Latest Legal Challenge to the Affordable Care Act (ACA) Results in Partially Vacated Preventive Service Requirements

A federal judge in the U.S. District Court in the Northern District of Texas issued a ruling on the latest legal challenge to the Affordable Care Act (ACA) in Braidwood Mgmt. Inc. v. Becerra (Braidwood).

The ruling provides that non-grandfathered group health plans and insurers are no longer required to cover certain preventive services without cost sharing on a nationwide basis. The ruling also stated that employers with religious objections that sponsor health plans no longer must cover preexposure prophylaxis (PrEP) medication; a drug that prevents individuals from acquiring HIV.

This ruling has already been appealed to the Fifth Circuit, and it’s possible the ruling will be stayed during the appeal.

Background

The ACA requires non-grandfathered group health plans and health insurers to cover preventive care and screening without cost-sharing. Plans and insurers must provide first dollar coverage for:

• Evidence-based items or services that have a rating of “A” or “B” as currently recommended by the United States Preventive Services Task Force (USPSTF), including PrEP;
• Immunizations for routine use in children, adolescents and adults that have a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention (CDC), including the human papillomavirus (HPV) vaccine;
• Evidence-informed preventive care and screenings for infants, children and adolescents found in the comprehensive guidelines supported by the Health Resources and Services Administration (HRSA); and
• Other evidence-informed preventive care and screening for women in a comprehensive guideline supported by the HRSA, including contraceptives.

The ruling involves the first component of these requirements (required coverage in response to “A” or “B” ratings made by the USPSTF on or after March 23, 2010. The USPSTF is a panel of experts in primary care and prevention, who make these recommendations, which are then often adopted by HHS.

Braidwood Challenge

The plaintiffs in Braidwood include employers and individuals that objected on religious and non-religious grounds to obtaining or providing health insurance coverage that includes HPV vaccines, sexually transmitted infections (STI) and drug-related screenings and counseling, PrEP, and contraceptives.

Some objected to purchasing coverage that included preventive care that they did not want or need. The plaintiffs sued the Departments of Labor (DOL), Health and Human Services (HHS), and Treasury (the Departments) alleging that USPSTF violated requirements under the U.S. Constitutions Appointment Clause and non-delegation doctrine and the requirement to cover PrEP violated the Religious Freedom Restoration Act (RFRA).

The court agreed and held that appropriate remedy was to vacate agency actions to implement or enforce the coverage mandate to the “A” or “B” ratings made by the USPSTF on or after March 23, 2010. The USPSTF has issued "A" or "B" grade ratings regarding a variety of conditions and treatments, including colonoscopies and related services, several kinds of cancer screenings, screenings for STIs, postpartum depression, and weight loss behavioral interventions.

The Departments are appealing this ruling and will seek a stay of this ruling from the Fifth Circuit. It is possible that the decision will not be enforced while it is being appealed and may eventually be reviewed by the U.S. Supreme Court.

As a reminder, even if the decision is upheld on appeal, plan sponsors can still choose to cover these preventative services. Some preventive health recommendations have been in place for several years and plan and insurers may not want to rush to drop coverage of USPSTF recommendations as participants and beneficiaries may have grown accustomed to having the coverage.

It is also possible that Congress will respond to the decision by amending the law to require coverage of these services. If you have questions about the decision and how it may impact your health plan, contact your OneDigital consultant.

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