One of the pillars of the Affordable Care Act is the requirement that most private insurance plans cover preventive health services without any patient cost-sharing. The Act is specific about what preventive health services include (e.g., a range of services including screening tests, immunizations, behavioral counseling, and certain medications).
The ACA started with the preventive health services that were recommended in 2010 (when the law passed). As new preventive services are added by the U.S. Preventive Services Task Force (USPSTF), Advisory Committee on Immunization Practices (ACIP), or (HRSA), private health plans need to add them w no cost sharing. As previous recommendations change or are modified, private health plans need to cover those services in the next plan year.
The Plaintiffs in the Braidwood v. Bererra case are trying to get rid of no co-pay coverage for preventive services. Their argument is that those task forces and committees don’t have the ability to make policies like that because they violate the Appointments Clause of the US Constitution.
Specifically, they’re arguing that only “officers of the United States” can make decisions and they must be appointed by the president and senate confirmed. The judge U.S District Judge Reed O’Connor in Texas (the go-to judge to file challenges to the ACA & women’s reproductive rights) agreed with the Plaintiffs that members of USPSTF, ACIP and HRSA are “officers of the United States”, weren’t appointed by the President (they’re appointed by the HHS Secretary) and therefore their decisions can’t be implemented as policy under the ACA.
Plaintiffs make another argument that the USPHTF recommendation for certain populations to prevent HIV violates their religious freedom. The judge took that bait too.
On March 30, 2023, District Court Judge O’Connor issued a ruling, striking down the ACA’s coverage requirement for preventive services. That ruling blocks the federal government from requiring health plans to cover services recommended or updated by the U.S. Preventive Services Task Force (USPSTF) on or after March 2010.
There are 53 Preventive Health Services with an A or B rating by the USPHTF (A & B Recommendations). All but two of these recommendations have been updated or are new since 2010.
See: Mayes: Ruling dropping preventive drugs from insurance would be devastating | Arizona Capitol Times
HHS appealed the ruling to the United States Court of Appeals for the 5th Circuit. A couple of weeks ago the Circuit Court of Appeals stayed the district court’s ruling, meaning HHS can continue enforcing the preventive services requirement while the case proceeds through the courts.
What If the Courts Ultimately Uphold O’Connor’s Decision?
If the Texas District Court ruling ultimately holds, private health plans would still have to cover no cost-share coverage of preventive health services as they existed in 2010. Private health plans would no longer be required to cover any preventive service identified after 2010 (for example screening for major depressive disorder in adolescents 12-18 y.o.). Basically, it would stop the clinical practice clock in 2010.
For services recommended before 2010, HHS could only hold health plans accountable for covering services as they existed in 2010. For example, prior to 2010 colorectal screening was recommended for people 50 – 75 years old. Based on clinical evidence, that has since been changed to 45-75 y.o.
That would mean required coverage would be limited to clinical practice standards as they existed 13 years ago.
Medicine and public health are iterative disciplines. Best practice standards shift over time as we learn more from evidence and studies. Freezing clinical and public health practice in the year 2010 makes no sense.
In any event, it will be several months if not years before we know the fate of preventive health services coverage in the ACA. The decision will most likely be made by the U.S. Supreme Court.
Note: (Credit to KFF): “Overturning the preventive services requirement broadly would have significant implications for coverage of a broad range of clinical preventive services. Should the final decision for this case be found in favor of the plaintiffs, and applied nationwide, then millions of people may be vulnerable to loss of guaranteed coverage of preventive services without cost sharing. It will again be at the discretion of plans and employers to determine what preventive services will be covered and whether they will charge cost-sharing, lowering premiums in some cases, but likely creating a patchwork of coverage for these services.”
The Secretary of HHS has the authority to determine coverage for preventive services for Medicare beneficiaries. The ACA eliminated Medicare cost sharing, including coinsurance and deductibles, for most preventive benefits that are rated A or B by the USPSTF, beginning in 2011, and authorized the Secretary of HHS to add coverage for new preventive services.
Coverage under Medicare for several preventive services, including some rated A or B by the USPSTF, predated the ACA and is specified in statute, and therefore would not be affected by any ruling on the current litigation.
See: Mayes: Ruling dropping preventive drugs from insurance would be devastating | Arizona Capitol Times