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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."
Obamacare has survived over 2,000 attempts to kill it (June 2021)
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.
No-cost Preventive Services Are Now In Jeopardy: Implications Of The ACA Ruling
(Photo: Shutterstock)
When a federal judge in Texas declared unconstitutional a popular part of the Affordable Care Act that ensures no-cost preventive care for certain services, such as screening exams for conditions such as diabetes, hepatitis, and certain cancers, it left a lot of people with a lot of questions.
On the face of it, the March 30 decision could affect ACA and job-based insurance plans nationwide and a host of medical services now free for patients.
No-cost Preventive Services Are Now In Jeopardy. Here's What You Need To Know.
Apr 7 2023
When a federal judge in Texas declared unconstitutional a popular part of the Affordable Care Act that ensures no-cost preventive care for certain services, such as screening exams for conditions such as diabetes, hepatitis, and certain cancers, it left a lot of people with a lot of questions.
On the face of it, the March 30 decision could affect ACA and job-based insurance plans nationwide and a host of medical services now free for patients.
What does this mean, really, for people with insurance? Policy and legal experts say there are some unanswered questions and a whole lot of nuances.
First, some background. The case, the latest legal challenge to the ACA, was brought by several individuals and an employer in Texas who argued the law's requirement of free preventive care is unconstitutional, and also contended that requiring coverage of HIV prevention treatment can violate employers' religious rights.
U.S. District Judge Reed O'Connor agreed with some of their arguments, declaring unconstitutional one way the recommended tests are chosen, and agreeing that requiring employers to offer preexposure prophylaxis treatment for HIV, known as PrEP, violates the Religious Freedom Restoration Act. But O'Connor disagreed on other points that could have eliminated no-pay coverage for such things as contraceptives and vaccines.
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.
But as the case makes its way through the court system — both the Department of Justice and the plaintiffs have filed notices that they would appeal — here are four things to keep in mind:
1. A lot remains uncertainBecause of the ACA, most insured people currently get preventive care that includes screening tests like mammograms and colonoscopies — along with other exams, such as checks for bone thinning in older women, depression in adults, or obesity in children — without being charged a copay or money toward a deductible. There's a long list of qualifying services, including all those that get a top "A" or "B" recommendation from the U.S. Preventive Services Task Force, or USPSTF, an independent group of volunteer experts.
But O'Connor, of the U.S. District Court for the Northern District of Texas, said members of that volunteer task force, who are appointed by the director of a federal agency, are "'officers' of the United States" and therefore need to be appointed by the president and confirmed by the Senate. Because they are not, he ruled that the use of their recommendations to set free preventive services under the ACA is unconstitutional.
Here's where things get confusing, because not all of the more than 50 task force recommendations would necessarily be affected if the ruling stands.
Some policy experts said certain services would remain free of copayments or other cost sharing for patients, partly because certain tests or treatments are also recommended under guidelines from other federal agencies and are therefore not affected by the ruling.
The federal Health Resources and Services Administration, for example, sets preventive care guidelines for a host of women's health issues, including mammograms and contraception, although there is an exemption for religious employers. Additionally, a Centers for Disease Control and Prevention advisory committee recommends certain vaccines for children and adults. Further, cost sharing might not apply to some services because many experts expect the ruling will not impact tests or treatment recommendations made before 2010, the year the ACA went into effect.
"The idea is that when Congress passed the ACA, it adopted all the recommendations from the USPSTF prior to 2010, but anything since then the judge says is not constitutional," said Timothy Jost, law professor emeritus at Washington and Lee University School of Law, who closely follows the ACA.
2. What is certainOne problem, though, is most of the recommendations have been revised, part of the task force's ongoing work to update recommendations as new scientific evidence arises.
A recent addition, for example, made in 2021, was to recommend that adults ages 45 to 49 get screened for colorectal cancer. Prior to that, the screening was aimed mainly at adults 50 and older.
One possible effect of the judge's ruling, if it's not overturned on appeal, is that people ages 45 to 49 might no longer be guaranteed no-copay colon cancer screenings.
But the changes could be broader.
That's because it isn't clear how the ruling would affect recommendations that have been revised since 2010. For instance, would any revision or update made by the task force since 2010 make the entire recommendation subject to the ruling, Jost asked, or would the ruling apply only to the change made, such as the expansion of the age for colon cancer screening?
"Is everything the USPSTF touched since 2010 now unconstitutional?" asked Jost.
There may be only two pre-2010 recommendations that are unchanged since then, and both involve tests done during pregnancy to see if the blood of mothers and babies is compatible, said Dr. A. Mark Fendrick, director of the Center for Value-Based Insurance Design at the University of Michigan.
New or updated recommendations include: A 2019 recommendation that PrEP be offered to people at high risk of getting HIV, a 2021 update for annual lung cancer scans for certain current or former smokers, and screening for hepatitis C in adults ages 18 to 79, updated in 2020.
3. It will depend on your coverage and your geographyEach insurer and self-insured employer will decide whether to reinstate copayments or other cost sharing for these services. Even if they do, it may take time for them to go into effect, especially given that policies are now in the middle of a plan year, making them contractually hard to change.
"It will depend on your employer and what they want to do, and depend on whether you have a collective bargaining agreement and a whole lot of other variables," said Sara Rosenbaum, a professor of health law and policy at George Washington University.
That type of varying coverage was "exactly what the ACA was designed to get away from, in order to make this more uniform for all of us," Rosenbaum added.
Even with the ruling, at least 15 states have laws requiring coverage of preventive services without cost sharing, according to an analysis by researchers at Georgetown University's Center on Health Insurance Reforms.
But state rules apply only to ACA plans and job-based plans offered by employers who buy coverage from an insurer. Most large employers — and a growing number of smaller ones — self-insure and are not subject to state coverage rules.
4. What happens next?Congress could resolve the matter with a simple fix to the ACA, says Fendrick, of the University of Michigan. "Give the task force recommendations approval by the secretary of the Department of Health and Human Services and it's done," he said.
Still, even though the preventive services coverage is very popular with consumers, the politics of changing the ACA are challenging, especially in a sharply divided Congress.
In the meantime, the case will go through the appeals process, and a final resolution could take months or even years.
The Department of Justice will seek to overturn the ruling, while plaintiffs will likely seek to broaden it, by challenging the parts of the judge's ruling that went against them. Specifically, the individuals and employer who brought the case wanted the ruling also to cover recommendations made by other agencies, including the set of women's health recommendations that include contraceptives.
"Everything as far as we are concerned is in play," Rosenbaum said.
This article was reprinted from khn.Org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.
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