ACA Preventive Services Coverage And Litigation Continue

Editors note: This was originally published here. 

The Affordable Care Act preventive services mandate continues to apply to all nongrandfathered group health plans – except for those of the plaintiffs – while litigation continues, following the Braidwood Management, Inc. et al. v. Becerra opinion from the Fifth Circuit Court of Appeals. For now, non-grandfathered group health plans must continue to provide ACA-mandated preventive services in-network without participant cost sharing. Specifically, these services are: (1) US Preventive Services Task Force evidence-based items or services with an “A” or “B” rating; (2) Advisory Committee on Immunization Practices recommendations for immunizations for routine use for children, adolescents, or adults; (3) Health Resources & Services Administration recommendations and guidelines for infants, pediatric and adolescent evidenced-based preventive care and screenings, and (4) HRSA guidelines for preventive care and screenings for women, including FDA-approved contraceptives.

A Texas district court decision put into question the ACA’s requirement that non-grandfathered group health plans cover preventive items and services recommended by the USPSTF on or after March 23, 2010, including the requirement to cover pre-exposure prophylaxis (PrEP) HIV-prevention medications, without participant cost-sharing. The district court issued a nationwide injunction, but the Fifth Circuit put that injunction on hold pending appeal.

Last week, the Fifth Circuit issued a decision that it characterized as a “mixed bag.” The Fifth Circuit agreed with the district court that members of the USPSTF were not properly appointed under the US Constitution and thus their recommendations were not valid, but for procedural reasons limited the application of the district court’s ruling to the specific plaintiffs in the case. The Fifth Circuit also struck down the district court’s decision to vacate all agency actions taken to enforce the USPSTF recommendations, as well as the nationwide injunction.

But the story’s not over just yet. The Fifth Circuit sent the case back to the district court to further review the validity of the ACIP and HRSA ACA-mandated preventive services, which the district court previously held were enforceable.

Employers remain committed to covering ACA-mandated preventive services

While we were awaiting the Fifth Circuit’s decision, we surveyed employers about their most likely response if they were no longer required to provide ACA-mandated preventive services without cost-sharing. With regard to PrEP, while over a third weren’t sure how they would respond, and about a fifth would most likely add some level of participant cost-sharing, the largest portion – 41% – said they would most likely continue to cover it without participant cost-sharing. Virtually no respondents thought they would eliminate coverage for PrEP entirely – a change that could result in far more plan expense given the cost of treating HIV. As far as other preventive services, while about a fourth of respondents weren’t sure what their most likely response would be, again, the largest portion – 64% – said they would most likely make no changes to their current no-cost-sharing coverage.

All nongrandfathered group health plans (except those of the specific plaintiffs in the Braidwood case) must continue to cover all ACA-mandated preventive services – according to the USPSTF, ACIP, HRSA recommendations and guidelines. But litigation continues as to whether the ACIP and HRSA guidelines are valid. It seems likely that this case will eventually find its way back to the Fifth Circuit, and possibly all the way to the Supreme Court.