Preventive Services Covered by Private Health Plans under the Affordable Care Act
Supreme Court Set To Hear No-Cost PrEP, Preventive Care Controversy
A looming Supreme Court ruling will answer questions about the legality of the Affordable Care Act mandate for providing some preventive care services at no cost.
Earlier this month, the Supreme Court's decision to revisit the legality of mandated health insurance coverage for preexposure prophylaxis (PrEP) and other preventive care under the Affordable Care Act (ACA) cast uncertainty over future access to these preventive services.1
The constitutionality of no-cost PrEP coverage awaits a decision from the Supreme Courtimage credit: bbourdages - stock.Adobe.Com
The ACA has been effective in improving patient access to necessary medical services, such as preventive care. In particular, Section 1713 of the ACA prevented private health care plans from requiring coinsurance, co-payments, or deductibles for an array of preventive treatments; however, the 2023 case Braidwood Management Inc. Vs Becerra argued the rule to be unconstitutional and in violation of individual religious beliefs or objections in some instances. Under a 2023 district court ruling, insurers were no longer required to provide no-cost preventive care—but only for services that the US Preventative Services Task Force (USPSTF) recommended after March 2010, which includes PrEP.2 The no-cost mandate means no required deductibles, co-pays, or coinsurance, otherwise referred to as cost sharing. In May 2023, the Fifth Circuit Court of Appeals enacted an administrative stay of the district court's ruling. As a result, temporarily, the mandates for preventive services to be provided sans cost sharing have remained in effect.3
As the Supreme Court is set to confer on this matter, it is important to note that the constitutionality of the ACA's structure has not been challenged. Rather, the Department of Justice ordered an appeal to decide whether: "(1) the USPSTF members are 'inferior officers' of the United States, and therefore, their appointments are constitutional and (2) the District Court erred when it failed to sever the allegedly unconstitutional provision."4
Challenging the legitimacy of these appointees has triggered discussions about which aspects of preventive care—if any—should continue to be provided at no out-of-pocket cost. As reported by Groom, if the Supreme Court rules that members of USPSTF were not appointed properly, it will still be unlikely for these changes to take immediate effect, as the terms for covering preventive services can differ between states: "Those contractual terms likely cannot be unilaterally and immediately changed, though depending on the state and the contractual language, it is possible that some changes to benefits mid-year may be possible."4
As for self-funded group health plans, granting their participants a notice in advance of these changes may be worthwhile and necessary, with Groom writing, "Both plans and issuers could balance the effectiveness of early intervention (and possible cost-savings in the future) with immediate costs of waiving cost-sharing for these services."
According to a 2023 KFF poll, although the ACA has garnered largely Democratic partisan support, respondents from both sides of the aisle have viewed the elimination of out-of-pocket costs for preventive care favorably. Should the PrEP coverage requirement be discontinued, over 80% of adults reported concerns about reducing new HIV cases, and nearly the same amount expressed beliefs that HIV/AIDS is a serious issue throughout the US, demonstrating how the court's ruling could be at odds with expressed public health interests. Should the Supreme Court decision align with the district court in Braidwood Management Inc. Vs Becerra, additional services including certain vaccinations and pediatric and women's health screenings and health care could be impacted.5,6
Notable upticks in PrEP usage have been documented since 2017. In 2022, 36% of individuals who could benefit from a prescription received one, compared with 23% in 2019. However, access remains a pertinent issue in this area and prescription disparities have only grown larger in recent years in the US. For example, the rates of White individuals receiving PrEP has risen by 34% compared with 5% in Black individuals. As emphasized by amfAR, PrEP coverage has been available through most insurance programs or Medicaid plans; however, longer reimbursements have placed extra burden on these process and stifled patient access in some cases.7 The looming Supreme Court decision could potentially add another barrier for those benefiting from this medication.
References
1. Reichmann K. Protections for PrEP get Supreme Court review. Courthouse News Service. January 10, 2025. Accessed January 29, 2025. Https://www.Courthousenews.Com/protections-for-prep-get-supreme-court-review/
2. Johns M, Rosenthal J. How the Affordable Care Act improved access to preventative health services. July 10, 2024. Accessed January 29, 2025. Https://www.Americanprogress.Org/article/how-the-affordable-care-act-improved-access-to-preventive-health-services/
3. Sobel L, Ranjii U, Pestaina K, Dawson L, Cubanski J. Explaining litigation challenging the ACA's preventative services requirements: Braidwood Management Inc. V. Becerra. KFF. May 15, 2023. Accessed January 30, 2025. Https://www.Kff.Org/womens-health-policy/issue-brief/explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra/
4. Supreme Court to decide legality of ACA's preventative services mandate. Groom. January 22, 2025. Accessed January 30, 2025. Https://www.Groom.Com/resources/supreme-court-to-decide-legality-of-acas-preventive-services-mandate/
5. Kearney A, Sparks G, Kirzinger A, Presiado M, Brodie M. KFF health tracking poll May 2023: health care in the 2024 election and in the courts. May 26, 2023. Accessed January 29, 2025. Https://www.Kff.Org/report-section/kff-tracking-poll-may-2023-health-care-in-the-2024-election-and-in-the-courts-prep-and-preventive-care/
6. Staman JA. Preventive services access on the docket in Braidwood v. Becerra. Congressional Research Service. September 12, 2023. Accessed January 30, 2025. Https://crsreports.Congress.Gov/product/pdf/LSB/LSB11040
7. Kessler R. PrEP usage in the U.S. Hits historic highs, but disparities persist. AmfAR. October 27, 2023. Accessed January 30, 2025. Https://www.Amfar.Org/news/prep-usage-in-u-s-hits-historic-highs-but-disparities-persist/
Supreme Court To Decide Legality Of ACA's Preventive Services Mandate
On January 10, 2025, the Supreme Court agreed to hear an appeal in Becerra v. Braidwood Management, Inc. ("Braidwood"). The case (discussed in a prior Groom alert), on appeal from the Fifth Circuit, will determine if the ACA's provision that group health plans and health insurance issuers cover certain United States Preventive Services Task Force ("USPSTF") recommended preventive services without cost-sharing ("USPSTF Preventive Care Requirement") violates the Appointments Clause of the Constitution.
BackgroundUnder the USPSTF Preventive Care Requirement, plans and issuers must cover, without cost-sharing, certain grade A or B services recommended by the USPSTF. The recommended preventive services include cancer screenings, pregnancy care, and testing for sexually transmitted diseases. In particular contention is the USPSTF grade A recommendation to cover preexposure prophylaxis ("PrEP") to prevent HIV.
In addition to the USPSTF Preventive Care Requirement, the ACA generally requires plans and issuers to cover, without cost-sharing, immunizations for routine use recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention, and certain preventive care and screenings provided for in the guidelines supported by the Health Resources and Services Administration, including FDA-approved contraceptives (together, with the USPSTF Preventive Care Requirement, the "ACA Preventive Care Requirements").
In 2023, a Texas district court vacated the rules implementing any USPSTF Preventive Care Requirement recommended after March 23, 2010 (the effective date of the ACA), because it found the appointment of the experts who make up the USPSTF violated the Constitution. Specifically, the court held that members of the USPSTF are officers of the United States and, therefore, must be appointed in accordance with the Appointments Clause. The court concluded that, because these members were unconstitutionally appointed, their recommendations cannot have the force of law. The court also universally enjoined federal agency enforcement of this requirement. District Court Judge Reed O'Connor, whose previous invalidation of the ACA was overturned by the Supreme Court in 2018, also vacated the mandate for the plaintiffs to cover PrEP as violating the Religious Freedom Restoration Act ("RFRA").
On June 21, 2024, the Fifth Circuit affirmed that the members of the USPSTF were not constitutionally appointed. But, the Fifth Circuit narrowed the scope of the District Court's judgment, holding that the District Court erred in vacating all agency actions to implement and enforce the USPSTF's Preventive Care Requirement and erred by enjoining enforcement of the Preventive Care Requirement nationally. Instead, the Fifth Circuit limited the remedy to the particular plaintiffs in the case in lieu of the national injunction.
Supreme Court Grant of CertiorariThe Department of Justice appealed the case to the Supreme Court to answer whether (1) the USPSTF members are "inferior officers" of the United States, and therefore, their appointments are constitutional and (2) the District Court erred when it failed to sever the allegedly unconstitutional provision. Plaintiffs in Braidwood actually supported the petition for certiorari and cross-petitioned for certiorari, asking the Supreme Court to consider whether all of the ACA Preventive Care Requirements violated the non-delegation canon. Thus, under the cross-petition, all the ACA Preventive Care Requirements could be at risk, not simply the USPSTF Preventive Care Requirement recommended after March 23, 2010.
On January 10, 2025, the Supreme Court granted the Department of Justice's certiorari request, agreeing to consider whether the structure of the USPSTF is unconstitutional and whether any defective provision should have been severed. Three days later, the Supreme Court denied certiorari on the cross-petition, so the Supreme Court will not be considering whether the structure of the ACA Preventive Care Requirements more generally (i.E., by referencing the USPSTF recommendations and by referencing recommendations from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention, and screenings and guidelines supported by the Health Resources and Services Administration) violates the Constitution.
Impacts on Plans and IssuersFor group health plans and health insurance issuers, the challenge to the appointment of the USPSTF members has raised questions about what, if any, preventive services must be covered without cost-sharing. The Fifth Circuit's decision limited the immediate effect of the challenge to the parties to the lawsuit, so currently, group health plans and issuers outside of the Fifth Circuit should be following all applicable preventive services rules and guidance. We do not know how the Supreme Court will rule, but at least one possibility is that the Supreme Court will conclude that the USPSTF members are officers of the United States, were not properly appointed, and therefore, any updates to the USPSTF recommendations after March 10, 2010 do not have the force of law. But, the recommendations pre-March 10, 2010 continue in effect, because Congress adopted them in the statutory text.
In that case, can plans and issuers simply immediately stop offering the updated preventive services without cost-sharing? Likely not. For insured plans, those policies have been filed with their applicable states, and the policy provides the terms under which preventive services must be covered. Those contractual terms likely cannot be unilaterally and immediately changed, though depending on the state and the contractual language, it is possible that some changes to benefits mid-year may be possible. At the same time, states have their own mandates, and some states may have adopted preventive services as a state law requirement.
For self-funded group health plans, materially changing benefits—such as eliminating coverage without cost-sharing for certain benefits—may require advance notice to participants. Self-funded plans may also wish to consider the popularity of these benefits and weigh the possible employee abrasion of eliminating any of the updated recommendations. Both plans and issuers could balance the effectiveness of early intervention (and possible cost-savings in the future) with immediate costs of waiving cost-sharing for these services.
In sum, although the Supreme Court is considering the application of the Appointments Clause – a Constitutional provision that may seem removed from group health plans and health insurers – the Court's decision on the constitutionality of the appointment of the USPSTF could impact every group health plan and health insurance issuer's coverage of preventive care in the United States.
Supreme Court Will Hear Challenge To ACA Preventive Care Mandate
The Supreme Court on Friday agreed to hear a broad challenge to the Affordable Care Act's coverage of preventive services in its upcoming term.
If the court rules in favor of the conservative Texas employers who filed the case, tens of millions of people who get their health insurance from their employer or through the ACA marketplace would be impacted by the removal of a preventative services requirement. Removing this requirement would erode the coverage of tens of millions of people whose insurers currently cover the full cost of everything from vaccines to birth control.
In June, the U.S. 5th Circuit Court of Appeals ruled that a Christian-owned business can't be compelled to cover preventive medications as is required under the ACA. However, the court also determined a Texas judge carried out an "abuse of discretion" in his prior ruling by blocking federal agencies from enforcing the rule universally.
The decision in Braidwood Management v. Becerra affirmed a lower court's ruling that the secretary of the Department of Health and Human Services could not force Braidwood Management to abide by a preventive care mandate in the ACA. The court rejected another ruling, however, and remanded another one back to the lower courts. The mandate remained in place while the case continued to work its way to the Supreme Court.
At issue is a provision in the ACA that requires private health insurers and companies to cover preventive services and drugs like HIV preventive drugs, known as PrEP. The provision also requires coverage of cancer screenings, vaccines, STD screenings, gestational health screenings and birth control.
Braidwood contended that this requirement violated the company's religious freedom and beliefs.
Judge Reed O'Connor of U.S. District Court for the Northern District of Texas, struck down the provision in September 2022. The appeals court said in the last week's ruling that it believed blocking the federal government from enforcing this mandate across the board was an "error" and "an abuse of discretion."
However, the appeals court also determined other arguments had yet to be fully decided and should be subject to further review in the lower courts.
One issue left to be decided is whether the U.S. Preventive Task Force that decides which services must be covered under the ACA is constitutionally sound.
The ACA specifies four main categories of preventive care for all adults as well as for women and children in particular:
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