ACA challenged in court over preventive services

The Affordable Care Act was the subject of another round of court arguments Tuesday. This time the issue is whether the law’s provision that requires payers to cover preventive services, including HIV prevention drugs, as well as cancer screenings and vaccinations.

Arguments were heard in the case of Kelley v. Becerra, which was filed Feb. 25, 2021, in U.S. District Court for the Northern District of Texas.

In this latest challenge to the ACA, a coalition of employers and individuals object to paying for certain services. The plaintiffs contend that the provision requiring coverage of preventive services violates the Religious Freedom Restoration Act because the law requires coverage of pre-exposure prophylaxis, a preventive HIV medication.

The ACA specifies four main categories of preventive care for all adults as well as for women and children in particular:

1. Services with an A or B rating in the current recommendations of the U.S. Preventive Services Task Force (USPSTF)
2. Immunizations recommended by the Advisory Committee on Immunization Practices (ACIP)
3. Preventive care and screenings for infants, children, and adolescents in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA)
4. Preventive care and screenings for women’s health specified in the HRSA guidelines

The plaintiffs argue that the preventive services requirement violates Article II of the U.S. Constitution, which vests the executive authority of the U.S. in the president but allows executive authority to be exercised by officers nominated by the president and confirmed by the Senate or by other “inferior officers,” as designated by law to be appointed by the president or heads of departments. The preventive services requirement violates this standard, the plaintiffs argue, because members of the USPSTF, ACIP and HRSA have not been nominated by the president or confirmed by the Senate.

Health care providers are largely opposed to ending the provision. The American Medical Association released a statement July 25 in conjunction with 61 medical associations to condemn the lawsuit. The provision is also supported by the Justice Department and 21 state attorneys general.

If the plaintiffs win, payers would not have to cover preventive care for members, potentially leading to less access and worse health outcomes. The Commonwealth Fund estimated nearly 152 million people benefited from the law’s free preventive care requirement in 2020 alone, through increased screenings, improved health outcomes, and reduced racial disparities in health care access.

If the provision is thrown out, states and their marketplaces could still require payers to maintain preventive care coverage, but federal law prevents the same mandate for self-funded employer plans.