As a result of ongoing litigation, the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (the departments) cannot enforce some Affordable Care Act (ACA) preventive care requirements, but the departments strongly encourage plan sponsors to keep coverage without cost sharing in place. In the case of Braidwood Management v. Becerra, the United States District Court for the Northern District of Texas issued a ruling that prevents federal agencies from mandating that group health plans cover without cost sharing any items and services recommended with an “A” or “B” rating by the United States Preventive Services Task Force (USPSTF) on or after March 23, 2010, and coverage of PrEP HIV medications. This blog describes the initial impact on plan sponsors. The departments anticipate releasing further guidance for group health plans and insurance companies.

One Minute Summary

  • Preventive services help people stay well, treat chronic conditions and aid early detection of cancers or diseases, among other benefits.
  • The decision, which has been appealed, applies only to preventive care recommendations by USPSTF adopted after the ACA was enacted on March 23, 2010. Future guidance is expected on recommendations that were updated after March 23, 2010.
  • DOL strongly encourages plans to continue covering preventive care without cost sharing.
  • Several groups representing employers and insurance companies confirmed the overwhelming majority of coverage decision makers “do not anticipate making changes to no-cost share preventive services, and do not expect disruptions in coverage of preventive care, while the case proceeds through the courts” in a letter to lawmakers.

Background

ACA requires that all non-grandfathered group health plans and insurers cover certain preventive services without participant cost sharing (i.e., no deductible or copay). In Braidwood, the plaintiffs wanted coverage requirements for preventive services recommended by three bodies struck down: USPSTF, the Advisory Committee on Immunization Practices (ACIP), and Health Resources and Services Administration (HRSA). The court struck down one of those three, USPSTF, as unconstitutional. For a detailed look at the legal arguments and outcome, see KFF’s summary titled, “Explaining Litigation Challenging the ACA’s Preventive Services Requirements.” The case has been appealed to the Fifth Circuit Court of Appeals. Department of Justice filed a motion for a stay on April 12, 2023. As of this writing, the Fifth Circuit didn’t rule on the stay.

On April 13, 2023, the departments issued FAQs on how the Braidwood decision affects the requirement to cover preventive services without cost sharing under the Public Health Services (PHS) Act section 2713. The departments anticipate issuing additional guidance in the future to further address plans’ and issuers’ obligations under PHS Act section 2713(a)(1) in light of the Braidwood decision.

What was the intention behind ACA preventive services provisions?

Preventive services help people avoid acute illness, identify and treat chronic conditions, reduce the risk of cancer or facilitate early detection, and improve health. Coverage for USPSTF-recommended preventive services has reduced disparities in, and improved, disease and condition screening rates, according to HHS research. Sixty percent of people with private insurance coverage use a preventive service each year and have come to rely on receiving this coverage without cost sharing, analysis by Peterson-KFF Health System Tracker showed.

Which USPSTF-recommended items and services are affected by the Braidwood decision?

The Braidwood decision applies to the USPSTF list of A&B recommendations on or after March 23, 2010.

Post-ACA USPSTF recommendations

  • The departments strongly encourage plans and issuers to continue to cover USPSTF recommended items and services without cost sharing.
  • The Braidwood decision does not preclude plans and issuers from continuing to provide the full extent of such coverage.

Which preventive items and services are not affected by the Braidwood decision?

Pre-ACA USPSTF recommendations

  • Plans must continue to cover, without cost sharing, items and services recommended with an “A” or “B” rating by the USPSTF before March 23, 2010. (e.g., Rh(D) blood typing and antibody testing during pregnancy)
  • USPSTF has updated nearly all of the recommendations since March 23, 2010. The departments anticipate releasing additional guidance on pre-March 23, 2010, USPSTF recommendations.

Federal agency recommendations

  • Plans must continue to cover without cost sharing for immunization recommendations by ACIP or provided for in comprehensive guidelines supported by HRSA for women and children.

State laws remain applicable to fully insured plans

  • The Braidwood decision generally does not affect the application of state laws that require health insurance issuers offering group or individual health insurance coverage to provide coverage without cost sharing of items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, and issuers generally must continue to comply with any such applicable state laws.

Are changes to coverage or cost sharing required?

No, plans are not required to make any changes to coverage or cost sharing because of the Braidwood decision, and the departments strongly encourage plans and issuers to continue to cover, without cost sharing, items and services affected by the court’s decision.

What’s the reaction from employers and insurers?

Generally, preventive care without cost sharing will remain the status quo. Preventive care is effective and popular, a letter signed by the American Benefits Council, the Alliance of Community Health Plans, America’s Health Insurance Plans, the Blue Cross Blue Shield Association, the ERISA Industry Committee, and the Purchaser Business Group on Health said to lawmakers according to Insurance News Net. “Plan sponsors do not need to take any action in response to this decision and may be best served by monitoring the response by the federal government and higher courts,” per Segal. “Despite the ruling, nothing much is likely to change for enrollees in the short term, as insurers and employers are expected to be reluctant or even unable to immediately begin charging copayments or deductibles for the affected preventive care,” Julie Appleby wrote in KFF Health News.

Mid-Year Change Considerations

To the extent a plan or insurer is permitted and elects to make changes to its coverage in the middle of the plan or policy year, consider other provisions of applicable federal and state law the departments said. Plans and insurers, including self-insured plans, may still be required to cover the full scope of recommended preventive services under other legal and contractual requirements, including collective bargaining agreements, that may prevent changes during a plan or policy year.

High Deductible Health Plans and Safe Harbor for Preventive Care

Until further guidance is issued, the departments confirmed that USPSTF-recommended services will be treated as preventive care for purposes of high deductible health plan/health savings account (HSA) rules under Internal Revenue Code section 223(c)(2)(C).

Prep HIV Medication

The Texas court ruled that PrEP HIV medication coverage, which was a USPSTF recommendation from 2019, violated the rights of some of the plaintiffs under the Religious Freedom Restoration Act. The court prevented the departments from the PrEP coverage requirement as against these plaintiffs.

What We’re Watching

It’s unclear when the Fifth Circuit Court will rule on the Biden Administration’s motion for stay. It’s possible that Congress could pass a law on preventive coverage requirements or the Centers for Disease Control (CDC) or other agency could adopt USPSTF recommendations.

Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.

Jenny Gartman, CEBS

Manager, Reference/Research Services at the International Foundation Favorite Foundation Member Service: Personalized Research Service Benefits Topics That Interest Her Most: Mental health and retirement security Personal Insight: Jenny likes spending time with family, knitting, reading memoirs and going for walks around the neighborhood.

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