ACA Preventive Services Mandate Partially Vacated: What’s Affected, What’s Not, and What’s Next
Employee Benefits Alert
A federal judge has struck down a provision of the Affordable Care Act (ACA) mandating group health plans and insurers to cover a long list of preventive services without cost-sharing from participants. The March 30 decision in Braidwood Management v. Becerra has left plan sponsors and insurers confused and unsure of what actions should be taken, if any. This article briefly reviews the ACA mandate and the ruling, describes what preventive services are and are not affected, and discusses what happens next.
Background
Under the ACA, group health plans and insurers must provide certain preventive services without imposing any cost-sharing (deductibles, copays, and coinsurance) when the services are delivered by an in-network provider. Included in the list of such preventive services are “evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force (USPSTF).” The USPSTF is an independent, volunteer group of national experts that reviews and develops recommendations for clinical preventive services.
On September 7, 2022, Judge Reed O’Connor of the United States District Court for the Northern District of Texas ruled that the USPSTF cannot legally determine which preventive services qualify as covered preventive services under the ACA because USPSTF members are not confirmed by the Senate, and their recommendations are not reviewed by constitutionally appointed government officials. On March 30, 2023, Judge O’Connor granted plaintiff’s request to apply the ruling nationwide, effectively nullifying the ACA requirement that preventive services recommended by the USPSTF be provided without cost-sharing.
What Preventive Services Are Affected by the Ruling?
The preventive services in the first list below appear to be subject to the ruling because they are preventive services currently recommended by USPSTF. The preventive services in the second list below do not appear to be subject to the ruling because they are currently covered due to recommendations and guidelines issued by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention and the Health Resources and Services Administration (HRSA), both of which are ultimately subject to the supervision of the secretary of Health and Human Services.
Some preventive services appear on both lists because there is overlap between the recommendations and guidelines issued by USPSTF and HRSA. Thus, if a preventive service is affected by the ruling because it was recommended by USPSTF, it may still be a covered preventive service to an extent if it is also recommended by HRSA. For example, USPSTF recommends HIV screenings for adults aged 15 to 65, HRSA recommends HIV screenings for women aged 15 and older under its guidelines for women and for men and women aged 15 to 21 under its guidelines for adolescents. The net result under the ruling appears to be that HIV screenings for women aged 15 and older and men aged 15 to 21 remain a covered preventive service, whereas HIV screenings for men over the age of 21 are no longer a covered preventive service.
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What’s Next?
The Biden administration wasted no time challenging the decision and filed a notice of appeal in federal court the day after the ruling. The possibility remains for the court’s ruling to be stayed pending appeal, which would prevent the ruling from taking effect until appellate courts can weigh in on the case. Additionally, Congress could take legislative action to address coverage of preventive services. In any case, the preventive services affected by the March 30 ruling are subject to change through the appeals process.
For now, the ruling is in force across the country and technically allows plan sponsors and insurers to impose cost-sharing with respect to preventive services affected by the ruling. However, due to the significant operational, written plan design, and communications hurdles to altering course, and the practical and legal constraints on timing, near-term changes are unlikely. Plan sponsors and insurers should continue to monitor developments in the case and consult with their benefits counsel before taking any actions.
If you have any questions about the ruling or the ACA preventive services mandate, please contact one of the attorneys in the Employee Benefits and Executive Compensation Practice Group at Bradley.
