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Federal Judge Says Insurers No Longer Have To Provide Some Preventive Care Services, Including Cancer And Heart Screenings, At No Cost

CNN —

A federal judge in Texas said Thursday that some Affordable Care Act mandates cannot be enforced nationwide, including those that require insurers to cover a wide array of preventive care services at no cost to the patient, including some cancer, heart and STD screenings, and tobacco programs.

In the new ruling, US District Judge Reed O'Connor struck down the recommendations that have been issued by the US Preventive Services Task Force, which is tasked with determining some of the preventive care treatments that Obamacare requires to be covered.

The decision applies to task force recommendations issued on or after March 23, 2010 – the day the Affordable Care Act was signed into law. While the group had recommended various preventive services prior to that date, nearly all have since been updated or expanded.

O'Connor's ruling comes after the judge had already said that the task force's recommendations violated the Constitution's Appointments Clause. The judge also deemed unlawful the ACA requirement that insurers and employers offer plans that cover HIV-prevention measures such as PrEP for free.

Other preventive care mandates under the ACA remain in effect.

The full extent of the ruling's impact and when its effects could be felt are unclear.

The Justice Department filed a notice of appeal on Friday. The Biden administration is also appealing O'Connor's earlier ruling that the task force's recommendations violated the Constitution's Appointments Clause and that requiring HIV-prevention drugs to be covered at no cost violated the Religious Freedom Restoration Act.

The challengers in the case – individuals and employers in Texas – lost on several of their other claims against the preventive care mandates. It's possible they file their own appeal of O'Connor's rulings.

The Justice Department has not filed a request that O'Connor's rulings be paused for the appeal. It is not clear if the administration plans to ask for that pause.

"We will do everything we can to protect and defend Americans' rights to the health care they need and deserve," said Kamara Jones, a Department of Health and Human Services spokeswoman.

White House spokesperson Karine Jean-Pierre called the case "yet another attack on the Affordable Care Act."

The decision, in a case brought by employers and individuals in Texas, represents the latest legal affront to the landmark 2010 health care law. It is unclear what immediate practical effect O'Connor's new ruling will have for those with job-based and Affordable Care Act policies because insurance companies will likely continue no-cost coverage for the remainder of the contracts even though the Obamacare requirements in question have been blocked. Contracts often last one calendar year.

O'Connor's Thursday ruling is expected to kick off a new phase of the legal battle over Obamacare's preventive care measures. The judge rejected other claims that the ACA's foes brought against the law – including challenges to the entities that determine no-cost coverage mandates for vaccines, an assortment of women's health preventive care treatments, and services for infants and children. It's possible that the plaintiffs appeal those aspects of O'Connor's handling of the case, which could put at risk coverage requirements for additional preventive services at no cost.

A lawyer for the challengers did not respond to CNN's inquiry about Thursday's decision.

O'Connor is a George W. Bush-appointee who sits in the Northern District of Texas and who has issued anti-Obamacare rulings in major challenges to the law in the past. An appeal of the current case would head to the 5th US Circuit Court of Appeals, perhaps the most conservative federal appeals court in the country.

While the case does not pose the existential threat to the Affordable Care Act that previous legal challenges did, legal experts say that O'Connor's ruling nonetheless puts in jeopardy the access some Americans will have to a whole host of preventive treatments.

"We lose a huge chunk of preventive services because health plans can now impose costs," said Andrew Twinamatsiko, associate director of the O'Neill Institute for National and Global Health Law at Georgetown University. "People who are sensitive to cost will go without, mostly poor people and marginalized communities."

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Thursday's ruling, if left standing, could have significant consequences for Americans nationwide by limiting access to key preventive services aimed at early detection of diseases, including lung and colorectal cancer, depression and hypertension.

Some of the US Preventive Services Task Force's recommendations – including lung and skin cancer screenings, the use of statins to prevent cardiovascular disease and the offer of PrEP for those at high risk of HIV – were issued after the ACA's enactment.

Certain older recommendations have been updated with new provisions, such as screening adults ages 45 to 49 for colorectal cancer.

"It would effectively lock in place coverage of evidence-based prevention with no cost sharing from 13 years ago," said Larry Levitt, executive vice president for health policy at the Kaiser Family Foundation.

Some of the cost-sharing for these preventive services can be substantial. PrEP, for instance, can cost up to $20,000 a year, plus lab and provider charges, according to Kaiser.

In an earlier ruling, the judge upheld certain free preventive services for children, such as autism and vision screenings and well-baby visits, and for women, such as mammograms, well-woman visits and breastfeeding support programs.

O'Connor also upheld the mandate that provides immunizations at no charge for the flu, hepatitis, measles, shingles and chickenpox.

These services are recommended by the Health Resources and Services Administration and the Advisory Committee on Immunization Practices.

Insurers will have to continue to cover preventive and wellness services since they are one of the Affordable Care Act's required essential health benefits. But under O'Connor's ruling, they could require patients to pick up part of the tab.

Insurers' trade associations stressed there would be no immediate disruption to coverage.

"It is vitally important for patients to know that their care and coverage will not change because of today's court decision," said David Merritt, senior vice president of policy and advocacy for the Blue Cross Blue Shield Association. "Blue Cross and Blue Shield companies strongly encourage their members to continue to access these services to promote their continued well-being. We will continue to monitor further developments in the courts."

More than 150 million people with private insurance can receive preventive services without cost-sharing under the Affordable Care Act, according to a 2022 report published by HHS.

Overall, about 60% of the 173 million people enrolled in private health coverage used at least one of the ACA's no-cost preventive services in 2018 prior to the Covid-19 pandemic, according to a recent Kaiser analysis. These include some services that will continue to be available at no charge under the judge's ruling.

The most commonly received preventive care includes vaccinations, not including Covid-19 vaccines, well-woman and well-child visits, and screenings for heart disease, cervical cancer, diabetes and breast cancer, according to Kaiser. The most commonly used preventive services will continue to be covered at no cost.

Studies have shown the Obamacare mandate prompted an uptake in preventive services and narrowed care disparities in communities of color.

"There's plenty of evidence that people responded to this incentive and started using preventive care more often," said Paul Shafer, assistant professor of health policy at Boston University.

This story has been updated with additional details.

"Free" Screening? Know Your Rights To Get No-cost Care

An ounce of prevention ... Well, you know the rest. In medicine, prevention aims to spot problems before they worsen, affecting both a patient's health and finances.

One of the more popular parts of the Affordable Care Act, which allows patients to get certain tests or treatments without forking out cash to cover copayments or deductibles, is based on that idea.

"There are still some gaps that need to be filled," said Katie Keith, a researcher at the Center on Health Insurance Reforms at Georgetown University. But, she said, the law "unquestionably" made preventive care more affordable.

Since late 2010, when this provision of the ACA took effect, many patients have paid nothing when they undergo routine mammograms, get one of more than a dozen vaccines, receive birth control, or are screened for other conditions, including diabetes, colon cancer, depression, and sexually transmitted diseases.

That can translate to big savings, especially when many of these tests can cost thousands of dollars.

Yet this popular provision comes with challenges and caveats, from an ongoing court case in Texas that might overturn it, to complex and obtuse qualifiers that can limit its breadth, leaving patients with medical bills.

KHN spoke with several experts to help guide consumers through this confusing landscape.

Their No. 1 tip: Always check with your own health plan beforehand to ensure that a test, vaccine, procedure, or service you need is covered and that you qualify for the no-cost-sharing benefit. And, if you get a bill from a physician, clinic, or hospital that you think might qualify for no cost sharing, call your insurer to inquire or dispute the charge.

Here are five other things to know:

1. Your insurance matters.

The law covers most types of health insurance, such as qualified health plans under the ACA that consumers have purchased for themselves, job-based insurance, Medicare, and Medicaid. Generally not included are pre-ACA legacy health plans, which were in existence before March 2010 and have not changed since then, and most short-term or limited-benefit plans. Medicare and Medicaid's rules on who is eligible for what tests without cost sharing may vary from those of commercial insurance, and Medicare Advantage plans in some cases may have more generous coverage than the traditional federal program.

2. Not all preventive services are covered.

The federal government currently lists 22 broad categories of coverage for adults, an additional 27 specifically for women, and 29 for children.

To get on those lists, vaccines, screening tests, drugs, and services must have been recommended by one of four groups of medical experts. One of those is the U.S. Preventive Services Task Force, a nongovernmental advisory group that weighs the benefits and potential drawbacks of screening tests when used in the general population.

For example, the task force recently recommended lowering the age for colon cancer screening to include people ages 45 through 49. That means more people won't have to wait for their 50th birthday to skip copays or deductibles for screening. Still, younger folks might be left out a bit longer if their health plan applies to the calendar year, which many do, because those plans are not technically required to comply until January.

This area is also one in which Medicare sets its own rules that might differ from the task force's recommendations, said Anna Howard, a specialist in care access at the American Cancer Society Cancer Action Network. Medicare covers stool tests or flexible sigmoidoscopies, which screen for colon cancer, without cost sharing starting at age 50. There is no age limit on screening colonoscopies, although they are restricted to once every 10 years for people at normal risk. Coverage for high-risk patients allows for more frequent screening.

Many of the task force recommendations are limited to very specific populations.

For instance, the task force recommended abdominal aortic aneurysm screening only for men ages 65 to 75 with a history of smoking.

Others, including women, should get tested if their physicians think they have symptoms or are at risk. Such tests then could be diagnostic, rather than preventive, triggering a copayment or deductible charge.

3. There can be limits.

Insurers have leeway on what is allowed under the rules, but they have also been warned that they can't be parsimonious.

California, for example, recently cracked down on insurers who were limiting cost-free testing for sexually transmitted diseases to once a year, saying that wasn't adequate under state and federal laws.

The ACA does set some parameters. Federal guidance says stop-smoking programs, for example, must include coverage for medications, counseling, and up to two quit attempts per year.

With contraception, insurers must offer at least one option without copays in most categories of birth control but are not required to cover every single contraceptive product on the market without copays. For example, insurers could choose to focus on generics, rather than brand-name products. (The law also allows employers to opt out of the birth control mandate.)

4. Some tests — often the expensive ones — have special challenges that affect coverage determinations.

As the ACA went into effect, trouble spots emerged. There was a lot of drama around colonoscopies. Initially, patients found they were billed for copayments if polyps were found. But health regulators put a stop to that, saying polyp removal is considered an essential part of the screening exam. Those rules apply currently to commercial insurance and are still phasing in for Medicare.

More recently, federal guidance clarified that patients cannot be charged for colonoscopies ordered following suspicious findings on stool-based tests, such as those mailed to patients' homes, or colon exams using CT scanners.

The rules apply to job-based and other commercial insurance with one caveat: They go into effect for policies whose plan years start in May, so some patients with calendar-year coverage may not yet be included.

At that point, it will be "a gigantic win," said Dr. Mark Fendrick, director of the University of Michigan's Center for Value-Based Insurance Design.

But, he noted, Medicare is not included. He and others are urging Medicare to follow suit.

Such differences in payment rules based on whether an exam is considered a diagnostic or a screening test are a problem for other types of tests, including mammograms.

This recently tripped up Laura Brewer of Grass Valley, California, when she went in for a mammogram and ultrasound in March, six months after a cyst had been noticed in a previous exam by a different radiologist. The earlier test didn't cost her anything, so she was stunned by her bill for more than $1,677 for procedures now considered diagnostic.

"They are giving me the same service and changed it to be diagnostic instead of screening," Brewer said.

Georgetown's Keith pointed out a related complication: It might not be a specific development or symptom that triggers that change. "If patients have a family history and need to get tested more frequently, that is often coded as diagnostic," she said.

5. Vaccines and medicines can be tricky, too.

Dozens of vaccines for children and adults, including those for chickenpox, measles, and tetanus, are covered without cost sharing. So are certain preventive medicines, including certain drugs for breast cancer and statins for high cholesterol. Preexposure medications to prevent HIV — along with much of the associated testing and follow-up care — are also covered without cost to HIV-negative adults at high risk.

So, what's next?

Overall, the ACA has helped lower out-of-pocket costs for preventive care, said Keith. But, like almost everything else with the law, it has also attracted critics.

They include conservatives opposed to some of the free services, who filed the lawsuit in a Texas federal district court that, if it prevails, could overturn or restrict part of the law that provides no cost sharing for preventive care.

A ruling in that case, Kelley v. Becerra — the latest in a series of challenges to the ACA since it took effect — may come this summer and will likely be appealed.

If the ultimate decision invalidates the preventive mandate, millions of patients, including those who buy their own insurance and those who get it through their jobs, could be affected.

"Each insurer or employer would be left to decide which preventive services to cover and whether to do so with cost sharing," said Keith. "So even those who did not lose access to preventive services themselves could have to pay out-of-pocket for all or some preventive care."

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

State-of-the-Heart Care At Kaiser Permanente

Every heart deserves high-quality care. From preventive screenings and primary care to advanced cardiac procedures, with Kaiser Permanente, your heart is in excellent hands.

Kaiser Permanente is Colorado's leading nonprofit1 health plan and one of the state's largest health care providers. We take a different approach to health care by combining care and coverage. This means that Kaiser Permanente's 1,200+ Colorado doctors and health plan benefits are connected. Our care teams collaborate using a shared electronic health record to provide world-class care.

Recognizing and treating an unexpected heart problem — fast

During a routine annual physical, Rich Maloy's primary care doctor discovered a congenital heart defect that had gone undetected his entire life. Watch to learn how Rich's Kaiser Permanente care team helped catch his condition early and perform a timely, lifesaving surgery.

"It's a very special thing when you can have that…level of trust with your primary care doctor…I think this is a unique aspect of Kaiser Permanente with this integrated model because the doctors are focused on the patient." – Rich Maloy, Kaiser Permanente Colorado member

Supporting healthier, longer lives

Prevention is at the heart of Kaiser Permanente's approach to cardiac care. We understand the importance of regularly checking heart health numbers and tracking them over time. Automatic reminders from your electronic health record make it easier for you to stay current with preventive screenings. This helps us spot problems earlier and start treatment sooner.

Our connected model of primary care doctors, specialists, and care team members consulting seamlessly is why Kaiser Permanente leads the state in controlling high blood pressure2 and our members are 33% less likely to experience premature death due to heart disease.3

Mark Jeong, MD, and Tracy Huckin, DO, CardiologyKaiser Permanente Lone Tree Offices More ways to care for you

Kaiser Permanente is growing alongside the metro Denver community. Construction is underway on two brand-new medical offices in Parker and Lakewood. Scheduled to open in late 2025, the 22,400-square-foot Parker Medical Offices will provide more space to deliver primary care, pharmacy, lab, and imaging services under one roof. Our new 116,500-square-foot, 3-story Lakewood Medical Offices are scheduled to open mid-year 2026. Designed to improve patient experience, this location will provide both primary and urgent care in the same building, with a focus on innovative technology and environmental sustainability.

With 29 medical offices along Colorado's Front Range, Kaiser Permanente makes it easier to get care — when, where, and how you need it.

Explore Kaiser Permanente health plans and learn how our doctors deliver top-rated4 care.

Kaiser Permanente Colorado is composed of the nonprofit Kaiser Foundation Health Plan of Colorado and the for-profit Colorado Permanente Medical Group, P.C.

The source for data contained in this publication is Quality Compass® 2023 and is used with the permission of the National Committee for Quality Assurance (NCQA). NCQA specifically disclaims responsibility for any such display, analysis, interpretation, or conclusion, of Quality Compass data. Quality Compass is a registered trademark of NCQA. CAHPS is a registered trademark of the Agency for Healthcare Research and Quality (AHRQ).

Elizabeth A. McGlynn, PhD, et al., "Measuring Premature Mortality Among Kaiser Permanente Members Compared to the Community," Kaiser Permanente, July 20, 2022.

Of the 15 commercial health plans in Colorado rated by the National Committee for Quality Assurance, ours is one of the top-rated plans in the state. NCQA's Private Health Insurance Plan Ratings 2023–2024, National Committee for Quality Assurance, 2023: Kaiser Foundation Health Plan of Colorado — HMO (rated 4 out of 5).

Immunization