Preventive care coverage still in question as appeals court pauses decision

Some employers said they are unsure whether they will cover preventive care in their workplace health plans as a federal appeals court temporarily paused a decision impacting coverage of certain kinds of preventive care.

The U.S. Court of Appeals for the 5th Circuit last week temporarily blocked a Texas judge's decision that struck down a component of the Affordable Care Act that requires health insurers to provide full coverage of certain kinds of preventive care. The appeals court granted a partial administrative stay while the federal appeals process moves forward.

The stay will allow the Department of Health and Human Services to continue to mandate most health plans to cover, without cost-sharing, certain preventive health services.

The ACA requires insurers to cover, without cost-sharing, more than 100 preventive health services recommended by the U.S Preventive Services Task Force.

Having concluded in September that aspects of the requirement to cover HIV drugs and some cancer screenings and were unconstitutional and violated religious rights, the Texas judge’s remedy in the Braidwood Management v. Becerra imposed 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.

The Texas judge’s ruling does not impact the immunizations recommended by ACIP or preventive care recommended by HRSA.

What employers are thinking

More than one in five employers surveyed said they are uncertain of how they will approach coverage of preventive health services in light of the Braidwood decision, according to a National Alliance of Healthcare Purchaser Coalition survey.

When asked whether the federal judge’s decision would impact the coverage they provide to their employees, 22% of employers said they did not know whether they would continue to provide preventive care without cost sharing. Six percent of employers said they expect to be more selective about what preventive services they will cover while 72% expected to continue picking up all the costs for preventive care.

The National Alliance questioned the employers as part of a survey on employers’ overall attitudes on coverage for vaccines.