who argued that President Trump violated the Constitution’s requirement to “take care that the laws be faithfully executed” by attempting to undermine the ACA through executive action. Judge Chasanow rejected that part of the lawsuit in 2020 but allowed the plaintiffs to continue to  argue that major provisions of the 2019 payment rule violated the Administrative Procedure Act (APA). 

The 82-page March 4 opinion holds that some, but not all, of the challenged parts of the 2019 payment rule violated the APA. All four of the successfully challenged provisions were vacated and all but one was remanded to the Department of Health and Human Services (HHS) for further action. Judge Chasanow considered remanding without vacating the rule’s provisions but declined to so since the deficiencies of HHS’s explanations made it unlikely that the department could rehabilitate its reasoning on remand.

From here, the Biden administration could appeal the decision, but that seems unlikely. HHS is instead expected to formally revoke or revise these requirements in future rulemaking and comply with the court’s decision in the meantime.

Standing

Consistent with a prior opinion, Judge Chasanow found that the city plaintiffs had standing to sue because the 2019 payment rule “predictably increases” the uninsured rate. A higher uninsured rate increases costs for local health departments, which provide free or low-cost health care services to uninsured residents. The individual plaintiffs also had standing because the 2019 payment rule “predictably increases” the premiums that these individuals must pay. Setting aside the challenged parts of the 2019 rule would decrease costs for the cities and the individuals and would thus remedy these economic injuries. Therefore, both the city and individual plaintiffs have standing to sue.

Successful Challenges

Judge Chasanow set aside four provisions of the 2019 payment rule. These changes related to network adequacy standards, standardized plans, income verification, and medical loss ratios (MLRs). As mentioned, these parts of the rule are now vacated, and most were remanded back to HHS for further action. Vacating these parts of the 2019 payment rule reinstates the relevant rules that were previously in effect. Thus, the court decision reinstated federal network adequacy requirements, the option for insurers to offer standardized plans, prior income verification standards, and quality improvement activities reporting. (HHS could amend these standards in future rulemaking so long as it complies with the APA in doing so.)

First, the 2019 payment rule extended a policy of deferring to states for reviews of plan network adequacy so long as the state had a sufficient process in place. This policy—in which HHS would rely on the states’ reviews of network adequacy and not conduct its own separate review in states that use the federal exchange—was initially adopted by the Trump administration in the 2018 market stabilization rule and extended in the 2019 payment rule. Judge Chasanow did not find the 2018 change to be contrary to law since Congress did not explicitly require HHS to conduct its own network adequacy determinations. Nor did HHS subdelegate its authority to establish network adequacy criteria to the states; it merely allowed states to apply the criteria it had already established.

But Judge Chasanow agreed with the plaintiffs that the change under the 2019 payment rule was arbitrary and capricious because HHS failed to adequately respond to commenter concerns, offering responses that were “both vague and conclusory.” In response to concerns that patients would be left without access to necessary care, HHS emphasized that accreditation and state-specific network adequacy requirements would help preserve adequate access. These responses were “especially insufficient” because commenters put forth a range of evidence and concerns that accreditation reviews and state network adequacy procedures and standards are inadequate. Yet, HHS made “no attempt to refute, mitigate, or explain away any of these significant concerns.” HHS failed to consider or respond meaningfully to these concerns and thus this change was arbitrary and capricious.

Second, the 2019 payment role eliminated the designation and preferential display of standardized plan options through HealthCare.gov. This reversal, Judge Chasanow concluded, was arbitrary and capricious because HHS failed to articulate a rational basis as to why it suddenly believed that standardized plans hamper innovation when it had previously stated that standardized plans neither hinder innovation nor limit choice. HHS’s new policy disregarded the factual findings that were the basis of its prior policy. Because HHS failed to explain why it abandoned this prior conclusion (especially in response to concerns raised by commenters), this change was arbitrary and capricious.

Third, the 2019 payment rule applied additional income verification requirements for individuals who attest that their income is above the federal poverty level (FPL) but where government data sources suggest that their income is under that level. Here, HHS failed to support its decision with actual or even anecdotal evidence of its stated reason for the policy change—the need to prevent fraud in states that have not yet expanded their Medicaid program. (People with incomes below the FPL are ineligible for premium tax credits under the ACA, but in nonexpansion states many in this group exceed the Medicaid eligibility income threshold, creating a coverage gap.)

HHS acknowledged its lack of evidence in the preamble, noting that “it does not have firm data” but still insisted that this measure was needed for program integrity purposes. However, in the court’s view, HHS failed to provide a reason why this data could not be otherwise obtained and improperly elevated its goal of fraud prevention over the ACA’s primary purpose of providing coverage.

Finally, Judge Chasanow set aside the 2019 payment rule’s changes to MLR reporting that allowed insurers to allocate a fixed amount of earned premium as quality improvement activities (in lieu of requiring insurers to track and report actual expenditures on quality improvement). Expenses for quality improvement activities are included alongside claims costs in the numerator of the MLR. Higher expenditures on quality improvement activities thus increase MLRs, thereby reducing the potential for (or amount of) rebates for consumers.

The court agreed with the plaintiffs that insurers must report on the amount that they “expend[]” for quality improvement activities, which means the amount actually spent rather than a pre-determined average fixed amount. Congress’ intent to require actual accounting is further confirmed by the rest of the MLR statute. This helped show that HHS’s interpretation was contrary to Congress’ purpose in adopting the MLR requirement in the first place. As such, HHS’s interpretation was contrary to law.

Judge Chasanow also concluded that this change was arbitrary and capricious because HHS failed to consider reasonable alternatives and explain why it rejected them. The agency also failed to meaningfully consider commenters’ concerns that standardized reporting would disincentivize investments in quality improvement. HHS did not ignore these comments, but it “shrugged” them off without any evidence for its assertions that more insurers would report quality improvement activities under the rule change.

Unsuccessful Challenges

Judge Chasanow upheld other challenged parts of the 2019 payment rule. These changes concerned elimination of direct notice requirements when an individual fails to reconcile advance premium tax credit; oversight of direct enrollment (DE) entities; navigator selection; the SHOP exchanges; and rate review for student health plans.

First, the 2019 payment rule eliminated a prior requirement that state-based exchanges give direct notice to individuals whose eligibility for subsidies is at risk because they failed to reconcile a prior year’s advance premium tax credit (meaning that they failed to compare their actual income to their estimated income and to pay back some of the advance credits they received if the former exceeded the latter). The plaintiffs argued that elimination of this direct notice requirement was contrary to law, arbitrary and capricious, and raised due process concerns.

Per Judge Chasanow, the plaintiffs waived part of their argument because it did not appear in the amended complaint. But the argument that the change was contrary to law would have failed on the merits anyway because there is no conflict with the ACA. The statute that governs eligibility for subsidies does not unambiguously foreclose HHS’s interpretation regarding notices. Instead, the judge found that the plaintiffs’ concern focused on the underlying requirement that individuals reconcile each year’s advance premium tax credits (not the change to the specificity of the notification requirements when an individual fails to reconcile). She also rejected the plaintiffs’ argument that the change was arbitrary and capricious, noting that HHS acknowledged and responded to concerns raised by commenters and that the agency’s decision to remove the direct notice requirements was rational and sufficient to withstand APA review.

Second, the 2019 payment rule reduced federal oversight of DE entities by rolling back the requirement that these entities be audited by a third party approved by HHS. Instead, DE entities could select their own third-party auditors without any initial review or approval by HHS. The plaintiffs had argued that HHS ignored important aspects of the problem and failed to provide an adequate justification for the change. But Judge Chasanow disagreed, concluding that HHS adequately justified its decision to change positions and acknowledged commenter concerns that reduced oversight could harm consumers.

Third, the plaintiffs challenged the 2019 payment rule’s changes to the navigator program. HHS eliminated the prior requirements that each exchange have two navigators, that at least one be a community- and consumer-focused nonprofit, and that navigators have a physical presence in their service area. These changes were not contrary to law, Judge Chasanow concluded, because they do not conflict with the statutory requirements for navigators, which continue to apply under the amended rule. The statute does not foreclose HHS’s decision to eliminate its prior requirements. Judge Chasanow also rejected the argument that these changes to the navigator program were arbitrary and capricious because HHS adequately considered and meaningfully responded to concerns raised by commenters.

Fourth, the 2019 payment rule made it optional for the SHOP exchanges to verify employee eligibility, aggregate premiums, and enable online enrollment. This essentially completed the process of winding down the SHOP exchange as an online enrollment tool. Here, the plaintiffs argued that the ACA requires SHOP exchanges to be “designed to assist” in facilitating enrollment in marketplace plans. This, in turn, requires the functionality that HHS made optional in the 2019 payment rule. HHS, in contrast, argued that the “designed to assist” requirement extends only to basic SHOP exchange functionalities; the department maintained that SHOP exchanges without the features rendered optional in the 2019 rule still assist small businesses in facilitating enrollment by maintaining a website, a premium calculator, and a call center. Small employers still get an eligibility determination from the SHOP website even if they then enroll directly with an agent, broker, or insurer.

Judge Chasanow concluded that the “designed to assist” requirement does not unambiguously require HHS to retain the SHOP exchange functions that were made optional in the 2019 payment rule. Congress intended to delegate authority to HHS to establish operational standards for the SHOP exchange and the changes do not conflict with the plain language of the statute. Even if the statute were ambiguous, HHS’s interpretation would be a permissible construction, Judge Chasanow ruled. She also rejected the plaintiffs’ argument that the changes were arbitrary and capricious: Though it did so “in various scattered paragraphs over several pages,” HHS considered commenter concerns about the harms to small business stakeholders and explained its belief that these harms would be minimal.

Fifth, the 2019 payment rule increased the premium-increase threshold for rate review from 10 percent or more to 15 percent or more and exempted student health plans from federal rate review requirements. Judge Chasanow found that HHS adequately justified its reasons for increasing this threshold. She also seemed to believe that the exemption for student health plans is narrow, meaning that student health plans are exempt only from having to automatically submit all proposed rate increases above a certain threshold. But this appears to be incorrect. HHS repeatedly stated in the preamble to the 2019 payment rule that it was “exempt[ing]” student health plans from federal rate review requirements, a point that was reiterated in government briefs. Judge Chasanow concluded that the policy decision was adequately explained and rested on HHS’s reexamination of existing facts, rather than new factual findings.

Health Insurance Tax For Medicaid Managed Care Entities

In another challenge that dates back to 2016, Judge O’Connor sided with a coalition of states led by Texas in holding that the states were entitled to recoup the ACA’s health insurance tax as it applied to Medicaid managed care entities. The court held that the government owed six states about $479 million for the health insurance tax from 2014 to 2016.

Section 9010 of the ACA imposed an annual health insurance tax on insurers, including Medicaid managed care entities. However, government entities are exempt from Section 9010. The health insurance tax went into effect for 2014 and, while often delayed, was fully repealed by Congress beginning in 2021. The states argued that the health insurance tax was unconstitutional. They additionally took issue with a “certification rule” that HHS promulgated in 2002; this rule requires Medicaid managed care capitation rates to be developed based on generally accepted actuarial principles and practices and certified by actuaries who meet certain qualifications and follow practice standards.

In 2018, Judge O’Connor upheld the constitutionality of the health insurance tax but invalidated parts of the HHS rule. He agreed with many of the states’ arguments regarding the certification rule and concluded that parts of the rule violated federal nondelegation doctrine by authorizing private entities—the American Academy of Actuaries and the Actuarial Standards Board—to “effectively rewrite the ACA.” The certification rule empowered the Board to establish “a controlling interpretation and definition of a legal condition to receiving Medicaid subsidies.” Nondelegation doctrine has rarely been used to strike down agency delegations to private entities (at least since 1936). He also found that specific provisions of the rule were not entitled to deference and that HHS exceeded its statutory authority.

The Department of Justice appealed this ruling, and a three-judge panel on the Fifth Circuit reversed in July 2020. The panel concluded that the health insurance tax and the certification rule are constitutional and lawful and that the states are not entitled to equitable disgorgement. The panel dismissed the states’ APA claims for lack of jurisdiction and affirmed Judge O’Connor’s ruling that the health insurance tax did not violate the Spending Clause of the Tenth Amendment. On the claim of unlawful delegation, the panel noted that HHS retained final reviewing authority over state managed care contracts while requiring that contracts be certified by an actuary who follows the practice standards established by the Board—in other words, HHS had the ultimate authority to approve a state’s contract with Medicaid managed care entities, and certification is only a small part of the approval process. Because HHS retained this authority, it did not unlawfully delegate its authority to approve contracts to a third party, the appellate panel determined.

Request For En Banc Review

Texas filed a request for en banc review—review by all the Fifth Circuit appellate judges—in September 2020, which was opposed by the government. In February 2021, the Fifth Circuit withdrew its prior July 2020 ruling and issued a revised ruling. The outcome remained the same, but the panel included further analysis of the nondelegation doctrine and clarified its reasoning on this point. Citing additional caselaw, the panel noted that agencies can condition federal approval on a determination made by an outside party. When agencies do so reasonably, this is a legitimate request for input and not an improper subdelegation. In these cases, the key question is whether HHS’s requirements—that managed care contracts be certified by a qualified actuary and that practice standards be followed—are reasonable conditions for contract approval. A condition is reasonable if there is “a reasonable connection between the outside entity’s decision and the federal agency’s determination.”

Here, the certification rule’s conditions for actuarial soundness were reasonable, the Fifth Circuit panel found in its revised opinion. Congress requires capitation rates to be actuarially sound, as defined by HHS, and HHS imposed the certification rule as a condition for actuarial soundness. The panel also found it persuasive that HHS incorporated the Board’s actuarial standards into the rule itself. This is “a common and accepted practice by federal agencies” and accepting the states’ arguments here would “jeopardize over a thousand regulations promulgated by federal agencies.” Further, HHS could achieve the same result by simply adopting the substance of the Board’s standards. All told, the panel found the certification rule to impose reasonable conditions rather than subdelegations of authority.

Even if HHS had subdelegated authority to the Academy and the Board, subdelegation is not unlawful, the panel opined. Here, the Fifth Circuit panel generally picked up with its analysis from its prior decision to conclude that HHS retained ultimate authority to approve state contracts with Medicaid managed care entities, and subdelegation of certain actuarial soundness requirements did not divest HHS of its final reviewing authority.

Request For En Banc Review Denied

In the meantime, the request for en banc review remained pending. Then, on April 9, 2021, the Fifth Circuit denied the request by a vote of 5 to 11 judges. The five judges who voted in favor of en banc review, led by Judge James C. Ho, dissented. They took issue with the nondelegation analysis in the panel’s decision, echoing the district court that the certification rule is unconstitutional because it subdelegates substantive lawmaking power from an administrative agency (rather than Congress) to a private entity.

From here, the states could appeal to the Supreme Court. If not, the challenge ends here (and Congress ultimately repealed the health insurance tax anyway).

Nondelegation doctrine makes little sense in this case. But the next challenge suggests there is much more to come for this doctrine in the context of the ACA.

Challenge to Preventive Services Mandate Can Proceed

In yet another case before Judge O’Connor, two individuals and two companies filed a new class action lawsuit to challenge the ACA’s preventive service mandate. This challenge builds on other challenges to the contraceptive mandate but is broader—it incorporates all preventive services under Section 2713 of the Public Health Service Act.

Section 2713 requires all non-grandfathered private health plans—including individual, small group, and large group health plans—to cover certain preventive services without cost-sharing. These preventive services include evidence-based services that have a rating of “A” or “B” under current U.S. Preventive Services Task Force (USPSTF) recommendations, vaccines recommended by the Advisory Committee on Immunization Practices (ACIP), and recommended services for infants, children, and adolescents as well as women provided for in comprehensive guidelines from the Health Resources and Services Administration (HRSA). Congress, on a bipartisan basis, has built on this requirement over time and leveraged these provisions to rapidly expand access to COVID-19 testing and vaccines in the Families First Coronavirus Response Act and the CARES Act.

The Complaint In Kelley v. Azar

The plaintiffs in this case are repeat players in ACA litigation. John Kelley is joined in this case as a plaintiff by his company, Kelley Orthodontics. Kelly filed an earlier similar class action lawsuit against the contraceptive mandate, along with his wife, in another case before Judge O’Connor, known as DeOtte v. Azar. Braidwood Management, owned by Dr. Steven Hotze, is also a plaintiff in that lawsuit and this one—and has previously brought and lost challenges to other parts of the ACA.

In DeOtte, these plaintiffs successfully challenged the Obama-era rule on the contraceptive mandate at the District Court level and secured a class action that could be joined by other individuals or employers who object to contraceptive coverage for religious reasons. The Trump administration did not defend the mandate, agreeing with the plaintiffs on the substantive legal issues. DeOtte is now on appeal before the Fifth Circuit, and oral argument will be held on April 26. The DeOtte injunction notwithstanding, the plaintiffs here argue that few insurance companies exclude coverage for contraception. But this lawsuit goes far beyond contraceptives alone.

In Kelley, the plaintiffs argue that the preventive services mandate itself is unlawful. They argue that Section 2713 violates the Appointments Clause because members of the USPSTF, ACIP, and HRSA have not been nominated by the President or confirmed by the Senate but can “unilaterally determine” the preventive care that must be covered by insurers and plans. Section 2713 also violates the nondelegation doctrine, they argue, because the provision unconstitutionally delegates legislative power to these entities without providing an “intelligible principle” to guide discretion. They make similar constitutional claims under the Vesting Clause, the statement at the beginning of Article 1 of the Constitution that “the executive power shall be vested in a President of the United States.” In addition, the plaintiffs argue that contraceptives do not qualify as preventive care and assert that the contraceptive mandate violates equal protection (because coverage is required for women but not men).

In light of these claims, the plaintiffs ask the court to declare that Section 2713 is unconstitutional and unenforceable and that any and all preventive service mandates required under Section 2713 are no longer required to be covered. They also repeatedly suggest that constitutional concerns could be avoided if Section 2713 is interpreted to refer only to the recommendations in place from the USPSTF, ACIP, and HRSA on the date of enactment of the ACA (but not additional recommendations adopted since March 23, 2010). Among other requests for relief, they ask for a permanent injunction against federal enforcement of any of the coverage mandates issued after March 23, 2010.

The plaintiffs further argue that some of the recommendations—to cover contraceptives and pre-exposure prophylaxis (PrEP) to prevent HIV—also violate the Religious Freedom Restoration Act (RFRA). PrEP, for instance, “encourage[s] homosexual behavior and intravenous drug use.” Some of the plaintiffs do not want to pay for coverage with testing for STDs, hepatitis, or HIV. The preventive services mandate, they argue, makes it impossible to purchase health insurance that excludes this unwanted coverage and gives them standing to sue.

The initial complaint was filed in March 2020 and amended in July 2020 to add additional individual plaintiffs. Some of the new plaintiffs do not have religious or moral objections to contraceptive coverage but simply do not need contraceptive coverage (because of a prior hysterectomy or age). The amended complaint also eliminated prior claims that the federal government violated the APA. As in DeOtte, the plaintiffs sue as representatives of classes—one for individuals and one for businesses—composed of parties who want to purchase coverage for themselves or their employees that excludes or limits coverage some or all preventive care required under Section 2713.

The Government’s Response

The federal government filed a motion to dismiss in response to the amended complaint. The government argues that the plaintiffs lack standing and cannot “seek a second bite at the apple” in challenging the contraceptive mandate because they are parties to, or at least in privity with, those in, DeOtte. Further, according to the government, many of the plaintiffs’ claims are time-barred, fail to state a claim, are only conclusory allegations, and do not allege a violation of RFRA. The government also argues that Section 2713 does not violate nondelegation doctrine. The fundamental flaw of the complaint, the government writes, is the “basic misunderstanding that the ACA’s preventive care requirements are established through the discretion of rogue executive branch officials, when in fact the requirements reflect Congress’s judgment that insurance must cover standard contemporary preventive medical services, subject to well-recognized sorts of exceptions.”

The plaintiffs responded in September 2020, and the government replied in October 2020. The plaintiffs then filed a notice of supplemental authority to alert the court of a decision in Leal v. Azar, yet another challenge over the contraceptive mandate pending before a federal district court in Texas, although this time before Judge Matthew J. Kacsmaryk. In that case, Judge Kacsmaryk allowed similar challenges to proceed—such as claims under the Appointments Clause—but he rejected the plaintiffs’ nondelegation challenge and agreed that members of the DeOtte class could not challenge the mandate again.

A Preliminary Ruling Allows The Lawsuit To Proceed

On February 25, Judge O’Connor ruled on the motion to dismiss, allowing some but not all of the claims to advance. He first concluded that the “religious-objector” plaintiffs have standing to sue. However, he  agreed with the government that these plaintiffs are barred from challenging the contraceptive mandate in light of his own decision in DeOtte; that decision prohibited the government from enforcing the contraceptive mandate against the religious plaintiffs, meaning they cannot claim any injury stemming from the contraceptive mandate. They can, however, challenge other parts of the preventive services mandate.

The “free-market” plaintiffs also have standing, Judge O’Connor reasoned, because it is impossible for them to purchase health insurance free of contraceptives and other services they do not want or need. The plaintiffs thus face an economic injury in the form of higher premiums for health insurance that covers services they do not wish to purchase. The plaintiffs can challenge all preventive services, not just the contraceptive mandate and the PrEP mandate.

Judge O’Connor rejected the government’s argument that the plaintiffs are time-barred from bringing constitutional and statutory interpretation claims. Federal law bars constitutional challenges against the United States six years or more after the right of action first accrues; a separate provision provides a four-year statute of limitations for civil actions arising under federal statute. The government argued that the plaintiffs’ claims were time-barred because of these statutes of limitation. Judge O’Connor disagreed. He reasoned that the challenged action here—application of the preventive services mandate—is ongoing, so the cause of action continues to accrue and cannot be insulated by a statute of limitations.

Judge O’Connor rejected the plaintiffs’ argument that Section 2713 should be read to apply only to USPSTF, ACIP, and HRSA recommendations in effect on March 23, 2010. The statute must be read to include preventive services that have or will have a rating or recommendation; this is bolstered by other parts of the statute. For instance, Congress included a minimum interval time period between when the expert body made the recommendation and when that service had to be covered by insurers and plans. Further, some of the recommendations referred to by the statute did not exist at the time the ACA was passed. The plaintiffs thus failed to state a claim for this argument, which Judge O’Connor dismissed.

Judge O’Connor did, however, allow the claims under the Appointments and Vesting Clauses to proceed. The Appointments Clause claim turns on whether the members of the USPSTF, ACIP, and HRSA are officers of the federal government or not. If the authority granted to them under Section 2713 makes them officers of the federal government, then that grant of authority is unconstitutional since the members were not appointed by the President and confirmed by the Senate. Under the Vesting Clause, the question is whether the USPSTF has a grant of legislative or executive authority and, if executive authority, whether its recommendations are truly advisory or not.

Judge O’Connor also ruled that the nondelegation doctrine claim could proceed. The plaintiffs assert that Section 2713 does not include a sufficient “intelligible principle” to guide the use of discretion by the USPSTF, ACIP, and HRSA. They, and Judge O’Connor, note similar concerns raised by the Supreme Court on this point in Little Sisters of the Poor v. Pennsylvania. The government argues that discretion is in fact limited to recommending “evidence-based” and “evidence-informed” preventive health services. Judge O’Connor notes that the government “may yet prove to be correct at a later stage in this case” but will allow the claim to proceed for now.

The plaintiffs’ RFRA claims can also proceed. These claims are limited to the religious-objector plaintiffs and presumably to non-contraceptive mandate claims.

In terms of next steps, Judge O’Connor ordered the parties to meet regarding discovery, a briefing schedule, the need for a trial, and any other matters. After considering recommendations from the parties, he issued a scheduling order that will require discovery to be completed by October 2021 with briefing continuing through early 2022.