ACA ruling hits preventive care, but ‘isn’t a fatal blow,’ analyst says

A U.S. District Court judge’s ruling that strikes down free HIV drugs and some cancer screenings under the Affordable Care Act isn’t a fatal blow to the ACA, although it does have implications.

That was the word from a panel of KFF analysts who conducted a webinar Thursday afternoon, hours after the judge’s ruling was made public.

U.S. District Court Judge Reed O’Connor, Northern District of Texas, today issued a final judgement in a court case challenging the provision of the ACA requiring most private health plans to cover many preventive services without any cost-sharing for their enrollees. Having concluded in September that aspects of the requirement were unconstitutional and violated religious rights, the judge’s remedy in the Braidwood Management v. Becerra imposes new limits on the government's ability to enforce those requirements nationwide.

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 in the case Braidwood Management v. Becerra 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. Plaintiffs also argue that the requirement for them to cover HIV prevention measures such as PrEP drugs for free violated their religious freedom.

O’Connor’s ruling does not impact the immunizations recommended by ACIP or preventive care recommended by HRSA.

Today’s ruling doesn’t completely wipe out coverage of preventive services, said Larry Levitt, KFF executive vice president for health policy. It impacts only preventive services recommended by the task force since March 2010 and primarily impacts lung cancer and skin cancer screening, chemotherapy for breast cancer prevention, statins for high cholesterol and HIV PrEP. Vaccines and other cancer screenings such as mammograms and colonoscopies are not impacted by the ruling, he said.

In addition, Levitt said, most private health insurers already have their contracts in place for the calendar year, so any changes in coverage are not likely to take place right away.

It’s possible that health insurers will impose cost sharing on enrollees for these preventive treatments in the future, Levitt said. However, it’s also possible that health insurers will continue to cover preventive screenings without cost sharing, as screenings save insurers money in the long run, said Cynthia Cox, director of KFF’s program on the ACA.

Not the end of ACA challenges

Today’s court ruling is not likely to be the end of this challenge to the health care law, said Laurie Sobel, KFF associate director of women’s health policy.

She predicted the Biden administration is likely to request a stay from the 5^th Circuit Court of Appeals with the case eventually ending up before the U.S. Supreme Court.

In the interim, Levitt said, “I would not expect insurers to make changes this year. I think this will play out over time, not result in precipitous changes in coverage.”

He noted that unlike previous court challenges to the ACA, the Braidwood case did not challenge the constitutionality of the entire health care law, only a portion of it.

“Previous challenges to the ACA threatened its very existence and protections and coverage,” he said. “This case does not do it. It would strike down a portion of the law, albeit a popular one and one used by a lot of people.”

Levitt said an estimated 100 million enrollees use preventive services covered under the ACA each year.

Susan Rupe is managing editor for InsuranceNewsNet. She formerly served as communications director for an insurance agents' association and was an award-winning newspaper reporter and editor. Contact her at [email protected]. Follow her on Twitter @INNsusan.

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